Column: The American Constitutional Regime Viewed From a German Perspective (New York Law Journal)

By Christopher Dunn 

As we lurch towards a presidential election that will determine the composition of the U.S. Supreme Court and with it the likely fate of American constitutional law for the next generation, it can be valuable to step back and examine our constitutional landscape from a broader perspective. Having just spent six weeks teaching human rights at a Berlin university, I have had the opportunity to consider how American civil rights and liberties compare to those in Germany, one of the most important and influential countries in the world.

As a representative democracy with a federal constitution and a well-developed judiciary, Germany has a general constitutional regime quite similar to ours. A closer comparison, however, highlights features of our regime that, for better or worse, distinguish it. And recent major controversies in the U.S. and in Germany involving the death penalty, criticism of government officials, voting rights, and abortion illuminate interesting similarities and differences between American and German civil rights and civil liberties.

Our Constitutional Regime

An appreciation of our constitutional regime from a German perspective starts with the constitutions themselves. Our document of course grew out of the American war for independence from England, with the Constitution being adopted in 1787 and the Bill of Rights (with the first through tenth amendments) being ratified in 1791. To this day, the political context, Founding Fathers’ intentions, and even 18th century language of our Constitution play a prominent and often-proud role in resolving constitutional disputes. By contrast, the German Constitution – known more formally as the Basic Law for the Federal Republic of Germany – dates only to 1949. Joseph Stalin, Winston Churchill, and Franklin Roosevelt may be best described as its Founding Fathers, with the document being developed as part of the Allies’ construction of West Germany following the defeat of Nazi Germany in World War II.¹ Given these circumstances, German constitutional disputes carry with them a very different historical dimension. Consistent with the historical differences in the genesis of the two documents are differences between the roles played by the U.S. Supreme Court and its German counterpart.

A defining feature of the American constitutional regime is the outsized role of the Supreme Court, a role that dates back to 1803 when the Court ruled in Marbury v. Madison²  that it had the authority to invalidate congressional legislation because “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That principle was severely tested when Southern authorities refused to comply with the Court’s 1954 ruling in Brown v. Board of Education that racial segregation in schools violated the Fourteenth Amendment, but the Court did not flinch in asserting its authority over all state and local officials in constitutional matters.³ 

In the sixty years since, the power of the Supreme Court has continued to grow to the point that many understandably question the Court’s legitimacy in resolving major social issues. More immediately, the vacancy created by the recent death of Justice Antonin Scalia has become a major issue in the upcoming election and has underscored how deeply politicized the process has become for appointing Justices. The drama surrounding our Supreme Court looks all the more notable when one compares the situation in Germany, where a specialized court adjudicates constitutional disputes. Created as part of the 1949 German Basic Law, the German Federal Constitutional Court did not face the challenges the U.S. Supreme Court did in establishing the “judicial review” that sprung from Marbury v. Madison. And while the Federal Constitutional Court has issued controversial rulings — for example, a 1975 abortion ruling that recognized the human dignity of the fetus and invalidated an effort to liberalize the country’s abortion law — it is far from the political flashpoint that the U.S. Supreme Court has become. Notably and in contrast to our situation, the Federal Constitutional Court is comprised of sixteen members who serve staggered 12-year terms and have to retire at 68.

Finally, the operation of the Federal Constitutional Court highlights the disengagement of civil rights in the U.S. from international norms. The German court works in the larger context of extra-national human-rights commitments made by Germany, and litigants can appeal some cases to the European Court of Human Rights. For instance, that court recently invalidated a German Federal Constitutional Court ruling that had rejected a double jeopardy-like challenge to continued imprisonment of inmates who had completed their sentences but were deemed to be dangerous. By contrast, the U.S. Supreme Court of course is the final stop in constitutional legal disputes in this country. Moreover, the Court has largely refused to consider international law and norms when adjudicating civil rights disputes before it. One of the few examples of its having done so is Roper v. Simmons,⁴ the 2005 decision in which Justice Kennedy referred to international norms in striking down capital punishment of juvenile offenders, which prompted a caustic attack from Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas. Adjudication of constitutional disputes in the United States remains a decidedly domestic and insular affair.

Our Constitutional Rights

As one might expect, the specific contours of constitutional rights in the United States and Germany differ in important ways. Four recent controversies in the U.S. and Germany highlight some of those differences. Death Penalty– Three weeks ago the pharmaceutical giant Pfizer announced it would bar the use of its products in lethal injections, which reportedly would end the availability of the last remaining approved drugs that states use in carrying out the death penalty. In the 40 years since the Supreme Court ruled in Gregg v. Georgia⁵ that states could resume executing people, advocates have been relentlessly litigating in an effort to have the death penalty declared unconstitutional across the board. With the exception of decisions barring capital punishment for juveniles and the mentally retarded, those efforts have largely been unsuccessful, but last month’s decision by Pfizer should make capital punishment practically and politically more difficult and may open new avenues for still more litigation. Meanwhile, in 2015 states executed 28 people and sentenced another 58 to death. In Germany, by contrast, there are no executions, no death sentences, and no litigation over capital punishment. Simply and elegantly, the German Constitution declares, “Capital punishment is abolished.”⁶  Criticism of Government Officials–

During the time I was in Germany, the human-rights issue that generated the most conversation was prompted by a German satirist, Jon Bohmermann, who had composed and read on television a vulgar poem attacking Turkish President Recep Tayyip Erdogan and accusing him of bestiality. Invoking an obscure German law that authorized criminal prosecutions for insulting a foreign head of state if approved by the German Chancellor, Erdogan called on Chancellor Angela Merkel to authorize a prosecution of Bohmermann. Caught in the middle of trying to protect a pact she had negotiated with Erdogan over refugees, Markel approved the prosecution on April 15, which in turn prompted a national debate about free speech rights.

In the United States, the Supreme Court faced a nearly identical controversy in 1988 when Reverend Jerry Falwell, then a prominent figure in the debate over abortion and other hot-button social issues, sued over a Hustler Magazine parody that purported to be an interview of him in which he discussed a drunken attempt to have sex with his mother in an outhouse. In Hustler Magazine v. Falwell⁷ the Court had little difficulty in concluding that, no matter how outrageous the parody, the First Amendment squarely protected it given that Falwell was a public figure and given that no reasonable person would think the interview was real. What will happen in Germany with Mr. Bohmermann remains to be seen, though many assume the Federal Constitutional Court will strike down the law if the case ever reaches it. Nonetheless, it is worth noting that the German Constitution contains greater protections for individual privacy and dignity than does our Constitution. Voter Identification– Last month, retired Supreme Court Justice John Paul Stevens expressed reservations about one of the most notorious decisions he authored, Crawford v. Marion County Election Board,⁸  the 2008 ruling in which the Court upheld an Indiana law that required registered voters to present government-issued identification in order to vote. In the aftermath of Crawford, many Republican-controlled states enacted voter-ID schemes, invoking concerns about voter fraud. Opponents contend the statutes are simply designed to disenfranchise likely Democratic voters and point to the absence of evidence of actual voter fraud. (Indeed, the Supreme Court in Crawford acknowledged that “[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.”) According to press reports, Stevens last month told a gathering led by Justice Elena Kagan at the Seventh Circuit’s judicial conference that he was aware of evidence outside the record before the Court that called into question the motives of state officials in enacting the Indiana law and that he now viewed the decision as “unfortunate.” Nonetheless, with the Court last year having declined to review a case challenging a Wisconsin voter-ID statute and that had been designed to allow the Court to remedy Crawford, voter ID rules spawned by Crawford will control voting in many states this November.

In Germany, voters also must present government-issued cards, but that requirement reflects a far more restrictive approach to government monitoring of people. Underlying the challenge to U.S. voter ID rules is the fundamental point that Americans are not required to have government-issued identification and the practical point that getting such identification can be genuinely difficult for some. In Germany, by contrast, every person is required to register in person with local government authorities. As a byproduct of that registration process, the person is enrolled to vote and receives a voter identification card for use at the polls. As troubling as voter ID rules here are, a universal government-registration scheme like the one in place in Germany would raise far greater civil liberties concerns. Abortion– We are in the middle of an abortion war in the U.S., and in early March the Supreme Court heard argument in the most recent battle: a challenge to a newly-enacted Texas law requiring, among other things, that clinic doctors performing abortions have admitting privileges at nearby hospitals and that clinics meet the same facility standards imposed on “ambulatory surgical centers.” Those challenging the law contend that the requirements are medically unnecessary and would have the effect – not coincidentally – of forcing most abortion clinics in Texas to close, thereby forcing women to travel substantial distances to obtain a legal abortion. At issue before the Court is whether these restrictions place an “undue burden” on the right to abortion, the new legal benchmark the Supreme Court established in 1992 when it abandoned the trimester framework of Roe v. Wade⁹ and upheld a 24-hour waiting period for women seeking early abortions, thus opening the door to a wave of new abortion regulations. In contrast to the tumult here, abortion rights are largely settled in Germany, and women there face substantially greater obstacles. While American women are entitled to obtain an abortion until the fetus is viable, in Germany abortions are not permitted after 12 weeks except when maternal or fetal health creates an emergency. And even during the permissible 12-week window, women must consult with a physician three separate times and then, after another waiting period, must have a separate doctor perform the abortion.

Stepping Back

Here in the United States we can be rightfully proud of our constitutional legacy, our long and stable history of the rule of law, and the broad individual civil rights and civil liberties enshrined in our Bill of Rights, as construed by the judiciary. Yet, as even a cursory review of the German constitutional landscape reveals, our system has significant shortcomings, including the politicization of the Supreme Court, the disregard for international human-rights norms, and the crabbed interpretation of too many of our constitutional guarantees. On these issues and more, the upcoming presidential election likely will mark the beginning of a new era.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at cdunn@nyclu.org

Footnotes 1 As a technical matter of course, none of these three leaders played a role in creation of the Basic Law, as by 1949 Roosevelt was dead, Churchill was out of power, and Stalin’s Soviet Union was an adversary of the western allies formally involved in the process (which included the U.S., the U.K, and France). But it was the military defeat of Nazi Germany by the Russians, the U.S., and the British that paved the way for the German Constitution four years after the war ended. 2 5 U.S. 137 (1803). 3 Aaron v. Cooper, 358 U.S. 1 (1958). 4 543 U.S. 551 (2005). 5 428 U.S. 153 (1976). 6 Basic Law of the Federal Republic of Germany, Art. 102. 7 485 U.S. 46 (1988). 8 553 U.S. 181 (2008). 9 410 U.S. 113 (1973).