Prof. Kommers examines German Basic Law

Author: Susan Good


The following was published in Frankfurter Allgemeine Zeitung, FAZ.NET (May 18, 2009)
Click here for original article in German

English translation:
Have we taken the concept of constitutional patriotism too far? Some constitutional scholars are adding to the festivities surrounding the anniversary of the German Republic the thesis that the success of the Basic Law during the past 60 years has in itself imperiled German democracy. In fact, the constitution has been stylized as a sacred text, resulting in inordinate restrictions on the legislative discretion of the parliament not due to the will of the framers of the constitution, but due to the bigoted previous understanding of the interpreters of the Basic Law. The foremost US authority of the Basic Law does not share this concern voiced by German liberal positivists.

Donald Kommers, Professor of Law at the University of Notre Dame Law School in Indiana, USA, and the author of the leading English textbook on the constitutional law of the Federal Republic delivered a talk on the history of the past sixty years of the Basic Law before the American Academy in Berlin; in his lecture, he compared it with the American experience in a consistent and clear manner. According to Kommers, the sacralization of the original republican text characterizes the entire history of the interpretation of the US Constitution. On the other hand, by American standards, the fate of the Basic Law within the political system that had been originally constituted by that very Basic Law would have to be considered a desecration [very pedestrian document].

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