E-Book Overview
First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller's discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions. Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany's Basic Law and, therefore, the systematic approach reflected in the most-respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from Reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany's counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.
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The Constitutional Jurisprudence of the Federal Republic of Germany ∂ The Constitutional Jurisprudence of the Federal Republic of Germany thir d e dition, r e v ise d a n d e x pa n de d Donald P. Kommers and Russell A. Miller With a New Foreword by Justice Ruth Bader Ginsburg Duke University Press Durham and London 2012 © 2012 Duke University Press All rights reserved. Printed in the United States of America on acid-free paper ∞ Designed by C. H. Westmoreland Typeset in Arno Pro by Westchester Publishing Ser vices Library of Congress Cataloging-in-Publication Data Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany / Donald P. Kommers and Russell A. Miller. — 3rd ed., rev. and expanded / foreword to the 3rd ed. by Justice Ruth Bader Ginsberg. p. cm. Includes bibliographical references and index. isbn 978- 0-8223-5248-8 (cloth : alk. paper) — isbn 978- 0-8223-5266-2 (pbk. : alk. paper) 1. Constitutional law— Germany—Cases. 2. Judicial review— Germany—Cases. I. Miller, Russell A., 1969– II. Ginsburg, Ruth Bader. III. Title. KK4446.7.K66 2012 342.43—dc23 2012011594 ∂ For Nancy — donald p. kommers For Theresa, who gave me Germany — russell a. miller Contents ∂ foreword to the third edition: Justice Ruth Bader Ginsburg xi preface to the third edition xiii ac know ledg ments xvii note on translation and judicial opinions xxi abbreviations xxv ∂ Part I German Constitutionalism 1. The Federal Constitutional Court 3 Origin 4 Jurisdiction 10 Institution 17 Process 25 Judicial Review in Operation 33 Conclusion 40 2. The Basic Law and Its Interpretation 42 New Constitutionalism of the Basic Law 43 Nature of the Polity 48 Theories of the Constitution 55 Theory of Basic Rights 59 Interpretive Modes and Techniques 62 Sources of Interpretation 70 Conclusion 75 ∂ Part II Constitutional Structures and Relationships 3. Federalism 79 Territorial Organization 80 Doctrine of Federal Comity 90 Apportionment and Distribution of Revenue 95 Local Self-Government 104 Bundesrat, Reform Gridlock, and Modern Federalism 110 viii CONTENTS Division of Legislative Power 120 Cooperative Federalism 138 Implementation of Federal Law 143 Conclusion 150 4.