Constitutional Review of Statutes in Germany and the United States Compared

22 Pages Posted: 20 Aug 2018 Last revised: 13 Sep 2018

See all articles by Lothar Determann

Lothar Determann

Baker & McKenzie LLP; Freie Universit├Ąt Berlin; Berkeley School of Law; University of California Hastings College of the Law

Markus Heintzen

Free University of Berlin (FUB) - Department of Law

Date Written: August 7, 2018

Abstract

In Germany as well as the United States courts are engaging in the controversial and extremely political practice of constitutional review of statutes passed by the elected legislature. Under the German Constitution (Grundgesetz) this practice was placed in the hands of the specialized Federal Constitutional Court (Bundesverfasungsgericht). Its power to conduct such review is laid out in the German Constitution as well as in a separate federal statute. Provisions therein govern the means of constitutional review and stipulate that the Constitutional Court ought to declare a law to be null and void if it violates the German Constitution. However, bearing in mind the political consequences of invalidating a law, the Constitutional Court has in some cases not been reluctant to take alternative approaches in order to avoid declaring a law to be null and void. This is usually the case, if a declaration of invalidity worsens or fails to remedy the violation of the Constitution or if there are different political options about how to overcome a breach of the constitution (e.g. in a case of a breach of the principle of equality). In the United States, courts are also conducting constitutional review of statutes. However, the origins, scope and means of judicial constitutional review of statutes are different. Moreover, the U.S. judges find less guidance in the U.S. Constitution or other statutes on how to conduct constitutional review or how to address unconstitutional statutes. Despite the absence of explicit constitutional or statutory rules on how unconstitutionality should be dealt with, courts in the United States generally also default to declaring a statute void if it conflicts with the Constitution of the United States. However, just like in Germany, the U.S. courts deviate from the default remedy of nullity to adequately address unconstitutionality. In this article, we analyze and compare the techniques developed by the German Constitutional Court and the U.S. Supreme Court to avoid a declaration of nullity where it would be counterproductive. The article begins with a brief overview of the constitutional and statutory regimes for constitutional judicial review in Germany and the United States in Part I and then examines the origins and history of constitutional review in Part II. Part III of the article outlines the different means of constitutional review within the United States and Germany, which essentially stem from the different origins of judicial review in both jurisdictions. Part IV defines the concept of unconstitutionality under the Constitution of the United States and the German Constitution. Part V outlines the reasoning of the courts over questions of unconstitutionality. In Part VI. the legal effects of a declaration of unconstitutionality by the courts are examined and similarities are drawn. By doing so the article deals with the courts' default remedy of nullity and critically examines what other techniques are applied in both jurisdictions (e.g., partially invalidating laws, declaring laws to be incompatible with the respective constitution without invalidating them, giving admonitory decisions and interpreting laws in conformity with the constitution). Part VII finishes off by concluding that despite the different origins, scope and means of constitutional review within the United States and Germany, courts in both countries have a similar understanding of the meaning of unconstitutionality and apply similar techniques when deciding on the constitutionality of a law.

Keywords: Constitution, German Law, U.S. Law, Voidness, Voidability, Balance of Powers, German Constitution, Grundgesetz, Bundesverfassungsgericht

Suggested Citation

Determann, Lothar and Heintzen, Markus, Constitutional Review of Statutes in Germany and the United States Compared (August 7, 2018). UC Hastings Research Paper No. 299, Available at SSRN: https://ssrn.com/abstract=3228016 or http://dx.doi.org/10.2139/ssrn.3228016

Lothar Determann (Contact Author)

Baker & McKenzie LLP ( email )

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Freie Universit├Ąt Berlin ( email )

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Berkeley School of Law ( email )

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University of California Hastings College of the Law ( email )

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Markus Heintzen

Free University of Berlin (FUB) - Department of Law ( email )

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Berlin, 14195
Germany

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