Constitutions—Their Role Through the Ages: Notes on the 59th Meeting of German-Speaking Public Law Assistants in Frankfurt am Main

Abstract

Once a year, the German-speaking public law assistants meet to discuss recent developments in their working areas. This year, the anniversary of several enactments of constitutions, such as the Grundgesetz, suggested to discuss issues with regard to the role of constitutions for the democratic state, constitutional change, and the relevance of constitutions for societal cohabitation. During the lively discussions, one could observe a trend towards interdisciplinary research in the work of young public law scholars.

A. Introduction: The Annual Meetings of German-Speaking Public Law Assistants and Their First Meeting in Frankfurt

Every legal regime throughout the world has its idiosyncrasies, as is the case with academic culture. Among the most remarkable examples is the yearly gathering of the German-speaking public law scholars: The Staatsrechtslehrertagung. But there is another annual event for young public law scholars, referred to as the “little brother” of the above-mentioned conference. Established in 1961 as a meeting of only thirty-one Assistenten in Hamburg,¹ the conference soon developed into a large and important gathering.² Today, the Assistententagung is a must-attend event for young scholars who look to pursue a career in academia. Many current senior professors started their academic lives here, where they held one of their first academic speeches. But it is not only because of the thrilling speeches and vivid discussions that an increasing number of young scholars attend the conference: As one early attendant of the meeting stated, the evenings of the Assistententagung have always been entertaining as well.³ Therefore, young scholars convene annually to indulge in exciting discussions, both at the panels and after the official framework program.⁴

The topic of this year’s conference, “Constitutions—Their Role Through the Ages,” was as universal as it was topical. Not only does the German Grundgesetz celebrate its seventieth birthday in May 2019, it is also 100 years ago that the Weimarer Reichsverfassung was enacted, and 170 years ago that the short, but momentous, history of the Paulskirchenverfassung began. What better year to talk about a number of issues dealing with constitutions? For that purpose, the Assistententagung took place in Frankfurt am Main from February 19 to February 22, 2019. Made possible by the excellent organization on the part of research assistants from the Goethe-Universität Frankfurt am Main, around 250 young public law scholars came together for discussions, networking, and conversations about their passion: The further academic development of public law—not only in the German-speaking countries of Germany, Austria, and Switzerland, but throughout the world.

B. The Seven Panels: Constitutions Through the Ages

With each panel looking at a number of issues with regard to constitutions and constitutional law recently discussed, the conference started with a panel on constitutional connections (VerfassungsBeziehungen). Kathrin Strauß (Münster)⁵ chose an interdisciplinary approach for analyzing the emergence of a constitution. Using social ontology and the theory of speech acts, she evaluated a phase of constitutional development for which legal studies and legal doctrine have yet to deliver robust results—the “zero hour” of a constitution. Breaking with the somewhat mythological concept of omnipotent founding fathers or mothers and fathers of the Grundgesetz, Strauß took the viewpoint of an observer being outside of the occurrence of the constitution. She thereby found that the constitution is an institutional truth, shaped by more than the constitutional text.

A characteristic of the German public interacting with their constitution is constitutional patriotism (Verfassungspatriotismus).⁶ In her talk, Eva Ricarda Lautsch (Bochum)⁷ took a rather critical view on the philosophical concept, pointing out that using a constitution as a focal point of patriotism entails some difficulties. According to Lautsch, a constitution is a set of legal guidelines, rather than a set of values. Alternatively, understanding a constitution as an objective set of values—such as the German Federal Constitutional Court does—leads to an understanding of a constitution not fit to adapt to societal changes or provide a set of rules for an ever-changing constitutive people. Moreover, a constitution is in constant need of legitimization by the people governed by it. Assessing the constitution from a patriotic point of view carries the danger of not having political debates as lively and controversial as they should be. The in-depth and elaborated analysis of the concept of constitutional patriotism discussed by Lautsch stimulated the audience to think about the role a constitution should play in a society and how different ways of understanding the normative power of a constitution can change its influence on political and civic discourse.

Constitutions are meant to distribute power between different actors within states. Yet, because constitutions can be altered, the second panel on constitutional forces (VerfassungsKräfte) discussed which forces of constitutional development can be identified and which actors wield them. In his insightful and captivating presentation, Josef Müllner (Wien)⁸ showed how the Austrian constitution (Bundesverfassung) developed in the course of its near centennial history. He stressed that, because constitutions are very much influenced by the societal conditions of the time during which the text is drafted, constitutional continuity can only be expected when legislators and applicants of the constitutions—such as courts and legal scholars—seek to amend the text of the constitutions or their interpretation of constitutional clauses regularly and readily. To support his argument, Müllner provided examples for the discourse between the Austrian legislature, the Constitutional Court, and legal scholars that eventually resulted in the development of the Austrian Bundesverfassung. The speech—providing similar or different examples in the Swiss and German discourses—was well appreciated by the audience.

In his interesting and vividly presented speech, Sven Jürgensen (Düsseldorf)⁹ showed how political reality often contrasts with the normative constitutional ideal of how politics should be. As electoral law, the law on political parties, the laws of federal and state parliaments, and other statutes regulating politics—thus being the corpus of the law on politics—are to be interpreted in conformity with the constitution, Jürgensen provided an intriguing account of conflict areas by applying the normative constitutional ideal on real life cases. He drew the conclusion that real life politics could never meet an artificial constitutional normative ideal, resulting in increasing dissatisfaction with politics and further alienation of voters from politics. He therefore promoted a more reality-based approach for applying constitutional law on political matters. This point was much supported in the panel discussion, yet there was uncertainty about how such a reality-based approach could be developed within the present methodology of law. No reference was made to public choice or political economics literature in the discussion, although this part of law and economics is a well-established method of analyzing politics. Yet again, a case was made for enhancing interdisciplinarity and opening public law research for insights of neighboring sciences.

When contemplating constitutions, certain pictures come to minds: Separation of powers, state organization, and fundamental rights. These constitutional images (VerfassungsBilder) – with the term image not being understood in terms of classic types of art—were the subject of the third panel. Modern constitutions are often put within a rich historic genealogy, beginning with the Magna Charta, as the archetype of a written document limiting the powers of an omnipotent sovereign, to medieval freedom rights and municipal rights.¹⁰ Annabelle Meier (Würzburg)¹¹ showed in her speech that, despite the functional and textual similarities between modern constitutional documents and their medieval predecessors, there are categorial differences. Freedom, as a concept in the context of modern democratic constitutions, is designed in an entirely different way—Meier used the term antithesis, or Gegenbild—than was the case in the Middle Ages. Being a mere limitation of the sovereign’s power then, freedom in modern constitutions guarantees individuals rights and influence on political decision-making now. Accordingly, the societal conditions changed entirely: Power emanates from citizens—the people became the sovereign. Therefore, the conclusion drawn from the speech was agreed upon in the discussion; the references to medieval predecessors of modern constructional documents can be insightful but should be handled with care.

In addition to the rule of the people as another classical principle that governs modern democracies, separation of powers was discussed by Johan Horst (Bremen).¹² He put forward that the idea of separation of powers can be fruitful, not only when discussing state organizations but also for legislation in transnational contexts. There is no unanimous global community, but instead a plurality of different actors involved in transnational law making. The idea of separation of powers, however, is neatly aligned with the concept of sovereignty of the people—where the citizens possess public authority. Yet, as was shown by Horst, a unanimous public authority is no requirement for the application of the separation of powers principle. Where transnational law-making bodies are set up—for example, the European Union or the World Trade Organization—legislative, executive, and judicial elements are found. Therefore, transnational bodies were organized following the separation of powers principle, Horst concluded.

Furthermore, a constitution does not stand on its own but is in interaction with the subjects that it governs. Several new questions concerning this connection were discussed in the fourth panel on constitutional subjects (VefassungsSubjekte). As one major innovation of this year’s conference, the first speech was given jointly by Simon Pschorr—a jurist from Konstanz—and Franziska Spanner—a sociologist from Konstanz.¹³ With the interdisciplinary tools at hand, they looked at same-sex relationships and how they are treated by society and the law. They thereby linked constitutional and societal change and presented a socio-empiric approach of the legal concept of constitutional change. More specifically, they showed how the interpretation of Article 6 of the Grundgesetz was affected by lasting changes in the perception of same-sex marriage. Pschorr and Spanner assessed that the Constitutional Court radically changed its view on same-sex marriage from completely rejecting the legal possibility to a categorial equalization of different and same-sex relationships—although the relevant constitutional norms did not change at all. Even though jurists are often uneager to adopt findings of other disciplines into their reasoning, the sophisticated methodology of the speech delivered convincing results that, as a framework, are not only of relevance for this particular topic, but also for other cases in which constitutional change takes place.

Another pressing question with regard to the subjects of constitutions is whether children should be governed under a special human rights regime, allowing for more efficient protection. Taking up a debate that recently resurfaced,¹⁴ Isabel Lischewski (Münster)¹⁵ took a broader view on the topic, not only discussing the recent proposals of the German government, but their implications on constitutional dogmaticism as well. She thereby focused on the question of how children’s rights can be granted most effectively, regardless of their position within the hierarchy of legal norms. Lischewski pointed out that it is not only essential to have such particular rights, but to have the possibility to enforce them as well. She therefore suggested a procedural mechanism with which children would be able to claim their rights themselves and critically evaluated the concept of human rights maturity (Grundrechtsmündigkeit). This was put into a broader context by discussing that, in general, human rights that affect the parent-child relationship are not often addressed by the Constitutional Court, because the children’s parents fail to properly act as the child’s representative in front of the court. In summary, the speech addressed many recent developments and saw the bigger picture by analyzing conflict lines between children and parents.

Constitutions are not only influenced by changes in society, but by technological development as well. This is why the fifth panel took a closer look on constitutions and digitalization (DigitalisierungsVerfassung). Sebastian J. Golla (Mainz)¹⁶ started with a tour d’horizon of different areas in which technological progress will influence law and lawmaking. To exemplify the far-reaching implications of digitalization on constitutional law, he considered difficulties regarding human dignity—guaranteed in Article 1, Section 1 of the Grundgesetz. In the early times of the constitution, it was disputed whether the obligation to stop in front of a red traffic light was an infringement of the human dignity.¹⁷ As odd as this sounds today, similar questions arise with regard to the use of algorithms in government actions. In German constitutional law, decisions that affect a person’s human rights must not be made exclusively by a machine. This hinders the government from adopting standardized processes in many ways. Golla therefore asked how the constitution should evolve and if there is a need for new rules, such as the project of a charta of digital fundamental rights.¹⁸ The excellent speech addressed many questions which will be of even greater importance the more governments will adopt digitalized procedures. Golla was more than able to introduce an area where many problems will occur in the future.

Friedrich Schmitt (Tübingen)¹⁹ afterwards asked how digitalization will influence the freedom of broadcast. He argued that extensive case law has made this human right overly complex, and that it is advisable to understand the freedom of broadcast as a proper freedom right rather than a “servicing right” to other human rights.²⁰ Discussing Schmitt’s contribution, it was suggested that the human rights concerning communication might even need a larger update in light of digitalization—for instance, the addition of a right protecting consumers and a right protecting producers of media contents.

The sixth panel on constitutional crises (VerfassungsKrisen) consisted of three panelists and was opened by the interesting and instructive talk of Konstantin Chatziathanasiou (Münster).²¹ He asked whether social injustice—defined as the unequal distribution of income and wealth—poses a threat to constitutions, ultimately resulting in constitutional crises. Accordingly, social inequality becomes relevant for a constitution when it promotes social equality yet fails to achieve it. Though, even if a constitution does not include social equality as a constitutional goal, it may well be inferred—to a certain degree—from the citizens’s fundamental rights. As income and voter turnout correlate, social inequality may pose a threat to constitutions. Chatziathanasiou observed that the Principle of the Welfare State was enshrined within the irrevocable Articles of the German constitution—Article 20, Paragraph 1 and Article 28, Paragraph 1 of the Grundgesetz; however, the text did not make any further stipulations to promoting social equality. Nevertheless, he argued that constitutional practice in Germany thrives to achieve a common consensus beyond the principle of the welfare state. Eventually, Chatziathanasiou identified demographic trends—referring to findings of empirical social research—as well as global migration as emerging threats to that consensus. The ensuing discussion found Chatziathanasiou’s findings to be true, as public discourse is more and more influenced by demagogic and populist rhetoric.

In the second contribution to the panel on constitutional crises Maria Bertel (Innsbruck/Budapest)²² took up the discussion of emerging populism and asked whether constitutions could rescue democracy. She argued that democracy itself is in danger when democratically elected politicians declare it their aim to end liberal democracy. Against this background and the assessment of the importance and influence of political parties in modern democracies, Bertel raised the question whether electoral process and legislation should have a more prominent role in constitutions. To support her claims, she presented a thorough and well-structured comparison of a wide variety of European and non-European constitutions. Bertel concluded that no national constitutional legislation alone can provide satisfactory solutions, thus pleading for more comparative law approaches.

Finally, Anne-Christin Gläß (Leipzig)²³ focused on the role of the German Federal Constitutional Court in times of crises. The aim of her speech was to shed some light on the jurisdiction and other responsibilities of the German Constitutional Court for protecting the constitution. For this purpose, Gläß discussed some constitutional regulations that receive rather little attention in the legal debate otherwise. Concluding, this panel renewed the demand for inter and intradisciplinary approaches—including comparative law—to gain valuable insight for the academic debate on constitutional law.

Last but not least, the seventh panel dealt with constitutional change (VerfassungsWandel), evaluating several aspects of recent changes in constitutions and their development. Matthias Lukan (Wien)²⁴ started with a speech on the continuity of constitutions. He outlined the paradox that constitutions are designed to be applicable permanently, but that in reality they do not live up to those expectations. One reason for that—according to him—is that constitutions are always context-based, and therefore struggle to adapt to different societal environments and developments. Lukan highlighted several crucial factors with regard to the constitution’s chance of survival—for example, the polarization of the society or the economic circumstances within the country. Especially memorable was that Lukan empirically showed circumstances under which a constitution is most likely to fail, and that there are stages of life of constitutions where they more often than not remain in force. It was due to descriptive parts such as this one, and the lively style of presentation, that the speech was remembered as particularly compelling.

As the only Swiss participant present on the panels, Dario Picecchi (Luzern)²⁵ enriched the debate with insights from Switzerland’s exceptional model of direct democracy, in which the general public is able to amend the constitution by holding a referendum. In his vivid presentation, he pointed out that this amendment process is enjoying ever growing popularity, and many issues of social relevance are discussed by filing a referendum. Because of this popularity, there is an increasing number of referenda and amendments of the Swiss constitution, which is not without difficulties. Picecchi therefore suggested several modifications of the current regime in order to prevent improper use of direct democracy, such as higher quorum requirements and an increased monitoring of referenda by courts and the parliament. As it is always interesting to look at the particularities of different models of democracy, the speech was followed by a lively discussion about these changes.

It was then, not until the final stages of the conference, that the development of European Union constitutionalism was discussed. Andreas Orator (Heidelberg)²⁶ pointed out how constitutional elements within the legal regime of the European Union have been developing since Europe failed to ratify a constitution in the formal sense and, as a substitute, the treaty of Lisbon came into effect. Since then, Orator argued, the formerly known constant advancement of the treaty regime is no longer possible. Rather, the European lawmakers use evasive strategies for the further development, such as soft law and international agreements.

It shall not remain unmentioned that two captivating keynote lectures further enriched the Assistententagung. The Annual Meeting was opened by the keynote lecture from the Vice-President of the European Court of Human Rights (“ECtHR”), Professor Dr. Dr. h.c. Angelika Nußberger, in the historic St. Paul’s Church (Paulskirche), where the first freely elected German National Assembly met and drafted the first German constitution—aptly named Paulskirchenverfassung. She delivered her lecture on the question of whether the European Convention on Human Rights is a constitution for Europe (Die EMRK—Eine Verfassung für Europa?). Besides shedding light on the drafting process of the European Convention on Human Rights and the accompanying discussions of the Member States of the European Council, Professor Nußberger provided valuable insight on landmark cases of the ECtHR and how they played an important role to the recognition of the Convention by the Member States. She concluded that the Convention was not a constitution for Europe, but a common ground for European peace and the proliferation of human rights.

A second keynote lecture was given by the President of the German Federal Constitutional Court, Professor Dr. Dr. h.c. Andreas Voßkuhle. As the title of his lecture—Karlsruhe Unlimited? On the Limits of Constitutional Adjudication (Karlsruhe unlimited? Zu den Grenzen der Verfassungsgerichtsbarkeit)—promised, he discussed the role of the German Constitutional Court in German state organization and reflected upon issues where the influence of the Court is criticized as too extensive in the academic debate. His most insightful lecture was commented on by Quirin Weinzierl from Speyer and Andrej Lang from Halle-Wittenberg. This new format, called commented keynote lecture, was implemented for the first time in the program of the Assistententagung.

C. Concluding Remarks: Constitutions Will Meet Emerging Challenges

Constitutions are the very image of a state’s organization. They reflect the history of nations and their culture and provide guidance, not only to legal matters, but to the core values of a society. Constitutions are living documents. They are amended and altered, revisited and reintroduced. Constitutions will continue to meet the challenges of everyday life, as they have throughout the ages. These are the conclusions that can be drawn from the discussions of the Assistententagung. As always, the annual meeting also ended with a discussion. The new format of commented keynote lectures was well-received by the participants. Furthermore, the participants appreciated the openness to interdisciplinarity of many participants, pleaded for more interdisciplinary approaches to be discussed in future meetings, and lauded the organization of the conference. The next Assistententagung will be an anniversary conference—celebrating the sixtieth year of its existence—themed “The Digitalized State” (Der digitalisierte Staat) and will take place at the University of Trier.²⁷