Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-12-03T19:09:25.601Z Has data issue: false hasContentIssue false
  • English
  • Français

What Does a Constitution Expect from Immigrants?

Published online by Cambridge University Press:  06 March 2019

Uwe Volkmann

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

It is a long-established commonplace in any debate on immigration that immigrants should integrate into their receiving society. But integrate into what precisely? Into the labor market, into the legal order, into the political system, into a national culture whatever this might comprise? The Article tries to approach the question from the legal point of view and looks for hints or clues in the constitution which might help us with the answer. For this purpose, it explores the general theory of the constitution as it has been shaped by its professional interpreters as well as by political actors, the media and the public. The main intuition is that “constitution” is not only a written document, a text with a predefined, though maybe hidden meaning; instead, it is a social practice evolving over time and thereby reflecting the shared convictions of a political community of what is just and right. Talking about constitutional expectations toward immigrants then also tells us something about ourselves: about who we are and what kind of community we want to live in. As it turns out, we may not have a very clear idea of that.

Type
Special Issue Constitutional Identity in the Age of Global Migration
Information
German Law Journal , Volume 18 , Issue 7: Special Issue: Constitutional Identity in the Age of Global Migration , 01 December 2017 , pp. 1641 - 1656
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

1 See Integrationsgesetz [Integration Act], July 31, 2016, BGBl. I at 1939–49, no. 39 (Ger.), https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBI#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl116s1939.pdf%27%5D__1498664823679.Google Scholar

2 See, e.g., Orgad, Liav, The Cultural Defense of Nations 84 et seq. (2015).Google Scholar

3 Neutralism—or neutrality—is by many seen as the basic core of political liberalism, as will be explored. See infra Part F.Google Scholar

4 Joseph Raz, The Obligation to Obey the Law, in The Authority of Law 233 et seq. (2d ed. 2009).Google Scholar

5 For an exception, see, e.g., Beau Breslin, The Communitarian Constitution (1995).Google Scholar

6 For a famous example for an older constitution, see generally the Va. Const. of 1776, § 15 (“That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles” which at least seem to address the citizens, too).Google Scholar

7 For the first alternative, see, e.g., Grundgesetz [GG] [Constitution], art. 33, para. 1 (Ger.) (“Every German shall have in every Land the same political rights and duties.”)Google Scholar

8 For Germany, I have tried to unfold this idea systematically. See Volkmann, Uwe, Grundzüge einer Verfassungslehre der Bundesrepublik Deutschland (2013). For a short introduction, see also Uwe Volkmann, Rechts-Produktion oder wie die Theorie der Verfassung ihren Inhalt bestimmt, 54 Der Staat 35 et seq. (2015). The following text takes up some of the ideas depicted there.Google Scholar

9 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).Google Scholar

10 Matthias Jestaedt, Die Verfassung hinter der Verfassung (2009).Google Scholar

11 See Weiler, Joseph, The Constitution of Europe (1999); Principles of European Constitutional law (Armin von Bogdandy & Jürgen Bast eds., 2d. ed. 2010).Google Scholar

12 See, e.g., Weber, Max, Economy and Society 11 et seq. (Edward Shild & Max Rheinstein trans., 1954).Google Scholar

13 Christoph Möllers, Pouvoir Constituant–Constitution–Constitutionalisation, in Principles of European Constitutional law 171, 174 (Armin von Bogdandy & Jürgen Bast eds., 2d ed. 2010).Google Scholar

14 See Marbury v. Madison, 5 U.S. 137 (1803).Google Scholar

15 See Loewenstein, Karl, Political Power and the Governmental Process 149–50 (1965).Google Scholar

16 Here, I refer to a distinction drawn by Peter Häberle. See Peter Häberle, Verfassungslehre als Kulturwissenschaft 370 et seq. (2d ed. 1998).Google Scholar

17 See Günter Frankenberg, Comparing Constitutions: Ideas, Ideals andlideology— Toward a Layered Narrative, 4 Int'l J. Const. L. 439, 451 et seq. (2006); Günter Frankenberg, Comparative Law as Critique 197 (2016).Google Scholar

18 For both quotations from the famous and highly influential Lüth Judgment, see Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 15, 1958, 7 BVerfGE 198, 198 et seq.; for the impact on other constitutional systems such as South Africa, see, e.g., see Michelman, Frank I., The State Action Doctrine, in Global Perspectives of Constitutional Law 228, 238 et seq. (Vikram David Amar & Mark Tushnet eds., 2009).Google Scholar

19 Such as Joseph Raz, Leslie Green or John Gardner. See, e.g., Gardner, John, Legal Positivism: 5 1/2 Myths, 46 Am. J. Juris. 199 et seq. (2001).Google Scholar

20 For more information, see Wiederin, Ewald, Über den modus austriacus in der Staatsrechtslehre, in Helmuth Schulze-Fielitz, Staatsrechtslehre als Wissenschaft 293 et seq. (2007).Google Scholar

21 Ronald Dworkin, Freedom's Law 2 (1996); see also Perry, Michael J., Morality, Politics and the Law 121 et seq. (1988).Google Scholar

22 A commonplace for the identification of moral propositions. See Moore, George Edward, Principia Ethica 53 et seq. (1994).Google Scholar

23 For a classical debate, see Howard McBain, The Living Constitution (1948); Rehnquist, William H., The Notion of a Living Constitution, 54 TEX. L. Rev. 693 (1976).Google Scholar

24 1 BVerfGE 299, 299.Google Scholar

25 See Edwards v. Canada, [1930] A.C. 124, 1929 UKPC 86 (Can.).Google Scholar

26 See Balkin, Jack, Alive and Kicking: Why No One Truly Believes in a Dead Constitution, Slate (Aug. 29, 2005), http://www.slate.com/id/2125226/ (“We are all living constitutionalists now. But only some of us are willing to admit it.”).Google Scholar

27 See Fisher, Louis, Constitutional Dialogues: Interpretation as Political Process (1988); for Germany, see also Peter Häberle, Verfassung als öffentlicher Prozess (3d ed. 1998).CrossRefGoogle Scholar

28 Günter Frankenberg, Comparing Constitutions: Ideas, Ideals and Ideology—Toward a Layered Narrative, 4 Int'l J. Const. L. 439, 450 (2006).Google Scholar

29 See Selznick, Philip, The Moral Commonwealth 358 et seq. (1992).Google Scholar

30 The analogy is drawn by Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie 48 et seq. (1991); for this article in English, see Ernst-Wolfgang Böckenförde, Constitutional and Political Writings, Selected Works 152–68 (Mirjam Künkler & Tine Stein eds., 2017).Google Scholar

31 This, at least, I gathered from the reactions to my oral presentation on the workshop.Google Scholar

32 See 1791 Const. art. II, § 2 et seq. (Fr.).Google Scholar

33 See Paine, Thomas, Rights of Man, Part Second, in 1 Foner, Philip S., Complete Writings of Thomas Paine 343, 378 (1945).Google Scholar

34 See Kymlicka, Will, Liberal Individualism and Liberal Neutrality, 99 Ethics 883 et seq. (1989).Google Scholar

35 For a variation of the phrase, see Dworkin, Ronald, law's Empire 413 (1986). There are, of course, other ways to put it—“framework consensus,” “agree to disagree” etc.; but that does not lead us any further here.Google Scholar

36 In Germany, the debate periodically focuses on the term “Leitkultur,” for example, the latest push in this direction from the Home Secretary Thomas de Maizière and the highly readable comment by Jürgen Kaube. See Jürgen Kaube, Wenn Leitgedanken kranken, FAZ (May 2, 2017), http://www.faz.net/aktuell/feuilleton/debatten/leitkultur-thomas-de-maizieres-entfacht-diskussion-neu-14995718.html.Google Scholar

37 For a “needy culture” which faces serious threats to its existence, for example Israel, things might be different, Orgad, see supra note 2, at 135 et seqq. But even if we are willing to admit that restrictions for immigration, in this special case, might be justifiable—can be reconciled with liberal principles, this would not necessarily imply that they are also part of a corresponding constitutional expectation.Google Scholar

38 Jack Balkin, Constitutional Redemption, 2 (2011): “To believe in a constitutional project is to believe in a story.” Critique: Orgad, see supra note 2, at 151 et seqq.Google Scholar

39 This would still have to be discussed, and I am not yet really sure about it. The constitutional story of Germany is inextricably linked with the overthrow of the Nazi regime, which has—in the words of the FCC—the enduring “significance of a counter-image defining identity” (gegenbildlich identitätsprägende Bedeutung“), 124 BVerfGE 300 (328). In contrast, the court in the very decision refused to accept an ”anti-national-socialist principle“ as content of the Basic Law, thus depriving the idea of any legal effect, id. 330. The difference, however, is hard to grasp, and it is still open to doubt whether the court itself has understood it, using the so-called counter image as a tool to shift an up to then almost unanimously consented interpretation of a concrete legal term after all. Be that as it may, the difficulties of expecting someone to believe in a story are obvious. But would this, for example, hinder governments from teaching these stories in schools and trying to evoke sympathy for them?Google Scholar

40 From a philosophical perspective: Jürgen Habermas, The Concept of Human Dignity and the Realistic Utopia of Modern Rights, 41 Metaphilosophy 464 et seqq. (2010). Accordingly, the Federal Constitutional Court in his recent attempt to reframe the Basic Law's key notion of the free democratic basic order (“freiheitliche demokratische Grundordnung”) put it in the center of its entire reflections and unfolded the notion right from here, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 17, 2017, Case No. 2 BvB 1/13, ¶ 538.Google Scholar

41 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 17, 2017, Case No. 2 BvB 1/13 (author translation).Google Scholar

42 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Mar. 24, 2001, Neue Juristische Wochenschrift [NJW] 2069, 2070 (author translation). Actually, the German term (“gehalten”) may even be a bit weaker than “obliged”; the connotation is difficult to echo in English.Google Scholar

43 See 124 BVerfGE 300 (320) – Wunsiedel; a decision of the complete senate.Google Scholar

44 See, e.g., Universal Declaration of Human Rights, art. 30, Dec. 10, 1948, U.N.G.A. Res. 217 A (III) (“Nothing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”); cf. European Convention on Human Rights, art. 17, Nov. 4, 1950, E.T.S. 5.Google Scholar

45 See, e.g., 5 BVerfGE 85 (138). The conception of the Basic Law as a system of values “excepts some basic principles for the configuration of the state from the pluralism of objectives and valuations … which once they have been adopted democratically shall be acknowledged as absolute values and therefore be resolutely defended against all attacks.” See id. (author translation).Google Scholar

46 Proponents of this argument in addition usually refer to the famous dictum of Ernst-Wolfgang Böckenförde, that the liberal, secular state “lives from prerequisites which it cannot itself guarantee.” Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie 60 (1991) (describing that this “is the great adventure it has undertaken for freedom's sake.”).Google Scholar

47 Evidence would not only include the return of religious and cultural clashes but, as well, the rise of populist movements, a growing distrust against the structures of representative democracy, a new sympathy for strong and authoritarian governments and, above all, an increasing indifference toward the “blessings of liberty,” to quote the famous term from the Virginia Constitution. See Va. Const., supra note 6.Google Scholar

48 There are, of course, impacts on other fields which can be touched only briefly here, the most important one probably being education in public schools. The link to questions of integration, however, is obvious; for it is the schools where we can reach the next generations of immigrants. But how? Goals of education normally not only comprise acquisition of knowledge but also teaching of values like mutual respect and tolerance, democratic responsibility, a sense of solidarity and so on—at the very end the basic constitutional values. And by teaching we not only mean to inform about them neutrally—that they exist and what they mean—but as well to try to evoke sympathy for them, making children and adolescents, in effect: future adults, accept and— hopefully—internalize them. But once we accept the relativist account of the constitution, with a right to reject it at its bottom, it becomes unclear how these goals can be justified and whether we can stick to them any longer: Isn't that simply wrongful or at least highly problematic indoctrination?Google Scholar

49 For the source of this phrase, see Ackerman, Bruce, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 477 (1989) (“[T]he [American] Constitution is best understood as an historically rooted tradition of theory and practice – an evolving language of politics through which Americans have learned to talk to one another in the course of their centuries-long struggle over their national identity.”).Google Scholar

50 Which, of course, engenders a special need for justification in the light of the ideas of political liberalism. For the Israel case once again, see Orgad, supra note 2, at 85 et seq., 135 et seq. Google Scholar