A New Volume and an Old Error

It looked as if this useful series of red books had been dropped off or discontinued. The series I have in mind is the collection of judgments of the German Constitutional Court on certain subject matters in English translation: “Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany”, published by Nomos in Baden-Baden.

The idea for that series on the BVerfG’s key judgments was born during the seminal changes of 1989/90 when many countries had freed themselves from dictatorial, authoritarian, militarist or racist regimes and adopted new liberal-democratic constitutions and established constitutional courts. At that time, many judges of the newly established courts traveled to Karlsruhe, the seatof the German Constitutional Court, to inform themselves about the organization, the functionand the jurisprudence of that court. It was perceived as a model court in this period, more so than the US Supreme Court. However, an intimate knowledge of the decisions met limitations because not many of the foreign visitors were familiar with the German language. The Constitutional Court therefore decided to translate the most important judgments of various legal fields into English. The judges selected the decisions and edited them in a slightly shortened version. Two positions for translators were created who undertook the translation.

The first two volumes appeared 1992 under the presidency of Roman Herzog. They contained decisions concerning public international law and European law. In 1998, two volumes concerning freedom of speech, freedom of media, freedom of art and freedom of assembly followed. A fourth volume in 2005 covered the most important judgments in matters of Germanunification. 2007 saw the publication of a volume on freedom of religion and state-church-relationships was published. In 2013 a volume on family law was added. The intervals were always quite long. But now it seemed as if no further volume would appear.

However, this impression was wrong. In 2022, the Court published a voluminous book on the “General Right of Personality” (Article 2(1) Basic Law), now under the slightly modified title “Decisions of the Federal Constitutional Court” and with a modernized cover. The volume contains 45 judgments altogether. They are divided into nine chapters: Foundations; Self-determination and Limits to Personal Choice; Name and Identity; Image; Speech; Privacy and Intimacy; Health Data; Data Protection and Virtual Identity; Informational Self-Determination and Security.

The collection is interesting because it gives an impression of the many facets that the Court has found over time in Art. 2(1) Basic Law. Formally speaking, all are derived from that article. Substantively speaking, however, some have the quality of new rights. But beyond that, the collection is also interesting as correction of an initial error of the Court, which, however, was never recognized as an error by the Court itself.

The Elfes case and the pitfalls of Art. 2(1) Basic Law

The right in Art. 2(1) Basic Law is extremely open-ended: it guarantees the free development of one’s personality. The first time, the Court faced the task to define its meaning was the famous Elfes case, decided in 1957. It became one of the most far-reaching decisions for theunderstanding of fundamental rights. Wilhelm Elfes was a politician who originally belonged toAdenauer’s CDU, but had alienated himself from the party because of Adenauer’s policy of West-integration, which, in Elfes’ view, threatened to make German unification illusionary. Elfes expressed this view frequently in socialist countries including the GDR. When his passport expired, he was refused a renewal because his trips abroad violated the interests of theFederal Republic.

Elfes lost his case in the administrative courts and filed an individual complaint with the Federal Constitutional Court. The Basic Law contains a fundamental right to free movement within theFederal Republic (Art. 11). But it is silent with regard to a right to freely leave the Federal Republic. The easiest way for the Court would have been to conclude that freely leaving theFederal Republic was not guaranteed in the Bill of Rights. But the Court was not a fan of strict textualism. On the other hand, it was not prepared to read the unambiguous Art. 11 Basic Law as including the right to leave the Federal Republic, either. Yet, it also shied away from denying Elfes any constitutional protection. The way out seemed to be Art. 2(1) Basic Law. But what didit mean? It would have suggested itself to ask, whether the possibility to leave the Federal Republic was of such an importance for the free development of one’s personality that it deserved being included into the scope of Art. 2(1).

As a matter of fact, this was what the judge rapporteur had proposed in his memo, should the Court not follow his main suggestion to interpret Art. 11 Basic Law extensively so that it covered notonly the free movement within the Federal Republic, but also freely going abroad. The Court did neither. It was rather determined to clarify the meaning of Art. 2(1) once and for all. In doing so, the Court saw itself in front of a choice that had been discussed in academic writings: a narrow interpretation according to which the right protects the very core of personhood, or an extensive interpretation according to which every human activity that is not covered by a special guarantee in the Bill of Rights is protected by this article.

The Court decided in favor of the broad understanding, which meant that the right had become borderless. From now on, any behavior enjoyed the special protection that fundamental rights are meant to confer on behavior that is regarded as particularly important for human development or particularly endangered by the power-holders. The Court only saw the chance to close the gaps between the enumerated rights and to make fundamental rights protection all-encompassing. It neglected the consequences: first, the banalization or trivialization of fundamental rights and the invitation of individual complaints about the pettiest claims; secondly, the levelling of good and evil because understood in such a broad way, Art. 2(1) extends its protection to the most evil behavior – murder, rape, child abuse, fraud etc. All these are now also regarded as exercise of a fundamental right in the first place, even though subject to limitations. This is hardly the historic and systematic function of fundamental rights.

To strike a balance

In 1957, the Court was not aware that the alternative between an extremely narrow and an extremely broad interpretation was not conclusive. It could have understood the two possibilities as two poles of a scale instead of seeing them as two mutual exclusive opposites. This would have opened a middle way so that Art. 2(1) protected those human activities orconditions that had not found special protection in the Basic Law but were of an impact comparable to that of the enumerated rights. This is what I suggested in my dissenting opinion in Reiten im Walde, yet without convincing the rest of the Court. The academic supporters of the Court’s solution were afraid that this would create unsurmountable difficulties.

If we now return to volume 6 of the translations, its whole content proves that this third way would have been viable and apt to avoid the dubious consequences of the broad interpretation. Beginning with the micro-census decision of 1969, the Constitutional Court realized that Art. 2(1) was not only about a person’s behavior, but also about a person’s treatment by others, which impaired the right of personality, and furthermore that there was behavior not protected in the Bill of Rights, although of similar importance. So, step-by-step the Court enriched Art. 2(1) with meaning of concrete elements of the personality, but without giving up its original, extensively broad interpretation. Hence, there are now two unconnected lines of meaning: any activity not covered by an enumerated right on the one hand, and threats to the free development of personality that enjoy special protection with often special judge-made limitation clauses.

The most recent volume lets us hope that more volumes will follow, perhaps even in shorter intervals. There is no lack of subject matters that would deserve inclusion into the series.