03 Dezember 2021

Bodies and Persons

„If there are no constitutional concerns,“ Christian Lindner, the leader of the liberal FDP party and future Federal Minister of Finance, explains in an interview with the FAZ, „then I personally am now leaning toward a general vaccination requirement.“

Personally. This is not the future minister and not the party leader speaking, but Christian Lindner, the man himself, in a personal capacity. Leaning toward compulsory COVID vaccination. Not decided yet, but, all mindfulness, observing a certain inclination in his soul. A conditional inclination, too: only as long as there are no constitutional concerns.

One should not poke fun at a politician who has to correct his policy and struggles accordingly to communicate his adjustment. What’s he supposed to do, poor guy. „As a liberal, this is a difficult decision,“ he says. Of course it is. He is what he is, and he doesn’t want to change his persona just because he has to adjust to a changed situation.

The FDP doesn’t want its MPs in the Bundestag to have to do that either. No liberal MP should be forced to bend herself and her conscience for the sake of the pandemic.  „The debate,“ says Lindner, should be conducted „not along parliamentary group lines,“ but openly and across the board. One of these so-called great moments of parliamentarism is to be, where the 736 representatives of the whole German people, each for herself and true to Article 38 of the Grundgesetz, bring forth in observance of their conscience and in free deliberation the will of the state.

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MP Christian Lindner’s conscience is in the meantime leaning toward compulsory vaccination, but only if there are no constitutional concerns. But of course there are constitutional concerns! Loads of stuff to be concerned about in terms of fundamental rights, for sure, so much that I’m quite glad that I’m not in charge of government myself. Luckily, we have a new Bundestag as the authentic interpreter of the constitution and a majority to legislate and govern, competent and empowered to do this in our place. Of course, there is always a risk of angering the public and of being overturned in Karlsruhe. But risk aversion is the last thing you want to be accused of as a politician of liberal entrepreneurial spirit, isn’t it?

For the time being, Christian Lindner keeps waiting for constitutional lawyers to tell him what to do. They are usually happy to oblige and like to make themselves useful with their expert advice. But ultimately, what they always come up with is that things must be proportionate: suitable, necessary and appropriate as a means to achieve a legitimate purpose. Which means exactly? For what purpose exactly? That is not for them to say. Lawmakers were at trouble throughout the pandemic to define precisely the purpose of their restrictions of fundamental rights, but by now the answer should be rather clear, I suppose: to prevent intensive care units from filling up and the fundamental rights violations that this would entail. As for the means, given this purpose, the focus is on necessity: are there less intrusive alternatives to avert this danger? But this is a political question that becomes legal only when the answer cannot be defended against alternative proposals.

Christian Lindner, however, does not want this answer to be a political, i.e. majoritarian decision, but rather each individual MP make a choice according to their personal conscience. An „ethical consideration“ is required of them, he argues. This reminds of the big debates when the Bundestag legislates on matters of huge bioethical consequence where people have to make extreme decisions at the limits of life. Which might appear to be the case here, too, as this is also a matter here of the utmost, or rather the innermost and most personal consequence: to have things injected into one’s own body against one’s will. No one says that this is a decision that should be taken lightly, and certainly not how and by what means this requirement should be enforced. This is biopolitics, true. But is it bioethics? This is not stem cell research or euthanasia. This is not about legislation forcing or empowering people to do something potentially unethical. This is just about legislation forcing people to do something they may find extremely hard to do. The decision to introduce compulsory vaccination is not politically difficult because it entails ethical dilemmas. It is just politically difficult.

In the current situation, I’m not really interested in what kinds of conscientious troubles Lindner and his party colleagues are claiming to face in this decision that is now demanded of them. Nor do I want to know what Lindner is leaning toward. Nor do I want to know what Lindner personally feels.

I’m not interested in Lindner as a person. I’m interested in Lindner as a party leader. I want to know what he wants.

The week on Verfassungsblog

In Germany, the dominant topic this week was undoubtedly the two decisions of the Bundesverfassungsgericht on the so-called Federal Emergency Brake. Our contributions about this are gathered in an ad-hoc online symposium: HEIKO SAUER is not unhappy with the decisions allowing the contact restrictions and curfews ordered by federal law in Spring 2021. TRISTAN WISSGOTT, on the other hand, is not convinced by the arguments of the First Senate, which did not see any problem at all in the fact that the restrictions on freedom were ordered directly by law and thus without any recourse to administrative courts. JOHN PHILIPP THURN is concerned that, according to the BVerfG, it should be permissible to prohibit an exercise of physical freedom of movement that is not dangerous in itself, if this prohibition, as part of an overall concept that is not obviously ineffective, facilitates the enforcement of another health protection measure. „Can that be right,“ he asks, „and where does that lead?“

MARTIN NETTESHEIM criticizes the BVerfG decision on school closures in the Federal Emergency Brake, finding the way the BVerfG constructs the institutions of schooling and school-based education to be both educationally and constitutionally questionable. ISABEL LISCHEWSKI explores the question of how the right to school education postulated by the BVerfG relates to the plans to entrench children’s rights in the Basic Law. And JOHANNA WOLFF points out that the green light from Karlsruhe by no means promises a free ride for further school closures.

Why not introduce general compulsory vaccination at the state level? Not least the large differences in vaccination rates between the individual states suggest this. According to VERONIKA MAYER and MARJE MÜLDER, the Länder competence to legislate on this would exist.

The Red-Green-Yellow coalition agreement is full of interesting details. DANIEL THYM analyzes the coalition’s migration policies and comes to the conclusion that Germany is to be „consistently developed into one of the most liberal and generous immigration countries in the Western world“. PIERRE THIELBÖRGER and TIMEELA MANANDHAR examine what the coalition has planned in terms of human rights: Where human rights protection costs money, the results are meager, they conclude. Another interesting matter is antitrust law: According to the coalition agreement, the controversial ministerial authorization of corporate mergers to which the antitrust authorities have objected is not to be abolished after all, but only reformed. A missed opportunity, says MAXIMILIAN KONRAD. For almost 50 years, this ministerial authorization has been a constant source of political scandals and economic failures.

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At the Polish-Belarusian border, Belarus dictator Lukashenka is using refugees as a weapon to destabilize the EU – and the EU is going along with it, building its external border into a militarily fortified wall and throwing its own asylum standards out of the window. Historians like FRANK WOLFF know the most interesting things – for example, that in 1985 the erstwhile GDR pursued a very similar strategy with Tamil refugees from Sri Lanka, who were let into West Berlin through a „hole in the Wall“, whereupon an asylum debate broke out in West Germany, the human rights consequences of which we still feel today.

Meanwhile, the Polish government has mobilized the military. Thousands of Polish soldiers are deployed on the border with Belarus. WOJCIECH KUZNICKI writes that there is no legal basis for this.

What the European „wall society“ (Frank Wolff) looks like is shown by the decision of the European Court of Human Rights in the case of six-year-old Madina Hussiny. The child of Afghan refugees was run over by a train after being forced back from Croatian territory along the tracks to Serbia with her family. For the first time, the ECtHR has now ruled that illegal pushbacks are also taking place at Croatia’s external EU border. For HANAA HAKIKI and DELPHINE RODRIK, this points to a systematic practice.

There was an oral hearing before the ECJ in Luxembourg on the question of whether it is still possible to execute European arrest warrants from Poland, given the state of the rule of law there – the third case on this issue since 2018. The two-step test established in 2018 no longer seems fit in light of the fact that hundreds of judges in Poland are now sitting in judgment who actually came into office illegally. LUKAS MÄRTIN reports from the hearing and fears that reluctance of the political actors and the resulting juridification of the conflict may have brought the Court and the European legal order as a whole into an most dire situation.

Which brings us to our Poland v EU podcast, the first episode of which we have finally published. How did it all start, what was the background, how did the subjugation of the Polish judiciary 2015 – 2018 come about? That’s what we try to reconstruct in this episode. „Like a good detective story,“ said one listener. „If you want to understand the background, you MUST listen to this podcast,“ said another. Episodes 2 and 3 (EU backlash and Polish government backlash to that backlash) are getting their final touch, episode 4 (the battle for primacy) will be produced tomorrow, and episode 5 (how to get out of this mess) will follow as soon as possible. Insanely interesting, educational and stimulating for us, and hopefully for you too – but a ton of work, too, of course, which is why I’m so grateful to our community of supporters on Steady who make it all possible and I urge you to join if you haven’t already and like what we’re doing.

The former „Constitutional Tribunal“ controlled by the PiS government has delivered the „judgment“ on the European Convention on Human Rights ordered by its lord and master in the Ministry of Justice. The ECHR had ruled in its Xero Flor judgment that the „Constitutional Tribunal“ did not meet the requirements of a court based on law. This very „court“ has now declared the Strasbourg judment unconstitutional, according EWA ŁĘTOWSKA, herself a former constitutional judge and civil rights commissioner in Poland, a coming-out that is as honest as it is embarrassing.

Just how far things have come in Poland in terms of media freedom is shown by the conviction of legal journalist Ewa Siedlecka, who has now been sentenced criminally by a Warsaw court for her criticism of two judges appointed by PiS. For WOJCIECH SADURSKI, who also speaks from his own experience in this regard, this is a classic example of a SLAPP (Strategic Lawsuit Against Public Participation) trial.

In Iceland, there were irregularities in the September elections, but the newly elected parliament is the reviewing body in this respect and finds everything in order. VALGERDUR SÓLNES points out that the lack of independent election review procedures could still lead to serious problems with the European Court of Human Rights, and not only in Iceland.

Finally: A new online symposium has started this week, in cooperation with the venerable journal „World Comparative Law“, known in Germany under its title „Verfassung und Recht in Übersee“. The topic: corruption and democracy, introduced by FABIA FERNANDES CARVALHO and FLORIAN HOFFMANN and with contributions by GWENDOLYN DOMNIG, UGOCHUKWU EZEH, KEVIN DAVIS and others to follow.

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So much for this week. All the best to you, stay safe and healthy, please support us on Steady and/or Paypal, and see you next week!

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: Bodies and Persons, VerfBlog, 2021/12/03, https://verfassungsblog.de/bodies-and-persons/, DOI: 10.17176/20211204-091004-0.

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