The possibility of being outvoted is, in a way, also a gain in freedom. I have give way to the majority, sure. But I don’t have to join them, I don’t have to agree and applaud and convince them of my opinion and be convinced by theirs, I can continue to think it’s all rubbish, I don’t have to repent, I don’t have to change, I can stay who I am. Majoritising minorities is not authoritarian, it’s the opposite: It is a service to the diversity of opinion, a basic condition for the political spectrum from left to right to fan out in all its pluralistic beauty, because there is a procedure available to turn the many opinions into one decision: Let’s vote!
Hardly ever is the need to turn many opinions into one decision so imperative as in a pandemic. Lockdown, contact restrictions, curfew: the whole thing is entirely point- and useless unless (next to) everyone complies. To some extent, this also applies to vaccination. The vaccination rate must exceed a certain level so that the virus finds no longer sufficient hosts and the pandemic can finally fizzle out.
The unvaccinated are a minority. And this minority feels oppressed: bullied and marginalised and harassed and pressured! The vaccinated majority wants to impose its will on us!
If only it did.
The vaccination opponents have their opinions about the virus, the pandemic, the vaccines and their respective dangers. They put these forward, loudly and at length, in the comments section of Verfassungsblog, among other places, and that’s all well and good, but doesn’t interest me much. My hope and theirs of convincing one another in the exchange of our respective more or less informed opinions converges towards zero anyway. What interests me and the vaccinated majority about this minority are not their opinions, not their values and preferences, not their life choices, but the threat they are to me and all of us. We disagree about the existence and extent of that threat, true. But we are in the majority. We outvote them. Or we could have long ago. Instead, we have been engaged in endless and fruitless discussions with them for months, the only result of which is that increasingly their opinions, their values and preferences, their life choices are becoming the focus of what is disputed. And that’s a shame, really. I want to be able to remain friends with the vaccination opponents. I just want them to get vaccinated!
In this last decade and a half of de facto or formal grand coalition, we have got out of the habit of outvoting and being outvoted. Our opposition muscle is woefully untrained. It smarts and hurts a lot. But it will get better. Soon we will have a new government, and I expect it to govern. To risk opposition and resistance and contradiction, a hundred thousand angry protesters on the streets, to whom it will then say, carefully avoiding any rhombus gesture: Sorry, guys. We decide. We take responsibility. We are carried by the majority.
The majority can’t outvote the minority on everything, of course. The outvoted have rights, not to be discriminated against, to have their privacy and their integrity of their bodies respected, and these rights bind the majority also in its own interest, because this is what makes it reasonable to expect that people can afford to be overruled in the first place. If it were the case that the vaccination is dangerous and the virus is not, it would of course be a fundamental rights violation to urge the minority to vaccinate. But it’s not. According to the majority it isn’t, and the place to proceed the minority’s complaints against that are independent, impartial courts established by law.
And as far as the integrity of the body is concerned: as long as the unvaccinated don’t get jabbed by physical force, I don’t see any insurmountable problems in that respect. The Basic Law does not prohibit exposing the bodies of the holders of fundamental rights to a little but greatly feared risk in order to ward off a great but little feared risk.
A different matter, of course, would be if the majority in its anger and frustration were carried away to indulge in revenge fantasies now. (Do you? No? Really? Fine, then.) Denying intensive care to the unvaccinated, for example, as some seem prepared to consider now, seems to me to be in conflict with the duty to respect their human dignity. Medical care is not something that has to be deserved, and thus not something one can lose one’s entitlement to through one’s own folly, no matter how great. That is a road we don’t want to start going down.
The week on Verfassungsblog
We are approaching the finish line with our Poland v. EU podcast at last. One thing we have learned: our initial idea to do a periodical podcast on a monthly basis doesn’t work. If we want to go to the bottom of our topic, it makes no sense to stop mid-way just because a month has passed. The result, though, will be worth the wait, I hope. Once again, it is going to be a whole mini-series in itself, as befits this immensely complex, entangled and far-reaching story. I have been closely following most of its elements since 2015 and have written about many of them often and in detail on VB over the years. But stringing them all together, in the interplay of action and reaction, its various interwoven legal and political strands, and turn them into a coherent narrative was and is an extraordinarily exhausting, time-consuming, fascinating and instructive endeavour. Now we are putting the whole thing together, and if everything goes to plan, we will be able to launch the first episode in the next few days and the following ones over next few weeks.
A project that I am very much looking forward to and that has been close to my heart for a long time has been kicked off this week by ANDREW ARATO and ANDRÁS SAJÓ: Restoring Constitutionalism. A new parliament will be elected in Hungary next spring, and there is a real prospect that the united opposition will dethrone Viktor Orbán at last – only, in the constitutional environment that Orbán has systematically created over the last decade, it will hardly be able to govern properly. It would have to choose, so to speak, between fidelity to the constitution and fidelity to democracy. How do you get out of this dilemma? Arato and Sajó, two titans of transnational constitutionalism, call on the constitutionalist community to come up with ideas and have prepared a list of questions to work on. All those who can give input are cordially invited to participate in the debate and send a text (maximum 2000 words) to email@example.com by 8 December. The contributions will then be published in a blog symposium on Verfassungsblog. This is a rare occasion to make your constitutionalist expertise useful in an immensely consequential and effective way.
Back to Poland: More than a year ago, the body formerly known as „Constitutional Tribunal“ postulated the quasi-total ban on abortion as an alleged constitutional imperative. Since then, the situation for women in Poland is turning from bad to worse, as KAROLINA KOCEMBA reports. A bill is currently being debated in the Sejm that would make abortion a crime on the same level as murder.
In the Polish-Belarusian border region, the conflict between both countries escalates while the migrants wandering through the winter forest in between are dying. WITOLD KLAUS notes how little the Polish government seems to care and how badly it disregards its legal obligations.
Not only in Poland, but also in Romania, the Constitutional Court wants to refuse to follow the ECJ and its, if you will, arguments how it sees the legal situation with regard to the primacy of EU law have been reiterated in a letter to the Minister of Justice. BIANCA SELEJAN GUTAN contrasts the formulations of both courts.
Call for Applications: Assistant Professor in International Law at the Graduate Institute Geneva (100%)
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In Germany, the current fourth wave of the pandemic is piling up to fearsome height. In the previous week, Johannes Gallon, Katharina Mangold and Franz Mayer called on the traffic-light coalition to take tougher action. This week, UWE VOLKMANN warns against another lockdown without first looking at how to make the unvaccinated more accountable. THORSTEN KINGREEN disagrees with Franz Mayer’s analysis and argues that even in the current situation there are good reasons not to prolong the unfortunate „epidemic situation of national scope“.
In Austria, that wave is just crashing over the country and the health system. The lockdown seems to be imminent. CHRISTOPH BEZEMEK quotes Grillparzer, as befits any well-crafted post on and from Austria, and number of other classics and accuses the government of failing to enact coherent and reliable laws.
In the mask affair concerning the lucrative deal-making of all sorts of conservative MPs in Germany, the Munich Higher Regional Court ruled that the offence of bribery of MPs was not fulfilled. MICHAEL KUBICIEL considers these decisions to be anything but compelling in terms of criminal law and legal policy and accuses the court of substituting its own political assessment for that of the legislature.
The Federal Administrative Court has declared the widespread practice of cities to protect tenants in so-called „milieu protection areas“ from the consequences of gentrification and real estate speculation by means of pre-emption rights to be unlawful. If one takes the law at its word, this is correct, says JULIAN AUGUSTIN, but the consequences are dramatic: this also renders void the „avoidance agreements“ concluded in large numbers in the past, with which cities had persuaded buyers of real estate to forego rent increases in order to avoid pre-emption.
The European Parliament is debating the Digital Services Act, and FELIX REDA and JOSCHKA SELINGER are appalled by a proposal of the rapporteur: authorities should be able to block access to platforms entirely – for the authors, an ill-conceived proposal that contravenes the system of sanctions in the DSA and is incompatible with fundamental rights.
In Singapore, the authorities have very broad powers to combat fake news. This was recently declared constitutional by Court of Appeal which developed a test to assess the authorities‘ conduct. LASSE SCHULDT observes that the government’s insistence on factual accuracy pushes the courts to almost absurdly meticulous assessments, while being barred from asking the most significant question.
That’s all for this week. What times!
And lastly, a request to those of you who read Verfassungsblog and this editorial regularly and with pleasure, but have not yet decided to support us on Steady. We need to get our Steady membership numbers up. We are still understaffed and underfunded. Please consider whether VB isn’t worth a monthly fiver (half of that for students and others on a tight budget) to you. Well?
Either way: see you next week, all the best, stay healthy and don’t infect anyone!
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