What We Can Do
Last night, I sat down with some friends to celebrate a big win: a constitutional amendment that the Bundestag passed yesterday, and that the Bundesrat approved today. From now on, no government will be able to legally pack the Federal Constitutional Court with loyalists to turn it into an institution that merely rubber stamps their actions. That scary Volkskanzler scenario I wrote five years ago? It cannot happen anymore.
This is a huge success, and some of the people I clinked glasses with last night had worked tirelessly for years to make it happen. But – and it is a big but – the government still has a lot of options. They can still get rid of the two-thirds majority required to elect constitutional judges with just a simple majority, and the Bundesrat cannot stop them. The CSU was especially keen to keep this option open (I wonder why…?).
The reform does introduce something new: a “substitute election mechanism” to stop authoritarian populists from using their minority position to block judicial appointments and paralyse the Court. If the Bundestag is deadlocked for too long, the Bundesrat gets to step in and make the appointments in its place – and vice versa.
But here’s the catch: Imagine a government controls more than 50% of the votes in the Bundestag and over 33% in the Bundesrat. They could block appointments by the Bundesrat, shift them over to the Bundestag, scrap the two-thirds majority rule, and then fill every judicial seat – Bundestag and Bundesrat ones alike – with their own people. Voilà, the very scenario this reform is meant to prevent: a Federal Constitutional Court totally under the government’s thumb.
None of this is news. Simon Willaschek flagged this possibility in November, and I brought it up during the Legal Affairs Committee hearing. Some in the Bundesrat are livid about it – and rightly so. They have been forced to accept a reform that weakens their own influence, and they did not even get a chance to fix its glaring flaws in mediation talks. All of this just to rush the reform through before the Bundestag dissolves.
Constitutional politics is still politics. Protecting the Federal Constitutional Court, no matter how united everyone seems, still comes down to power – who has it and who does not.
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The Court is better protected now than before. But it is not safe. It never will be. If someone wants to take control of it, they will find a way. Well-designed legislation can make it harder. But whether it succeeds will always be a matter of politics, not law.
The fact that the states are being forced to bow to the federal government’s power is a reminder that this fight is not over. If anything, it is more important than ever to stay alert, organise, and be ready to defend the Court from becoming a political pawn. What can we do in these trying times? Exactly that.
This year, we have been asked this question over and over again: Fine, your scenarios about Thuringia and everything else are very interesting. But what can I do?
Here is what you can do: Organise. Show solidarity. Be prepared.
If you are a lawyer, you should know that one of the driving forces behind this amendment was the German Lawyers Association, the Deutscher Anwaltsverein. Yes, the good old DAV. Oh, you quit because the fees were too high? Maybe it is time to rethink that. Imagine a powerful, well-oiled network of highly skilled, well-connected lawyers. That is real political muscle, and it gets things done. And it is not just national – it has a network across Europe! Half a million informed, organised lawyers pulling in the same direction. That is how you move the needle.
If you are worried about the Nazis: there are people out there fighting them every day, often under brutal conditions. Support them! Join solidarity networks like Polylux. Donate to Gegenrechtsschutz. Your penny has an immediate effect.
The far-right is very good at weaponising the rule of law. Look at Ulrich Vosgerau – he raised nearly €190,000 on GoFundMe to launch SLAPP lawsuits against anyone quoting Correctiv on that notorious meeting in Potsdam. Why are their opponents not at least equally good at this? What is lacking?
If you want more knowledge about what is coming for us: that is where we come in. We need your support. We need many small donations. We also need many big donations. Here is what you can do: think about the most you could give without noticing the difference. Is it 5 Euros? Is it 50 Euros? Is it, I don’t know, perhaps 50,000 Euros? Now, please take that amount and enter it here and click “donate now!”. There. You did it. Thank you! Now we can get to work. Now we can go and do things. You did your bit! You made a difference!
There are things you can do. Of course there are. Look at Syria – they just brought down a bloodthirsty dictator, goddamnit! Of course, we can do something. This year, next year, and every year after that.
In this spirit: happy holidays to you all!
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Looking back on 2024
This year, we will be taking a short Christmas break to catch our breath after what has been quite a crazy year. However, you do not have to be entirely Verfassungsblog-free! Members of the Verfassungsblog team have selected some of their favorite blogposts from this year to provide you with a few reading recommendations for the holiday season.
Maxim Bönnemann
When allegiance to culture overrides allegiance to the Constitution, things become dangerous. INDIRA JAISING, a towering figure in human rights litigation in India, has embedded India’s slide into authoritarian populism within the constitutional history of the country in a fascinating essay. Combined with biographical reflections, Jaising takes readers on a journey from the independence movement to the rise of the Hindutva ideology. Jaising explains why the Indian Constitution’s liberal foundation is increasingly overshadowed by a culturally charged nationalism. The situation is serious but not hopeless: constitutions can be defended—not only within institutions but also on the streets, as India’s long tradition of peaceful protests and civil disobedience demonstrates.
Anja Bossow
Whether law is a tool of justice or order – this is a question every student, academic or practitioner of the law must grapple with. For its part, international law generally chooses to prioritize order over justice. Yet, as OMAR YOUSEF SHEHABI suggests, granting statehood to the Palestinian people may provide a modicum of both. His piece narrates and contextualizes the history and role of the Palestinian struggle for recognition, and will sadly remain as timely and urgent a read as it was upon publication.
Eva Maria Bredler
While Trump’s allies on the Supreme Court have been busy curtailing reproductive autonomy during his absence from the highest office, his re-election promises that the Wild West of American abortion law might become even wilder. That’s why it is worth (re)reading the piece by CAROL SANGER (for Germany, don’t miss out on FRIEDERIKE WAPLER’s) – not least because Sanger manages to maintain her sense of humor and optimism amid all the unbearable abortion regulation. May you hold onto your own sense of humor and optimism in the new year.
Marie Diekmann
Law – especially in its modern form as subjective rights – struggles to capture the complexities of human relationships. Instead, it tends to frame abstract individual legal claims in isolation and opposition to one another – a pattern evident in the recurring debate over the right to abortion. FRIEDERIKE WAPLER’s text addresses this issue, demonstrating, in my view convincingly and succinctly, that it is indeed possible to think of law and fundamental rights in a different way.
Margarita Iov
An essay that helped me this year to somewhat process the egregious injustices currently unfolding across the world was the piece by CHILE EBOE-OSUJI, who uses classical legal texts to explain why the ICC arrest warrants for Putin, Lvova-Belova, Netanyahu, and Gallant are binding for other member states, even though Russia and Israel have not signed the Rome Statute.
Klaas Müller
Few constitutional issues of our time are as misunderstood as the so-called neutrality requirement. JONAS DEYDA’s investigation in the context of civil society promotion makes the editor’s heart beat faster: historical outline, relevant case law (including a helpful dissenting opinion) and finally reflections on the theoretical core – the relationship between state and society. That the neutrality requirement remains somewhat indecipherable without a law degree (and maybe even with one) is a problem for which the author cannot be held responsible.
Jasper Nebel
The conflict in Palestine has been the subject of many heated debates throughout the year, with both sides frequently crossing the line of civility. There has also been considerable debate about the question of what exactly we understand by antisemitism. The German Bundestag’s resolution on antisemitism has also faced strong criticism because it referred to the controversial IHRA definition. In their insightful article, ITAMAR MANN and LIHI YONA point out that the resolution could not only silence Palestinian voices but also Jewish individuals who criticize current Israeli policies. German politics thereby arrogates the right to enforce a certain interpretation of Jewish identity upon Jews.
Isabella Risini
The case of KlimaSeniorinnen reminds me of a character from a Steinbeck novel: Cornelia Ruiz. She is overjoyed to get a vacuum cleaner. And her happiness is not obscured by the fact that there is no electricity at her home. Without any reference to John Steinbeck, Bernhard Wegener aired some criticism on Klimaseniorinnen. Manuela Niehaus’ response led to another reply by Wegener. A rare and valuable exchange.
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One Year Later: Rule of Law in Poland
In December 2023, the new Polish government set out to repair the country’s rule of law and restore the judiciary’s independence. One year later, a blog symposium edited by Democracy Reporting International (DRI) evaluates what progress Poland has made, what issues remain unaddressed, and what the outlook is for the rule of law in a country that is about to assume the Presidency of the Council of the EU.
You can find the blog symposium here.
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Moritz Schramm
I am currently in the United States. Over the past ten years, the GDP here has grown nearly 50% more than the Eurozone’s. Say what you will about indicators like GDP, it is quite clear that the European economy is, at best, mediocre. Delayed reforms, a lack of boldness in climate policy, a crumbling infrastructure—you name it. We are in dire need of genuinely European projects: digital infrastructure, a Shinkansen-like high-speed rail from Warsaw to Lisbon, Stockholm to Naples, or a shared climate fund. But, as PETER LINDSETH and PÄIVI LEINO-SANDBERG highlight regarding the much-discussed Draghi Report, instead of ambitious initiatives, we seem to be facing simply more ad-hockery. There’s much to be done in the year ahead!
Till Stadtbäumer
In July, the far-right Compact magazine was banned under association law – a measure between “militant democracy” and a “newspaper ban through the backdoor”. PAULA RHEIN-FISCHER and KATRIN GROH explore in their blog posts fundamental questions about protecting democracy, the relationship between the law of associations, freedom of the press and freedom of association, as well as the distribution of powers between the federal and state level.
Jakob Weickert
Last year, the Thüringen Project explored the strategy of authoritarian populists. This raised the question: What would happen if such populists get a hold on constitutional power? The Thuringian State Parliament’s first session on September 27, 2024 showed how quickly these scenarios could become a reality. The contribution by JANNIK JASCHINSKI, FRIEDRICH ZILLESSEN, JULIANA TALG, and ANNA-MIRA BRANDAU on the following day identified the underlying strategy of this abusive use of the institutions of parliamentary democracy. Given the renewed debate over a potential party ban, this contribution remains highly relevant and insightful.
Henry Wilke
I’ve shared quite a few blog posts with my friends and family this year – most of whom do not have a legal background. I especially have to think of STEFANIE BOCK and her post on the applications for arrest warrants by the Chief Prosecutor of the ICC in the Gaza conflict. These days we need clear and thorough analyses more than ever – with legal precision, but not at the expense of comprehensibility. After all, that is what open access means to us, too: the use of inclusive language such that the blog remains accessible to all, not just legal professionals.
Friedrich Zillessen
Over 100 blog posts have been published in the context of the Thuringia Project, most of them this year. We identified current and potential vulnerabilities to authoritarian-populist capture in areas such as public broadcasting, the right to grant pardons, state funding of arts and culture, or SLAPP suits. Online symposia discussed the growing phenomena of parliamentary obstruction and examined the AfD’s concept of “the people” in scenarios of discrimination. I found many articles that presented and discussed innovative proposals to improve the protection of the judiciary (e.g., TALG/WITTRECK, MACHURA/WEICKERT, KOEPSELL, GUNDLING; and, of course, the debate surrounding the Federal Constitutional Court’s resilience), particularly productive. We will continue this discussion in the new year as we explore vulnerabilities in Germany’s judicial system as part of the “Justiz-Project”.
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Editor’s Pick
by MAXIMILIAN STEINBEIS
This was the year Trump was elected. No tricks, no coup, no violence. A majority of Americans wanted him as their president. And they knew exactly what they were getting. It’s enough to make you question your faith in democracy.
Kolja Möller’s book “Volk und Elite. Eine Gesellschaftstheorie des Populismus“ offers a much-needed antidote to this despair. According to the political theorist, populism – the claim to embody the people’s sovereignty against the “elites” – is neither a scandal nor a blessing. Instead, it’s a periodic necessity to unlock blockages in the interplay between politics, law, and the economy.
Fighting populism by clinging to a paralysed status quo doesn’t always serve democracy. On the contrary, it can fertilise the ground for identity-driven autocrats who thrive in situations of deadlock and paralysis. Nevertheless, challenging their claim to embody “the people” remains both possible and necessary. In these troubling times, that fight is more vital than ever.
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The Week on Verfassungsblog
…summarized by ANJA BOSSOW
The proceedings between South Africa and Israel before the International Court of Justice (ICJ) may rank among the most significant in the Court’s history. Ten states have already joined the case or applied to do so. Germany announced its intention to intervene shortly after South Africa filed its complaint, even before it became embroiled in its own legal dispute with Nicaragua over its support for Israel. However, if the Federal Republic pursues this path via Article 63 of the ICJ Statute, it risks falling into the trap of double standards, argues VALENTIN VON STOSCH (GER) – and outlines a possible way to avoid this pitfall.
Donald Trump has yet to be inaugurated but he has already announced his plans for his first days in office. Not only has he claimed to end Russia’s war against Ukraine “within 24 hours” of taking office, but he has also promised far-reaching interventions in foreign trade and, consequently, in international trade law. CHRISTIAN TIETJE (GER) explains why the proposed tariff increases raise issues from both an international law and US domestic law perspective.
Within days of the collapse of Baschar al-Assad’s regime, calls for the immediate repatriation of all Syrian asylum seekers and refugees who had fled his murderous regime gained political traction. This ignores the need for individualized assessments, both as it pertains to the merits of an asylum claim and the permissibility of revoking the status once granted. NILS-HENDRIK GROHMANN (DE) points out that this counsels against a one-size-fits-all approach.
On December 21st, the mandates of three judges of the Italian Constitutional Court will expire, creating a total of 4 vacancies. While Parliament is responsible for filling the seats, political parties are far from reaching an agreement on who should get appointed. ANNA MARIA LECIS COCCO ORTU explains whether the majority’s strategic delay of the appointment process may be evidence of an attempt to politicize the Court.
In Finland, the politicization of a constitutional organ is also a concern. As MILKA SORMUNEN explains, the recently adopted Act on Temporary Measures to Address Instrumentalized Migration violates the Constitution, human rights obligations and EU law. Yet the Constitutional Law Committee, a Parliamentary organ in charge of ex ante constitutional review of legislation, greenlighted it nonetheless on the basis of political, not legal arguments.
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Legislators from the leading party in Taiwan’s Legislative Yuan are moving to pass an amendment that could effectively paralyze the Constitutional Court. Under the proposed changes to the Constitutional Court Procedure Act, the Court may find itself unable to carry out its constitutional mandate. KUAN-WEI CHEN (ENG) explains why if the amendments are passed in their current form, Taiwan could face nothing less than a full-blown constitutional crisis.
The New Zealand government, meanwhile, has launched a consultation on a Regulatory Standards Bill that could shape both existing and future regulation. It is an ambitious undertaking which deserves attention beyond New Zealand’s shores, argues LEONID SIROTA, given its remarkably libertarian content; its novel implementation mechanism and what it can tell us about the ways in which an “unwritten” constitution changes.
November was a month of notable judicial decisions. The Spanish Constitutional Court ruled on the Mar Menor saltwater lagoon, the first European ecosystem to have its own rights. ANDREAS GUTMANN sheds light on what the judgement means for the German debate on the rights of nature. On 14 November 2024, the Court of Justice of the European Union (CJEU), meanwhile, found Germany in breach of the Habitats Directive (HD) due to a failure to prohibit agricultural activities that drove biodiversity loss in protected (Natura 2000) sites. LAURA HILDT (ENG) argues that in light of the poor state of nature across the EU and the ongoing failure to adequately address the drivers of biodiversity loss, this ruling provides an important clarification on the HD’s non-deterioration obligation.
The CJEU also recently ruled that preventing Union citizens residing in another Member State from joining political parties violates EU law. STEVE PEERS (ENG) explains how the rulings enhance the role of EU citizenship as regards political rights and discusses some implications of the two landmark judgments.
New Blog Debate: One Year Later: Rule of Law in Poland
The new Polish government has been in office for a year now and faces the challenging task of reversing the erosion of the rule of law that the PiS had undertaken. Together with our partner Democracy Reporting International, we launched a symposium this week that examines this process from various perspectives. The authors discuss on-going challenges that still need to be and assess the state and future of the rule of law in a country that will soon take over the presidency of the Council of the EU. The intriguing question of how to restore the rule of law without violating laws and regulations in the process – a topic that often sparks disagreement and uncertainty – is also explored in greater depth.
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That’s it for this year! Wishing you a wonderful holiday season and all the best for the New Year. Take care and see you in January!
Yours,
the Verfassungsblog Editorial Team
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