Vol. 32 No. 5 (May 2022) pp. 51-56
CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT, by Ralf Rogowski and Thomas Gawron, (eds). 2nd Edition. New York and Oxford: Berghahn Books, 2016. pp.316.. Hardback $135.00. ISBN: 978-1-78533-273-9.
Reviewed by Stephen Ross Levitt, Department of Humanities and Politics, Nova Southeastern University. Email: levitts@nova.edu.
To some extent, a version of this book review has already been written. After the first edition of the text was published, the eminent scholar of German and American constitutional law, Russell Miller, wrote the following: “[T]he U.S. and Germany boast two of the world's most well-established and well-respected systems of constitutional judicial review. The twelve essays collected in the book, however, focus exclusively on either the U.S. Court or the German Court and generally fail to remark the commonality and the comparative relevance of the dissimilarities that arise out of this important, shared heritage” (Miller, 2004). The late Donald Kommers, a renowned scholar of comparative constitutional law and politics, with a focus on the German and American systems, wrote a more generous review. He praised “the first edition as a welcome addition to the literature of comparative judicial studies.” Nonetheless, he too noted that among the first edition’s twelve essays, “only two are genuinely comparative” (Kommers, 2002).
One task of this review must be at the least to determine whether the editors of the second edition of this text have compiled the new and updated set of essays in such a manner that the comparative themes, between the German Constitutional Court and the American Supreme Court, are better illustrated. The two book editors, Professors Ralf Rogowski and Thomas Gawron, in their forward written for the second edition, noted Kommers’ criticism of the first edition and set out to provide more comparative analysis (p. viii). Another task of this review must be to describe how effectively the new and revised set of essays explain the workings of the German Constitutional Court and the American Supreme Court to an audience of English-reading scholars and students.
Between 2002 and 2016, some of the essays from the first edition needed to be updated and revised to take account of current developments. This has indeed been done. For example, in Chapter 1 by Robert A. Kagan and Gregory Elinson, on “Constitutional Litigation in the United States,” (p. 38) there is mention of NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS (2012) as well as KING V. BURWELL (2015). In Chapter three, Professor Blankenburg updates Tables 3.1 and 3.3 to include developments with constitutional cases in Germany up to, and including, 2013 (pp. 96, 100). Dr. Sacha Kneip in Chapter 11 while discussing, “The Impact of the German Federal Constitutional Court on Consolidation and Quality of Democracy” mentions the fall in the approval rate of the U.S. Supreme Court from “62 percent in 2000 to 46 percent in the summer of 2012,” (p. 258) comparing this to the trust rates of the German court which have remained constant. In Table 10.2, Professor Dr. Klaus Stüve discusses U.S. Supreme Court nominations and includes the Senate confirmation votes on Elena Kagan and Sonia Sotomayor from 2009 and 2010 (p. 233). He concludes in 2016 that “only a few justices…have been approved by only very small margins” (p. 233). What would this author have to say now after the confirmation votes on Brett Kavanaugh and Amy Coney Barrett?
In 2002, the first edition had an Introduction as well as eleven chapters of content divided between four themes: political functions, access and case selection, judicial decision-making and the role of law clerks, and structures and processes of implementation. Excluding the introduction and Chapter 11, written by the editors, Professors Rogowski and Gawron, the first edition of the book contained essays by four scholars trained at American universities, and five scholars working or trained at German universities. This author counts the late Dr. Blankenburg, a great scholar in the field of the sociology of law, amongst the German group because although he taught at the Free University of Amsterdam, he was born and educated in Germany. In the second edition of the text, there are again four main parts or divisions of the book. The parts or book divisions in edition two are a little different from edition one. The new sections are: access and case selection, decision making, implementation, and comparative perspectives. In the 2016 text, aside from the contributions of the editors (the Introduction and Chapter 9), four chapters are written by American scholars, and seven by German scholars. The second edition contains close to fifty pages of additional content, and the number of German contributors to edition two appears greater. This point, however, needs to be balanced out by the consideration that the article by Professor Stüve in Chapter 10 considers the nomination process of judges to both the German Federal Constitutional Court and the U.S. Supreme Court. In his essay, he provides references to both American and German sources of information in his bibliography. Stüve’s article provides strong comparative analysis.
Although the editors have added to the second edition a new and distinct part on comparative perspectives, a perusal of the bibliographies associated with the first thirteen chapters, including the Introduction, shows that to a large extent, Germans work with German texts and Americans work with American texts. To some extent, this reviewer doubts whether this could be entirely avoided, given the subject matter and the specificity of legal and political argument. Maybe it is indeed up to the reader to make some of the comparisons in their own minds as they read and contemplate the chapters.
One comparison that should have been explained both more thoroughly and explicitly concerns a significant point of comparative law and comparative constitutional history. The United States Supreme Court operates in a common law environment where a well-developed concept of stare decisis still exists. The Federal Constitutional Court in Germany however operates in a civilian legal system where courts do not follow precedent in the same manner. Professors Rogowski and Gawron hint at this distinction when they state that the “Federal Constitutional Court deals exclusively with constitutional law and thus is not an appellate court” (p. 2). In Chapter 11, Dr. Sascha Kneip mentions the Austrian jurist Hans Kelson and articulates that a constitutional court needs to be “ultimately [the] authoritative interpreter of [the] constitution” (pp. 264, 276). In Chapter 3, Professor Blankenburg explains that the German Federal Constitutional Court has been a model for post-communist countries in Central and Eastern Europe (p. 92). All of these important observations would make better sense to English-speaking readers when they are told upfront, possibly in the introduction, the following information. There are two significant models of constitutional review: the American model and the Austrian model. The Austrian model, often associated with the great jurist, Hans Kelsen, assumes that in a civilian legal system lacking strict principles of stare decisis, there must be one single court that enunciates binding constitutional norms. In the Weimar Republic, no permanent court had the exclusive right to enunciate norms and overturn statutes if they conflicted with the Constitution. The mothers and fathers of the German Constitution accepted the principles of the Austrian model when they conceived of and wrote the Grundgesetz in 1948 and 1949. The framers of the German Constitution made the judges of the Federal Constitutional Court the guardians of the Constitution. The German Constitutional Court is more influential for the majority of nations around the world that use a civilian legal system. Professor Hausmaninger, now Emeritus, a former Dean of the University of Vienna, states that:
After the Second World War, it was this system rather than the American that profoundly influenced the creation of constitutional courts within the new constitutions of Italy (1948) and Germany (1949). In the following years, the Austrian model of constitutional review -- often as modified by contemporary German theory and experience -- was adopted by most West European as well as by several Central and Latin American states. Most recently, virtually all emerging democracies in Eastern Europe have established constitutional courts based on the Austrian and/or German experience (Hausmaninger, 1997).Therefore, the German constitutional experience since 1949 and the Federal Constitutional Court are not a mere curiosity for comparativists, but rather the second, or even the primary model of constitutional adjudication and review in the world. Professor Hausmaninger, well aware of the American system, having taught a number of times in the United States on exchanges, has articulated the rationale for this assertion.
In 2003, Dr. Marc G. Pufong, in a review of the first edition in CHOICE, claimed the text could be used by “undergraduate, graduate students and faculty” (Pufong, 2003). The question of undergraduate use requires a more nuanced approach. A number of chapters (both in the 2002 edition and the 2016 revised second edition) would be too difficult for the vast majority of American undergraduates, even seniors. Professor Dr. Heun’s contribution on “Access to the German Federal Constitutional Court” reads much like a German law commentary or legal treatise on this subject. Even this reviewer, a professor of comparative politics and legal history, had to read Heun’s contribution twice and access the relevant sections of the German Constitution, as well as the Federal Constitutional Court Act to appreciate the admission procedures of cases.In addition, I would be curious to see what an American student would make of Hans J. Leitzmann’s essay in Chapter 12 about “Constitutional Courts in Changing Political Systems,” and his charge that both courts function as “cathedrals of symbolic politics” sidestepping issues related to “current economic production and distribution” (p. 287).
English-speaking students would certainly appreciate Robert A. Kagan and Gregory Elinson’s contribution on “Constitutional Litigation in the United States,” and the argument that “important decisions of constitutional courts often resemble volcanic eruptions, reshaping the landscape of political and administrative action” (p. 25). Undergraduate students could follow Professor Blankenburg’s explanation of the many roads toward constitutional review in Germany (p. 93), and his colorful description of the German court, “as a ‘Wailing Wall’ for general social protest” (p. 103). Professor Kranenpohl’s essay, constituting Chapter 5 on “Decision Making at the German Federal Constitutional Court,” provides American students with a different model to consider rather than the one they are familiar with. It might be surprising and eye-opening for students who are used to the American court system to learn about the German Federal Constitutional Court where argumentative style does not dominate. There is a belief that “consensus is highly desirable,” and the case law of other courts as well as “the views of legal scholars” are considered (pp. 153-154). In Chapter 12, Dr. Sascha Kneip’s essay concerning how the German Constitutional Court has consolidated democracy in Germany uses a lively writing style and presents interesting tables (pp. 266, 270). The quantitative data is both compelling and intriguing. For example, Kneip points out that from 1990 to 2011 whereas the U.S. Supreme Court, “declared 5.1 laws per year unconstitutional…. the German Federal Constitutional Court annulled 11.1 norms per year” (p. 260). It will be interesting to see whether, and how, the American Supreme Court consolidates democracy in the United States in the 2020s.
The essays in the second edition of the text, CONSTITUTIONAL COURTS IN COMPARISON, are focused around an interesting set of questions, starting with explaining how political or social conflicts in Germany and the United States get transformed into legal proceedings (p. 2). The first two essays of Part II of the text consider factors that might account for judicial decision-making at the German and American courts. Chapters 6 and 7 consider the influence of the clerks at the U.S. Supreme Court and legal assistants at the Federal Constitutional Court on the judges’ decisions. Finally, Chapters 8 and 9 are devoted to the implementation of decisions, and answering the question: How constitutional decisions take hold in and impact the polity (p. 3). While these essays are academically solid, and a number of them have been quoted in law and politics journals already, the constitutional historian and the teacher/storyteller in me, says loudly that a largely procedural and theoretical analysis of the Supreme Court of the United States and the Federal Constitutional Court might leave an undergraduate student somewhat cold. An undergraduate student of comparative constitutions and democratic politics needs to read in addition to many of the articles in this text, a few actual decisions of the respective courts (German and American) to be aware of historical developments and the creation of normative rules. This content and context can be found in one of two additional books that could accompany CONSTITUTIONAL COURTS IN COMPARISON to create a substantial and ground-breaking college course. These two additional texts cited below in the references are: THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY and DEMOCRACY’S GUARDIANS: A HISTORY OF THE GERMAN FEDERAL CONSTITUTIONAL COURT 1951-2001.
This review has looked at CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT over a time frame of just about two decades and two editions. While the second edition was much needed to bring many of the essays up to date, some of the essays from the first edition still hold their weight, in particular Lester J. Mazor’s chapter on “The Law Clerks at the Supreme Court of the United States” and Professor Joachim Wieland’s chapter on “The Role of the Legal Assistants at the German Federal Constitutional Court.” Dr. Wieland himself was a legal assistant from 1984 to 1988 at the Federal Constitutional Court, so his essay in the first edition is still valuable. Both editions of the text, edited by Professors Rogowski and Thomas Gawron, provide English-speaking students access to the writings of established German thinkers in political science and law and some powerful American scholars as well. In the second edition, one finds in the mix of authors the writings of some younger scholars who could become leaders in the field, such as Sascha Kneip, Klaus Stüve, Maron W. Sorensen, and Gregory Elinson. The late Donald Kommers wrote that the first edition of the text was a “welcome addition to the literature of comparative judicial studies” (Kommers, 2002). The same can be said about the second edition.
REFERENCES:
Collings, Justin. 2015. DEMOCRACY’S GUARDIANS: A HISTORY OF THE GERMAN FEDERAL CONSTITUTIONAL COURT 1951-2001. Oxford: Oxford University Press.
Hausmaninger, Herbert. 1997. “Judicial Referral of Constitutional Questions in Austria, Germany, and Russia.” TULANE EUROPEAN AND CIVIL LAW FORUM. 12: 25-38.
Kommers, Donald P. and Russell A. Miller. 2012. THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. 3rd edition. Durham and London: Duke University Press.
Kommers, Donald P. 2002. Review of: CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT, by Ralf Rogowski and Thomas Gawron, (eds). 1st edition. LAW AND POLITICS BOOK REVIEW. 12: 10.
Miller, Russell. 2004. Review of: CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT, by Ralf Rogowski and Thomas Gawron, (eds). 1st edition. INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW. 2: 3: 568-573.
Pufong, M.G. 2003. Review of: CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT, by Ralf Rogowski and Thomas Gawron, (eds). 1st edition. CHOICE. 40: 8: 1435.
Rogowski, Ralf and Thomas Gawron. 2002. CONSTITUTIONAL COURTS IN COMPARISON: THE U.S. SUPREME COURT AND THE GERMAN FEDERAL CONSTITUTIONAL COURT. New York and Oxford: Berghahn Books.
© Copyright 2022 by author Stephen Ross Levitt.
