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German Equal Protection: Substantive Review of Economic Measures

Published online by Cambridge University Press:  06 March 2019

Edward J. Eberle

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“Denn nur durch Vergleichung unterscheidet man sich und erfährt, was man ist, um ganz zu werden, was man sein soll.” — Thomas Mann

David Currie devoted a substantial part of his scholarly work to exploring the intricacies of constitutional law, focusing intently on the United States and German constitutional orders. Along with Donald Kommers, Currie was among the first to closely examine the German constitutional system in a search for elucidation. As the quote by Thomas Mann (which he used in his seminal book, The Constitution of the Federal Republic of Germany) illustrates, if we truly want to aspire to realize our talents and ambitions, it is important to look outside national borders to see how things are done elsewhere to discover if there are ways in which we can improve. Staying within the “City upon a Hill,” as many Americans identify the United States, may lead to insularity or, even, a sense of false confidence. Which is why the task of comparative law is so important: looking outside national borders to see what other perspectives are out there, and then comparing and contrasting the foreign and domestic to learn which, upon consideration, is better or worse and for what reasons.

Type
Memorial: David Currie and German Constitutional Law
Information
German Law Journal , Volume 9 , Issue 12 , 01 December 2008 , pp. 2095 - 2108
Copyright
Copyright © 2008 by German Law Journal GbR 

References

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2 See David P. Currie, The Constitution of the Federal Republic of Germany 13–17 (1994).Google Scholar

3 Grundgesetz (GG - Basic Law/Constitution) art. 20(1), translated by Christian Tomuschat and David Currie and published by the Press and Information Office of the Federal Republic of Germany. “The Federal Republic of Germany is a democratic and social federal state.”Google Scholar

4 Grundgesetz (GG- Basic Law/Constitution) art. 1(1) (“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”).Google Scholar

5 See, e.g., DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189 (1989) (refusing to recognize any positive obligation of government to intervene to protect the life and well-being of a child who the state knew was being abused by his father.).Google Scholar

6 The decisive case is Lüth (BVerfGE 7, 198 (1957)), which involved a communication rights dispute over the right of a film director formerly closely associated with the Nazis to show his new films at a Hamburg film festival. In overturning an injunction prohibiting Lüth from continuing his call for a boycott of the film, the Court delineated the value order of the GG. “This value-system, which centers upon human dignity and the free unfolding of the human personality within the social community, must be looked upon as a fundamental constitutional decision affecting all areas of law, public and private. …Thus, basic rights obviously influence civil law too.” BVerfGE 7, 198 (205). By interpreting basic rights as establishing an “objective” ordering of values, the Court was stating that those values are so important that they must exist “objectively”–as an independent force, separate from their specific manifestation in a concrete legal relationship. So conceived, objective rights form part of the legal order, the orde public, and thereby possess significance for all legal relationships. For further consideration of the “Third Party Effect Theory,” see Eberle, Edward J., Public Discourse in Contemporary Germany, 47 Case W. Res. L. Rev. 797, 811–12 (1997); Quint, Peter E., Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247, 261 (1989).Google Scholar

7 Grundgesetz (GG- Basic Law/Constitution) art. 4(1) and 4(3).Google Scholar

8 Currie, supra note 2, at 213.Google Scholar

9 Grundgesetz (GG- Basic Law/Constitution) art. 21(2).Google Scholar

10 See BVerfGE 5, 85 (1956) (outlawing the Communist Party); see also BVerfGE 2, 1 (1952) (outlawing the Socialist Reich Party, successor to the Nazis).Google Scholar

11 Currie, David P., Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, 1989 Sup. Ct. Rev. 333, 348. (“Lochner Abroad”). Republished in this issue of the German Law Journal. Google Scholar

12 See, e.g., Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

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15 Grundgesetz (GG- Basic Law/Constitution) art. 3. Much of the discussion on equality is derived from Edward J. Eberle, Equality in Germany and the United States, San Diego Int'l L. J. (forthcoming).Google Scholar

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20 BVerfGE 98, 365 (1998).Google Scholar

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23 BVerfGE 82, 126 (1990).Google Scholar

24 Id. at 128–29 (citing BGB § 622).Google Scholar

25 For coverage of the case, see Susanne Baer, Equality: The Jurisprudence of the German Constitutional Court, 5 Colum. J. Eur. L. 249, 250 (1998-99).Google Scholar

26 BVerfGE 82, 126 (146) (1990).Google Scholar

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28 Id. at 148–49.Google Scholar

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31 Currie, supra note 11, at 368–69. For citations to the German cases, see id. Google Scholar

32 Id. at 367.Google Scholar

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34 Id. at 370.Google Scholar

35 See, e.g., Jefferson v. Hackney, 406 U.S. 535, 546 (1972).Google Scholar

36 Minnesota v. Clover Leaf Creamery Co, 449 U.S. 456 (1981) (citing United States v. Carolene Products Co., 304 U.S. 144, 154 (1938)).Google Scholar

37 See BVerfGE 13, 225 (1961).Google Scholar

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47 See Eberle, Edward J., Equality in Germany and the United States (forthcoming 2009).Google Scholar