Freedom, Politics, and the Courts

Modern liberal democracies are awash in rights, enforced by powerful (constitutional) courts. Paradoxically, though, it’s an open and serious question whether constitutional structure still constrains nominally democratic but poorly monitored institutions and whether courts can still enforce the groundrules of liberal, democratic politics. NFIB v. Sebelius raised that central question in one form. The ESM/Fiscal Pact case(earlier post here) pending before Germany’s Bundesverfassungsgericht (“FCC”) raises it in a somewhat different form: does the German Constitution pose any limit to the political branches’ power to delegate authority to the European Union and its various institutions? That is the central question of German politics and of European politics: barring further German transfers of money and authority, the Euro will fall apart. Hence, all eyes in Europe are on the FCC.

Teutonic ConLaw in a Nutshell

Article 23 of Germany’s Constitution (in its post-Reunification and Maastricht Treaty version) explicitly permits transfers of sovereign authority to European institutions. However, in a long line of decisions stretching from its 1993 decision on the Maastricht Treaty to the most recent (June 19, 2012) decision on the ESFS (the ESM’s precursor), the FCC has insisted that such delegations are subject to limitations. They generally require two-thirds majorities in both houses of parliament (the Bundestag and the Bundesrat, i.e. the states’ chamber) pursuant to Art. 79 I & II, which governs constitutional amendments and treaty commitments. On a more substantive note, Art. 79 III forbids amendments and commitments that derogate from the principles of federalism, of Art. 1, and (most important in the present context) of Art. 20, which is worth quoting:

(1)   The Federal Republic of Germany is a democratic and social federal state.

(2)   All state authority emanates from the people. It is exercised by the people through elections and voting and by specific organs of the legislature, the executive power, and the judiciary.

These principles of representative democracy, and the general structure of the Constitution, the FCC has said time and again, preclude a wholesale delegation of government authority to the EU. At some point, the transfer of government powers to supra-national institutions becomes incompatible with the principles on which the constitutional order rests. And political bodies cannot abolish that order. Only the people themselves can do so, in a popular referendum (Art. 146).

What’s at Stake

As already suggested, the question of whether the government had transgressed the point of permissible delegation has arisen in connection with the Maastricht Treaty, the Lisbon Treaty, and on other occasions. But the ESM/Fiscal Pact case presents it in dramatic form.

First, the pacts present a twofold, deeply troublesome delegation. At one end, the instruments commit future parliaments to exorbitant loan guarantees and transfers of hundreds of billions Euros. (It’s not clear that the country actually has all that money. It borrowed the funds for the Greece rescue.)  At the other end, the measures envision de facto receivership for any country that requires and requests aid: as in Greece and elsewhere, a can’t-be-found-on-any-organization-chart “Troika” of EU, ECB, and IMF strolls in and tells the government how and whom it may tax and regulate. The possibility that this might happen to Germany is remote: because other countries need Germany’s money, the country has violated EU fiscal commitments and “stability criteria” with impunity. Still, as a constitutional matter, it’s hard to argue that international commitments are constitutional because you can always break them unilaterally.

Second, the ESM/Fiscal Pact case presents the FCC with the same institutional problem that arises for the Supreme Court in enumerated powers cases:  Bag the law at issue, and—the justices are told by the politicians and their fellow-travelers—you undermine democracy. (Plus, you risk catastrophic consequences: do you really want the responsibility?) Let it slide, and—what with all the prior pronouncements that “there’s got to be a line”—you look like a dog that’s all bark and no bite.

In earlier cases, the FCC negotiated the difficulty by insisting on additional democratic, parliamentary controls for EU delegations: parliament must be informed on a regular and timely basis, and it must vote on each stage of the implementation of international agreements (for example, the disbursement of rescue funds). However, that strategy has reached the outer limits of practicability and plausibility. The Bundestag is already meeting 24/7 to be informed and to approve of this, that, and the next EU measure. More importantly, the FCC’s demand for legislative participation arose over the EU’s ordinary, institutionalized operation under the Lisbon Treaty and the danger that the executive might bargain away democratic prerogatives (including, importantly in Germany’s federal context, state prerogatives) in the dead of a Brussels night. In that context, more openness and participation are virtues, and the attendant delay doesn’t matter much. However, the FCC strategy is mismatched with the EU’s post-financial-crisis functioning. In all the crisis domains, the EU has reverted to a political model that (one would have thought) went out of fashion with the death of Fuerst Metternich: the princes and potentates of Europe preserve the peace by talking amongst themselves. Personalities trump institutional process.  In a way, that executive-dominated m.o. is more democratic than the EU’s ordinary functioning: unlike, say, the European Commission, government leaders are elected; and when the wheeling and dealing goes badly, the leaders get tossed out of office. In any event, you can have a model of summitry and midnight maneuvering, or you can have parliamentary control. You can’t have both. The FCC will at last have to address what can be delegated, not how it’s being delegated.

What’s Really at Stake

In the ESM/Fiscal Pact case, the FCC confronts a generic dilemma of modern liberal democracy—the questionable ability of constitutional courts to constrain political institutions. In the German context, though, that problem takes a peculiar coloration.

The Constitution’s “Europe-friendliness”—encapsulated in Art. 23—reflects the recognition that Germany, and especially a reunified Germany, must render itself safe for a democratic Europe. It’s a huge accomplishment of German politics to have left no doubt about that commitment. But that’s different from saying that whatever the politicians say is good for “more Europe” is actually conducive to that end. The more Europe sinks into a decidedly un-democratic morass of bureaucracy and bargaining, and the more the EU looks like an instrument of German dominance rather than discipline, the more compelling the FCC’s skepticism about the enterprise begins to look.

With great vehemence (uncannily reminiscent, in tenor and orientation, of the rants against a supposed U.S. “Constitution in Exile”), Germany’s legal-political establishment has denounced the FCC’s posture as “statist,” meaning something like “addicted to pre-modern notions of nationhood” and therefore dangerous. That is calumny. What the FCC is invoking is a tradition that recognizes the intimate connection between liberal democracy and nationhood—“the state,” if you will. That’s the spirit of 1848. It’s the spirit that fostered, after 1949, the creation of a liberal democracy on German soil—not a small matter, to anyone who has been paying the slightest bit of attention. And it’s the spirit that, in 1989, prompted this:

Westernhagen – Freiheit Livekonzert 1989

Marius Mueller Westernhagen’s riveting tribute to freedom, though written and performed in a different context, applies with great force to the EU’s m.o. Die Vertraege sind gemacht: The politicians sign treaties; congratulate each other; eat dessert; and lament that the electorate is insufficiently stupid for the rulers’ needs (“der Mensch ist leider nicht naiv”). What gets lost in the shuffle is freedom. And that, ultimately, is the FCC’s concern.  Germany, it says, has built a liberal, prosperous democracy, whose principles are enshrined in the Constitution. This first-time-ever in Germany is now us; and while the world asks whether we will fork over the rewards of our prosperity to Southern countries, the actual (or at any rate the additional) question is whether we will sacrifice the right to run our own affairs, responsibly and in a liberal-democratic fashion, to a supranational cabal of doubtful legitimacy and efficacy. If we do that, Freiheit wurde wieder abbestellt: freedom was canceled again.

The constituencies that cheered MMW face the same problem that also confronts Americans of a similar disposition: they have no institutional place to go except the least democratic branch of government. To the FCC’s considerable credit, it is aware of that reality and of the Court’s grave responsibility. For better or worse, it is not going to ding the ESM/Fiscal Pact in its entirety. With any luck, however, it will insist on meaningful limits and reservations. The ruling is expected by September 12; comments in these pages, at that time.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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