photo credit: Gernot Poetsch

Not too much closer union

In a wide-ranging and fascinating judgement, the highly activist German Constitutional Court has ruled that the Treaty of Lisbon is compatible with its Basic Law. There are, however, certain provisos that significantly affect the force of some of the parts of the Treaty that could lead to deeper integration without an amending treaty. It also has a lot to say on the future scope of European integration.

The press release is certainly worth reading in full, and it’s only seven pages if you copy and paste into Word – useful for highlighting. If you have time to read the judgement in full it’s more like 119 pages, but I think for those geeks of European integration and judicial philosophy out there it will be well worth a look.

I was going to wait to comment on this before I’d seen what the highly-recommended German Law Journal had to say about it (its discussion of a 2006 ruling is a great example). Then I noticed this evening that Nosemonkey had come out with some very interesting analysis into the ruling, and thought I’d try and get my initial thoughts down before seeing what any more people had to say on the matter.

As with many decisions it hands down, Germany’s Constitutional Court (or Bundesverfassungsgericht) did not pull any punches or avoid the opportunity to delve into areas of deep political and philosophical debate.

On a very simplistic level, the most important thing to point out is that the court upheld the compatibility of the Lisbon Treaty with Germany’s highest law, its Grundgesetz, or Basic Law*. However, in striking down a law on the participation of the Bundestag and Bundesrat in the EU post-Lisbon, it  made several highly significant rulings, both on the interpretation of the Treaty required in order to maintain this compatibility, and on the direction and endpoint of European integration. A fuller summary of its ruling is below, but essentially, it argued that any changes to Treaties (which, under Lisbon, could in certain circumstances take place without another inter-governmental conference) must be approved by the German Bundestag (and on occasions the Bundesrat too – the upper house), rather than simply a decision of the government.

Some of its strongest rulings came on crime and justice cooperation. It ruled that the crime and justice competences must be interpreted “strictly – on no account extensively -, and their use requires particular justification“. Additionally, where Lisbon envisages a fairly broad power for the Council to extend the list of serious crimes which would come under the EU’s competence, addition to this list would require primary legislation in Germany. The German Basic Law, the court ruled, does not permit a “Kompetenz-Kompetenz”. That is, it does not permit “the transfer of competence to decide on its own competence”.

European integration: obligatory for the German government, but tightly restricted

The Constitutional Court powerfully states that “The constitutional mandate to realise a united Europe which follows from Article 23.1 of the Basic Law and its Preamble means with regard to the German constitutional bodies that participation in European integration is not left to their political discretion.”

Germany is obligated to participate in European integration under its Basic Law. However, the Court significantly restricts what it means by participation in European integration:

European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life… This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

European Union as a federal entity: not only unconstitutional, but impossible within the existing constitutional order

The judgement argues that to create a European federal state would require a new constitution. This is because according to the Basic Law (Art. 79.3), “An amendment of this Basic Law affecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.” Article 20 states:

Article 20 (Basic principles of state order, right to resist).

(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 by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible. (inserted 24 June 1968)

The transition into a federal European Union can thus not happen through a series of intergovernmental conventions. It can only happen if the German Basic Law ceases to be in force, which would occur “on the day on which a constitution adopted by a free decision of the German people comes into force” (Art. 146). This need not be a referendum: the Basic Law had to be ratified by two thirds of state (Land) legislatures, and Germany has been very suspicious of plebiscites since the end of the Weimar Republic. In any case, Article 20.4 provides the right of insurrection against any person seeking to abolish the constitutional order. The point, then, is that a federal European state would require an overthrow of the German constitutional order which renders this idea virtually impossible. Germans would have a legal right to insurrection against such a federal European state.

A federal European state, which in any case was unlikely, is expressly forbidden within the context of Germany’s existing constitutional order.

Democratic legitimacy of European institutions

The Constitutional Court went further than it needed to, in discussing the European project itself. It made some not-too-subtle hints that it might not be so accommodating in accepting the constitutionality of future Treaties. It, furthermore, stridently criticised the lack of powers of the European Parliament in stating that

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States. Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

It also indicated a problem in that “its election does not take due account of equality” – which is a product of the 27 member states being able to decide their own electoral systems for choosing their country’s representatives in the European Parliament. It cannot have a politically decisive effect in European institutions.  As a result, it states:

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund [union of sovereign states], further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

This is very significant stuff. The ruling insists, at least to an extent, on a democratic deficit, if the existing constitutional order is to be maintained. Power can be delegated to European institutions only to a limited extent, and only through member states’ constitutional bodies as representatives of the people, in the Council of Ministers.

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

The Constitutional Court accepted the constitutionality of the Lisbon Treaty. But in reaffirming the inter-governmental nature of the EU, it underscored the right of Germany’s national parliament to participate in the legislative process, striking down the verbosely-titled “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters”. In doing so it put definitive limits on the extent to which “ever-closer union” may continue.

***

Briefly, it ruled that:

1. “The approval of [...] Germany in simplified revision procedures requires a law”, rather than merely the assent of the government. (3bb)
2. “The representative of the German government in the European Council may only consent to a Treaty amendment brought about by the application of the general bridging clause if the German Bundestag and the Bundesrat have adopted … a law”  (3cc)
3. “The veto right in the Council may not be waived without the participation of the competent legislative bodies even as regards subject-matters which have already been factually determined in the Treaties. The representative of the German government in the European Council or in the Council may therefore only consent to an amendment of primary legislation through the application of one of the special bridging clauses on behalf of the Federal Republic of Germany if the German Bundestag and, to the extent that this is required by the provisions on legislation, the Bundesrat, have approved this decision” (3dd)
4. “Also the flexibility clause under Article 352 TFEU can be construed in such a way that the integration programme envisaged in the provisions can still be predicted and determined by the German legislative bodies. With a view to the undetermined nature of possible cases of application, the use of the flexibility clause constitutionally requires ratification by the German Bundestag and the Bundesrat” (3ee)
5. “The Federal Constitutional Court’s competence of review is not affected by Declaration no. 17 on Primacy annexed to the Final Act of the Treaty of Lisbon. The foundation and the limit of the applicability of European Union law in the Federal Republic of Germany is the order to apply the law which is contained in the Act Approving the Treaty of Lisbon, which can only be given within the limits of the current constitutional order.” (3ff)
6. “The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns can, within the meaning of an interpretation of the Treaty that does justice to its purpose, and must, in order to avoid imminent unconstitutionality, be exercised by the institutions of the European Union in such a way that on the level of the Member States, tasks of sufficient weight as to their extent as well as their substance remain which legally and practically are the precondition of a living democracy.” (3gg, my emphasis)

Finally, on the last point – in the field of criminal civil matters,  external trade relations, defence, and social concerns:

- Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and law of criminal procedure, the corresponding foundations of competence in the Treaties must be interpreted strictly – on no account extensively -, and their use requires particular justification.

- The use of the dynamic blanket authorisation pursuant to Article 83.1(3) TFEU to extend the list of particularly serious crimes with a cross-border dimension “on the basis of developments in crime” is factually tantamount to an extension of the competences of the European Union and is therefore subject to the requirement of the enactment of a specific statute.

- In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Article 82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the perspective of German constitutional law, the necessary measure of democratic legitimisation via the national parliaments can only be safeguarded by the German representative in the Council exercising the Member State’s rights set out in Article 82.3 and Article 83.3 TFEU only on the instruction of the Bundestag and, to the extent that this is required by the provisions on legislation, of the Bundesrat.

- Parliamentary approval will still be required for deployment of German forces

* German does have a word for ‘constitution’ (Verfassung), but the term ‘Basic Law’ was chosen in 1948 as this document was not envisaged to be particularly permanent, pending reunification with eastern Germany, or what was to become the German Democratic Republic. (I think, anyway.)

photo credit: Thomas Roche

Last month Barack Obama nominated Sonia Sotomayor, a federal appeals court judge, to replace the retiring David Souter on the Supreme Court. As battles go, the battle between Democrats and Republicans over Sotomayor hasn’t been particularly hard-fought so far – at least in comparison with some of the legendary heated nominee battles of the past. This is because, with 60 Democrats in the Senate,  Republicans have about as much hope of sinking her confirmation as the media does of pronouncing her name correctly (for the record, it’s Soh-toh-my-YOR). However, this hasn’t stopped the Right from attacking her and it’s important that Democrats are effective in rebutting these attacks, especially since they won’t always have the votes to waltz through their chosen nominee in the years to come.

Luckily for liberals the main form of attack on Sotomayor – aside from a liberal dose of racism & sexism from the ever-vocal conservative fringe – has come from the worn, dog-eared folder marked “judicial activism”.  Accusations of being an “activist judge” are par for the course for liberal nominees to any high court in America.  But what is judicial activism? In the fevered minds of conservative Republicans, activist judges are those who frequently strike down state or federal legislation so they can impose their liberal policy agenda on America. Instead of acting like judges, they act more like politicians: legislating from the bench. They are frequently contrasted with conservative-minded judges, who simply “apply the law of the land”.  The nomination of Sotomayor has brought these old accusations back into the open, with a new twist that as part of her liberal activism Sotomayor favours the rights  of minorities over those of whitey.

The main problem with the “activist judge” critique is that it’s really, really dumb. For a start, the idea that judges, when faced with controversial cases, should simply “apply the law” doesn’t make any sense. The whole point behind the kind of case that ends up in an appeal court is that it’s impossible to “apply the law”, since the application of the law in this case isn’t particularly obvious – thanks in no small part to the fact that the constitution is full of phrases that are incredibly vague (hello, second amendment!). Indeed, the existence of these “hard cases” is virtually the first thing a law student of any legal system learns about, but the last thing that many conservatives would ever acknowledge. But those attacking Sotomayor aren’t (just) making this attack out of stupidity; they are using it as a way to disguise their real, extremist aspirations within misleading but effective populist rhetoric. To see the proof of this deceit in action, we need only do something that the American Right (and in large part the American media) can’t really be bothered with: that is, actually examine the cases decided by Sotomayor that have got conservatives so hot under the collar.

Perhaps the most high-profile case that’s been used by Sotomayor’s Republican critics to attack her has been the case of Ricci v DeStefano, which concerns the always explosive issue of affirmative action. In this case, a group of white firefighters in New Haven, Connecticut took an employment test that was meant to go towards considering promotions. However, the city decided not to accept the test results, since they would have meant that none of the African Americans who took part would be eligible for promotion. Thus they feared that the test would be discriminatory and in breach of the 1964 Civil Rights Act. The firefighters took the city to court, and a district court voted in their favour. When the case went to appeal, a seven judge majority (including Sotomayor) upheld the district court’s decision, noting – in a controversially brief opinion – that though the judges were  “not unsympathetic to the plaintiff’s expression of frustration,” it simply did not follow that he had a valid claim under the Civil Rights Act.

Conservatives were furious – to them this was a classic example of activist judges screwing over the white man in order to further a liberal agenda of excessive affirmative action (or “positive discrimination” as those on the Right call it). Fuelling their anger was the fact that the plaintiff, Ricci, was an extremely sympathetic character who had dyslexia and had gone to tremendous effort to receive special training so he could pass the test.

The problem for those who would use this case to beat up on Sotomayor is that it really isn’t an example of judicial activism. What the  court was essentially deciding was that the city was right to fear that the test might be in breach of the Civil Rights Act. At no point were they asked to defend the constitutionality of the act itself. And as for the plaintiff, he may have been an incredibly sympathetic character but, if the judges had overlooked the small matter of the relevant provisions in the Civil Rights Act in order to help him out,  then they would have been guilty of  judicial activism. What this case shows more than anything is the hollowness of cries of “activist judge” – it’s clear that conservatives’ real beef in this case was with the Civil Rights Act itself, and the way in which certain portions of it support the affirmative action policies they so despise. They would like nothing other than for a judge to strike down several parts of that historic piece of legislation. In other words, they are the ones who would promote judicial activism, not the likes of Sotomayor.

But it’s not just the case of Ricci that exposes the real agenda behind those who cry “activism”. In Maloney v Cuomo, a New York attorney claimed that a state law prohibiting the  possession of everyone’s favourite martial arts weapon – nunchuks -  violated his Second Amendment right to bear arms. A distict court rejected his claim, and an appeal panel that included Sonia Sotomayor affirmed the decision. Conservatives were up in arms: surely this was a classic example of liberal judicial activism attempting to strike down an American’s constitutionally protected right to fill his house with enough guns to arm a small revolution? Except, um, no it wasn’t. The panel were relying on a previous 19th century Supreme Court case that ruled that the Second Amendment applies only to limitations the federal government seek to impose – in other words individual states  can do what they like. Since a second circuit appeal court can’t overule the Supreme Court (it wouldn’t be very supreme otherwise, would it?), their only option was to follow that decision. In other words, far from dabbling in a spot of judicial activism,  Sotomayor’s court was  .. dutifully following the precedent laid down by a higher court.

As part of their criticism, conservatives pointed to a recently decided Supreme Court case District of Columbia v Heller, which overturned a Washington D.C. state ban on handguns.  Except, as the appeal court in Maloney pointed out, it’s highly questionable whether that changes the long-held principle that the Second Amendment only applies to the federal government. So in other words, the conservatives who point to this case and accuse Sotomayor of judicial activism are themselves relying on a currently vague case at the expense of solid legal precedent. Calling this hypocritical is like saying that Mike Tyson has a questionable attitude to women. Once again, the motive of conservatives is clear: they’re not worried about strictly applying the law, they’re concerned about protecting their own interpretation of the constitution by any means necessary. Cries of judicial activism with regards to Maloney are simply a disguise for the conservative belief that the Supreme Court itself needs to change its mind and firmly apply the Second Amendment to states as well  (which it may well do, worse luck, when the case of Maloney reaches it later in the year).

As far as Sotomayor’s case history is concerned, the examples of her not being  a judicial activist go on and on. When it comes to the hot potato of abortion she’s not ruled on the issue directly but did rule, in Centre for Reproductive Policy v Bush , that a US policy of prohibiting foreign organisations that receive U.S. funding from supporting abortions did not violate the first amendment rights of  a pro-abortion group. In doing so, Sotomayor relied on the solid precedent of  an identical case from the same court. So much for the old trope of a liberal judge forcing pro-abortion policy onto the courts! In Pappas v Guiliani, Sotomayor asserted the first amendment, free speech rights of an employee who’d been dismissed for racist language; resisting the urge, unlike her colleagues in that decision, simply to use the court to punish a white bigot. (This case also rather puts a dent in the line of attack that says that Sotomayor overly favours racial minorities.)

It should now have become clear that the modus operandi of conservatives is clear and follows a predictable pattern: accuse a liberal judicial nominee of being an activist judge, putting policy before the law. Under the guise of this populist attack,  promote your archaic interpretation of the constitution. It’s a great shame to see the national debate over judges dominated by this self-evidently illogical rubbish, since there is a genuine debate to be had between the opposing sides of the judicial spectrum. This often revolves around the battle between the “living constitution ” theory – a progressive view of the constitution that puts it in context of the social realities of today – versus theories like “originalism” or “textualism”, conservative legal philosophies which emphasise loyalty to the originally intended meaning of the constitution.  You could argue all day how much these theories are genuine or simply a product of a judge’s ideological leanings but the point is that, unlike the fake debate of “judicial activism” versus “applying the law”, they actually mean something.

Thus, by obscuring the debate with ridiculous and illogical cries of “judicial activism”, conservatives poison the debate about how judges should decide their cases and reduce it to inane, opportunist drivel. It’s not surprising that they should resort to this tactic, since a majority of the American public are pro-choice, supportive of reasonable affirmative action and generally sane – thus it’s hard for conservatives to be honest about their real agenda. With the nomination of Sotomayor, Democrats have an opportunity to rebut these tactics and show them up for the empty politicking that they really are. It might be tempting in this case just to let the votes do the talking – but sooner or later liberals are going to have a real judicial battle on their hands, and they could do with the practice.

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