Germany's constitutional court (Bundesverfassungsgericht, or BVerfG) has learned to live with criticism by the legislative and various governments over the decades. As the final arbiter of West German and then unified Germany's laws, the court offended the social democrat lead West German government of the 1970s as well as many state and national governments before and since.
In its history, the court has decided on issues large and small, from whether it is legal to call soldiers murderers (it is, if you say you are only quoting the writer Tucholsky), to the legality of crucifixes in Bavarian classrooms, to mass surveillance.
In the past two or so decades, the most vociferous criticism has come from conservative politicians (CDU and CSU). And among the most vocal ones, CDU politician Norbert Lammert likely deserves the label "most outspoken".
In 2013, Lammert accused the court of meddling in issues of family law, especially same sex issues, as well as national security law, in particular warrantless surveillance. At the time, Lammert was very upset that the chief justice of the court gave an interview to the press, violating - as Lammert claimed - the principle of judicial neutrality. This principle was also at issue in the discussion about "Germany's judge" in this earlier post.
In May 2017, Lammert, who is the president of the German federal parliament, not only reaffirmed his earlier criticism but added a threat: if the court continued to limit the freedom of legislative maneuver, the legislature might look to defend itself by changing the constitution to limit undesirable* court intervention.
With a federal "grand coalition" of CDU/CSU and social democrats still in power in Berlin until fall of 2017 and possibly after the general election, too, this is no idle threat. The two thirds majority needed to change the constitution exists - right now, the two parties have a combined majority of 80%.
CDU/CSU led federal governments have never been shy to take the constitution to its limits. The most egregious example the blogster has come across was right after the fall of the Berlin Wall, when the reconstituted East German states became part of the Federal Republic.
The German constitution explicitly stated that it would cease to exist when Germany was re-united and would be replaced by a new constitution accepted by the people of a reunited Germany in a general referendum. But the West German constitution is still in force, and nobody is talking about fulfilling the pledge.
How did the conservative government at the time do it?
The East German states were made to apply for membership, thus technically avoiding "reunification", despite the fact that everybody calls the merger of the two countries the reunification of Germany.
To someone like the blogster, Lammert bringing up a change of the constitution to thwart meddling by activist judges smacks of authoritarian tendencies.
With his initiative in 2013 having been triggered by a constitutional court decision to give equal rights to gay and lesbian couples - not marriage, mind you, the conservatives have prevented that to this day - the blogster wondered what could have upset the gentleman this time.
It did not take long for the blogster to find reports that the German green party has taken the federal government to the constitutional court over what the Greens consider inadequate information sharing by the executive and the federal legislative.
Specifically, the Greens wanted information from the administration on the Stuttgart main train station project, a multi-billion Euro disaster funded with a large federal contribution, as well as on the activities of banking regulators during the financial crisis.
The government claimed the demanded information cover "internal matters" and "deliberations", so the Greens sued at the constitutional court.
Wether Lamert's threat becomes a sad reality, will depend on the elections later this year. Which are very likely going to see another CDU/CSU led federal government, and then all will all depend to the junior partner of the new administration.
* Orig: indem er seinerseits die Verfassung ändere „um für künftige Fälle eine
ungewollte Rechtsprechung möglichst zuverlässig zu verhindern.“
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