Tobias Mast

Die kompetenzielle Bedeutung der Grundrechtsschranken

Jahrgang 148 () / Heft 2, S. 154-203 (50)
Publiziert 28.06.2023

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Some fundamental rights guaranteed by the Basic Law may be restricted only »by or pursuant to a law«, others may be interfered with only »pursuant to a law« and before an amendment in 1968, there were also fundamental rights that could be restricted only »by a law«. For as long as such formulations have existed, different views have been expressed as to whether these wording differences are meaningless or whether they specify that interferences may only be made directly by law without any later administrative execution (»by a law«) or by administrative execution (»pursuant to a law«). Although Carl Schmitt had already promoted the second, competency-based understanding of fundamental rights barriers in his Verfassungslehre from 1928 on provisions of the Weimar Reichsverfassung that were identical in wording, hardly anyone exchanged arguments pro and con ever since. Only the »Bundesnotbremse I« decision of the Federal Constitutional Court of November 19, 2021 on a quarantine imposed at the height of the covid pandemic directly by law without any later administrative execution recalled the dispute. This article discusses conceivable understandings of the affected fundamental rights and appeals for a norm-specific interpretation of its constraints.

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