Rigid constitutional norms, treaties and the like place significant ties on democratic politics. If such norms are not to be condemned as an illegitimate »dead hand of the past«, what contents are they to entrench? Taking Germany's Basic Law as an example, Jakob Hohnerlein's study proposes criteria for the normative discussion as well as constitutional doctrine.
This book explores the concept of democratic reversibility: Democratic majorities
at any time should be able to change previous democratic decisions. I analyze
how constitutions and other legal forms limit reversibility and how constitutional
interpretation can help to ensure sufficient democratic dynamics.
In modern societies law is a product of contingent political decisions. To be
legitimate they must result from a democratic process - and they should be subject
to revision in a new democratic process. If democracy is characterized by
open discussions in representative institutions and the public sphere, decisions
can be no more than a »caesura in an ongoing discussion« (Habermas). The majority
rule is the fairest way to decide when people disagree on the best solution
- but only if the minority has the equal chance to become the majority (Kelsen).
New generations should not be bound by the will of the dead (Jefferson).
However, in modern legal systems democratic reversibility is significantly
limited. They have developed mechanisms to entrench norms, i.e. to take them
out of the hands of ordinary democratic decision-making. The very idea of constitutions
is to freeze certain norms. Even if amendments are not precluded by an
»eternity clause«, they have to be carried out in a particularly onerous procedure.
Typically, a supermajority is required, thus a minority can block any departure
from the status quo. In a similar vein, the obligations of states from international
treaties can in principle only be changed by the consent of all state parties. Moreover,
some constitutions require qualified majorities for legislation in certain areas.
In many legal orders there are constitutional doctrines according to which
new legislation must respect previously awarded rights or legitimate expectations.
The intensity of all those limits on present majorities to change legal norms
enacted in the past varies among legal orders, particularly depending on the existence
of judicial review. But even if entrenched norms are not controlled by
courts, they are normally respected as authoritative in political discussions.
How can rigid forms of law be justified? I argue that it is not convincing to
attribute legal norms adopted by a qualified majority a democratic superiority
vis-à-vis ordinary laws because it gives the preference to the status quo. A similar
concern holds for the concept of constituent power. It is not plausible to understand
the constitution as the will of the people themselves which should prevail
over the will of representative institutions. The idea of relatively fixing certain
norms in a constitution is, rather, that such norms establish a conception to ensure
the legitimacy of laws. This is especially plausible for rules relating to the
form of democratic decision-making and the protection of individual rights. On
the contrary, in a pluralistic society, norms that establish certain conceptions of
the common good, e.g. cultural institutions or economic principles, should be
open for continuous democratic discussion and easy revisions. The distinction of
norms for which there are good reasons to entrench them in the constitution from
issues that should be left to daily politics ought to be extended to other forms of
hard law. For example, international treaties may legitimately limit democratic
reversibility on the ground of human rights, whereas in the field of economic
cooperation there should be mechanisms to enable the adaption or termination of
states' obligations according to the present democratic will.
Beyond the theoretical considerations, the book examines the role of constitutional
interpretation in relation to democratic reversibility. For example, the
making of the German Basic Law can largely be understood not just as binding
future majorities to the will of the framers but as transforming legitimacy conceptions
from political theory into constitutional law. The task of constitutional
interpretation is, then, to further develop these ideas. The example of the discussion
whether it was constitutional to introduce same-sex marriage in Germany by
amending the civil code only shows us how various constitutional interpretations
may enhance democratic reversibility in contrast to an originalist reading. Another
issue examined in this chapter is whether the constitutional amendment procedure
of art. 79 GG can be used to constitutionalize any norm by qualified majority.
As the »eternity clause« provides protection of the democratic principle, I
argue for a standard of evaluation which determines the admissible scope of
constitutional amendment relating to its content. The Basic Law contains a conception
that certain issues should be regulated in current legislation which may
not be completely abandoned by constitutional amendment.
Constitutional interpretation also determines how far the legislature is bound
due to its own decisions. While some scholars understand constitutional limitations
to the reversibility of past laws in an overly broad way, I suggest that limitations
in the name of the protection of legitimate expectations etc. can only be
defended if they aspire to individual rights protections. The promise to keep a
law for a certain time is to be considered but does not lead to a self-induced
freezing of the law. Another kind of self-binding occurs when treaties are concluded.
Whereas the German constitutional court argues that the democratic
principle implies that legislation can always override treaty obligations, I prefer
a more nuanced approach. I suggest that one should analyze whether the treaty
contains sufficient withdrawal mechanisms and distinguish the content of the
treaty in relation to democratic reversibility.
