
Contents
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I. History I. History
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A. The German Empire A. The German Empire
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B. The Weimer Republic B. The Weimer Republic
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C. Allied Military Occupation of Germany C. Allied Military Occupation of Germany
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D. Writing the Basic Law D. Writing the Basic Law
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E. Bicameralism in the Federal Republic of Germany E. Bicameralism in the Federal Republic of Germany
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F. The Interpretation of the Basic Law by the Constitutional Court F. The Interpretation of the Basic Law by the Constitutional Court
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G. Amending the Basic Law G. Amending the Basic Law
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H. Growth in Federal Power in Germany H. Growth in Federal Power in Germany
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II. The German Constitutional Court and Its Case Law II. The German Constitutional Court and Its Case Law
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A. Federalism Umpiring A. Federalism Umpiring
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1. The Southwest State Case 1. The Southwest State Case
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B. Foundational Importance of Federalism in the Basic Law B. Foundational Importance of Federalism in the Basic Law
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1. Early Federalism Cases Decided by the German Constitutional Court 1. Early Federalism Cases Decided by the German Constitutional Court
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2. Modern Federalism Case Law of the German Constitutional Court 2. Modern Federalism Case Law of the German Constitutional Court
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C. Separation of Powers Umpiring C. Separation of Powers Umpiring
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1. The Non-Delegation Doctrine in Germany 1. The Non-Delegation Doctrine in Germany
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2. Parliamentary Dissolution 2. Parliamentary Dissolution
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D. Individual Fundamental Rights and the Basic Law D. Individual Fundamental Rights and the Basic Law
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1. Lüth’s Case 1. Lüth’s Case
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2. Other Modern Individual Rights Cases 2. Other Modern Individual Rights Cases
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E. The Political Question Doctrine in Germany E. The Political Question Doctrine in Germany
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F. Balancing Rights and Duties in Germany F. Balancing Rights and Duties in Germany
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III. What Explains the Origins and Growth of German Judicial Review? III. What Explains the Origins and Growth of German Judicial Review?
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Three The Federal Republic of Germany
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Published:March 2021
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Abstract
This chapter looks at the German system of judicial review of the constitutionality of legislation, which has been borrowed by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. The historical lessons drawn from Germany’s experience with the Third Reich made Germans acutely aware of the need for constitutional protection of rights growing out of the great historical wrongs of Nazism and of the Holocaust. Thus, the fundamental core explanation of the origins and growth of German judicial review is that it is a rights from wrongs phenomenon. That being said, the growth of German judicial review was made easier by the fact that the German Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. The German Constitutional Court has performed those umpiring function from 1949 down to the present day with great deftness and ability. Thanks to the great scholar, Hans Kelsen, the Germans borrowed a greatly modified system of U.S. judicial review, which was specially designed to work well in civil law countries. The German Model has, in turn, been borrowed by every oother country discussed in Volume II of my two part book series.
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