
Contents
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I. He Who Sows Constitutional Law, Reaps Constitutional Justice I. He Who Sows Constitutional Law, Reaps Constitutional Justice
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II. The Basic Law and the Federal Constitutional Court—An Asymmetric Partnership II. The Basic Law and the Federal Constitutional Court—An Asymmetric Partnership
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A. The constitution and its mouthpiece A. The constitution and its mouthpiece
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B. Implementing the constitution against competing concepts: Thinking from the perspective of the constitution B. Implementing the constitution against competing concepts: Thinking from the perspective of the constitution
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C. The Constitutional Court’s triumph over its rivals: Karlsruhe locuta, causa finita C. The Constitutional Court’s triumph over its rivals: Karlsruhe locuta, causa finita
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1. A constitutional organ among constitutional organs 1. A constitutional organ among constitutional organs
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2. A court among courts 2. A court among courts
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III. Three Momentous Turning Points III. Three Momentous Turning Points
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A. Opting for a judicial guardian of the Constitution A. Opting for a judicial guardian of the Constitution
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1. The “law-ness” of the Constitution 1. The “law-ness” of the Constitution
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2. The justiciability of legislation: Norm control 2. The justiciability of legislation: Norm control
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3. Linking law and politics 3. Linking law and politics
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B. Opting for an isolated constitutional tribunal B. Opting for an isolated constitutional tribunal
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1. Exceptional adjudication 1. Exceptional adjudication
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2. Broad standards as jurisdictional boundary 2. Broad standards as jurisdictional boundary
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C. Opting for a pyramid model of constitutional adjudication C. Opting for a pyramid model of constitutional adjudication
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1. The court that fields complaint against other courts 1. The court that fields complaint against other courts
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2. The omnipresence of fundamental rights—and of the Federal Constitutional Court 2. The omnipresence of fundamental rights—and of the Federal Constitutional Court
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IV. Symbiosis with Public Law Scholarship IV. Symbiosis with Public Law Scholarship
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A. Academically oriented constitutional jurisprudence A. Academically oriented constitutional jurisprudence
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B. Constitutional dogmatics as the forum of communication between constitutional scholarship and constitutional jurisprudence B. Constitutional dogmatics as the forum of communication between constitutional scholarship and constitutional jurisprudence
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1. Dogmatics’ aim and function 1. Dogmatics’ aim and function
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2. Common medium of legal scholarship and legal practice 2. Common medium of legal scholarship and legal practice
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C. Establishing congenial concepts for standards, interpretation, and exposition C. Establishing congenial concepts for standards, interpretation, and exposition
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1. The constitution as the pervasive concept of unity 1. The constitution as the pervasive concept of unity
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2. Constitutional interpretation as interpretation sui generis 2. Constitutional interpretation as interpretation sui generis
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3. Establishing congenial expository concepts 3. Establishing congenial expository concepts
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V. An Improbable Success Story V. An Improbable Success Story
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A. Evolutionary improbability A. Evolutionary improbability
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B. An export-ready success model? B. An export-ready success model?
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C. The Federal Constitutional Court—a model for the future? C. The Federal Constitutional Court—a model for the future?
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2 The Karlsruhe Phenomenon: What Makes the Court What It Is
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Published:March 2020
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Abstract
This chapter stresses that nothing in the Federal Constitutional Court’s growth was preordained. It depicts the Court’s initially fraught relations with political actors, ordinary judges, and legal academics, scrutinizing the institutional peculiarities that have made the Court what it is. The manner and direction in which the Court developed was recognizable merely in outline in the fundamental decision by the constitution’s founders for an institutionally independent constitutional adjudication, which according to the size and extent of its jurisdiction would be powerful. This was due to the fact that the Federal Constitutional Court in its totality was unprecedented both in terms of constitutional history and comparative constitutional development: during the deliberations on the Basic Law and Federal Constitutional Court Act, there were repeated specific references to the Staatsgerichtshof in Weimar and the U.S. Supreme Court. But both in its numerous distinctive details and even in the overall concept, the constitutional court of the Basic Law represents a new creation.
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