la interfaz digital, en el acercamiento de los niños a la lectura y la escritura

Germany is the ultimate exposition of a state in which constitutionalism has played a significant role in aiding the recovery from extreme nationalism, genocide and totalitarianism. A further reason for the focus on Germany is the prominent influence of post-war German constitutionalism around the world and particularly in the Eastern European states which were reconstituted after the end of the Cold War.126 The German Basic Law remains one of the world’s most influential constitutions based on the frequency with which its provisions and institutions have been replicated by newly emerging states around the world.127 Some of these states which adopted German constitutional structures such as Hungary and, more lately, Poland, have taken a distinctive turn towards the illiberal and ideological right128 in recent years with attacks on the independence of their respective constitutional courts intensifying. These developments highlight the difficulty of liberal democratic states maintaining their liberal values in periods of flux.

Maintaining some equilibrium between the forces of stability and renewal is crucial to ensure a polity can adjust to a changing social context. During the Parliamentary Council which drafted the Basic Law in 1948, some delegates were opposed to the idea of electoral thresholds (Sperrklauseln) because they felt they would exclude the types of vibrant political forces that a polity needs to renew itself.129 The emergence of the Greens in democratic politics in the 1980s after they finally managed to overcome the 5 percent hurdle, was precisely the type of new political blood that the

124 _{Ibid. p. 219.}

125 _{Schlink, pp. 210-11.} 126

See Eberle, p. 12. See also Bruce Ackerman, 'The Rise of World Constitutionalism', Virginia Law Review, (1997).

127 _{Juliane Kokott, 'From Reception and Transplantation to Convergence of Constitutional Models in The} Age of Globalization-With Special Reference to The German Basic Law', in Constitutionalism,

Universalism and Democracy: A Comparative Analysis, ed. by Christian Starck (Nomos-Verlag-Ges., 1999).

128 _{See for example Jan-Werner Müller, 'The Problem With Poland', in New York Review of Books,} (2016). Müller notes that “Poland and Hungary now offer a toxic ideological brew that is reminiscent of interwar Europe.”

129

Ulrich Wenner, Sperrklauseln im Wahlrecht der Bundesrepublik Deutschland, (Frankfurt am Main: Peter Lang, 1986), p. 91.

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rather staid and conservative German political system needed according to some jurists and politicians.130 Although the Greens were only slowly and grudgingly accepted by the established parties into the German party system, the BVerfG played a role in this process of integration through several court decisions arising out of constitutional complaints that the Greens made.131 The ability of a constitutional system to integrate new political parties within its existing institutions in a stable manner―even ones initially viewed with suspicion as the Greens were―is fundamental to the health of a polity. If rising political parties are seen to have been unreasonably excluded from political institutions (i.e. parliamentary seats, committee positions etc), there is a risk, firstly, of increased alienation between voters and their elected representatives, and, ultimately, the danger is that voters lose faith in their democratic institutions.

While this may be true of most democracies, the risk calculation in Germany’s case over whether certain parties are acceptable is materially different given its history, its constitutional values and the militant democracy. Thus, political ossification must be balanced against the existential threat posed to a constitutional order if hostile political forces or parties are integrated within its institutions. If such parties enter parliament there are two principle risks: one is that they can gain enough leverage to compromise the values of the polity; another is they can prevent the parliament from functioning, thereby bringing democratic institutions into disrepute. The latter situation can also occur not only through the intent of a party to wreck democratic processes, but through the entry of many innocuous smaller parties into a parliament, thus precipitating legislative gridlock and preventing it from functioning. This is exactly what happened during the Weimar Republic, the experience of which is still used as justification for maintaining electoral thresholds for elections to the Bundestag. As will be examined in Chapter 7, the criterion that a legislature must be able to function is still important. However, the Court has seemingly viewed this test as being less important at the EU level, which has caused considerable consternation in the federal government (Bundesregierung) and among MEPs in Strasbourg.132

One notable feature of the development of an American constitutionalism which belatedly came to recognise the dignity of man, the expanding scope of equality and individual rights is that its trajectory has exactly paralleled the expansion of the suffrage

130 _{See infra note 667.}

131

One of the most notable cases was the Green Party Exclusion Case, 70 BVerfGE 324 (1986). 132 _{See infra note 717.}

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and the increase democratisation of political institutions133, not run counter to it. The U.S. Supreme Court has described “the evolving standards of decency that mark the progress of a maturing society”.134

Clearly, however, different societies and different sub-sections of society as well as the political branches of government may have their own ideas about how standards of decency may have evolved.135 It is in the different interpretations between the judiciary, politics and society that political and constitutional tensions―manageable or dangerous―are generated. Certain contexts and problems strongly favour judicial scrutiny of political institutions. Chief among these are cases where the constitutional system has become ossified, where democratic representation is failing and where individual rights are being infringed.136

The connection between democracy and rights is, as I will show, common to both Germany and the United States. As the Supreme Court noted in Wesberry v Sanders, “other rights, even the most basic, are illusory if the right to vote is undermined.”137

Thus, if a group of politicians, a party or a political class are able to gain power through malapportioned constituencies, or limits on free speech (or no limits138), then they would be able to both disenfranchise some citizens and effectively strip them of their constitutional rights. While this association has only emerged in fits and starts in the U.S. Supreme Court’s jurisprudence in the twentieth century, in Germany, the relationship between democracy and rights is inherent in the Basic Law and, as will be shown in Chapters 6 and 7, has been further developed in the BVerfG’s jurisprudence.139 Fundamental rights in the Basic Law are seen as anterior to the state and as being an absolute precondition for democratic life.140

A fundamental legal differentiation between American and German constitutionalism is that while the American Constitution only protects individuals against public authority, the German Basic Law has since a famous decision by the BVerfG in 1958141, also protected the fundamental rights of German citizens against

133 _{For example, through the direct election of Senators.} 134

Rhodes v Chapman, 452 US 337 (1981). 135 _{Koopmans, p. 121.}

136 _{Such concerns were present in the decision in footnote four of Carolene Products.} 137 _{Wesberry v Sanders, 376 U.S. 549 (1964).}

138

Citizens United, No. 08-205 (2010) (2010).

139 _{In the Basic Law, Article 1 dealing with human dignity, human rights and the legally binding force of} basic rights, and Article 20 dealing with Germany’s status as a “democratic and social federal state” and the basis of state authority in the people are the only two articles in the Basic Law protected by the Article 79 eternity clause indicating their relationship and co-dependence.

140

See for example Collings, p. 219. 141 _{Lüth Case, 7 BVerfGE 198 (1958).}

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other citizens through the principle of ‘Third Party Effect’. In the U.S. the strictly public purpose of constitutional law maintains the separation between the public and private spheres that was deemed necessary for liberty to flourish. However, that also meant that the constitution was no guarantee against one person abusing the rights of another, particularly in terms of race.142 Crucially, in terms of the discussion in subsequent chapters and, notably, the views of Justice Oliver Wendell Holmes and Justice Stephen Breyer, the Constitution opened up the possibility of vastly different value interpretations between the Supreme Court and the federal government on the one hand, and those of local groups and local majorities on the other.143 These value differences between local and national majorities explained, at their most extreme, the Civil War; however, they also explained segregation and the difference in attitudes to malapportionment between urban majorities and rural ones. The former wanted the equal representation which they believed the Fourteenth Amendment promised, while the latter felt that the very liberty that the Constitution guaranteed would be swept away by the numerical superiority of the urban areas under a system of equal numerical representation between electoral districts. Ultimately, as will be seen in the next chapter and later ones, these differences, firstly, between the values of national and local majorities, and, secondly, between the constitutional interpretation of values and the interpretation held by members of either a national or local majority, can leave the liberal state perilously exposed.

As will be addressed in Chapter 3, the constitutional wall of separation between public and private was central to the fears of Thomas Jefferson about how to sustain a citizen democracy. Jefferson’s fears in this regard also parallel Böckenförde’s, and the ideas of Tocqueville on civil association. Following the Lüth decision of 1958, the BVerfG held that the Basic Law governs the entire legal system including private law. Stern summarised the effect of this:

The constitution takes on central significance for the legal system as a whole. State power may only be exercised in conformity with the Constitution. The Basic Law, then, lays claim to a comprehensive validity, for it directly shapes the political and

142 _{J Patrick White, 'Warren Court Under Attack: The Role of the Judiciary in a Democratic Society', Md.} L. Rev., 19, (1959), 183. “In 1876, the Court held that the Fourteenth Amendment did not preclude the infringement of a citizen's rights by another individual acting privately.”

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social life of the community, a feature that is new to German constitutionalism.144

Lüth will be assessed in more detail in Chapter 6, but its effect was to define a civic republican vision of the individual as part of the community. This vision, which was both legal and civic in a broad sense, laid the foundations for German constitutionalism’s all embracing influence over German democracy. The post-1945 human rights consensus was driven especially strongly by the U.S., although its effects on U.S. domestic politics or constitutional law were minimal. However, the new normative outlook shaped the international and European context within which the Basic Law was established. This will now be considered.