In analyzing judicial review, you must cross-reference to our previous discussion generally, but especially to the Hierarchy of Legal Sources discussion and the Structure of Civil Law Systems section that precedes this one.
A. Overview, 705-719, 720-727 (Skip the Japanese case)
The judicial function is distinct and shall always be separate from the administrative function. Judges shall not *** interfere in any way in the actions of administrative agencies or exercise jurisdiction over administrators. Art. 13 of early judiciary act in France., cb. 705.
Legislative Reference
When statutes required interpretation, the judge should refer the question to the legislature.
Art. 12 of early French republic’s judiciary act: judges “shall have recourse to the legislative body whenever it appears desirable to interpret the law.”
The big question in this area is how much authority do the courts have to test the legality of:
1) Judicial Action;
2) Administrative Action and
3) Legislative Action.
Appellate Review, Cassation vs. Revision
1) Discretionary or Mandatory.
2) Quashing incorrect rulings of law.
3) Indicating the correct legal ruling.
4) Substituting the appellate decision for the incorrect lower court opinion.
Binding Effect of Judicial Decisions
Look in three areas:
1) In the same case, as to courts and parties involved;
2) Within the judiciary generally as “precedent”; and
3) As to the other branches of government.
Division of Jurisdiction: Judicial
Cassation function is to ensure the uniform application of the law by the judiciary. Primary function of the
Supreme Court of Cassation in France,
Federal Supreme Court in Germany and the
Spanish Supreme Court.
Division of Jurisdiction: Administrative
France: the administrative adjudication system at the top of which is the Conseil D’Etat, in
Spain the Supreme Court, in
Germany, the Federal Administrative Court.
Division of Jurisdiction: Legislative
France by the Constitutional Council, —to a lesser extent by the Administrative courts, although they will not declare an act generally void—;
Spain by the Supreme Court,
Germany by the Federal Constitutional Court.
Conflicts of Jurisdiction
Court of Conflicts
Italian Court of Cassation
Appellate Review
Cassation vs. Revision1) Discretionary or Mandatory.
2) Quashing incorrect rulings of law.
3) Indicating the correct legal ruling.
4) Substituting the appellate decision for the incorrect lower court opinion.
Cassation
Cassation: quashes an incorrect interpretation or application of the law. It does not solve the case, that is up to the lower courts, which is not bound by the Cassation court’s suggested, non-binding resolution of the case. That is why you have the two-judgment rule in cassation in France.
[706 & 709].
Revision
Revision: German origin was the right of the Emperor to Revise, i.e., to re-decide correctly a judicial decision. Binding decision as to the entire case is issued by the appellate court. Remand is not even necessary. [706 & 708-709].
But note that revision is, like cassation, limited to errors of law at certain high courts. [710]
De Novo
De novo: The appellate court has the power to rehear and re-decide the entire case. Now usually happens at mid-level appellate courts, not at the highest appellate level.
Division of Jurisdiction
Who is responsible for reviewing the actions of the separate branches of government?
--Judicial
--Administrative
--Legislative
A Question of Judicial Independence
Italian Judicial Liability Case & German Administrative Regulation
How do we best balance Judicial Independence and Judicial Abuse?
American Rule:
Absolute immunity from civil liability for acts by the judge that are within the scope of his duties, even if they are committed in bad faith.
Supervision of Judges in Germany, p. 711
“Sanctions can be applied against a judge who fails to apply a well-known general statute, who applies a formally repealed statute, or who ignores a binding decision from the Federal Constitutional Court.”
“… a judge may be punished if he holds too few evidentiary hearings, if he works too slowly, or if he refuses to accept his assigned subject matter caseload.”
Note speech limits.
Italian Judicial Liability Case:
Judicial Misconduct
One who has suffered injury as a result of judicial conduct . . . by a judge with malice or gross negligence in the exercise of his functions, or from denial of justice, may sue the state for compensatory and non-compensatory damages deriving from the deprivation of personal liberty. cb. 715.
Judicial Gross Negligence
The following constitute gross negligence: a) serious violation of law because of inexcusable negligence; finding a fact, because of inexcusable negligence, that is unarguably disproven by the record; c) failure, because of inexcusable negligence, to find a fact that is incontestably proved by the record; d) rulings affecting personal liberty other than in cases provided by law or without giving reasons.
Judicial Gross Negligence
The following constitute gross negligence:
a) serious violation of law because of inexcusable negligence;
b) finding a fact, because of inexcusable negligence, that is unarguably disproven by the record;
c) failure, because of inexcusable negligence, to find a fact that is incontestably proved by the record;
d) rulings affecting personal liberty other than in cases provided by law or without giving reasons.
715
Huston v. Societe
The French asked "is colorization of black and white film the work of the devil?" The appellate court of Versailles, on remand from the Cassation court, answered "Yes," imposed damages and enjoined the exhibition of the colorized version of the film. This is a rare instance in which the civil courts have a great deal of authority, reflective of the importance attached to the idea of the "artistic integrity" of a work.
Pantoja v. Prographic
Death of a Bullfighter
In the Pantoja case from Spain, we have two themes: (1) The different balance reached by the Europeans in the area of privacy, when it is used against intrusion by the media; and (2) the limits of the jurisdiction of the Constitutional Court, which had to leave it to the Supreme Court to decide if the constitutional cause of action could be exercised by the bullfighter's legal heirs. This case also shows constitutional litigation starting at the trial level and going through the entire Spanish court system.
Spanish Constitution [723]
Article 18:
Honor, family privacy and personal image.VS.
Article 20:
Freedom of speech, and of publication.Pantoja v. Prographic
We have two themes:
1) The different balance reached by the Europeans in the area of privacy, when it is used against intrusion by the media; and
Pantoja v. Prographic
… two themes:
2) The limits of the jurisdiction of the Constitutional Court, which had to leave it to the Supreme Court to decide if the constitutional cause of action could be exercised by the bullfighter's legal heirs.
--This case also shows constitutional litigation starting at the trial level and going through the entire Spanish court system.
Paquirri, moments before the fatal blow.
B. Judicial Review of Executive Acts: In General, 729-740
Here I focused on the protection of individual rights afforded by the French Council of State, vs. the more traditional Administrative Judicial Jurisdiction in Germany.
"The judicial function is distinct and shall always be separate from the administrative function. Judges shall not *** interfere in any way in the actions of administrative agencies or exercise jurisdiction over administrators." In other words, ordinary courts cannot interfere with executive action, that is why the Council of State resist the label of a judicial body, even though to us its function is clearly judicial.
Here I focus on the protection of individual rights afforded by the French Council of State, vs. the more traditional Administrative Judicial Jurisdiction in Germany.
French Departments
Organization of the Council of State's Contentious Section
Members of the Contentious Section of the Council of State
French Administrative "Courts"
The big question
? in this area is how much authority do the courts have to test the legality of:
1) Judicial Action;
2) Administrative Action and
3) Legislative Action.
Binding Effect of Judicial Decisions
Look in three areas:
1) In the same case, as to courts and parties involved;
2) Within the judiciary generally as "precedent"; and
3) As to the other branches of government.
Separation of Powers Principles:
Different From our Approach: Not Co-Equal Branches of Government
Legislative Supremacy [729]? Characterized by Strict Jurisdictional Separation
French Constitution Article 37
[1] Matters other than those governed by laws (loi) are of a regulatory character.
[2] Legislative texts concerning these matters may be modified by decrees (décrets) issued after consultation with the Council of State.
[3] Those legislative texts produced after this Constitution comes into force cannot be modified by decree unless the Constitutional Council declared that they have a regulatory character according to the first paragraph of this Article.
Executive Regulatory Power
1) Government Ordinance: in areas of legislative jurisidiction, the Government acts only within a delegation of power by the legislature. Art. 38 of the French Constitution (page. 552).
2) Government Decree: in Regulatory areas, the Government has unfettered constitutional authority and discretion.
-- ONLY LIMITATION: When amending a legislative statute, must have the consent of the Council of State.
French Decrees [1] [p. 1151, fn. 8]
1) Réglements D'administration Publique: the most solemn kind of executive orders; must be submitted to the Conseil D'Etat; signed by the president of the Republic and/or by the Prime Minister.
2) Décrets: subordinate to RAPs, also signed by the president of the Republic and/or by the Prime Minister.
French Decrees [2]
3) Arretés Ministériels: issued by the different ministers.
4) Instruction Générale (or "Circulaire"): the official commentary on the legal rules (compulsory for the Administration but with no binding effect for the general public).
Separate Jurisdictions
-"The judicial function is distinct and shall always be separate from the administrative function. Judges shall not *** interfere in any way in the actions of administrative agencies or exercise jurisdiction over administrators."
-In other words, ordinary courts cannot interfere with executive action, that is why the Council of State resists the label of a "judicial body," even though to us its function is clearly judicial.
Graphic: German Courts
Graphic: French Courts
Graphic: Spanish Court System
Jurisdictional Conflicts: The Final Word [729]
France: The Court of Conflicts.
Italy: the Italian ordinary courts, with the Supreme Cassation Court being the ultimate decider,
Spain: the Spanish courts of appeals decide on conflicts until they get to the Supreme Court.
Germany: each specialized court decides on such matters. The highest court in the ordinary courts decides, and is final.
Why the Council of State Works [For France, 730]:
1) The composition and functions of the Conseil D'Etat;
2) Flexibility of its case-law;
3) The simplicity of the remedies available before the administrative courts;
4) The special procedure evolved by those courts; and
5) The character of the substantive law which they apply.
Jurisdiction of the Conseil D'Etat [p. 546]
1) Cassation, special review on issues of law, on motion to quash lower administrative courts' ruling;
2) Original trial jurisdiction on the constitutionality or underlying legality of administrative action;
3) Reference Procedure: lower level administrative court may request a non-binding, but usually-followed decision, on novel issues of law.
Types of Administrative Actions:[730-731]
1. Action for abuse of power (recours pour excès de pouvoir);
2. Cassation action (recours en cassation), i.e., a challenge to the legality of the act;
3. Actions in full jurisdiction (recours de pleine jurisdiction), actions for damages or fuller relief, including fashioning an injunctive relief which is usually unheard of in the civil law world.
Court of Conflicts:[Mentioned at page 540, Discussed at 732]
1) The Minister of Justice, who presides,
2) Three counselors (senior members) selected by and from the Conseil d'Etat, and
3) Three counselors (senior members) elected by and from the Cour de Cassation;
4) Two more judges from the Conseil d'Etat and from the Cour de Cassation; each is jointly elected by the first seven.
Conflicts Procedure:(Prefect of Loire case at 733)
Positive Conflict:
Prefect, regional administrator, can file a petition asking the ordinary court to decline jurisdiction.
Negative Conflict:
Neither System Takes The Case
Conflicting Judgments:
A case that might fall under both jurisdictions. VERY RARE.France
Positive Conflict: The court can:
a) Decline the Case, i.e., dismiss it. Plaintiff would then go up on appeal within the ordinary courts, or voluntarily go to the administrative system; or
b) Accept the Case. If the prefect is still convinced it is administrative, files with the Conflicts Tribunal.Negative conflict.
Both administrative and ordinary courts decline jurisdiction on their own. Before 1960 the party could go directly to the Conflicts Tribunal, but since 1960 the Cour de Cassation and the Conceil D'Etat must refer the case to the Conflicts Tribunal when they are declining jurisdiction after the other has already done so.
Jurisdictional Conflicts: The Final Word [729]
France: The Court of Conflicts.
Italy: the Italian ordinary courts, with the Supreme Cassation Court being the ultimate decider,
Spain: the Spanish courts of appeals decide on conflicts until they get to the Supreme Court.
Germany: each specialized court decides on such matters. The highest court in the ordinary courts decides, and is final.Court of Conflicts: [Mentioned at page 540, Discussed at 732]
1) The Minister of Justice, who presides,
2) Three counselors (senior members) selected by and from the Conseil d’Etat, and
3) Three counselors (senior members) elected by and from the Cour de Cassation;
4) Two more judges from the Conseil d’Etat and from the Cour de Cassation; each is jointly elected by the first seven.French Courts
Conflicts Procedure: (Prefect of Loire case at 733)
Positive Conflict:
Prefect, regional administrator, can file a petition asking the ordinary court to decline jurisdiction.
Negative Conflict:
Neither System Takes The Case
Conflicting Judgments:
A case that might fall under both jurisdictions. VERY RARE.France
Positive Conflict: The court can:
a) Decline the Case, i.e., dismiss it. Plaintiff would then go up on appeal within the ordinary courts, or voluntarily go to the administrative system; or
b) Accept the Case. If the prefect is still convinced it is administrative, files with the Conflicts Tribunal.Negative conflict.
Both administrative and ordinary courts decline jurisdiction on their own. Before 1960 the party could go directly to the Conflicts Tribunal, but since 1960 the Cour de Cassation and the Conceil D’Etat must refer the case to the Conflicts Tribunal when they are declining jurisdiction after the other has already done so.FACTS:
Manufrance is put in receivership. Management takeover, but they declared bankruptcy later. The court then authorized an Employee Cooperative to take over the plant. The company lost 199 million francs in 1982-1984. The Debts were of 216 million francs. The government had lent them 206 million francs in three protocols, two unsigned, and the final one signed by the Minister of Industrial Redevelopment.WHY ARE WE HERE? Because
(1) the company owes 216 million Francs;
(2) and the court found that the government had acted as a director in FAct of the company; and
(3) The law provided that on liquidation when assets were insuficient to cover a company’s liabilities, the court had the discretion of forcing the directors IN FACT to pay.Note the procedure.
The local Government Procurator informs the Minister of Justice of the suit against the government. The local prefect is instructed to file a petition for declining jurisdiction.
Positive conflict in which the ordinary court accepted the case. The Prefect then had to go to the conflicts tribunal, which is done through the Ministry of Justice.
The commerce court had in fact issued its judgment, but stayed it pending the prefect’s decision to appeal.RESULT:
Conflicts tribunal rules that this is an administrative case because the government responsibility in the case requires a determination of the public authority involved in the bail-out plan made for this company, a matter for the administrative courts, when de facto obligations of the government and not its actions as a legal director are at stake. Latter is private law, former is administrative.Manufrance Postcript
SCOPD Manufrance manufactured guns and bicycles. A bunch of the guns were sold in liquidation in 1994.
In April of 1993, some of the former directors, employee members of the union were prosecuted for receiving stolen goods and thirteen were given prison sentences. They had taken the guns in an attempt to stop the plant from closing in the mid 80s.
Administrative Adjudication in Germany [735]
Nuclear Power Plants
Deference to Administrative Decisions
Standing Issues
ExpertsAdministrative Adjudication in Germany [735]
Nuclear Power Plants
Deference to Administrative Decisions
Standing Issues
ExpertsHistory: of German Administrative Adjudication
Prussia: the purpose of administrative courts was to secure the objective legality of the administration;
In South Germany: to protect the individual rights of citizens.
The south German view prevailed in the post-1945 Administrative Courts.Procedure
Causes of action require that the allegedly illegal action or inaction constitute a violation of a person’s rights.
Causes of action include: Demands for issuance or revocation of administrative acts; declaratory judgments; specific performance.
You cannot raise the rights of third parties. Such claims are “inadmissible”, i.e., not within the court’s jurisdiction.Procedure
Note however, that the administrative courts have taken a very active role in certain areas, such as permits for energy plants, and that these proceedings can be long and complex. Experts are heard, but often ignored, or the court is even more stringent than they suggest.LEGAL STANDARD:
Permit in atomic energy law can only be issued if, due to the state of science and technology the necessary precautions against damages resulting from the installation have been undertaken.The Court heard 53 experts. [738].
Experts in Germany are not witnesses, they are assistants to the court appointed by it. The expert submits a written report and participates in an oral hearing to summarize his findings. Parties can reject experts for same reasons for judicial recusal. The court must evaluate expert opinion as any other evidence. However, in 95% of cases the courts adopt expert’s views.[739] Federal Administrative Court Ruling
There was a right here granted by the Atomic Energy Act which required precautions against damage.
But this assessment is to be made based upon the state of science and technology at the time.Ruling (2)
It is up to the executive administrative agency to evaluate the technology and safety features. The courts cannot turn the judicial review into a second licensing procedure.
The Administrative body had complied with the legal requirement by indicating expressly why it did not have any fear of explosion of the containment building. The court could not then substitute its own evaluation.Lujan v. National Wildlife Federation, 111 LEd. 2d 695 (1990).
party must prove
(1) injury in fact to the plaintiff,
(2) caused by the agency action complained of and
(3) that a favorable decision will in fact redress the harm.Lujan v. National Wildlife Federation, 111 LEd. 2d 695 (1990).
Proof of injury in fact has been interpreted with increasing stringency by the U.S. Supreme Court.
Plaintiffs must demonstrate with particularity a concrete impact to him or herself that is proportional to the agency action.
C. Judicial Review of Legislative Enactments
Constitutional Courts [759]
1) Separate and distinct from all others in their respective jurisdictions;
2) Express power: all have the power to decide the constitutionality of legislation;
3) Binding Decisions: their decisions are binding not just on the parties, but on all participants in the legal process.
HOW DO MATTERS COME TO THE CONSTITUTIONAL BODIES?
-- Reference procedure
-- Incidental procedure
-- Direct Review
Constitutionalism In General
Distinguish:
Political Review
Judicial ReviewConstitutional Courts [759]
1) Separate and distinct from all others in their respective jurisdictions;
2) Express power: all have the power to decide the constitutionality of legislation;
3) Binding Decisions: their decisions are binding not just on the parties, but on all participants in the legal process.How Do Matters Come To The Constitutional Bodies?
— Reference procedure: When the constitutional issue is raised in an ordinary court, the proceedings are stayed and the matter refered to the constitutional court.
— “Incidental procedure” The constitutional question is the resolution of the actual case, but the jurisdiction of the ordinary court is claimed because of an independent cause of action. [759].How Do Matters Come To The Constitutional Bodies? (2)
— Direct Review
available in Germany, Italy, Spain and Austria and Colombia for example. [759-760]. The case or controversy requirement would not allow this in the US, but it can happen in Europe.
— “Abstract Review”
Made in the absence of a case and controversy.
1. France, 757-768, 770-771
Constitutional Council Web Site
French Constitutional Council: Members [758]
1) All former presidents of the republic.
2) Nine appointed members. 3 each appointed by the
a) President of the Republic,
b) President of the Senate,
c) President of the Assembly.
—(Const. Art. 42.)Jurisdiction of the Constitutional Council [Art. 61, 760]:
1) Mandatory or automatic when it is an organic act (all organic acts were passed by December 1958).
2) Discretionary as to any other law upon request by
(a) the President,
(b) the Prime Minister,
(c) the Presidents of the Senate or the Assembly, or
(d) any 60 parliamentarians (after 1974 reform).French Constitution Art. 61 Timing of Appeals to Council
Appeals to the Constitutional Council occur before the act becomes law but after passage by the legislature, i.e., in the time after passage but before the President signs it into law.
[760]French Const. Article 62 [760]
[1] A provision which has been declared unconstitutional may not be promulgated or put into effect.
[2] The decisions of the Constitutional Council shall not be subject to review. They are binding on governmental, administrative and judicial authorities.Members of the Conseil Constitutionnel (2001)
1) Yves Guéna, Senate, 1997-2004,* ENA-1947, Presides
2) Dutheillet De Lamothe, President, 2001-, IEP, ENA.
3) Pierre Joxe, Assembly, 2001-, ENA.
4) Michelle Ameller, Assembly, 1995-2004, IEP.
5) Dominique Schnapper, Senate, 2001, IEP, sociologist.
6) Pierre Mazeaud, President, 1998-2007, IEP.
7) Simone Veil, Senate, 1998-2007, IEP.
8) Jean-Claude Colliard, Assembly, 1998-2007, IEP.
9) Monique Pelletier, President, 2000-, Licence, Racine
* Replaced members who died without completing their terms.
French Const. Article 62
A provision which has been declared unconstitutional may not be promulgated or put into effect.
The decisions of the Constitutional Council shall not be subject to review. They are binding on governmental, administrative and judicial authorities.
Importance of the Freedom of Association Case:
1) Demonstrates the effectiveness of the French system of prior constitutional control;
2) The legislator is no longer supreme, must answer to the Constitution;
3) constitutional jurisprudence is an important source of French law.
Context of the Freedom of Association Case
Simone de Beauvoir and Michel Leiris had attempted to form the Association of Friends of the Cause of the People under the old law.
The prefecture denied them the certificate of incorporation.
The administrative courts reversed that decision as an abuse of power.
The legislature quickly moved to amend the law.Freedom of Association Case
The council was summoned upon request of the President of the Senate.
Bill discussed by both the Senate and the National Assembly, amending prior law on freedom of association, by placing prior restraints on that right.
Clearly politically motivated and directed against the left.Importance of the Freedom of Association Case:
1) Demonstrates the effectiveness of the French system of prior constitutional control;
2) The legislator is no longer supreme, must answer to the Constitution;
3) constitutional jurisprudence is an important source of French law.Important Decisions [766-68]
Police Search & Seizure Authority
Homosexual Rights
TerrorismPolice Search & Seizure Authority
January 12, 1977 [p. 766]
Invalidated
Individual Freedom
General Right to PrivacyHomosexual Rights?
December 19, 1980 [p. 766-767]
Principle of Equality (not violated)
No Protection for Females
Terrorism
September 3, 1986 [p. 767]
Terrorism: “related to an individual or collective enterprise having as its goal the serious disruption of public order by intimidation or terror.”
Principle of Legality not violated by new definition of terrorist crimes.
Special Court: Was acceptable
Third?
All crimes against the state=terrorism: This was considered unconstitutional by the councilImpact of Council Decisions
On the Legislature
Clearly binding by operation of the enabling constitutional provisions.
On the Administrative Courts
Lack power to declare laws unconstutitional, but might follow interpretation to declare act ultra vires.
On the Ordinary Courts
Similar to Administrative, but less likely to do so.
2. Germany, 771-795
One senate (panel) of the German Constitutional Court
Abstract vs. Concrete Norm Control
Abstract Norm Control: Articles 93(1)(2), at the request of the Federal government or a Land government or one third of the Bundestag members. Case does not arise out of the normal course of litigation.
Concrete Norm Control. Article 93(1)(4a). Individual case litigation by reference or by party request.
German Constitutional Court
1) Abstract norm control;
2) Concrete norm control by judicial reference;
3) Individual constitutional complaint;
4) Declaration of unconstitutionality of parties.
Court Membership:
Parliament elects each justice by a two-thirds vote for a single non-renewable term of twelve years.
Effect of Decisions:
Any decision of the Court on the constitutionality of a statute shall have the force of law, and, as law, shall be published in the Federal Gazette, along with other federal statutes. Bind all organs of the government, federal and state, and all courts and public officials.
German Constitutional Court
1) Abstract norm control;
2) Concrete norm control by judicial reference;
3) Individual constitutional complaint;
4) Declaration of unconstitutionality of political parties if they seek to impair or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany.
773Effect of Decisions:
— Any decision of the Court on the constitutionality of a statute shall have the force of law, and, as law, shall be published in the Federal Gazette, along with other federal statutes.
— [Decisions] bind all organs of the government, federal and state, and all courts and public officials.
773.Abstract vs. Concrete Norm Control
1) Abstract Norm Control: Articles 93(1)(2), at the request of the Federal government or a Land government or one third of the Bundestag members. Case does not arise out of the normal course of litigation.
2) Concrete Norm Control. Article 93(1)(4a). Individual case litigation by reference or by party request.
773US Const. Art. III, Sec. 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.U.S. Const. Art. III, Sec. 2, Clause 1.
The judicial Power [of the United States] shall extend to [i] all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [ii] to all Cases affecting Ambassadors, other public Ministers or Consuls; [iii] --to all Cases of admiralty and maritime Jurisdiction; [iv] --to Controversies to which the United States shall be a Party; ***Art. III, Sec. 2, Cl. 1 cont.
The judicial Power [of the United States] shall extend to *** [v] --to Controversies between two or more States; [vi] --between a State and Citizens of Another State; [vii] between Citizens of different States; [viii] --between Citizens of the same State claiming Lands under Grants of different States, and [ix] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.US Const. Art. III, Sec. 2, Cl 2.
Jurisdiction of Supreme Court
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.US Const. Art. VI, Cl 2. Supreme law.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Political Legitimacy of the CourtThree things to consider:
(1) the clear legal legitimacy and power;
(2) the way in which the German parliament chooses the justices;
(3) the fact that abstract norm control is not used a lot.Problems
Problems occur:
(1) When abstract norm control is used for obviously political purposes; and/or
(2) counter-majoritarian nature of the protection of individual rights.Court Membership:
—Parliament elects each justice by a two-thirds vote for a single non-renewable term of twelve years.
—Currently, there are 16 justices.
—Bundestag gets half and Bundesrat gets half.
Art. 94, p. 772, 774.Constitutional Interpretation
1) Contextual: means looking at its position within the basic laws.
2) Literal: identifying the plain meaning of the words.
3) Historical: founder’s intent.
4) Teleological: added in for good measure. what is the present purpose or meaning of a rule, a rather circuitous way of saying that the Basic law must be interpreted in light of changing social conditions. —774-775.General Constitutional Principles
Normativity, 775
Unity of the Constitution, 776
Eternity Clause
Unconstitutional Constitutional Amendment
The Structure of Rights and Values, 777
Personal Liberties
Communal Interests
Rights and Duties
An Objective Order of Values, 778
Tyranny of Values?
Fundamental RightsEquality and the Social Welfare State, 779
Your right to a government-financed legal education?
Church-State Relations, 781
Abortion, 781-782Deshaney v. Winnebago County
[There is] nothing in the language of the Due Process Clause [that] requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. … [Its] language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.Religion: Church and State
Neutrality as to religion.
In the US it means toleration and no public support, for the most part, [781].
In Germany, Toleration, encouragement and and at least some support.Religion: Church and State
In Germany students get educated in religion in public schools if they are Christian or Jewish. Moslems take ethics. In fact, non-religious persons, or persons who from religions other than Christianity or Judaism have only ethics available.Abortion in Germany [781-782]
The Constitutional court rules that life started at 14 days from conception, when fertilized egg moves to the Uterus. This imposed a duty on the parliament to criminalize abortion.
The Roe v. Wade view is that the state cannot infringe privacy rights of the pregnant woman. This is not absolute, there are stages where the state interest becomes more important.Abortion in Germany [781-782]
Values: (1) right to life; (2) rights of pregnant women to develop their personalities. Both interpreted using the principle of human dignity. Right to life SUPERIOR. [782]. WHY.: Because it is cast in unqualified terms and personality is qualified by not infringing the rights of others. There was no need here to harmonize two equal values.Abortion in Germany [781-782]
Social Hardship is the escape clause.
Counseling required, but if guidelines are met, the state cannot force her to have the baby. Life and health also considered. German view is of individual but also of community.
US [782-83]
Views the matter as one of individual choices and rights. Individuals consider their options, not society.Lüth Boycott Case, 783
FACTS: Veit Harlan, popular film director under Nazi regime. Producer of notoriously antisemitic Jud Süss. After being acquitted of warcrimes, he directed a new movie in 1950.Eirich Lüth, Hamburg’s director of information was active in group seeking to heal wounds between christians and jews, was outraged. He urged an audience of producers and distributors to boycott Immortal Lover. The producer of the film got a court order from Hamburg Superior Court, for cease and desist against Luth. Violation of the civil code art. 826: Whoever causes damage to another person intentionally and in a manner offensive to good morals is obligated to compensate ther other person for the damage”. Hamburg Court of Appeals rejected his appeal, and Luth went to the Constitutional court.
Lüth Boycott Case, 783
Constitutional court.: Violation of Article 5(1): Everyone has the right freely to express and disseminate his opinion orally, in writing and in pictures, and to inform himself without hindrance from all generally accessible sources. The freedom of the press and the freedom of reporting through radio and film are guaranteed. There is to be no censorship.
(2) These rights find their limits in the rules of the general laws, the statutory provisions for the protection of youth, and in the right to personal honor.
(3) Art and learning, research and teaching are free. The freedom of teaching does not release one from loyalty to the constitution.
Lüth Boycott Case, 783
1) Boycott is urged
2) Producer and Distributor get “injunction” from Hamburg Superior Court.Art. 826 of the Civil Code.
“Whoever causes damage to another person intentionally and in a manner offensive to good morals is obligated to compensate the other person for the damage.”
3) Lüth appealed to the Hamburg Court of Appeals
4) Lüth then went to the Constitutional Court.
Lüth Boycott Case
Objective Order of Values, 784
Function of the Lower Courts, 785
Freedom of Speech and the General Laws, 786
Meaning of the General Laws as Applied to Speech, 787Conclusion, 788
The lower court misjudged the special significance of the basic right to freedom of opinion [when weighing it against a private right.]Lüth Boycott Case: Result
The superior court decision is quashed because it failed to apply the constitutionally mandated standard. IT failed to give sufficient attention to the motives of the complainant’s speech (which were public not private), and the historical context of his remarks. [788-789]
Complainant’s speech was public, Harlan and the producer had private economic interests that must yield to the public call. Harlan can respond.
Art. 5 of the German Basic Law
(1) Everyone has the right freely to express and disseminate his opinion orally, in writing and in pictures, and to inform himself without hindrance from all generally accessible sources.. The freedom of the press and the freedom of reporting through radio and film are guaranteed. There is to be no censorship. —783-84.Art. 5 of the German Basic Law
(2) These rights find their limits in the rules of the general laws, the statutory provisions for the protection of youth, and in the right to personal honor. —784.
(3) Art and learning, research and teaching are free. The freedom of teaching does not release one from loyalty to the constitution. —784.
Options for Court DecisionsThe German Constitutional Court may declare laws
1) null and void, the norm ceases to operate; or
2) incompatible with the basic law, which allows the unconstitutional rule to remain in effect during a transitional period, while the legislature rectifies the situation. Note 11, pages 793-94.Individual Party Complaint
Note that under article 93(1)(4a) [772], a special constitutional complaint may be filed by individuals directly in the constitutional court. And these are the most cases they have. [Note 3 at page. 792].Civil rights cases in 1883
The U.S. Supreme court individual invasion of individual rights was not subject to CONSTITUTIONAL protection.
Thus private discrimination in jobs, housing and services are not a constitutional matter.
However, STATUTORY protection was given, mostly based on the commerce clause.
