via Legal Theory Blog, I see that Daniel Halberstam and Christoph Möllers have some harsh/shrill criticism of the German Constitutional Court. I sort of follow this as a topic, but mostly because I don't know how it will come out.
Daniel Halberstam and Christoph Möllers (University of Michigan Law School and University of Goettingen) have posted The German Constitutional Court Says 'Ja Zu Deutschland!' (German Law Journal, Vol. 10, No. 8, 2009) on SSRN. Here is the abstract:
In announcing the decision of the Bundesverfassungsgericht (“Federal Constitutional Court” or “FCC”) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “The German Basic Law says “yes” to the Treaty of Lisbon.” The decision has since received much praise from commentators for having struck down only the existing version of an accompanying federal law while preserving Germany’s ratification of the Treaty more broadly. The decision is thus likened to another act of judicial cooperation, the FCC’s 1992 decision on the Maastricht Treaty.
This short comment explains what is old and what is new about the FCC’s current decision about Europe. The comment exposes the FCC’s highly deceptive invocation of having taken a “Europe-friendly” stance in interpreting the German Basic Law. The discussion exposes the myriad contradictions within the opinion and the decision’s strange consequences both in terms of the concrete workings of the European Union and in terms of its grand theory of democracy. The comment highlights the FCC’s mistaken understanding of the European Parliament, the profound failure of the Court’s reflexive idea of state sovereignty, and the way in which the opinion condemns Europe to a perpetual state of deficiency. In all this, the Federal Constitutional Court installs itself as the sole arbiter of Germany’s constitutional destiny - even above the people themselves.A subversive opinion with more twists and turns than even the FCC itself comprehends, the decision ultimately stands as a crude speech act asserting little more than the power of the Court itself.
To quote: ...well, I was going to quote, but the pdf is causing problems with formatting if I cut and paste.
The decision doesn't seem that bad to me, it mostly seems to require that the German people voice their desire to transfer aspects of sovereignty to the EU more explicitly, not clearly a bad thing and maybe something you'd expect constitutional courts to require. If the court tries to gum up that process to much there might be a problem, but I don't see that yet. This isn't the US supreme court.
