The Non-Arsonist’s Guide to Constitutionalism

von Maximilian Steinbeis

Megaphone Chorus, G20 Protests at Hamburg, 2017/7/4, (c) Rasande Tyskar, CC BY NC 2.0

Dear Friends of Verfassungsblog

This was a week we German constitutionalists will remember for a long time. Freedom of assembly was submitted to a breaking test in Hamburg, so were freedom of religion and of profession in Karlsruhe, and the adoption of same-sex marriage has triggered a fundamental debate on matters constitutional of unprecedented width, length and passion. Everyone seems to have an opinion about the will of the framers in relation to Article 6 of the Grundgesetz. And how to determine it. And whether and how it can change, with or without a formal amendment of the constitutional text. And how the competence for constitutional interpretation is distributed between the Bundestag, the Bundesrat and the Federal Constitutional Court. Amazing! If the number of articles, blogposts, tweets and Facebook notes brimming with thoughts and opinions on the constitutional order is an indicator of the latter’s well-being, there is no reason to worry about Germany at the moment.

What is the will of the constitution about the right of a headscarf-wearing Muslim judicial trainee to pursue her training like anyone else? A chamber of the Federal Constitutional Court, in a provisional ruling, has offered an interpretation that triggered a rather powerful constitutional debate of its own. As with same-sex marriage, two camps oppose each other:

The constitution, says one side, draws a certain normative image of how an impartial judicial bench or, respectively, a married couple are supposed to look like. If the legal system develops in a way that is inconsistent with this normative image, that is unconstitutional. And forbidden. This must not be. That is what a constitution is there for, after all.

The constitution, says the other side, grant rights to people ...

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ICON-S Conference 2017, Day 1

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