UC Law SF International Law Review


Stephan Jaggi


Since German unification in October 1990, this diagnosis of constitutionalism in Germany is only partly true. In the wake of German unification, the BVerfG acted within Ackerman’s revolutionary model and did refer to revolutionary achievements of the constitutional past. Contrary to Ackerman’s evaluation, the Court engaged in what I call “revolutionary reform” of German constitutional law by taking up revolutionary constitutional achievements of the East German 1989 Revolution and integrating them into the existing constitutional order under the West German Basic Law (Grundgesetz; GG). It is through revolutionary reform, I will argue, that the BVerfG has brought important change to unified Germany’s constitutional law. The East German 1989 Revolution, however, confronted Germans with a completely new political experience: popular sovereignty can work, not only as a theoretical concept to legitimize the existing political order but as a practical experience of political action. I have shown elsewhere that East Germans with their 1989 Revolution not only abolished a party dictatorship and threw open the door to German unification. They adopted an own set of constitutional principles and succeeded in transferring at least some of these principles to unified Germany. In this article, I will demonstrate how unified Germany’s institutions in general and the BVerfG in particular integrated these principles into the existing constitutional order under the GG in acts of revolutionary reform. After briefly summarizing the East German revolutionaries’ constitutional achievements and their transfer to unified Germany, I give a brief overview of how unified Germany’s legislature mostly failed at integrating these achievements into unified Germany’s constitutional order. One exception to this rule is the principle of constitutional environmental protection, which the legislature integrated successfully. A case analysis will then show how it was primarily the BVerfG who used constitutional interpretation as a means to successfully integrate revolutionary achievements into the existing constitutional order under the GG and bring some important change to Germany’s constitutional law.