Document Type
Article
Publication Date
1991
Publication Information
40 Emory L. J. 837 (1991)
Abstract
This essay sets out to describe the main features of German constitutionalism, and it concludes by drawing some comparisons with the United States. The term "constitutionalism," however, suffers from the vice of vagueness. As Gerhard Casper has written, "it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain." Any attempt to explore the contours and roots of German constitutionalism in the global sense suggested by Casper's comment would be a major undertaking extending far beyond the limits of this study. As used here the term shall be limited to the principles and ideas flowing from the written constitution as interpreted by Germany's highest court of constitutional review.
The American public mind is unlikely to share the Constitutional Court's enthusiasm for the notion of an objective value order, in part because of its pervasive skepticism in matters both moral and constitutional. The ethic of individualism at the basis of the American Constitution celebrates negative not positive liberty. Ours is, moreover, a constitutionalism of rights not duties. As suggested, the two constitutions project different visions of personhood and social reality.
Recommended Citation
Donald P. Kommers,
German Constitutionalism: A Prolegomenon,
40 Emory L. J. 837 (1991).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/98
Comments
Reprinted with permission of Emory Law Journal: http://www.law.emory.edu/student-life/law-journals/emory-law-journal.html