Introduction 21
were seen as oppressive. During the thirteen years of coalition rule
by the Social Democrats (SPD) and Free Democrats (FDP) from
1969 to 1982, the Federal Constitutional Court frequently acted
as a brake on the liberal-SPD Parliament.^78 A pronounced legalism
of German politics resulted that recapitulated some of the original
problems of statism: “The search for authoritative, definitive and
hence legally binding resolution of conflict are [sic] still vital features
of German political life.”^79 One German law professor worried in
the mid-1980s that while the judicial review functions of the Court
are generally positive, the risk remained that
... an autocratic admistration of justice might dangerously narrow
the concept of pluralism to a monistic view of civic values. Such a
constricted perception of values, if practiced by the Constitutional
Court and other high courts, might suffocate the still delicate flow-
ering of democracy, of freedom of speech, and of active citizen-
ship which in Germany needs more intense care than in the robust
grassroots democracy of the United States.^80
On the other hand, the Basic Law has had a democratizing effect in
another way: It empowers any German citizen to file a constitutional
complaint. Over 50 percent of the cases heard by the Court since
1949 were brought by individual plaintiffs.^81 Moreover, the judges
selected to sit on the Court are elected by a committee of Parliament
and serve only a single, nonrenewable term of twelve years.^82 Despite
these democratic mechanisms of accountability, Habermas has long
believed that German judges have now, and for generations have
had, too much power. “Judges should obey, not reason!” is how one
law professor and colleague of Habermas’s from the University of
Frankfurt recalls the general thrust of Habermas’s position.^83
(^78) Denninger, “Judicial Review,” 1023.
(^79) Blair, “Law and Politics,” 361.
(^80) Denninger, “Judicial Review,” 1031.
(^81) Kommers, “German Constitutionalism,” 840. A total of 78,000 individuals
filed complaints with the Federal Constitutional Court from its founding
until 1990. Judges in lower courts cannot rule something unconstitutional
but must refer it to the Federal Constitutional Court.
(^82) Article 94, Section 1. Party membership on the Bundestag’s Judicial
Selection Committee is proportionate to the strength of each party in the
Bundestag as a whole.
(^83) Author’s conversation with Klaus Günther, professor of legal theory, crimi-
nal law, and criminal procedure, University of Frankfurt, June 7, 2005,
Frankfurt am Main.