As of: 09/28/2021 5:04 a.m.
“I’m going to Karlsruhe” has become a household phrase over the decades. When the Federal Constitutional Court started its work 70 years ago, it was anything but a matter of course. A look at the eventful history.
When the doors open at exactly ten o’clock in the Karlsruhe courtroom and eight women and men in red robes step into the spotlight, Kerstin Brandt always looks very carefully. The master tailor from Karlsruhe has been taking care of the official costume of the Federal Constitutional Court for more than 20 years. Brandt is particularly active when there is a change of judge. Because the robes are passed on. Brandt then has to change and adapt them. The cardinal red robes have become the symbol of the Federal Constitutional Court. Its history shows that the court first had to establish itself as a new institution in the early Federal Republic.
Because at the opening ceremony with Chancellor Konrad Adenauer and Federal President Theodor Heuss on September 28, 1951, the first judges wore wine-red – and thus the same color as the Federal Court of Justice founded a year earlier. It wasn’t until the early 1960s that they got their own robe model. Designed by a costume tailor for the Badisches Staatstheater in Karlsruhe.
A civil court without a role model
There was no model for such a constitutional court in Germany. “The Federal Constitutional Court came into being as a new institution in the Federal Republic of Germany,” says the President of the Federal Constitutional Court Stephan Harbarth in the ARD-Documentation “I’ll go to Karlsruhe”.
Because it was recognized that there was no law in the Third Reich, that people were killed, that their rights were disregarded. It was the idea of a Never Again After the Third Reich.
The court quickly won the trust of the citizens – and retained it over the years. “When you see that a decade and a half later this court enjoyed almost as much trust among citizens as the ADAC in surveys, then you can imagine what a success story it has become,” says the journalist Thomas Darnstädt, who is closely involved dealt with the court files of the early years.
The constitutional complaint with which citizens can defend themselves against a violation of their fundamental rights by the state is particularly popular. Every year between 5000 and 6000 constitutional complaints are received. The success rate is low: it has been plus minus two percent for many years.
“Men and women are equal”
An early issue for the court: equality between men and women. The Basic Law has codified it since 1949, but family law did not correspond to it at all at the time. Responsible at the Federal Constitutional Court is Erna Scheffler, of all people, initially the only female judge.
She becomes a fighter for equality – and she has to fight, says journalist Darnstädt. Her male colleagues would have countered her, for example: “But Ms. Scheffler, you can’t endanger the family’s western cultural assets. And she just said that something that has always been so doesn’t have to stay that way.” Over the years the Federal Constitutional Court has become more feminine. Since 2020 there are nine female and seven female judges.
Tension between politics and court
Whether abortion, Hartz IV, euthanasia or climate protection – almost all politically explosive topics sooner or later landed in Karlsruhe. A court that can overturn laws passed by parliament: These strong powers led to tension between Karlsruhe and politics from the start. A typical example of this is data protection. In 1983 the court developed a basic right to data protection in the census ruling.
On this basis, the relationship between freedom and security became a permanent construction site in many judgments. Numerous security laws before and especially after September 11, 2001 came to Karlsruhe for examination. The great eavesdropping, the online search, the counter-terrorism file. The common thread of the judgments: The court never completely knocked new powers out of the hands of the security authorities, but repeatedly found them to be too broad and set limits.
When it comes to internal security in particular, the court is accused of playing too much lawmakers themselves. “When it comes to individual questions, the Federal Constitutional Court’s room for maneuver goes too far,” says former Bundestag President Norbert Lammert in retrospect. If the court had never been accused of this, it would have failed in its task, namely to effectively control politics, argues court president Harbarth.
The biggest challenge so far: Corona
In addition to the current dispute with the European Court of Justice over the last word on European issues, the corona pandemic is the greatest challenge for the civil court. And not because a larger ceremony has to be canceled. Such comprehensive restrictions on fundamental rights have not yet existed in the Federal Republic. The state may intervene in fundamental rights to protect health. But has he partly gone too far here?
Over 1700 corona-related proceedings have been received by the court. One and a half years after the start of the pandemic, there has not yet been a fundamental decision from Karlsruhe. The administrative courts have corrected some state measures, such as exit restrictions or accommodation bans.
Fundamental decision in autumn?
At the beginning of the pandemic, three urgent applications were successful at the Federal Constitutional Court, relating to demonstrations and church services. The court has rejected all urgent applications against the so-called federal emergency brake from April 2021. The big questions regarding content are still open.
Why didn’t the court decide within a few weeks or months when the whole country has to change its usual processes? Court President Harbarth points out that the court carefully examines the cases and hears many experts on scientific and other questions. One is aware of the time pressure. In the meantime, the court has announced that it will publish a decision on the federal emergency brake in October or November 2021.
The challenges for the court are unlikely to decrease. Soon a new squad of judges will have to face it. In the years 2022 and 2023 alone, seven changes of judge are due. As always, there is a lot of work waiting. Also on master tailor Brandt, who will adjust the red robes with a needle and thread.