¹ Hans Kelsen states that a legal norm is valid “if it belongs to a legal order that is by and large efficacious, i.e., if the individuals whose conduct is regulated by the legal order in the main actually do conduct themselves as they should according to the legal order.” See H. Kelsen, What is Justice? 268 (1960). One should, in contrast to Kelsen, distinguish between the efficacy of a norm (or a whole legal order) i.e., whether its goals are achieved and the compliance with it. Compliance with norms does not necessarily lead to goal attainment.Google Scholar

² See Uwe Wesel, Der Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik 67 (2004).Google Scholar

³ See BVerfGE 93, 1 [May 16, 1995]; BVerfGE 93, 266 [Oct. 10, 1995].Google Scholar

⁴ Frankfurter Allgemeine Zeitung, May 20, 2009.Google Scholar

⁵ This interpretation can still be found in a decision of the Federal Court of Justice (Bundesgerichtshof). See BGHSt 41, 317 (329) [Nov. 16, 1995]. The interpretation was previously utilized by the Federal Constitutional Court. See BVerfGE 45, 187 (225) (June 21, 1977].Google Scholar

⁶ At that time Seebohm was Vice-President of the Deutsche Partei. Later he was a member of the CDU. From 1949–1966 Seebohm was Minister of Transportation in the Adenauer Government.Google Scholar

⁷ Namely the issuing of the Gesetz zu Art. 131 GG (May 11, 1951) and the struggle between the Federal Constitutional Court and the Federal Court of Justice about the continuance of the civil service after 1945.Google Scholar

⁸ Strafrechtsänderungsgesetz of 31 August 1951, BGBl I, 747. The provisional character of art. 143 was indicated in section 6 of this article. The fact that it disappeared from the Basic Law suggests that it was regulated in a law on the federal level (Bundesgesetz).Google Scholar

⁹ Gleichberechtigungsgesetz of June 18, 1957 (BGBl I, 609, in force since July 1, 1957).Google Scholar

¹⁰ Stichentscheid des Vaters in Fragen der elterlichen Gewalt: § 1628 BGB a.F.; Alleinvertretungsanspruch des Vaters bei der gesetzlichen Vertretung des Kindes: § 1629 para 1 BGB a.F. These two provisions were declared unconstitutional by the Federal Constitutional Court on July 29, 1959 (BVerfGE 10, 59).Google Scholar

¹¹ In view of the numerous alterations of the Basic Law one should, in contrast to Horst Dreier, not perceive it as a sacred text. Die Zeit 20/09 v. 7.5.2009. One could, however, understand article 1 and 20 as sacred insofar as they are unalterable according to art. 79 para. 3 (Ewigkeitsklausel).Google Scholar

¹² Those articles which were modified in a mere editorial manner were not counted as changes, for example the replacement of the phrase “vollziehenden Gewalt“ with “Exekutive“ in Article 1 (3) and replacing the phrase “das Gleiche“ with “das gleiche“ in Article 81 (2) and (3).Google Scholar

¹³ The statute of 19 March 1956 changed, as mentioned before, the word “Verwaltung“ in Article 1 (3) to “vollziehende Gewalt.” Statute of 20 December 1993 changed the term “Bundeseisenbahnen“ to “Eisenbahnen des Bundes“ in Article 74 (23). Modifications of that kind will not be counted here. This does not, however, apply to the replacement of the word “Fernmeldewesens“ by the term “Telekommunikation“ in Article 73 (7) and Article 80 (2) (statute of 30 August 1994) because this modification indicates a technical development.Google Scholar

¹⁴ Former version of Article 75; Article 125b of the Basic Law.Google Scholar

¹⁵ The SPD then had 151 seats. At that time, the KPD had no seat in the German Bundestag. Google Scholar

¹⁶ R. Herzog, argues that Art. 139 has become obsolte, in: Grundgesetz – Kommentar, Art. 139 margin number 4 (Maunz/Dürig eds., 53rd ed. 2007).Google Scholar

¹⁷ BVerfGE 2, 1 [Oct. 23, 1952]. The Sozialistische Reichspartei (SRP) was declared a successor of the NSDAP.Google Scholar

¹⁸ BVerfGE 3, 58 [Dec. 17, 1953].Google Scholar

¹⁹ BVerfGE 6, 132 (Febr. 19, 1957].Google Scholar

²⁰ BVerfGE 32, 173 (Nov. 4, 1971].Google Scholar

²¹ BVerfGE 1, 396 [July 30, 1952]; BVerfGE 2, 79 [Dec. 8, 1952]; BVerfGE 2, 143 (March 7, 1953].Google Scholar

²² BVerfGE 5, 85 [Aug. 17, 1956].Google Scholar

²³ BVerfGE 6, 32 (Jan. 16, 1957].Google Scholar

²⁴ The EDC broke down in Paris on August 30, 1954.Google Scholar

²⁵ A year later the Federal Constitutional Court had to rule on the Treaty of Maastricht on February 7, 1992 (in force since November 1, 1993). See BVerfGE 89, 155 [Oct. 12, 1993].Google Scholar

²⁶ BVerfGE 36, 1 [July 31, 1973] (Grundlagenvertrag).Google Scholar

²⁷ But the Federal Constitutional Court was invoked on the matter of workers’ participation (Mitbestimmungsgesetz) of 1976. See BVerfGE 50, 290 [March 1, 1979].Google Scholar

²⁸ Thus, for example, Franz Müntefering (SPD) on April 11, 2009 in the newspaper Bild am Sonntag. Google Scholar

²⁹ Here, too, the Federal Constitutional Court had to be engaged. On March 25, 1999, the Court dismissed a complaint of the PDS. See BVerfGE 100, 266–270. In May, 1999, the Federal Constitutional Court dismissed the urgent motion of a soldier against being called to participate in the Kosovo war. (Az. 2 BvQ 17 (1999) unpublished).Google Scholar

³⁰ BVerfGE 3, 225 (Article 117) [Dec. 18, 1953]; BverfGE 10, 59 [July 29, 1959]; BVerfGE 48, 327 [May 31, 1978]; and BVerfGE 84, 9 [March 5, 1991].Google Scholar

³¹ BVerfGE 39, 1 (Febr. 25, 1975]; BVerfGE 88, 203 [May 28, 1993].Google Scholar

³² BVerfGE 33, 303 [July 18, 1972]; BVerfGE 35, 79 [May 29, 1973].Google Scholar

³³ On the “Radikalenerlass” see BVerfGE 39, 334 [May 22, 1975], which the EGMR declared invalid September 25, 1995 (Az: 7/1994/454/535, NVwZ 96, 365).Google Scholar

³⁴ BVerfGE 69, 315 [May 14, 1985]; BVerfGE 73, 206 Nov. 11, 1986].Google Scholar

³⁵ In 1957 the Federal Constitutional Court had still declared the criminal liability of homosexuality constitutional. See BVerfGE 6, 389 [May 10, 1957]; and on same-sex marriage cf. BVerfGE 105, 313 [July 17, 2002).Google Scholar

³⁶ See A. Klose/H. Rottleuthner, Gesicherte Freiheit?, 152 PROKLA 377–398 (Sept. 2008).Google Scholar

³⁷ See BVerfGE 46, 160 (Schleyer) 8Oct. 16, 1977].Google Scholar

³⁸ For example consider a legislative initiative of the Bundesländer Berlin, Bremen and Hamburg, directed at the inclusion of “sexual orientation” into the Basic Law (as addendum to Article 3 (3) [1]; now as BR-Drs. 741/09 of September 29, 2009. The motivation was to safe the regulation from being altered when the political or societal climate changes. From all the features indicated in the Allgmeine Gleichbehandlungsgesetz, only “age” is not mentioned in the Basic Law. The initiative of the three Bundesländer was repelled by the majority of the Bundesrat in November of 2009.Google Scholar