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German Equal Protection: Substantive Review of Economic Measures

Published online by Cambridge University Press:  06 March 2019

Edward J. Eberle

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“Denn nur durch Vergleichung unterscheidet man sich und erfährt, was man ist, um ganz zu werden, was man sein soll.” — Thomas Mann

David Currie devoted a substantial part of his scholarly work to exploring the intricacies of constitutional law, focusing intently on the United States and German constitutional orders. Along with Donald Kommers, Currie was among the first to closely examine the German constitutional system in a search for elucidation. As the quote by Thomas Mann (which he used in his seminal book, The Constitution of the Federal Republic of Germany) illustrates, if we truly want to aspire to realize our talents and ambitions, it is important to look outside national borders to see how things are done elsewhere to discover if there are ways in which we can improve. Staying within the “City upon a Hill,” as many Americans identify the United States, may lead to insularity or, even, a sense of false confidence. Which is why the task of comparative law is so important: looking outside national borders to see what other perspectives are out there, and then comparing and contrasting the foreign and domestic to learn which, upon consideration, is better or worse and for what reasons.

Type
Memorial: David Currie and German Constitutional Law
Information
German Law Journal , Volume 9 , Issue 12 , 01 December 2008 , pp. 2095 - 2108
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 Winthrop, John, The City Upon a Hill; the Covenant; The New Israel and the Separated Garden, Sermon on Christian Charity (1630), in Religious Freedom, History, Cases, And Other Materials On The Interaction of Religion and Government 122–23 (John Noonan, Jr. and Edward McGlynn Gaffney, Jr. eds., 2001).Google Scholar

2 See David P. Currie, The Constitution of the Federal Republic of Germany 13–17 (1994).Google Scholar

3 Grundgesetz (GG - Basic Law/Constitution) art. 20(1), translated by Christian Tomuschat and David Currie and published by the Press and Information Office of the Federal Republic of Germany. “The Federal Republic of Germany is a democratic and social federal state.”Google Scholar

4 Grundgesetz (GG- Basic Law/Constitution) art. 1(1) (“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”).Google Scholar

5 See, e.g., DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189 (1989) (refusing to recognize any positive obligation of government to intervene to protect the life and well-being of a child who the state knew was being abused by his father.).Google Scholar

6 The decisive case is Lüth (BVerfGE 7, 198 (1957)), which involved a communication rights dispute over the right of a film director formerly closely associated with the Nazis to show his new films at a Hamburg film festival. In overturning an injunction prohibiting Lüth from continuing his call for a boycott of the film, the Court delineated the value order of the GG. “This value-system, which centers upon human dignity and the free unfolding of the human personality within the social community, must be looked upon as a fundamental constitutional decision affecting all areas of law, public and private. …Thus, basic rights obviously influence civil law too.” BVerfGE 7, 198 (205). By interpreting basic rights as establishing an “objective” ordering of values, the Court was stating that those values are so important that they must exist “objectively”–as an independent force, separate from their specific manifestation in a concrete legal relationship. So conceived, objective rights form part of the legal order, the orde public, and thereby possess significance for all legal relationships. For further consideration of the “Third Party Effect Theory,” see Eberle, Edward J., Public Discourse in Contemporary Germany, 47 Case W. Res. L. Rev. 797, 811–12 (1997); Quint, Peter E., Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247, 261 (1989).Google Scholar

7 Grundgesetz (GG- Basic Law/Constitution) art. 4(1) and 4(3).Google Scholar

8 Currie, supra note 2, at 213.Google Scholar

9 Grundgesetz (GG- Basic Law/Constitution) art. 21(2).Google Scholar

10 See BVerfGE 5, 85 (1956) (outlawing the Communist Party); see also BVerfGE 2, 1 (1952) (outlawing the Socialist Reich Party, successor to the Nazis).Google Scholar

11 Currie, David P., Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, 1989 Sup. Ct. Rev. 333, 348. (“Lochner Abroad”). Republished in this issue of the German Law Journal. Google Scholar

12 See, e.g., Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

13 See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918).Google Scholar

14 See Currie, supra note 11, at 339–52.Google Scholar

15 Grundgesetz (GG- Basic Law/Constitution) art. 3. Much of the discussion on equality is derived from Edward J. Eberle, Equality in Germany and the United States, San Diego Int'l L. J. (forthcoming).Google Scholar

16 See Korematsu v. United States 323 U.S. 214 (1944).Google Scholar

17 See Sugerman v. Dougall, 413 U.S. 634 (1973)(suspect class treatment for alienage status applies only to state governmental actions, and not federal governmental, and only when state governmental measures cannot be justified under public function doctrine.).Google Scholar

18 See Grundgesetz (GG- Basic Law/Constitution) art. 3.Google Scholar

19 See the Transsexual II Case (BVerfGE 88, 87 (96-97) (1993)) (“When only the simple prohibition against arbitrariness (Willkuerverbot) comes into play, a violation of article 3(1) can be established only when the lack of substantiation of the difference in treatment evident is.”). This is generally known as the arbitrariness or evident standard, meaning that an evident reason must be present to justify the measure. It is the lowest level of review under German law. Its equivalent in United States law would be rational basis review.Google Scholar

20 BVerfGE 98, 365 (1998).Google Scholar

21 See the Separated Couple University Aid Case (BVerfGE 91, 389 (1995)). Under German law, citizens are entitled to state subsidized support for university education when they do not have adequate financial means to support the costs of university education. The law is known as the federal education support law or Bundesausbildungsfoerderungsgesetz. The law is part of the social welfare net.Google Scholar

22 See BVerfGE 91, 335 (402-03) (1994). In another case, BVerfGE 99, 165 (1998), involving similar concerns regarding state funding of university education, the Constitutional Court found it unconstitutional to deny a student access to state grants for higher education when the student claimed a status independent of his parents, but the parents’ income was nevertheless used as part of the calcuation to see if the student would qualify for the state grant. In the case, the student was seeking a second education and, under the formula for calculating benefits, the parents’ income was not high enough to cover the costs of the education. The Court found no justifiable reason for the difference in treatment of parent dependent and parent independent students. Id. at 178, 181.Google Scholar

23 BVerfGE 82, 126 (1990).Google Scholar

24 Id. at 128–29 (citing BGB § 622).Google Scholar

25 For coverage of the case, see Susanne Baer, Equality: The Jurisprudence of the German Constitutional Court, 5 Colum. J. Eur. L. 249, 250 (1998-99).Google Scholar

26 BVerfGE 82, 126 (146) (1990).Google Scholar

27 Id. at 152.Google Scholar

28 Id. at 148–49.Google Scholar

29 Id. at 153.Google Scholar

30 Currie, supra note 11, at 369. For citations to the German cases, see id. Google Scholar

31 Currie, supra note 11, at 368–69. For citations to the German cases, see id. Google Scholar

32 Id. at 367.Google Scholar

33 Id. at 367. For citations to the German cases, see id. Google Scholar

34 Id. at 370.Google Scholar

35 See, e.g., Jefferson v. Hackney, 406 U.S. 535, 546 (1972).Google Scholar

36 Minnesota v. Clover Leaf Creamery Co, 449 U.S. 456 (1981) (citing United States v. Carolene Products Co., 304 U.S. 144, 154 (1938)).Google Scholar

37 See BVerfGE 13, 225 (1961).Google Scholar

38 See BVerfGE 97, 332 (1998).Google Scholar

39 See Id. at 344.Google Scholar

40 See BVerfGE 51, 60 (1979).Google Scholar

41 See BVerfGE 312 (1975).Google Scholar

42 See Id. at 323.Google Scholar

43 See BVerfGE 95, 267 (1997).Google Scholar

44 Barker, William B., The Three Faces of Equality: Constitutional Requirements in Taxation, 57 Case W. Res. L. Rev. 1, 49 (2006).Google Scholar

45 Currie, supra note 11, at 371–72 (“More important for us is what the German decisions have to say about the desirability of empowering politically insulated judges to make open-ended judgments about the reasonableness of government action. Some may find in the German experience confirmation of the dangers of unchecked judicial intervention, others proof of the need for broad judicial review.”).Google Scholar

47 See Eberle, Edward J., Equality in Germany and the United States (forthcoming 2009).Google Scholar