[Editors' Note: This article originally appeared as David P. Currie, Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, 1989 SUPREME COURT REVIEW 333-372 (1989). It is republished here with the permission of the editors of the Supreme Court Review, the University of Chicago Press and Professor Currie's family.]Google Scholar

1 Davidson v. New Orleans, 96 U.S. 97, 104 (1878) (Miller, J.). This and other American decisions noted in this article are discussed in Currie, The Constitution in the Supreme Court: The First Hundred Years (1985) (cited below as The First Hundred Years), and Currie, The Constitution in the Supreme Court: The Second Century (forthcoming Univ. of Chicago Press 1990) (cited below as The Second Century).Google Scholar

2 Calder v. Bull, 3 Dall. 386, 387(1798) (separate opinion). © 1990 by The University of Chicago. All rights reserved. 0–226-09571-1/90/1989-0011$02.00Google Scholar

3 Slaughter-House Cases, 83 U.S. 36, 116–24(1873) (dissenting opinion).Google Scholar

4 Griswold v. Connecticut, 381 U.S. 479,486–93(1965) (concurring opinion).Google Scholar

5 87 U.S. 655 (1875).Google Scholar

6 E.g., Munn v. Illinois, 94 U.S. 113, 136–54(1877) (Field, J.).Google Scholar

7 E.g., Mugler v. Kansas, 123 U.S. 623, 661–72 (1887); Missouri Pac. Ry. v. Mackey, 127 U.S. 205, 208–10 (1888).Google Scholar

8 198 U.S. 45.Google Scholar

9 See The First Hundred Years, chs. 2, 4, 5, 7.Google Scholar

10 United States v. Carolene Products Co., 304 U.S. 144, 152–53 n.4 (1938).Google Scholar

11 See generally The Second Century, chs. 8–16.Google Scholar

12 E.g., Slochower v. Board of Higher Education, 350 U.S. 551, 558–59(1956). See also the earlier decision in Wieman v. Updegraff, 344 U.S. 183, 190–92 (1952).Google Scholar

13 Robinson v. California, 370 U.S. 660, 666–68 (1962).Google Scholar

14 Griswold v. Connecticut, 381 U.S. 479, 484–86(1965).Google Scholar

15 410 U.S. 113, 152–56 (1973).Google Scholar

16 Craig v. Boren, 429 U.S. 190 (1976); Graham v. Richardson, 403 U.S. 365 (1971); Levy v. Louisiana, 391 U.S. 68 (1968).Google Scholar

17 Reynolds v. Sims, 377 U.S. 533 (1964); Carey v. Brown, 447 U.S. 455 (1980); Shapiro v. Thompson, 394 U.S. 618 (1969).Google Scholar

18 Bowers v. Hardwick, 478 U.S. 186, 194 (1986).Google Scholar

19 Art. 1–20, 28, 93, 97, 100(1) GG.Google Scholar

20 See, e.g., Steinberger, 200 Jahre amerikanische Bundesverfassung 32–39 (1987); Golay, The Founding of the Federal Republic of Germany (1958), passim. Google Scholar

21 See, e.g., Schulz, Ursprünge unserer Freiheit 217 (1989), citing remarks by Carlo Schmid in the debates of the constitutional convention.Google Scholar

22 See also Art. 8 (freedom of assembly), 9 (freedom of association), 10 (privacy of telecommunications), 17 (right of petition).Google Scholar

23 Detailed procedural protections for those taken into custody or accused of crime are provided in Articles 103 and 104.Google Scholar

24 See, e.g., 6 BVerfGE 32, 41 (1957); Häberle, Die Menschenwürde als Grundlage der Staatlichen Gemeinschaft, in 1 Handbuch des Staatsrechts der Bundesrepublik Deutschland 815, 860 (Isensee, & Kirchhof, eds., 1987) (cited below as Handbuch des Staatsrechts).Google Scholar

25 Art. 79(3) GG.Google Scholar

26 See Art. 20, 28 GG.Google Scholar

27 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1978); Zablocki v. Redhail, 434 U.S. 374 (1977); Levy v. Louisiana, 391 U.S. 68 (1968).Google Scholar

28 See text at notes 266–67.Google Scholar

29 6 BVerfGE 55, 70–84 (1957).Google Scholar

30 28 BVerfGE 324, 347–61 (1970). See id. at 356, finding in Art. 6(1) a “strict prohibition of differentiation respecting government benefits according to family status alone.”Google Scholar

31 76 BVerfGE 126, 128–30 (1987). See id. at 128: “Article 6(1) forbids [the state] to disadvantage married persons simply because they are married.”Google Scholar

32 “Illegitimate children shall be provided by legislation with the same opportunities… as are enjoyed by legitimate children.” Not until 1969, under a threat by the judges to implement article 6(5) themselves, did the legislature comply with its mandate. See 25 BVerfGE 167, 172– 88 (1969); BGBI. I, 1243 (1969). Cf. Art. 117(1) GG, which provided a four-year grace period for legislative correction before Article 3's provisions for sex equality became enforceable. See 3 BVerfGE 225 (1953), discussing these latter provisions.Google Scholar

33 See 8 BVerfGE 210, 217 (1958).Google Scholar

34 See, e.g., 44 BVerfGE 1, 22 (1976).Google Scholar

35 E.g., 74 BVerfGE 33, 38–43(1986) (inheritance). Cf. the line of cases beginning with Levy v. Louisiana, 391 U.S. 68 (1968).Google Scholar

36 See 17 BVerfGE 280, 283–86 (1964) (longer period of child support from father).Google Scholar

37 See 8 BVerfGE 210, 214–21 (1958) (judicial proceeding to establish paternity).Google Scholar

38 61 BVerfGE 358, 371–82(1982) (insisting upon a “particular” (besondere) justification for such a limitation of parental rights and finding none). See also 36 BVerfGE 146, 161–69(1973) (marriage may not be forbidden because of husband's previous sexual relationship with bride's mother). In either of these cases the court could have reached the same result on equality grounds but did not.Google Scholar

39 42 BVerfGE 95, 100–103 (1976).Google Scholar

40 34 BVerfGE 165, 182–99(1972).Google Scholar

41 59 BVerfGE 360, 381–82 (1982).Google Scholar

42 52 BVerfGE 357, 366 (1979). See Art. 6(4) GG: “Every mother shall be entitled to the protection and care of the community.”Google Scholar

43 Cf. Pierce v. Society of Sisters, 268 U.S. 510(1925) (finding such a right protected by the Due Process Clause). For special limitations on private elementary schools in Germany, see Art. 7(5) GG.Google Scholar

44 See 75 BVerfGE 40, 69–78 (1987), finding preferential treatment of religious schools and the exclusion of subsidies for adult education contrary to Art. 7(4) in conjunction with Art. 3.Google Scholar

45 Id. at 58–66. Contrast the Court's conclusion, 20 BVerfGE 56, 96–112(1966), that general subsidies for political parties were inconsistent with Article 21(I)'s guarantee of party autonomy. Our Supreme Court is keenly aware of the danger that conditional subsidies can pose to individual freedoms (see Speiser v. Randall, 357 U.S. 513(1958)), but it has refused to outlaw spending itself simply because the power might sometime be abused. See Buckley v. Valeo, 424 U.S. 1(1976). There is some truth in the arguments that underlie both the private school and political party decisions; but there is a certain tension between the conclusions that subsidies are constitutionally forbidden and that they are constitutionally required.Google Scholar

46 Cf. DeShaney v. Winnebago County Department of Social Services, 109 S. Ct. 988(1989); Harris v. McRae, 448 U.S. 297 (1980).Google Scholar

47 For discussion of affirmative government duties under the two constitutions, see Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864(1986).Google Scholar

48 Hamburg Flood Control Case, 24 BVerfGE 367, 389,400 (1968).Google Scholar

49 Contrast Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943) (“preferred position” for First Amendment rights); Kovacs v. Cooper, 336 U.S. 77, 95–96 (1949) (Frankfurter, J., concurring) (“those liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements”). This is not to deny that even in Germany there are subtle differences in the levels of judicial scrutiny according to how intimately the right in question is bound up with the development of personality. See Denninger, Art. 1, in I Kommentar zum Grundgesetz für die Bundesrepublik Deutschland Para. Nr. 11, 14 (Schmidt-Bleibtreu and Luchterhand eds., 1984) (cited below as Luchterhand), and cases cited.Google Scholar

50 Cf. Hayek, The Road to Serfdom 103–4(1944).Google Scholar

51 See 24 BVerfGE 367, 400 (1968).Google Scholar

52 343 U.S. 579, 582–89 (1951).Google Scholar

53 See id. at 646 (Jackson, J., concurring) (arguing that the President's duty to take care that the laws be faithfully executed and the Due Process Clause “signify about all there is of the principle that ours is a government of laws, not of men”: “One [clause] gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther”); Corwin, The Doctrine of Due Process of Law before the Civil War, 24 Harv. L. Rev 366 (1911).Google Scholar

54 See 49 BVerfGE 89, 126 (1978): “The general principle that lawmaking authority is reserved to the legislature (Gesetzesvorbehalt) requires a statutory basis for executive acts fundamentally (wesentlich) affecting the freedom and equality of the citizen.”Google Scholar

55 56 BVerfGE 249, 261–66 (1981) (cable car); 74 BVerfGE 264, 284–97 (1987) (automobile test track).Google Scholar

56 See, e.g., Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).Google Scholar

57 46 BVerfGE 268, 288–89 (1977).Google Scholar

58 66 BVerfGE 248, 257–59 (1984), explaining (at 257) that condemnation on behalf of a private enterprise was permissible at least “when the enterprise [was] subject to a statutory obligation promoting the general welfare and… conducted for the benefit of the public.”Google Scholar

59 56 BVerfGE 249 (1981).Google Scholar

60 74 BVerfGE 264 (1987).Google Scholar

61 56 BVerfGE at 266, 269–95 (separate opinion of Böhmer, J.), concluding (at 287) that the condemnation in question was “for the benefit of a private undertaking designed solely for private profit.” For Justice Böhmer's narrow view of the permissible scope of condemnation for private companies, see id. at 293.Google Scholar

62 Cf. Charles Wilson's notorious comment that “what's good for General Motors is good for the country.” The argument in the German case was that the test track (for Daimler-Benz) would create jobs and stimulate the economy. “Condemnation for the benefit of private persons… that serves the public weal only indirectly and presents an enhanced danger of abuse to the detriment of the weak,” the Court observed, “poses particular constitutional problems.” 74 BVerfGE at 287.Google Scholar

63 See generally Papier, Art. 14, in 2 Grundgesetzkommentar Para. Nr. 495–509 (Maunz, Dürig, et al. eds., rev. to 1989) (cited below as Maunz/Dürig).Google Scholar

64 See Art. 14(3) GG: “Die Entschädigung ist unter gerechter Abwägung der Interessen der Allgemeinheit und der Beteiligten zu bestimmen.”Google Scholar

65 See 24 BVerfGE 367, 420–22 (1968). For criticism of this conclusion see Leisner, Eigentum, in 6 Handbuch des Staatsrechts § 149, Para. Nr. 180–83 (1989). For an introduction to the extensive jurisprudence of the civil courts on the question of the level of compensation, see Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 510–60.Google Scholar

66 See 4 BVerfGE 219, 230–37 (1955); 58 BVerfGE 300, 322–24 (1981). For discussion of the impact of the latter decision upon the civil courts’ practice of awarding common-law or statutory compensation for wrongful takings, see Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 597– 638; for criticism of the Constitutional Court's position, see Leisner, in 6 Handbuch des Staatsrechts § 149, Para. Nr. 173–79.Google Scholar

67 The civil and administrative courts, on the other hand, have developed an extensive jurisprudence for determining when regulation amounts to a taking; the problem has proved as refractory in Germany as it has in the United States. See Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 291–450, arguing (Para. Nr. 449) for a test based upon the severity of the restriction (cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)); Leisner, in 6 Handbuch des Staatsrechts § 149, Para. Nr. 148–51, arguing that such a test should be complemented by special concern for those made to bear an undue share of the total burden (Sonderopfertheorie).Google Scholar

68 See, e.g., 4 BVerfGE 7, 17 (1954) (upholding a special assessment for relief of the troubled iron, steel, and coal industries). Compare the dictum that the state of Hessen could demand free copies of all books published there in the interest of improving its library—so long as the burden of doing so was not disproportionate to the profitability of the publication. 58 BVerfGE 137, 144–52 (1981). See id. at 144, explaining that, like a tax, the law imposed no duty to convey a particular piece of property to the government. See also Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland Para. Nr. 447 (15th ed. 1985), arguing that taxation is the “exposed flank” of the property guarantee.Google Scholar

69 45 BVerfGE 297, 335 (1977).Google Scholar

70 38 BVerfGE 175, 185 (1974).Google Scholar

71 See Leisner, in 6 Handbuch des Staatsrechts § 149, Para. Nr. 170.Google Scholar

72 See Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 507–9.Google Scholar

73 These clauses are viewed as concrete applications of the general Sozialstaat principle of Articles 20 and 28. They were derived from more intrusive limitations in Articles 153–55 of the Weimar Constitution of 1919, in which social provisions were far more prominent. See Schneider, Die Reichsverfassung vom 11. August 1919, in 1 Handbuch des Staatsrechts §3, Para. Nr. 37–38 (1987).Google Scholar

74 See, e.g., 21 BVerfGE 150, 154–55 (1967).Google Scholar

75 10 BVerfGE89, 112–14 (1959).Google Scholar

76 20 BVerfGE 351, 355–62 (1966). See also 25 BVerfGE 112, 117–21 (1969) (upholding a prohibition of construction on dike lands). Cf. Mugler v. Kansas, 123 U.S. 623, 661–72 (1887); Miller v. Schoene, 276 U.S. 272 (1928). On the issue of flood-plain zoning in this country, see Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971).Google Scholar

77 37 BVerfGE 132, 139–43 (1974); 71 BVerfGE 230, 246–51 (1985). Cf. Block y. Hirsch, 256 U.S. 135 (1921).Google Scholar

78 68 BVerfGE 361, 367–71 (1985).Google Scholar

79 38 BVerfGE 348, 370–71 (1975).Google Scholar

80 21 BVerfGE 73, 82–85 (1967); 21 BVerfGE 87, 90–91 (1967); 21 BVerfGE 102, 104–5 (1967).Google Scholar

81 21 BVerfGE 150, 154–60 (1967).Google Scholar

82 70 BVerfGE 191, 199–213 (1985).Google Scholar

83 58 BVerfGE 300, 338–53 (1981). Cf. Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962).Google Scholar

84 50 BVerfGE 290, 339–52 (1979) (stressing the social function and the impersonal nature of shareholder interests in industrial facilities).Google Scholar

85 Id. at 351. See Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 430, arguing that the power to decide how property is to be used is central to Art. 14 and thus that the owners must retain the last word. Cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (1819).Google Scholar

86 31 BVerfGE 275, 284–85, 291–92 (1971). Retroactive redefinition of the date on which the period of protection began to run, however, was held impermissible. Id. at 292–95.Google Scholar

87 52 BVerfGE 1, 29–40 (1979).Google Scholar

88 68 BVerfGE 361, 374–75 (1985).Google Scholar

89 21 BVerfGE 73, 85–86 (1967).Google Scholar

90 26 BVerfGE 215, 221–28 (1969).Google Scholar

91 51 BVerfGE 193, 216–21 (1979).Google Scholar

92 E.g., 2 BVerfGE 380, 399–403 (1953) (compensation for victims of Nazi wrongs). Property, said the Court, did not include “claims that the state affords its citizens by statute in fulfillment of its duty to provide for their welfare,” for if it did welfare laws could never be repealed. Id. at 402.Google Scholar

93 E.g., 16 BVerfGE 94, 111–18 (1963) (retirement benefits); 53 BVerfGE 257, 289–94 (1980) (same); 69 BVerfGE 272, 298–306 (1985) (health insurance). For justification of this development, see Hesse, Para. Nr. 443–45.Google Scholar

94 397 U.S. 254 (1970).Google Scholar

95 E.g., 63 BVerfGE 152, 174 (1983). Cf. Board of Regents v. Roth, 408 U.S. 564 (1972).Google Scholar

96 See 69 BVerfGE 272, 300 (1985). See id. at 305–6 and 72 BVerfGE 9, 18–21 (1986), respectively applying this test to conclude that rights to medical and unemployment insurance constituted property. Cf. Snidach v. Family Finance Corp., 395 U.S. 337, 341–42 (1969) (limiting pretrial wage garnishment on due process grounds because garnishment of wages may “drive a wage-earning family to the wall”).Google Scholar

97 See, e.g., 46 BVerfGE 325, 333–37 (1977) (transfer of property pursuant to judicial sale must be postponed to permit judicial challenge to adequacy of price); 53 BVerfGE 352, 358–61 (1980) (striking down unreasonable burden imposed upon landlord in showing that increased rent did not exceed prevailing rate). Cf. 35 BVerfGE 348, 36 1–63 (1973) (adequate opportunity for judicial review, including provision of counsel in cases of poverty, implicit in property provision). Cf. Mapp v. Ohio, 367 U.S. 643 (1961), and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (both suggesting that judicial remedies may be implicit in substantive constitutional provisions).Google Scholar

98 72 BVerfGE 9, 22–25 (1986). As in the case of conventional property, limitations on existing rights are not forbidden outright. See, e.g., 53 BVerfGE 257, 308–11 (1980) (permitting application of a new provision for division of retirement benefits on divorce to persons married under the old scheme, subject to an extended hardship clause); 69 BVerfGE 272, 304–07(1985) (upholding increase in cost of medical insurance for those already insured). Yet the Court has gone so far as to suggest that the property guarantee may require the state actually to increase benefits to counteract inflation, which reduces their real value. See 64 BVerfGE 87, 97–103 (1983) (holding that such adjustments need not be made annually). Contrast Legal Tender Cases, 79 U.S. 457 (1871) (rejecting due process challenge to inflationary issue of paper money); Atkins v. United States, 556 F.2d 1028 (Ct. Cls. 1977) (concluding that Article III's ban on reduction of judicial salaries did not require cost of living increases).Google Scholar

99 For doubts as to whether an American legislature could bind itself not to revoke a welfare program, see Crenshaw v. United States, 134 U.S. 99, 104–8 (1890) (permitting Congress to repeal a law providing tenure for federal employees); Stone v. Mississippi, 101 U.S. 814, 815– 20 (1880) (permitting modification of a twenty-five-year charter to conduct a lottery on the ground that the state had no power to promise not to exercise its police power). If government benefits are based upon contract, however, they may be protected by the Contracts Clause of Art. I, §10 — though under recent decisions only against unreasonable legislative impairments. See United States Trust Co. v. New Jersey, 431 U.S. 1 (1977); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) (striking down law impairing private pension contracts).Google Scholar

100 31 BVerfGE 229 (1971).Google Scholar

101 Id. at 243. See also id. at 240–41 (defining “the essential elements of copyright as property within the meaning of the Constitution”); Rittstieg, Art. 14/15, in 1 Luchterhand, Para. Nr. 110a.Google Scholar

102 See Board of Regents v. Roth, 408 U.S. 564, 577 (1972).Google Scholar

103 See Ingraham v. Wright, 430 U.S. 651, 672–74 (1977) (right to bodily integrity).Google Scholar

104 3 Cai. R. 175 (N.Y. Sup. Ct. 1805); see Locke, Second Treatise of Government 15 (Barnes, & Noble ed. 1966).Google Scholar

105 31 BVerfGE at 243.Google Scholar

106 Id. at 242.Google Scholar

107 78 BVerfGE 205, 211–12 (1988). Cf. the English common law of treasure trove, noted in Casner & Leach, Cases and Text on Property 35 (3d ed. 1984).Google Scholar

108 78 BVerfGE at 211, citing earlier cases: Art. 14(1) “guarantees only those rights which the owner already has.”Google Scholar

109 See generally Rittstieg, Art. 14/15, in 1 Luchterhand, Para. 37, concluding that the judges have become more protective of property interests since the early 1970s; Leisner, in 6 Handbuch des Staatsrechts §149, Para. Nr. 102–17, 133–42, arguing that the Court has done too little to protect property.Google Scholar

110 See, e.g., 7 BVerfGE 377, 397 (1958): “[Article 12(1)] guarantees the individual more than just the freedom to engage independently in a trade. To be sure, the basic right aims at the protection of economically meaningful work, but it views work as a ‘vocation.’ Work in this sense is seen in terms of its relationship to the human personality as a whole: It is a relationship that shapes and completes the individual over a lifetime of devoted activity; it is the foundation of a person's existence through which that person simultaneously contributes to the total social product.” Cf. text at note 48 supra, discussing property. In recent years our Supreme Court has not seen it that way. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Serious due process protection of the right to a livelihood in the United States has been limited to instances in which the individual's very existence was threatened, and then to a guarantee of fair hearing. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).Google Scholar

111 See, e.g., 33 BVerfGE 303 (1972) (striking down limits on admission to public universities). This case is discussed at notes 140–47 infra. Google Scholar

112 For decisions invalidating limitations on occupational freedom not adequately authorized by statute, see, e.g., 22 BVerfGE 114, 119–23 (1967) (disqualification of attorney); 38 BVerfGE 373, 380–85 (1975) (ban on deposit boxes for prescriptions in outlying areas); 41 BVerfGE251, 259–66 (1976) (expulsion from vocational school); 43 BVerfGE 79, 89–92 (1976) (ban on representation of codefendants by members of same law firm); 54 BVerfGE 224, 232–36(1980) (ban on doctors’ discussing disciplinary proceedings with patients); 63 BVerfGE 266, 288–97 (1983) (exclusion of Communist from bar); 65 BVerfGE 248, 258–64 (1983) (requirement that price be marked on goods offered for sale). The Court has also made clear, however, that limitations may be based upon customary law existing before the adoption of the Basic Law in 1949. 15 BVerfGE 226, 233 (1962). See also Scholzin, Art. 12, in 1 Maunz/Dürig, Para. Nr. 315–16.Google Scholar

113 7 BVerfGE 377 (1958).Google Scholar

114 Id. at 405.Google Scholar

115 Id. at 406–8. The language of Article 12 might be taken to suggest that the mere exercise of a profession was subject to unlimited legislative regulation, the choice of profession to none at all. Citing the difficulty of drawing clear lines between choice and exercise, the explicit authorization to regulate access to certain professions in Art. 74(19), and the debates of the constitutional convention, the Court found that choice and exercise of an occupation constituted poles of a continuum: Art. 12 guaranteed a unitary freedom of occupational activity that was subject at any point to reasonable regulation, but what was reasonable varied according to the severity of the limitation. See id. at 400–403.Google Scholar

116 See The Second Century, chs. 2,4,5.Google Scholar

117 1 BVerfGE 264, 274–75 (1952).Google Scholar

118 9 BVerfGE 338, 344–48(1959).Google Scholar

119 9 BVerfGE 73, 77–81 (1959).Google Scholar

120 17 BVerfGE 232, 238–46 (1964).Google Scholar

121 13 BVerfGE 237,239–42 (1961).Google Scholar

122 23 BVerfGE 50, 56–60 (1968).Google Scholar

123 25 BVerfGE 1, 10–23 (1968) (stressing that these limitations were a temporary response to a serious glut on the flour market).Google Scholar

124 39 BVerfGE 210, 225–3 7 (1975).Google Scholar

125 41 BVerfGE 205, 217–28 (1976) (inferring from the limitation of federal legislative competence to “private” insurance in Art. 74(11) GG that provisions respecting public insurance were not to be measured against Art. 12).Google Scholar

126 21 BVerfGE 245, 249–60 (1967).Google Scholar

127 57 BVerfGE 139, 158–65 (1981).Google Scholar

128 17 BVerfGE 371, 376–81 (1964) (stressing the public functions that notaries performed).Google Scholar

129 69 BVerfGE 373, 378–8 1 (1985) (finding the burden trivial).Google Scholar

130 7 BVerfGE 377, 413–44(1958).Google Scholar

131 11 BVerfGE 168, 183–90 (1960). Cf. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).Google Scholar

132 14 BVerfGE 19, 22–25(1962).Google Scholar

133 59 BVerfGE 336, 355–59(1982).Google Scholar

134 17 BVerfGE 269, 274–80(1964).Google Scholar

135 36 BVerfGE 47, 56–65 (1973).Google Scholar

136 19 BVerfGE 330, 336–42 (1965).Google Scholar

137 33 BVerfGE 125, 165–71 (1972).Google Scholar

138 61 BVerfGE 291, 317–19(1982).Google Scholar

139 53 BVerfGE 135, 145–47 (1980). Cf. Carolene Products Co. v. United States, 323 U.S. 18 (1944). The German court did concede that more stringent measures respecting margarine might be permissible to preserve the viability of the crucial dairy industry (53 BVerfGE at 146), but the second Carolene Products decision was based on the danger of confusion alone (323 U.S. at 27–31). The chocolate decision and others noted above demonstrate that, despite the suggestion of Scholz, Art. 12, in I Maunz/Dürig, Para. 322, that judicial review under Art. 12(1) has become less intensive than it was in the days of the drugstore case, it has by no means lost its bite. None of this is to say that there is actually more occupational freedom in West Germany than in the United States. Notwithstanding the lack of judicial interest in the area, legislators in this country seem somewhat less inclined to inhibit such freedom than their German counterparts, as Americans seem more mistrustful of government in general. In Chicago, for example, it is possible to sell groceries after 2 P.M. on Saturday; it is baically illegal in Germany.Google Scholar

140 33 BVerfGE 303 (1972).Google Scholar

141 Id. at 330–32. “The more involved a modern state becomes in assuring the social security and cultural advancement of its citizens,” the opinion added, “the more the complementary demand that participation in governmental services assume the character of a basic right will augment the initial postulate of safeguarding liberty from state intervention. This development is particularly important in the field of education.” Id. See Scholz, Art. 12, in 1 Maunz/Dürig, Para. 63, explaining that where the state has a practical monopoly (as it has of higher education in West Germany), exclusion comes close in practical effect to prohibition.Google Scholar

142 See 33 BVerfGE at 332–36.Google Scholar

143 See id. at 331. It is common practice for the Constitutional Court to base a decision on the combined effect of two or more provisions. See also Denninger, Art. 1, in Luchterhand, Para. Nr. 23–25, explaining that, although the Sozialstaat principle is not generally directly enforceable by private suit, it places upon the state “shared responsibility for the creation and maintenance of the factual conditions necessary for the exercise of freedoms guaranteed by the Bill of Rights.”Google Scholar

144 See 33 BVerfGE at 351–56.Google Scholar

145 39 BVerfGE 258, 269–74(1975).Google Scholar

146 54 BVerfGE 173, 191–207(1980); 66 BVerfGE 155, 177–90(1984).Google Scholar

147 Moreover, like other substantive provisions, Article 12(1) has been read to guarantee adequate procedures to assure vindication of the right itself See, e.g., 39 BVerfGE 276, 294–301 (1975) (right to file complaint protesting rejection of application for university admission); 52 BVerfGE 380, 388–91 (1979) (right to warning as to the importance of answering questions during bar examination).Google Scholar

148 See Benz, Von der Besatzungsherrschaft zur Bundesrepublik 113–16, 208–9 (1985).Google Scholar

149 3 BVerfGE 58, 137 (1953). For criticism of this conclusion, see Maunz, Art. 33, in 2 Maunz-Dürig, Para. Nr. 58.Google Scholar

150 8 BVerfGE 1, 22–28 (1958); 11 BVerfGE 203, 210–17(1960).Google Scholar

151 44 BVerfGE 249, 262–68 (1977) (invoking Art. 3 3(5) in conjunction with Art. 6 and the Sozialstaat principle).Google Scholar

152 26 BVerfGE 79, 91–94 (1969) (also invoking the guarantee of judicial independence in Article 97(1)).Google Scholar

153 38 BVerfGE 1, 11–17 (1974) (judges); 62 BVerfGE 374, 382–91 (1982) (teachers); 64 BVerfGE 323, 351–66 (1983) (professors). See also 43 BVerfGE 154, 165–77 (1976), holding that Article 33(5) required a hearing before dismissal even of probationary public workers.Google Scholar

154 Cf. Holmes's famous comment in McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892), that “there is no constitutional right to be a policeman.”Google Scholar

155 Contrast Perry v. Sindermann, 408 U.S. 593 (1972).Google Scholar

156 See Dürig, Art. 2(2), in I Maunz/Dürig, Para. Nr. 1, 49.Google Scholar

157 See Lorenz, Recht auf Leben und körperliche Unversehrtheit, in 6 Handbuch des Staatsrechts, § 128, Para. Nr. 36.Google Scholar

158 See Dürig, Art. 2(1), in I Maunz/Dürig, Para. Nr. 31–32, 62–63.Google Scholar

159 22 BVerfGE 180, 218–20(1967).Google Scholar

160 Id. at 220.Google Scholar

161 See, e.g., 17 BVerfGE 108, 117 (1963): “Respect for the basic right of bodily integrity demands respect across the board for the principle of proportionality in passing upon the validity of incursions into this right.”Google Scholar

162 See Dürig, supra note 158.Google Scholar

163 See also 30 BVerfGE 1, 20 (1970); Hill, Verfassungsrechtliche Gewährleistungen gegenüber der staatlichen Strafgewalt, in 6 Handbuch des Staatsrechts §156, Para. Nr. 21.Google Scholar

164 See 30 BVerfGE at 20. See also Denninger, Art. 1, in 1 Luchterhand, Para. Nr. 12, finding in the basic rights and the Rechtsstaat principle protection against unnecessary as well as nonstatutory limitations of protected interests and quoting from a property case that “the general welfare is not only the basis but also the limit” of governmental intrusion.Google Scholar

165 See 78 BVerfGE 232, 245–47 (1988). Cf. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); Mugler v. Kansas, 123 U.S. 623, 661–62 (1887) (both stressing the legitimacy of the end and the appropriateness of the means).Google Scholar

166 Id. at 245. Cf. Shelton v. Tucker, 364 U.S. 479, 488 (1960); Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951). This general formulation does not exclude varying levels of scrutiny according to the seriousness and intimacy of the intrusion. See Denninger, supra note 49; supra notes 113–15 (discussing the Pharmacy case).Google Scholar

167 19BVerfGE 342, 347–53 (1965).Google Scholar

168 35 BVerfGE 185, 190–92 (1973).Google Scholar

169 20 BVerfGE 45, 49–51 (1966).Google Scholar

170 1702 BVerfGE 121, 122–23 (1953).Google Scholar

171 17 BVerfGE 108, 114–15 (1963).Google Scholar

172 16 BVerfGE 194, 198–203 (1963). See also 17 BVerfGE 108, 117–20(1963).Google Scholar

173 Cf. 20 BVerfGE 323, 330–36 (1966), finding a violation of the general freedom of action guaranteed by Article 2(1) in the punishment of a faultless voluntary association, which had no rights protected by Art. 2(2).Google Scholar

174 51 BVerfGE 324, 343–50 (1979). This decision was based not on fair trial considerations but on the danger to the defendant's health.Google Scholar

175 52 BVerfGE 214, 219–22 (1979).Google Scholar

176 See 39 BVerfGE 1 (1975); Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

177 See 39 BVerfGE at 37–42.Google Scholar

178 Id. At 42–51. Contrast DeShaney v. Winnebago County Department of Social Services, 109 S. Ct. 998, 1003 (1989): “[N]othing in the language [or history] of the Due Process Clause…requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”Google Scholar

179 In one of its very first opinions, while taking a narrow view of the protective duty imposed by Article 1(1), the Constitutional Court expressly acknowledged it: “The second sentence [of Article 1(1)…obliges the state indeed to the positive act of ‘protection,’ but that means protection against attacks on human dignity by other people, such as humiliation, stigmatization, persecution, ostracism, and the like-not protection from material want.” 1 BVerfGE97, 104 (conceding that the social state principle of Art. 20 required the legislature to assure “tolerable living conditions” for the needy but insisting that “only the legislature can do what is essential to make the social state a reality” (id. at 105)). Later decisions respecting the government's obligation under more specific bill or rights provisions to support or provide education (see text at notes 44–45 and 140–42 supra) have cast considerable doubt upon this narrow interpretation. See generally Denninger, Art. 1, in 1 Luchterhand, Para. Nr. 23–28.Google Scholar

180 39 BVerfGE at 41, 51.Google Scholar

181 See Art. 1(2) GG, declaring that the German people acknowledge human rights because of the inviolability of human dignity; Dürig, Art. 1, in 1 Maunz/Dürig, Para. Nr. 10, 55.Google Scholar

182 See id. at Para. Nr. 102.Google Scholar

183 See 39 BVerfGE at 68–95 (Rupp-von Brünneck and Simon, JJ., dissenting). See also Denninger, Art. 1, in 1 Luchterhand, Para. Nr. 33–34.Google Scholar

184 49 BVerfGE 89, 140–44 (1978); 53 BVerfGE 30, 57–69 (1979)Google Scholar

185 56 BVerfGE 54, 73–86 (1981).Google Scholar

186 46 BVerfGE 160, 164–65 (1977). Cf. 55 BVerfGE 349, 364–68 (1980) (involving the adequacy of German efforts to secure the release of the aged Nazi leader Rudolf Hess from Allied imprisonment).Google Scholar

187 77 BVerfGE 170, 214–16, 222–30 (1987).Google Scholar

188 See also 66 BVerfGE 39, 60–61 (1983) (rejecting an attack on the stationing of nuclear missiles in West Germany on the ground that, to whatever extent German officials were responsible for the decision, the question of how best to defend the country was committed to the discretion of the political branches). One may be tempted to conclude from the later decisions that the Court has effectively withdrawn from the position it took in the abortion case. However, the decisions may all be reconcilable on the merits. It is easy enough to disagree over the proper balance of interests in nuclear-safety cases or the best way to prevent harm to present and future kidnap victims; despite the obvious shortcomings of criminal penalties it is difficult to see how anything less would have a significant impact upon abortion. See 39 BVerfGE at 52–64.Google Scholar

189 See 39 BVerfGE at 49–50.Google Scholar

190 See Glendon, Abortion and Divorce in Western Law 33 (1987).Google Scholar

191 45 BVerfGE 187, 228 (1977) (Life Imprisonment Case). For more detail along the same lines, see Dürig, Art. 1(1), in 1 Maunz/Dürig, Para. Nr. 28.Google Scholar

192 45 BVerfGE at 228, citing 20 BVerfGE 323, 331 (1966), which had based this conclusion on Art. 2(1) in conjunction with the Rechtsstaat principle.Google Scholar

193 45 BVerfGE at 228, citing 1 BVerfGE 332, 348 (1952); 25 BVerfGE 269, 285–86(1969).Google Scholar

194 45 BVerfGE at 245; see also id. at 228–29. As the quotation suggests, this decision was not based entirely on Article 1(1). See id. at 223, noting the obvious involvement of Article 2(2)'s right to personal liberty; id. at 239, concluding that the “interest in rehabilitation flows from Article 2(1) in tandem with Article 1.” In early days doubts had been expressed whether Article 1(1) was directly enforceable at all, partly because Article 1(3) made only the “following” basic rights binding on government organs as “directly enforceable law.” See, e.g., Dürig, Art. 1(1), in 1 Maunz/Dürig, Para. Nr. 4, 7 (adding, in Para. Nr. 13, 16, that it hardly mattered since the dignity principle had to be employed as a standard in interpreting other constitutional provisions as well as the ordinary law). For the contrary view, see Podlech, Art. 1(1), in 1 Luchterhand, Para. Nr. 61. To this date the Constitutional Court has never invalidated government action on the basis of Article 1(1) alone.Google Scholar

195 See, e.g., 27 BVerfGE 1, 6(1969) (Microcensus): “It would be inconsistent with the principle of human dignity to require a person to record and register all aspects of his personality even though such an effort is carried out in the form of a statistical survey; [the state] may not treat a person as an object subject to an inventory of any kind.” The census questions in issue, which pertained to vacation habits, were held permissible.Google Scholar

196 49 BVerfGE 286, 298(1978).Google Scholar

197 Compare Dürig, Art. 1(1), in 1 Maunz/Dürig, Para. Nr. 30–41; Podlech, Art. 1(1), in 1 Luchterhand, Para. Nr. 43–55.Google Scholar

198 45 BVerfGE 187, 229 (1977). Cf. the discussion of changing standards of cruel and unusual punishment in Furman v. Georgia, 408 U.S. 238 (1972).Google Scholar

199 30 BVerfGE 173 (1971). See id. at 195: “[T]he values embodied in Article 1(1) influence the guarantee [of artistic freedom.]” All Justices agreed on the general principle that in such a case the interest in artistic freedom must be balanced against that in reputation; the injunction itself was affirmed by an equally divided Court.Google Scholar

200 See 39 BVerfGE 1, 41, 51 (1975); supra notes 175–83.Google Scholar

201 35 BVerfGE 202 (1973) (relying on Art. 1(1) in conjunction with Art. 2(1)).Google Scholar

202 6 BVerfGE 32, 36–37 (1957), citing the explanation given by Dr. von Mangoldt at the constitutional convention, Parlamentarischer Rat, Verhandlungen des Hauptausschusses 533 (1949). This interpretation has met with some criticism from the commentators. See, e.g., Hesse, Para. Nr. 425–28. For a more approving view, see Dürig, Art. 2, in 1 Maunz/Dürig, Para. Nr. 3, 10, 11.Google Scholar

203 165 U.S. 578 (1897).Google Scholar

204 See 6 BVerfGE 389, 432–37 (1957); 36 BVerfGE 41, 45–46 (1973). Cf. Bowers v. Hardwick, 478 U.S. 186 (1986). For criticism of the German decisions, see Podlech, Art. 2(1), in Luchterhand, Para. Nr. 64. Contrast 49 BVerfGE 286, 298–301 (1979), upholding the right to have birth records corrected to reflect a sexchange operation: “[T]he sexual change secured by the complainant cannot be considered immoral.”Google Scholar

205 See Art. 9(2), 18, 21(2) GG.Google Scholar

206 See, e.g., 5 BVerfGE 85 (1956) (Communist Party case). See also Art. 20(3), which in using similar language requires the legislature to follow only the constitution itself. See 6 BVerfGE at 38.Google Scholar

207 6 BVerfGE 32, 38 (1957). See also id. at 38–40, invoking legislative history. For an argument in favor of a narrower interpretation, see Dürig, Art. 2(1), in 1 Maunz/Dürig, Para. 18–25.Google Scholar

208 Slaughter-House Cases, 83 U.S. 36 (1873).Google Scholar

209 E.g., 26 BVerfGE 246, 25 3–58 (1969) (striking down statute for want of federal competence to regulate use of the title of Engineer).Google Scholar

210 E.g., 20 BVerfGE 257, 268–7 1 (1966) (invalidating a provision for fees in antitrust proceedings for violation of the delegation limits of Art. 80(1)).Google Scholar

211 6 BVerfGE 32, 41 (1957).Google Scholar

212 See supra notes 51–54.Google Scholar

213 E.g., 56 BVerfGE 99, 106–09 (1981) (reversing a decision that forbade a lawyer to appear as counsel against a municipality if his partner was a member of the municipal council for want of “a legal basis in the governing provisions of ordinary law”).Google Scholar

214 See, e.g., 8 BVerfGE 274, 324–27 (1958), most pertinently invoking the separation of powers provision of Art. 20(2): “If the authority of the executive is not sufficiently defined, it no longer can be said to execute the law… but takes over [the legislature's] function.” See also 49 BVerfGE 89, 126–30 (1978), enunciating the strict requirement that the legislature itself make all “essential” decisions regarding the peaceful use of nuclear power. Article 80(1) applies only to the delegation of authority to adopt regulations under federal law. Despite the plain words and purpose of Art. I, § 1 of our Constitution, the Supreme Court has struck down none of the numerous essentially unlimited delegations of federal legislative power since Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).Google Scholar

215 See 5 BVerfGE 25, 31–34(1956). Cf. United States v. Cohen Grocery Co., 255 U.S. 81 (1921).Google Scholar

216 E.g., 26 BVerfGE 66, 71–72 (1969) (permitting victim to intervene in criminal proceeding); 38 BVerfGE 105, 111–18 (1974) (affirming a witness's right to counsel under certain circumstances); 57 BVerfGE 117, 120–21 (1981) (relying on the rule of law in conjunction with the explicit guarantee of a judicial hearing in Art. 103(1) to hold that a filing deadline was satisfied when the document arrived at court); 64 BVerfGE 135, 145–57 (1983) (discussing to what extent proceedings must be translated for a defendant who cannot communicate in German); 65 BVerfGE 171, 174–78 (1983) (no appellate argument in the absence of defense counsel). Why these opinions did not rely solely on Article 103(1) was not always made clear. But see 38 BVerfGE at 118: “Art. 103 (1) basically guarantees only a hearing as such, not a hearing with the assistance of counsel”; 64 BVerfGE at 145–46 and cases cited, explaining that the essence of an Article 103(1) hearing was the right to know the basis of the charge and to respond. Cf. Goss v. Lopez, 419 U.S. 565 (1965), stressing the same elements in determining what constituted due process in connection with a suspension from school.Google Scholar

217 See, e.g., 13 BVerfGE 206, 212–14 (1961) (invalidating a law increasing the tax on land sales previously made); 21 BVerfGE 173, 182–84 (1967) (holding that a prohibition on combining tax counseling with certain other activities could not be applied immediately to persons who had been engaged in both before the statute was passed). Retroactivity in the first of these cases was in the Court's terms “genuine” (echt), since the law attached consequences to past acts themselves. In the second it was “spurious” (unecht), since the law merely disappointed expectations by diminishing the value produced by past actions. Not surprisingly, the Court has been considerably more lenient in passing upon spurious than upon genuine retroactivity. See, e.g., 19 BVerfGE 119, 127–28 (1965) (permitting taxation of securities that had been tax-exempt when purchased). Also not surprisingly, there have been difficulties in distinguishing genuine from spurious retroactivity. E.g., 72 BVerfGE 175, 196–99 (1986) (upholding increase in interest payable in the future on preexisting loans). For criticism of the distinction as engendering more confusion than clarity, see 48 BVerfGE 1, 23 (1978) (Steinberger, J., dissenting).Google Scholar

218 See especially supra notes 159–66.Google Scholar

219 6 BVerfGE 32, 41–44 (1957).Google Scholar

220 8 BVerfGE 274, 327–29 (1958).Google Scholar

221 17 BVerfGE 306, 313–18 (1964).Google Scholar

222 35 BVerfGE 5, 9–11 (1973). A television set, however, is not required. 35 BVerfGE 307, 309–10 (1973) (rejecting a claim based upon the freedom to inform oneself from generally available sources, Art. 5(1)).Google Scholar

223 49 BVerfGE 286, 298–301 (1979).Google Scholar

224 72 BVerfGE 155, 170–73 (1986) (giving a correspondingly narrow interpretation to the countervailing provision for parental rights in Article 6(2)).Google Scholar

225 74 BVerfGE 257, 259–63 (1987) (making the Lockean argument that the citizen, having surrendered his natural right to self help, is entitled to seek state protection).Google Scholar

226 55 BVerfGE 159, 165–69 (1980).Google Scholar

227 27BVerfGE 334, 350–55 (1970).Google Scholar

228 27 BVerfGE 344, 350–55 (1970).Google Scholar

229 32 BVerfGE 373, 378–86 (1972).Google Scholar

230 34 BVerfGE 238, 245–51 (1973).Google Scholar

231 65 BVerfGE 1, 41–70 (1983).Google Scholar

232 77 BVerfGE 1, 38–63 (1987).Google Scholar

233 78 BVerfGE 77, 84–87 (1988).Google Scholar

234 See U.S. Const., Amend. 4 (“The right of the people to be secure… against unreasonable searches and seizures shall not be violated”), 5 (“nor shall any person… be compelled in any criminal case to be a witness against himself”); NAACP v. Alabama, 357 U.S. 449 (1957).Google Scholar

235 35 BVerfGE 202, 218–44 (1973), also noted at note 201 supra. Cf. Briscoe v. Reader's Digest, 93 Cal. 866, 483 P.2d 34 (1971) (permitting but not requiring damages for a strikingly similar disclosure on strikingly similar grounds). It seems questionable whether our Supreme Court would even permit the assessment of damages in such a case after Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (holding the state could not forbid publication of the name of a rape victim identified by public judicial record). As in the case of occupational freedom, however, it would be dangerous to conclude from the more extensive constitutional protection of informational privacy in the Federal Republic that Germans are in fact freer than Americans in this regard. Citizens of the Federal Republic are required both to possess identity cards and to register their place of residence; a legislator who voted for either measure in this country might well find himself out of a job. See Gesetz über Personalausweise vom 21. April 1986, BGBl. I S. 548; Velderechtsrahmengesetz vom 16. Aug. 1980, BGBl. I S. 1429, in 1 Verfassungs-und Verwaltungsgesetz der Bundesrepublik Deutschland Para. Nr. 255–56 (Sartorius ed.)Google Scholar

236 1 BVerfGE 14, 52 (1951) (Southwest Reorganization Case). Cf. Constitution for the Prussian State (1850), Art. 4. See also the 1925 decision of the Reichsgericht (111 RGZ 320, 322– 23), recounting the earlier understanding and leaving open the question whether the comparable provision in Art. 109 of the 1919 Weimar Constitution should be more broadly construed; Stein, Art. 3, in 1 Luchterhand, Para. Nr. 5–6.Google Scholar

237 1 BVerfGE 14, 52 (1951). See also 111 RGZ 320, 329 (1925) (reaching the same conclusion under the analogous clause of the Weimar Constitution). For the suggestion that the inspiration for this interpretation came from the United States and from Switzerland, see Stein, Art. 3, in 1 Luchterhand, Para. Nr. 6.Google Scholar

238 Article 3(2) reinforces the ban on sex discrimination by adding that “[m]en and women shall have equal rights.” See Dürig, Art. 3(3), in 1 Maunz/Dürig, Para. Nr. 4, equating the meanings of the two sex equality provisions and explaining their origins.Google Scholar

239 See 2 BVerfGE 266, 286 (1953) (upholding restrictions on travel by East German refugees because based not on their homeland (Heimat) but on the social and economic difficulties presented by a large influx of persons); 5 BVerfGE 17, 21–22 (1956) (permitting reference to East German law to determine age of majority for East German); 48 BVerfGE 281, 287–88 (1978) (permitting relief for Spanish Civil War veterans to be limited to those living in the Federal Republic on the ground that “Heimat” meant geographical origin and “Herkunft” (origin) social class); 63 BVerfGE 266, 302–05 (1983) (Simon, J., dissenting) (complaining that the ban on political discrimination had been largely ignored). See also Dürig, Art. 3(3), in 1 Maunz/Dürig, Para. Nr. 75, 87, 46, confirming that the “homeland” provision was designed to protect refugees and that “origin” refers to social class, and explaining that the inclusion of “ancestry” forbids nepotism, among other things. Contrast Kotch v. Pilot Commissioners, 330 U.S. 552 (1947) (rejecting an equal protection challenge to a system under which only “relatives and friends” of established pilots were accepted as apprentices). Thus the list of suspect classifications is somewhat longer in West Germany than it is in the United States.Google Scholar

240 The Supreme Court first invalidated sex discrimination in Reed v. Reed, 404 U.S. 71 (1971) (striking down a preference for males to administer decedents’ estates).Google Scholar

241 3 BVerfGE 225, 237–48 (1953) (rejecting objections, which look strange to American eyes, that judicial enforcement of the constitutional prohibition might offend higher-law principles of predictability and separation of powers). For development of the interesting notion of unconstitutional constitutional provisions, see 1 BVerfGE 14, 32–33 (1951); 3 BVerfGE at 230–36.Google Scholar

242 See, e.g., 15 BVerfGE 337, 343–44 (1963); 48 BVerfGE 327, 337 (1978).Google Scholar

243 39 BVerfGE 169, 185–86 (1975).Google Scholar

244 See Dürig, Art. 3(2), in 1 Maunz/Dürig, Para. Nr. 13; Stein, Art. 3, in 1 Luchterhand, Para. Nr. 81.Google Scholar

245 See the criticism of the “functional” criterion in Dürig, Art. 3(2), in 1 Maunz/Dürig, Para. Nr. 18.Google Scholar

246 5 BVerfGE 9, 11–12 (1956) (finding differential treatment justified by “the objective biological and functional differences between men and women”).Google Scholar

247 11 BVerfGE 277, 281 (1960).Google Scholar

248 17 BVerfGE 1, 17–26 (1963). Contrast Frontiero v. Richardson, 411 U.S. 677 (1973) (striking down a similar provision in the United States several years later).Google Scholar

249 “Men who have attained the age of eighteen years…”Google Scholar

250 12 BVerfGE 45, 52–53 (1960 (invoking Art. 12(3) and 73 Nr. 1, which then contained the limitation later placed in Article 12a). Cf. Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding a similarly selective draft without benefit of such an explicit provision).Google Scholar

251 6 BVerfGE 389, 420–32 (1957). The Court adhered to this decision as late as 1973. See 36 BVerfGE 41, 45–46 (1973) (upholding ban on homosexual acts between men and boys). Apparently it did not occur to anyone to argue that it was unequal to permit men to have sexual relations with women but not with other men; the distinct contention that the prohibition infringed Article 2(1)'s right to free development of personality was rejected on the ground that “homosexual activity unmistakably offends the moral code.” 6 BVerfGE at 434. See text at note 204 supra. Google Scholar

252 10 BVerfGE 72–89 (1959).Google Scholar

253 15 BVerfGE 337, 342–46, 352 (1963).Google Scholar

254 26 BVerfGE 265, 273–77 (1969). The Court specifically reaffirmed its earlier decision (see note 247 supra) that fathers could generally be required to support illegitimate children as a counterweight to the mother's duty to rear them; but it saw no reason to distinguish between parents when the child lived with neither one.Google Scholar

255 37 BVerfGE 217, 244–59 (1974). Nor may it determine the law governing marital property (63 BVerfGE 181, 194–96 (1983)) or divorce (68 BVerfGE 384, 390 (1985)).Google Scholar

256 48 BVerfGE 327, 337–40 (1978).Google Scholar

257 52 BVerfGE 369, 373–79 (1979).Google Scholar

258 21 BVerfGE 329, 340–54 (1967).Google Scholar

259 39 BVerfGE 169, 185–95 (1975).Google Scholar

260 43 BVerfGE 213, 225–230 (1977). For the limits of this holding, see 57 BVerfGE 335, 342–46 (1981).Google Scholar

261 56 BVerfGE 363, 387–90 (1981).Google Scholar

262 74 BVerfGE 163, 178–81 (1987) (upholding earlier optional retirement for women on the ground that their traditionally disadvantaged position in the workplace was attributable in part to anticipated and actual interruptions during pregnancy, birth, and childrearing and raising the question whether such a measure might even be constitutionally required). Cf. the explicit requirement of Article 6(5) (discussed supra notes 31–38) that the legislature act affirmatively to assure equality of actual opportunity for illegitimate children.Google Scholar

263 See supra 237.Google Scholar

264 E.g., 12 BVerfGE 326, 337–38 (1961).Google Scholar

265 See, e.g., the marriage and family decisions discussed supra notes 28–31.Google Scholar

266 E.g., 13 BVerfGE 290, 295–318 (1962) (deductibility of salary paid to owner's spouse); 67 BVerfGE 186, 195–99 (1984) (unemployment compensation when both spouses out of work).Google Scholar

267 See 61 BVerfGE 319, 343–44, 351–54 (1982) (requiring cost of child care to be considered in determining taxable income).Google Scholar

268 E.g., 56 BVerfGE 192, 208–16 (1981). See also the cases discussed supra notes 142–46 supra. Google Scholar

269 E.g., 37 BVerfGE 342, 352–60 (1974).Google Scholar

270 56 BVerfGE 146, 161–69 (1981).Google Scholar

271 75 BVerfGE 40, 71–78 (1987).Google Scholar

272 E.g., 1 BVerfGE 208, 241–60 (1952) (exclusion of party receiving less than 7.5% of vote from proportional representation in legislature); 3 BVerfGE 19, 23–29 (1953) (requirement of 500 petition signatures for Bundestag candidate of party not already represented); 6 BVerfGE 273, 279–82 (1957) (nondeductibility of contributions to unrepresented parties); 7 BVerfGE 99, 107–08 (1957) (denial of public television time to unrepresented party); 16 BVerfGE 130, 138–44 (1963) (unequal population of election districts); 41 BVerfGE 399, 412–23 (1976) (exclusion of independent candidate from reimbursement of election expenses); 44 BVerfGE 125, 138–66 (1977) (government propaganda for parties in ruling coalition). Some of these decisions were based in part upon the explicit guarantee of “equal” Bundestag elections in Article 38 or on Article 21(1)'s guarantee of the rights of political parties; others add references to the guarantee of democracy in Articles 20 and 28. Cf. Justice Stone's suggestion—which has been followed—of heightened scrutiny of measures impairing the integrity of the democratic process. United States v. Carolene Products Co, 304 U.S. 144, 152–53 n.4 (1938).Google Scholar

273 E.g., 1 BVerfGE 208, 249, 255, 256 (1952) (elections); 37 BVerfGE 342, 352–54 (1974) (occupational freedom); 67 BVerfGE 186, 195–96 (1984) (marriage).Google Scholar

274 74 BVerfGE 9, 24 (1986).Google Scholar

275 See, e.g., Carey v. Brown, 447 U.S. 455, 461–62 (1980) (freedom of speech); Niemotko v. Maryland, 340 U.S. 268 (1951) (free exercise of religion).Google Scholar

276 60 BVerfGE 123, 133–35 (1982) (striking down a provision limiting this right to persons at least 25 years old). Cf. Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) (subjecting limitations on the value of votes to strict scrutiny although the right to vote was nowhere generally guaranteed).Google Scholar

277 See, e.g., 21 BVerfGE 12, 27 (1966); 35 BVerfGE 324, 335 (1973). For a rare protest against the notion of strict scrutiny in tax cases generally, see 15 BVerfGE 313, 318 (1963).Google Scholar

278 19 BVerfGE 101, 111–18 (1965). But see 29 BVerfGE 327, 335–36 (1970) (permitting discriminatory taxation of multiply owned saloons).Google Scholar

279 21 BVerfGE 12, 26–42 (1966).Google Scholar

280 13 BVerfGE 331, 338–55 (1962).Google Scholar

281 68 BVerfGE 143, 152–55 (1984).Google Scholar

282 Note also the intensive scrutiny practiced in an early decision striking down an exaction for support of the fire department that was imposed only upon men between the ages of 18 and 60 who had not served as firemen, 9 BVerfGE 291, 302 (1959): “[A]s a special assessment [the exaction] would have to be limited to those who derived special benefits from the fire department; as a substitute for service it could reach only those under a duty to serve; as a general tax it could not be imposed only on men between 18 and 60 years of age.” A revised exaction limited to those who were eligible for fire duty but had not served was later upheld, 13 BVerfGE 167 (1961).Google Scholar

283 See, e.g, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973), upholding a personal property tax imposed on property not owned by individuals without a serious effort to justify the distinction. See generally Gunther, Foreword: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). For a recent exception to this pattern, see Allegheny Pittsburgh Coal Co. v. County Commission, 109 S.Ct. 633 (1989).Google Scholar

284 E.g., 17 BVerfGE 210, 216 (1964).Google Scholar

285 See 36 BVerfGE 237, 248–50 (Rupp-von Brünneck, J., dissenting). Cf. Dandridge v. Williams, 397 U.S. 471, 520–23 (1970) (Marshall, J., dissenting).Google Scholar

286 74 BVerfGE 9, 24–28 (1986).Google Scholar

287 18 BVerfGE 366, 372–80 (1965) (noting the severity of the exclusion and the impact of the Sozialstaat principle).Google Scholar

288 37 BVerfGE 154, 164–66 (1974).Google Scholar

289 39 BVerfGE 148, 152–56 (1975) (finding such a limitation not yet unconstitutional but warning that it soon may be).Google Scholar

290 51 BVerfGE 1, 23–29 (1979) (holding that they must at least be given their contributions back).Google Scholar

291 See, e.g., 74 BVerfGE 9, 29–30 (1986) (dissenting opinion) (pointing out the general and unannounced change in the governing standard).²⁹¹ Google Scholar

292 50 BVerfGE 217, 225–33 (1979); 74 BVerfGE 78, 94–96 (1986). See also 54 BVerfGE 277, 293–97 (1980) (holding in contrast to our certiorari practice that the highest civil court could not decline jurisdiction of meritorious cases simply because of its overloaded docket).Google Scholar

293 Cf., e.g., Gulf, C. & S.F. Ry. v. Ellis, 165 U.S. 150 (1897) (striking down a provision that imposed attorney fees in actions for livestock losses only if the defendant was a railroad). See generally The Second Century, chs. 2, 5,7.Google Scholar

294 See 42 BVerfGE 64, 79–83 (1976) (Geiger, J., dissenting).Google Scholar

295 E.g., 57 BVerfGE 39, 41–42 (1981); 58 BVerfGE 163, 167–68 (1981); 62 BVerfGE 189, 191–94 (1982); 62 BVerfGE 338, 343 (1982); 71 BVerfGE 202, 204–05 (1985). A plausible explanation may be that to deviate from the law in a particular case is to apply it unequally. See 54 BVerfGE 117, 124–26 (1980); Dürig, Art. 3(1), in 1 Maunz/Dürig, Para. Nr. 52.Google Scholar

296 See, e.g., 1 BVerfGE97, 107 (1951).Google Scholar

297 2 BVerfGE 336, 339–41 (1953). Cf. Griffin, 351 U.S. 12 (1956). See also 1 BVerfGE 109, 111 (1952) (finding assignment of counsel required by the more general requirements of democracy and the social state); 54 BVerfGE 251, 266–73 (1980) (requiring state-assigned guardian forward without funds).Google Scholar

298 8 BVerfGE 51, 63–69 (1958).Google Scholar

299 Id. at 68–69: “[I]n the tax field a formally equal treatment of rich and poor by application of the same tax rate would contradict the equality provision. Here justice requires that in the interest of proportional equality a person who can afford more pay a higher percentage of his income in taxes than one with less economic power.”Google Scholar

300 In addition to the cases on university admissions noted above, see the line of decisions beginning with 35 BVerfGE 79 (1973), invoking Art. 5(3)'s guarantee of academic freedom to assure faculty control of basic questions relating to research and curriculum.Google Scholar

301 The seminal decision on broadcasting was 12 BVerfGE 205 (1961), where the Court interpreted Art. 5(l)'s provision that “freedom of reporting by means of broadcasts… [is] guaranteed” to require the state to regulate broadcasting in such a way that various social and political interests had the opportunity to utilize the medium and to participate in its governance. For later decisions applying and refining these requirements, see, e.g., 57 BVerfGE 295 (1981); 73 BVerfGE 118 (1986).Google Scholar

302 See generally The First Hundred Years and The Second Century.Google Scholar

303 Kurland, Politics, the Constitution, and the Warren Court 204 (1970).Google Scholar