bridge: Cambridge University Press, 2001), 23.
Kif Augustine Adams, Supra note 115, 297 (“Judge Seidel held that shooting to kill was author-
law. Although the defendants were ‘at the end of a long chain of responsibility,’ they violated
‘a basic human right’ by shooting at someone whose only crime was trying to emigrate.’ Judge
Seidel applied natural law when he argued that ‘not everything that is legal is right: There is
a central area of justice, which no law can encroach upon. The legal maxim, ‘whoever flees
will be shot to death’ deserves no obedience.” Consequently, “[a]t the end of the 20th century,
no one has the right to ignore his conscience when it comes to killing people on behalf of the
power structure”).
Wall Shootings Case, 95 BVerfGE 96 (1996) (Russell Miller trans.).
theory of judicial power in Germany. A judge’s only duty under the traditional German doc-
Germany’s German Constitution
505
decision-making record might suggest a tribunal embarked on a path of
relentless activism.”
121
Others have simply taken to calling reunified, postwar
Germany the “Karlsruhe Republic.”
122
A former Federal Justice Minister con-
cluded that “in Germany, all power issues have become constitutional issues,”
to be resolved by the Court.
123
And true to the myth, the Court is not seen as
meddlesome or over-reaching. To the contrary, the Court consistently is the
most respected social institution in the country.
124
In fact, the Court is widely
credited with having established democracy, the rule of law, rights protections,
and general prosperity for what seemed to be an ungovernable and treach-
erously unruly German nation. As one comparative law scholar put it: “[T]
he stability and prosperity . . . Germany enjoyed over the last half of the 20th
Century bespeaks the integrity and efficacy of the Bundesverfassungsgericht.”
125
And some now believe that constitutional law (with its common law charac-
ter) has supplanted the civil law tradition as Germany’s dominant jurispruden-
tial frame. Donald Kommers’ concluded that much of the Basic Law’s regime
derives from “the gloss the Federal Constitutional Court has put on the text
of the Basic Law,” implying a nature and style of judicial decision-making
that is much more closely attuned to the common law’s vision of judging,
and that is far removed from the judicial restraint typical of the civil law tradi-
tion.
126
In a commemoration written on the two-hundredth anniversary of the
United States Supreme Court’s seminal decision Marbury v. Madison, former
Federal Constitutional Court Justice Wolfgang Hoffmann-Riem underscored
the importance of constitutional law’s counter-civilian influence in post-
war German legal culture.
127
With the supremacy of the postwar Basic Law,
as interpreted and enforced by the Federal Constitutional Court’s justices,
Hoffmann-Riem concluded that this paradigm shift finally and decisively had
overtaken Germany. Hoffmann-Riem confirmed the prominent role played
by the Federal Constitutional Court when he concluded that “the jurisdic-
tion of this court is particularly wide-ranging,” and considerably greater than
121
Kommers and Miller, Supra note 13, 35.
122
Gerhard Casper, “The ‘Karlsruhe Republic” – Keynote Address at the State Ceremony Cele-
brating the 50th Anniversary of the Federal Constitutional Court” (2001) 2 German Law Jour-
nal
www.germanlawjournal.com/index.php?pageID
=11&artID=111
.
123
Brigitte Zypries, “The Basic Law at 60 – Politics and the Federal Constitutional Court” (2010)
11 German Law Journal 87 (citing Heinrich Wefing, “Der bonner reflex”, Die Zeit [April 30,
2009] 19).
124
See Peter E. Quint, “Leading a Constitutional Court: Perspectives from the Federal Republic
of Germany” (2006) 154 University of Pennsylvania Law Review, 1853, 1870; Kommers and
Miller, Supra note 13, 39.
125
See Kommers, Supra note 13; Kommers and Miller, Supra note 8.
126
Kommers and Miller, Supra note 13, 57.
127
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