The Basic Law of Germany in Outline

Article 21 provides for political parties and, in article 21(2), that parties which by reason of their aims or the behaviour of their adherents seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic shall be unconstitutional, the Federal Constitutional Court ruling on the question. That is militant democracy.

Articles 22 to 37. Article 23, European integration, with the identity review the Federal Constitutional Court exercises under article 23(1) read with article 79(3). Article 24, transfer of sovereign powers. Article 25, the general rules of international law as part of federal law taking precedence over statutes. Article 28, the constitutional order in the Lander, with article 28(2) guaranteeing municipalities the right to regulate all local affairs on their own responsibility. Article 30, the general rule that the exercise of state powers and the discharge of state functions is a matter for the Lander. Article 31, federal law shall take precedence over Land law. Article 32, foreign relations. Article 33, equal citizenship rights and access to public office. Article 35, mutual legal and administrative assistance. Article 37, federal coercion, permitting the Federal Government with the consent of the Bundesrat to take necessary measures to compel a Land to comply with its federal obligations.

Chapters III to VI, articles 38 to 69: the organs

The Bundestag, articles 38 to 49. The Bundesrat, articles 50 to 53, composed of members of the Land governments who appoint and recall them, with votes weighted by population and cast as a block. Article 53a, the Joint Committee. The Federal President, articles 54 to 61. The Federal Government, articles 62 to 69, including article 63 on the election of the Chancellor, article 65 on the three principles, article 67 on the constructive vote of no confidence and article 68 on the confidence question.

Chapters VII to X, articles 70 to 115: legislation, execution and finance

Articles 70 to 82 govern federal legislation: article 70 gives the Lander the right to legislate in so far as the Basic Law does not confer legislative power on the Federation; articles 71 and 73 exclusive federal legislation; articles 72 and 74 concurrent legislation, with article 72(2) permitting federal legislation where necessary to establish equivalent living conditions or to maintain legal or economic unity; article 76 the introduction of Bills; article 77 the Mediation Committee; article 79 amendment.

Articles 83 to 91 govern the execution of federal laws by the Lander, which is what executive federalism means. Articles 92 to 104 govern the judiciary, including article 93 on the jurisdiction of the Federal Constitutional Court and article 100 on concrete review. Articles 104a to 115 govern finance.

Chapters Xa and XI, articles 115a to 146

Articles 115a to 115l provide for a state of defence. Articles 116 to 146 are the transitional and concluding provisions.

Articles 144 to 146 close the text. Article 144 required acceptance by the representative assemblies of two thirds of the Lander. Article 145 provided for the Parliamentary Council's confirmation and promulgation. Article 146 provides that the Basic Law shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.

Article 146 is the article the name Basic Law comes from. In 1949 the text was meant to be provisional until reunification; reunification came in 1990 and the Basic Law was retained rather than replaced.

Article 79: amendment and the eternity clause

Article 79(1) requires an amendment expressly to amend or supplement the text. Article 79(2) requires the consent of two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat. Article 79(3) provides that amendments affecting the division of the Federation into Lander, their participation in principle in the legislative process, or the principles laid down in articles 1 and 20 shall be inadmissible.

That is the strongest textual entrenchment on this syllabus, and it is what the Indian basic structure doctrine achieves without a text.

A worked example

Four questions, and the article that answers each.

May human dignity be limited for a sufficiently good reason? No. Article 1(1) states that human dignity is inviolable, and article 79(3) puts the principles in article 1 beyond amendment.

Who legislates on a matter in neither list? Article 70, the Lander have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation.

May a party be banned? Article 21, on a finding by the Federal Constitutional Court.

May the Basic Law be amended to abolish the federal structure? No. Article 79(3) protects the division of the Federation into Lander and the participation of the Lander in legislation.

Notice the pattern that makes Germany worth having on this paper: the entrenchment is textual and specific, where the Indian equivalent is a judicial doctrine.

The cases

Facts. The Lisbon judgment, 2 BvE 2/08 and others, decided on 30 June 2009, concerned the Act approving the Treaty of Lisbon and the accompanying domestic legislation.

Held, by the Second Senate. The Treaty was compatible with the Basic Law; the accompanying legislation was insufficient in so far as it failed to give the Bundestag and Bundesrat adequate participation rights. Under article 23(1) third sentence in conjunction with article 79(3) the Court reviews whether the Basic Law's constitutional identity, its inviolable core, is respected, exercising that jurisdiction in accordance with the Basic Law's openness to European integration.

Why it matters here. It is article 79(3) at work on a modern question, and it shows that an eternity clause is a live limit rather than a declaration.

Facts. The Climate Protection Order, 1 BvR 2656/18 and others, decided on 24 March 2021, concerned the Federal Climate Change Act, which set emission reduction targets to 2030 and left the remainder to later years.

Held, by the First Senate. The Act was partly unconstitutional. Fundamental rights, as intertemporal guarantees of freedom, afford protection against the greenhouse gas reduction burdens imposed by article 20a being unilaterally offloaded onto the future, and the protection mandate in article 20a requires the natural foundations of life to be left in such a condition that future generations can still exercise freedom.

Why it matters here. It shows what an environmental state objective becomes when it is judicially enforceable, which is the comparison with article 48A of the Indian Constitution, a directive principle.

Distinctions

What beginners get wrong

"Germany's constitution is called a Basic Law because it is less than a constitution." It is a full constitution. The name records the intention in 1949 that it be provisional until reunification, an intention article 146 preserves and 1990 did not act on.

"Article 79(3) freezes the whole text." It protects the federal division, the Lander's participation in legislation, and the principles of articles 1 and 20. Everything else is amendable by the two thirds majorities in article 79(2), and the Basic Law has been amended more than sixty times.

"The Bundesrat is an upper house like the Rajya Sabha." Its members are members of the Land governments, appointed and recalled by them under article 51, and each Land's votes are cast as a block. It is a chamber of governments, not of elected representatives.

Limits and criticism

Executive federalism gives the Lander administration and the Federation legislation, which centralises policy and decentralises implementation, and the Lander's compensation is the Bundesrat's veto over legislation affecting them.

Article 79(3) has never been used to strike down an amendment, so its force is deterrent rather than demonstrated, though the Court has applied its principles in the European cases.

The Court's jurisdiction is very wide, including the individual constitutional complaint, which produces a caseload measured in thousands a year and a corresponding influence on ordinary law.

Quick revision

1. 146 articles, adopted 23 May 1949; the name reflects article 146.
2. Article 1: dignity inviolable; article 1(3) makes the basic rights bind all three branches as directly applicable law.
3. Articles 2 to 19: the basic rights, with article 19(2) protecting the essence and article 19(4) guaranteeing recourse to the courts.
4. Article 20: democratic and social federal state, with the right of resistance in article 20(4); article 21(2) militant democracy.
5. Articles 30, 70 and 31: the residue with the Lander; federal law takes precedence.
6. Articles 83 to 91: execution of federal law by the Lander.
7. Article 79(2) two thirds of both chambers; article 79(3) the eternity clause; articles 144 to 146 the concluding provisions.

Test yourself

1. Set out article 79 and explain its significance. Article 79(1) requires an amendment expressly to change the text. Article 79(2) requires two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat. Article 79(3) makes inadmissible any amendment affecting the division of the Federation into Lander, their participation in principle in the legislative process, or the principles laid down in articles 1 and 20. It is the strongest textual entrenchment on this syllabus and is what the Indian basic structure doctrine achieves judicially.

2. What does article 1(3) do, and why was it necessary? It provides that the basic rights bind the legislature, the executive and the judiciary as directly applicable law. It was necessary because under the Weimar Constitution the equivalent guarantees had been treated as programmatic statements addressed to the legislature rather than as enforceable law, so they gave no protection when it was needed.

3. How is the Bundesrat different from other second chambers? Its members are members of the Land governments, appointed and recalled by them under article 51, rather than elected representatives; each Land has between three and six votes according to population and must cast them as a block. It is therefore a chamber of executives representing Land governments in federal legislation, which fits the executive federalism of articles 83 to 91.

4. What is article 146, and why does it matter? It provides that the Basic Law shall cease to apply on the day on which a constitution freely adopted by the German people takes effect. It records that the 1949 text was meant to be provisional until reunification. Reunification occurred in 1990 by accession under article 23 as it then stood, the Basic Law was retained, and article 146 remains as a route that has never been taken.