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Who is Afraid of the Total Constitution?


organization. These ranged from specific court and administrative procedures to complex statutory intervention to secure freedom of broadcasting and establish a television broadcasting system that is free from state control and is pluralistic. Second, the door was opened to claims that the state is required to take specific action to protect individuals adequately from acts of third parties.28 Cases the Court has had to address range from claims that the state is required to tighten up the standards of nuclear reactor safety to adequately protect the rights holder from dangers of a nuclear power plant29 to claims that the state is under a constitutional duty to comply with terrorist kidnappers demands and free certain prisoners in order to protect the life of the kidnapped victim threatened by the terrorist kidnappers.30 But the best-known and most consequential case concerning protective rights involves the issue of abortion. Under the Basic Law the issue did not come to the Court as a challenge to criminal sanctions by a woman invoking a right to choose. Instead the minority faction brought the case after the parliamentary majority enacted a law that decriminalized certain kinds of abortions. The partly successful claim made by the minority faction was that the state was under a constitutional duty to criminalize abortion to a greater extent in order to effectively protect the right to life of the unborn.31 Finally, the radiation thesis also provided the grounds for the development of a jurisprudence concerning social rights.32 These rights are all linked to help sustain the necessary preconditions for the meaningful realization of liberties. The court has in fact recognized a right to minimal subsistence. It has even come close to recognizing the right to choose a profession as a basis for the duty of the state to create a sufficient number of university spaces at universities for anyone qualified to study her subject of choice.33


See Alexy, supra note 13, 300-14.


BVerfGE 30, 59 and BVerfGE 49, 89.

BVerfGE 46, 160. In that case the court held that even though the German government was under a constitutional duty to protect the kidnapped victim, it had wide discretion with regard to the means it chooses to do so. There are some limits to that discretion, however. In a recent decision concerning the constitutionality of a law that allowed for a civilian airliner to be shot down by the German Air Force in 11 September 2001 type scenarios was deemed to be unconstitutional. See 1 BvR 357/05. 30


BVerfGE 39, 1 and BVerfGE 88, 203.


TCR 334-348.


TCR 292.

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