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2006]

Who is Afraid of the Total Constitution?

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challenged as in violation of good customs or as otherwise unfair. The judge breathes a sigh of relief, glad that the difficult task of striking the balance between the competing concerns has been assumed by the legislator, leaving no textual ambiguity, no difficult task of interpretation, and, it seems, no constitutional issue to be resolved.

But of course the judge has no reason to breath a sigh of relief. If the constitutional interests of one party can’t appropriately be taken into account by anything plausibly deemed an interpretation of the law, given its clarity and specificity, this does not settle all constitutional issues. Instead the question is whether the legislation – here the safe harbor clause for credit card contracts charging 35% or less – is unconstitutional because it does not adequately take into account one side’s constitutional liberty interests, by holding him to unfair burdensome contracts.

Even though constitutional rights are not directly horizontally effective, constitutional liberty interests are not just relevant for the interpretation of the law by courts. They need also to be taken into account by legislatures enacting private law. Legislative acts, including legislative acts on issues of private law, are undisputedly acts by public authorities and thus subject to constitutional rights constraints. A civil court judge would be violating a constitutional right to liberty if he enforces a law that unduly infringes on the constitutional right to liberty. It may well be that the civil court has no authority to simply set aside legislation on the grounds that it is unconstitutional, if it was enacted after the Constitution. That can only be done by the FCC.45 But if the law does not meet constitutional standards, the civil court is required to make a reference to the FCC to have it make the relevant determination and declare the law to be unconstitutional. If it refuses to do so, the party who’s rights have been violated may file a constitutional complaint with the FCC on the grounds that both the ruling and the legislative act underlying it violate its constitutional right to liberty.

A doctrine of indirect horizontal effect, then, seems to have much the same consequences, substantively and institutionally, as the embrace of a doctrine of direct horizontal effect. In both cases civil courts are required to interpret existing private law so that it is compatible with constitutional requirements. Where that is impossible because of a clear legislative rule, the court must make a reference to the FCC to determine the constitutional issue and, if necessary, declare private law legislation to be invalid. Furthermore, in both cases a party to a private dispute could file a constitutional complaint claiming that his constitutional rights were

Germany follows the Kelsenian model and establishes a constitutional court that has the monopoly for setting aside legislation on constitutional grounds. 45

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