Who is Afraid of the Total Constitution?
and ordinary judicial decision-making becomes constitutional implementation, subject to the supervision of a constitutional court. The total constitution transforms a parliamentary legislative state into a juristocracy.
Third, if a total state is a state in which even constitutional essentials are potentially up for grabs, a total constitution immunizes itself against the possibilities of radical political change by entrenching its basic structural features – constitutional rights, democracy, and the rule of law among them – precluding their abolition by way of constitutional amendment.11 The constitution furthermore clarifies that it is not a neutral procedural order, but one that is able to identify its enemies and authorize their effective political neutralization.12 Political parties, for example, can be prohibited (Art. 21 II BL) and individuals’ right to participate in the political process can be withdrawn by order of the FCC if used to fight the liberal democratic constitutional order (Art. 18 BL).
This article provides an analysis and critical assessment of the first two aspects of the total constitution. How is it that constitutional rights, traditionally conceived as a set of specific and enumerated constraints on political actors, have developed to become the instrument for the potential constitutionalization of all legal and political conflicts, including those concerning the relationships between individuals governed by private law? What were the interpretative choices that allowed a catalogue of basic rights to develop into a complete normative program to be implemented by the legislature, the executive, and the judiciary under the supervision of the FCC? How does the doctrine of “indirect effect” (mittelbare Drittwirkung) work to effectively constitutionalize even the relationship between private actors? And, finally, is it justified to lament the advent of the “total constitution” and the emergence of a significant role for the constitutional court as “juristocracy”? Or is it more appropriate to celebrate the emergence of a constitutional understanding that, more than any other, furthers the institutionalization of complete constitutional justice? What are the basic ideas that should guide the assessment of such a practice? And can Schmitt’s critique of the total state help guide an assessment of the total constitution?
The following will consist of four sections. Drawing on the work of Robert Alexy,13 the first section will provide a brief account of the basic interpretative choices that have made constitutional rights the basic instrument for the constitutionalization of
See Art. 79 Sect. I Basic Law referring to Art. 20 Sect. 1 Basic Law.
For a comparative discussion of democratic constitutions that authorize militant actions towards the enemies of the constitution see A. SAJO ed., MILITANT DEMOCRACY (2005). 12
R. ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (2002).