The Rule of the Courts

Making Constitutional Courts Resilient: The German Example

2024, the President of the Federal Republic ordained the dissolution of the Bundestag upon the request the Chancellor had filed on 16 December. The principle underlying the legislative package is a simple one: The dikes must be raised ahead of the expected rise of the water level, that is, before it is too late for amending the constitution so as to keep the Constitutional Court out of the reach of extremists. Or, in the legislator’s more diplomatic words, to “help prevent efforts that would call into question the independence or operability of the Constitutional Court” 12 . What is more demanding is implementing this objective without adverse effects. Such effects can result from constitutionalisation as such: As a two-thirds majority would be required for further amendments or abolition of constitutional provisions, the Court will be better shielded from attempts of the legislature to interfere with its composition and operation. On the downside, it may result in a de-facto untouchability of the provisions where the majority of two-thirds that was needed to enact them cannot be achieved later in a situation where most MPs consider it necessary. Possible adverse effects can also result from maladjustment of the constitutional provisions with ordinary laws framing them. The core of the legislative package consists of constitutional amendments. Most of their substance had been long enshrined in the Law on the Constitutional Court (LFCCt) and has only been “upgraded” to constitutional provisions now. 13 In general, that ordinary legislation remains in force parallel to the respective corresponding provisions in the new constitutional amendment, empowering the Federation to large-scale borrowing for armament purposes, the decision had to be assigned to the old, outgoing and formally dissolved Bundestag, because it would be lacking in the new one that was set to convene a few days thereafter. The amendment on the Constitutional Court might still have passed then, though, but the responsible actors preferred being on the safe side. 12 „[D]azu beitragen, Bestrebungen vorzubeugen, welche die Unabhängigkeit oder Funktionsfähigkeit der Verfassungsgerichtsbarkeit in Frage stellen wolle.“: Deutscher Bundestag, BT-Drs. 20/12977, 24 September 2024, p. 1, at p. 5, available at https:// dserver.bundestag.de/btd/20/129/2012977.pdf. 13 BT-Drs. 20/12977, 24 September 2024, p. 1, at p. 2. 3. The Legislative Package and Its Ingredients

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