Political Innovation of the West German Federal Constitutional Court: The State of Discussion on Judicial Review

The Watergate controversies and especially the recent decision in Richard M. Nixon versus the United States on July 24, 1974 have again raised in the United States the problem of the political limits to judicial policy making and the need to strike a new balance among the three branches of government for preserving and maintaining a democratic policy. In this paper, which is based on largely primary judicial, political, and academic German sources up to the year 1972, the development of jurisprudence of the West German Federal Constitutional Court is analyzed and discussed, particularly the Court's experience with judicial review. The article is geared toward the student of comparative constitutionalism and comparative government, offering possible lessons to the United States and other Common Law constitutional courts. Less concerned with the practical work of the Court, except for brief comments on actual performance, the paper focuses on such problems as past and present German approval and disapproval of the notion of judicial review, the often erudite disputation on the merits of constitutional—especially “creative”—jurisprudence; the discussion on the political limits of judicial review; and trends in particular philosophical positions of the Court in contemporary West Germany.