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The Limits of the Constitution?

We seem to be approaching the outer limits of constitutional government.  Let’s recap: the country’s political elites, already having forfeited a great deal of public confidence, enact a scheme of enormous consequence. No one knows what exactly those consequences will be or whether the enactment will solve the problem at hand: virtually everything of importance is left to administrative bodies and their discretion.  On that account, and on account of the backdoor maneuvering and political bullying that produced the enactment, the scheme prompts public alarm and, in short order, constitutional challenges.

As those challenges proceed, the country’s legal establishment goes ape. No accepted legal theory, the sages shriek, supports the plaintiffs’ case; the judges should refuse to resurrect doctrines belonging to a long-dead era and order. Leading politicians, too, raise alarm over the prospect that unelected judges should presume to “tell the political branches what they can and cannot do.” The Court, they add, should stay out of complicated economic matters where judges lack expertise and where an ill-considered decision would wreak incalculably dire consequences. As decision time nears, warnings turn into attempts at intimidation and personal attacks on the Court and its youthful Chief….

Yet another tirade over the Abominable Care Act and NFIB v. Sebelius? Nein, nein, mein Freund. The preceding paragraphs are a true and correct account of the raging controversy over the German legislature’s assent to the EU’s European Stability Mechanism (“ESM”—in plaintext, the bailout fund) and its December 2011 “Fiscal Pact” (the “this time we mean it” commitment to enforceable austerity commands). The question of whether the German Constitution permits ratification of those instruments is currently pending before the Bundesverfassungsgeri cht (the Federal Constitutional Court, or “FCC”) in the form of a request—actually, thousands of requests—for a preliminary injunction. The extraordinary importance of the case prompted the FCC to order oral argument on the matter, a virtually unprecedented step in a preliminary proceeding. (Shades of the extended argument in NFIB.)  The case was heard on July 10; the Court has promised a decision by September 12.

The prospect that the FCC may actually say “no” (or at least “hold your horses”) to the ESM/Fiscal Pact scheme has prompted the above-mentioned attacks on the FCC. As already suggested, they partake of  a large set of uncanny similarities between the controversies over the ACA and the ESM. In fact, following the contretemps over the past months on the American blogs and in the German press, I occasionally forgot which movie I was in—whether I was listening to Nancy “you can’t be serious” Pelosi or Christine “If I hear Bundesverfassungsgericht one more time I will leave the room” Lagarde; Patrick Leahy or Helmut Schmidt. It’s worth speculating whether the coincidences reflect something deeper. My working hypothesis is, they do. Here’s the deeper something:

On both sides of the Atlantic, political and intellectual elites have set on a course that is (a) suicidal and (b) at war with democratic, constitutional government. On both sides, the situation has become sufficiently alarming to wake the electorate out of its normal “whatever” slumber. (As the halfway-across-the-pond Brits might say, the man on the Clapham bus demands to know what in the bloody world is going on.) On both sides, the urgency of the situation, coupled with the elites’ insistence on doubling down, has naturally produced a search for some stopping point and for an institution that is capable of saying, enough is enough. And on both sides, the question is whether the only institution that fits the bill—the high court—is in fact still capable of performing that task.

That was the actual question in NFIB v. Sebelius. I have a view on the Court’s answer, but I’ll keep it to myself (at least for now). Instead, the next post will explore the FCC’s ESM case, which poses the question in yet-sharper relief and, quite arguably, with yet-more momentous consequences.

Reader Discussion

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on August 06, 2012 at 10:26:51 am

Fascinating. Heritage ranks germany at 26, the US at 10 in the Index of Economic Freedom. Here is what the Index says about both:

Germany:
"Despite a challenging external economic environment aggravated by the European sovereign debt turmoil, Germany continues to be one of the world’s most powerful and dynamic economies. The foundations for long-term competitiveness and dynamic growth have been deeply rooted in the high quality of the judicial regime, which upholds a strong rule of law."

The US:
"The U.S. economy faces enormous challenges. Although the foundations of economic freedom remain strong, recent government interventions have eroded limits on government, and public spending by all levels of government now exceeds one-third of total domestic output. The regulatory burden on business continues to increase rapidly, and heightened uncertainty further increases regulations’ negative impact. Fading confidence in the government’s determination to promote or even sustain open markets has discouraged entrepreneurship and dynamic investment within the private sector."

That US regulatory burden is the subject of Epstein's Design for Liberty. The main source of uncertainty is the explosion of agency discretion at all levels of American government which is at the heart of rising economic uncertainty.

I suppose the contests you have outlined will ultimately reveal which country has the deeper kultural commitment to the rule of law. Interesting times.

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Hans Eicholz

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