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Democratic Contitutionalism in the German States

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Democratic Contitutionalism in the German States Conference on Strengthening Constitutional Democracy. The role of provincial/regional and local government: Co - producing quality governance through innovation Cape Town, 19 – 21 August 2015 Democratic Constitutionalism in the German States: Legislatures, Sub-national Constitutionalism and Multilevel Systems Paper by PD Dr. Werner Reutter University Leipzig; Department of Political Science Beethovenstr. 15, 04107 Leipzig Email: [email protected] - Please, do neither quote nor disseminate without the permission of the author – Democracy means political self-determination1 that is the people’s right to take part in public decision-making. Constitutional democracies guarantee and limit this right. They provide the institutional set up to effectively use democratic rights and limit the way how this right is to be invoked. In representative democracies this means parliaments have to ‘stand for’ and ‘act for’ its people at the same time (Pitkin 1967; Reutter 2015). The 16 sub-national parliaments in Germany are supposed to accomplish this task by passing laws, making decisions, and by holding the executive to account. In particular German Länder enjoy constitutional autonomy. They have the prerogative to adopt and amendment constitutions. However, in the European and German multilevel system the capacity of German Land parliaments to effectively ‘act for’ its people is severely limited, if not suspended at all. However, this means that political self-determination – or in other words: constitutional democracy – is severely limited in the German states, if at all possible. In my paper I will address this question and explore how the German states addressed these issues and how they tried to strengthen constitutional democracy at the sub-national level. I will firstly analyze the role German sub-national parliaments played in constitutional politics. All German states have constitutions. Yet, many scholars argue that in Germany sub-national constitutional politics takes place in the “shadow” of the Basic Law, the national constitution. In other words, even though from a legal perspective the German states do enjoy constitutional autonomy there seems to be no room for ‘democratic constitutionalism’ due to the overriding influence of the national level. In my paper I will explore this tension between the national and the sub-national level and explore how far German sub-national parliaments decided on frequency and scope of amendments to sub-national constitutions. Secondly, I will address the question how German sub-national parliaments dealt with European integration. Since the early nineties ‘Europe’ turned into an important topic in the German states. Hence, it cannot come as a surprise that Land parliaments also wanted to have a say in European affairs. German sub-national parliaments asked, hence, for better and earlier information on European issues and they strove to not only control the implementation of European law but to actively shape European policies. However, the role German state parliaments played in European politics rather is characterized by an ambivalent development. More information, better resources, and expanded competences did not increase the leverage for sub-national parliaments in European politics. 1 This paper draws on a number of articles published in the last two years. Notably, section 2 o fthis paper is just a slightly revised part from Reutter 2015a. Table 1: Structure and Content of German Land Constitutions Articles on No of articles (year of Basic State organs State Other matters adoption) principlesa) b) functionsc) Abs. (%) Abs. (%) Abs. (%) Abs. % Abs. Land constitutions passed before the Basic Law Hesse 65 (43,0) 41 (27,2) 35 (23,1) 10 (6,6) 151 Bavaria 93 (49,2) 47 (24,9) 38 (20,1) 11 (5,8) 189 Bremen 69 (44,2) 53 (34,0) 28 (17,9) 6 (3,8) 156 Saarland 65 (48,5) 33 (24,6) 31 (23,1) 5 (3,7) 134 Rhineland- 77 (53,1) 28 (19,3) 32 (22,1) 8 (5,5) 145 Palatinate Land constitutions passed after the Basic Law Schleswig- 9 (15,0) 27 (45,0) 21 (35,0) 3 (5,0) 60 Holstein North Rhine- 30 (32,3) 35 (37,8) 24 (25,8) 4 (4,3) 93 Westphalia Berlin 38 (37,3) 21 (20,6) 37 (36,3) 6 (5,9) 102 Lower Saxony 6 (7,7) 34 (43,6) 31 (39,7) 7 (9,0) 78 Baden- 27 (28,4) 31 (32,6) 27 (28,4) 10 (10,5) 95 Württemberg Hamburg 6 (7,8) 42 (54,5) 25 (32,5) 4 (5,2) 77 Land constitutions passed after unification Brandenburg 55 (46,6) 34 (28,8) 25 (21,2) 4 (3,4) 118 Mecklenburg- 20 (24,7) 32 (39,5) 26 (32,1) 3 (3,7) 81 West Pomerania Saxony 51 (41,5) 31 (25,2) 31 (25,2) 10 (8,1) 123 Saxony-Anhalt 41 (40,2) 33 (32,4) 26 (25,5) 2 (2,0) 102 Thuringia 48 (44,9) 31 (29,0) 25 (23,4) 3 (2,8) 107 a) Basic rights and obligations, social life, foundations of the state; b) government, parliament, c) legislative, executive (incl. finances), and legal branch; d) conclusion and transitional provisions. Sources: Flick 2008: 224 f.; Lorenz/Reutter 2012. 1. German Federalism, German Land parliaments and German sub-national constitutions The German Basic Law (Art. 28) mandates that each German Land have to set up a political order conforming to the principles of a republican, democratic and social state governed by the rule of law within the meaning of the Basic Law. Due to this "principle of homogeneity" many scholars see Land constitutions “overshadowed by the Basic Law” (Möstl 2005). In this perspective the BL allots constitutional space to the Länder, prescribes the content of Land constitutions, and overrules regulations contradicting the BL (like the still existing death penalty in the constitution of Hesse). Yet and as pointed out, the Länder are supposed to be autonomous with regard to their constitutions. In Germany sub-national constitutions are regarded as necessary preconditions for regional self-government and for the privilege to execute public authority. As a matter of fact, the German Länder filled out that space to different degrees and in varying ways (Lorenz/Reutter 2012). German sub-national constitutions differ among each other and compared to the Basic Law (table 1 and 2). Hence, this finding indicates that the Länder and the Land parliaments enjoy considerable leeway with regard to constitutional politics. Table 2: Features of German Land constitutions (as of Dec. 2014) Age of Number of constitution articles (year of Number of Number of changed (in years) adoption) amendments articles BAV 68.1 189 16 57 BB 22.4 118 8 27 BER 65.0 102 42 168 BW 61.2 95 20 44 HB 67.2 156 27 122 HES 68.1 151 8 13 HH 68.7 77 16 131 LS 63.7 78 18 108 MW 20.1 81 4 12 NRW 64.5 93 20 36 RP 67.7 145 37 163 SA 22.6 123 1 3 SAT 22.5 102 1 9 SH 65.0 60 23 105 SLD 67.1 134 27 178 TH 21.2 107 4 7 Mean 52.2 113.2 17.0 73.9 Abbreviations: BAV = Bavaria, BB = Brandenburg; BER = Berlin; BW = Baden-Württemberg; HB = Bremen; HES = Hesse; HH = Hamburg; LS = Lower Saxony; MW = Mecklenburg West-Pomerania; NRW = North Rhine-Westphalia; RP = Rhineland-Palatinate; SA = Saxony; SAT = Saxony-Anhalt; SH = Schleswig-Holstein; SLD = Saarland, TH = Thuringia. Source: my compilation based on Pestalozza 2014b; www.verfassungen.de; websites of Land parliaments. According to most scholars German Land parliaments are quantités négligeables having no effective say whatsoever in public policy-making in the German political system. Land parliaments have only limited legislative powers and not the means to effectively control the executives (Reutter 2008). Cooperative federalism, European politics and intertwined policy-making privilege the executives at the national and the subnational level and favor national policies (Lehmbruch 2000; Reutter 2006; Reutter 2014; Kropp 2010; Gunlicks 2003: 216 ff.). European politics are supposed to have the same impact on Land parliaments. In this perspective ‘Europe’ overrules the principle of subsidiarity and "colonizes" policy areas that the Länder used to regulate (e.g. higher education). This, once again, leads to: intertwined policy-making, an overriding influence of the executives, and shrinking legislative powers of Land parliaments (Thaysen 2005; Abels 2011; Abels 2013). In short: multilevel governance and democratic self-rule at the sub-national level seem to be mutually exclusive concepts. Yet, it seems different with regard to constitutional politics. Constitutional politics is not only a permanent and important issue in the German Länder, but Land parliaments play an important role in this field. In order to bring the role to the fore parliaments play in constitutional politics we will examine in what sense German Land parliaments are involved in constitutional decision-making. We will mostly – but not only – refer to four Länder: Brandenburg, Saxony, Saxony-Anhalt, and Bavaria (Reutter 2014, 2015b, 2015c). Table 3: German Land parliaments: basic features (as of: May 2015) # of Seats c)Persons entitled to vote duration e)last election Land of term Start of 1st term (current term) a)legally b)effectively Abs. d)per seat years BW 120 138 7,622,873 63,524 5 25.03.1952 27.03.2011 (15) BAV 180 180 9,442,013 52,456 5 01.12.1946 15.09.2013 (17) BER 130 149 2,469,716 18,998 5 11.01.1951 18.09.2011 (17) BB 88 88 2,094,458 23,801 5 16.10.1990 14.09.2014 (5) HB 83 83 487,599 5,875 4 13.10.1946 10.05.2015 (19) HH 121 121 1,299,411 10,739 5 30.10.1946 15.02.2015 (21) HES 110 110 4,392,213 39,929 5 01.12.1946 22.09.2013 (19) LS 135 137 6,087,297 45,091 5 20.04.1947 20.01.2013 (17) MV 71 71 1,373,932 19,351 5 26.10.1990 04.09.2011 (6) NRW 181 237 13,262,049 73,271 5 20.04.1947 13.05.2012 (16) RP 101 101 3,088,199 30,576 5 18.05.1947 27.03.2011 (16) SLD 51 51 797,512 15,637 5 15.12.1947 25.03.2012 (15) SAN 120 132 3,376,627 28,139 5 27.10.1990 31.08.2014 (6) SAT 91 105 1,988,172 21,848 5 28.10.1990 20.03.2011 (6) SH 69 69 2,239,615 32,458 5 08.05.1947 06.05.2012 (18) TH 88 88 1,812,370 20,595 5 25.10.1990 14.09.2014 (5) a) legally fixed minimum number; b) Date: May 2015; c) Date: last election before May 2015, d) number of persons entitled to vote divided through the legally fixed number of seats; e) date of the last election before May 2015, in (): current term.
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