Constitutional amendments and constitutional changes in Germany

• Autores: Markus Kotzur
• Localización: Engineering Constitutional Change: A comparative perspective on Europe, Canada and the USA / Xenophon Contiades (ed. lit.), 2012, ISBN 978-0-415-52976-1, págs. 125-149
• Idioma: inglés
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• Resumen

  • What can be described as a constitutional paradox is deeply rooted in constitutional history and refl ected in comparative constitutional theory:2 constitutions are instruments of stabilization as well as transition. Konrad Hesse, one of the “classic” German scholars on constitutional law, found the polarity of “fi xedness” and “fl exibility” to be an essential constitutional function. It allows openness where social change requires adjustment; it guarantees continuity and consistency where unavoidable change has to be based upon the fi rm ground of a “basic legal order.”3 In a famous dissenting opinion, US Supreme Court Justice O.W. Holmes went beyond this fi xed/fl exible dichotomy and emphasized the experimental character of a constitution. According to his approach, a constitution qualifi es as a “living instrument”: “That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”4 Holmes’ concept not only refers to Karl Popper’s idea of “trial and error” but also to Ernest Renan’s famous defi nition of a nation: “A nation’s existence is (. . .) a daily plebiscite, just as an individual’s existence is a perpetual affi rmation of life.”5 Forming a political community thus relates to a continuing cultural process and so does its constitution.6 Peter Häberle put it the following way: “A constitution is more than a legal text: a constitution is the expression of a certain level of cultural development, it qualifi es as the cultural self-manifestation of the people, it refl ects their cultural heritage and is the very basis for their future hopes.