Gian Enrico Rusconi

Quale "democrazia costituzionale"? La Corte federale nella politica tedesca e il problema della Costituzione europea

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Democratic regimes are typically also "constitutional regimes". This linkage which is at the heart of contemporary liberal democracies implies that the principles and the institutions of "popular sovereignty" have to coexist with the principles and the institutions of the "sovereignty of the Constitution". The German case which combines on one side parliamentary and executive institutions enjoying a strong popular support and an activist federal court which can derive its authority from the solid legitimacy acquired by the "Grundgestz" is particularly relevant for exploring the problems of "constitutional democracy". In this article Rusconi examines in details the discussion that has developed in the Federal Republic among constitutionalists and political scientists on these themes following a number of important decisions taken over the years by the "Bundesverfassungsgericht". The Author underlines that criticism against the activist role of the Court have come both from the Right and from the Left. The most frequent arguments of the critics have revolved around the limitations implicitly or explicitly set to popular sovereignty by judicial decisions. Yet in spite of the criticism German political life seems to have found an equilibrium between the "democratic" and the "constitutional" elements. Some degree of mutual restraint from both sides has probably played a crucial role in avoiding major conflicts in a situation where in principle the roles of the representative institutions and of the federal Court are well defined by the constitution but in practice the borderlines are much more uncertain. The increasingly supranational character of the European Union and the problems of its democratic foundations open a whole new range of problems of "constitutional democracy". The traditional problem of the relationship between democracy and constitution acquires new complications in a situation where Europe is obviously not a State but it is much more than an agreement among states and where problems connected with the relationship between national constitutions and the European constitution and between national democracies and European democracy begin to arise. The debates that have begun to develop on this subject in Germany among scholars and the first decisions of the Federal Court on related matters suggested to Rusconi to extend the original discussion about "constitutional democracy" to the implications produced by the new European situation.

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