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American and European Constitutionalism Compared: A Report from the UNIDEM Conference in Göttingen, 23-24 May, 2003

Published online by Cambridge University Press:  06 March 2019


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There is currently a considerable amount of soul-searching underway by scholars on both sides of the Atlantic. For the cosmopolitanites of the academic world, the unpleasant disagreements over policy towards Iraq between Old Europe and the New World were not only unsettling but symptomatic of a more deep-seated disagreement between (former) friends. The theme of the Unidem seminar, held at the University of Göttingen on May 23-24, 2003, can be seen as sitting nicely within a desire for an explanation for this tension. Clearly underlying the organization of the conference, choice of themes and the invitation of speakers was the organizer's desire to reach a greater understanding of the difference and similarities between constitutionalism in Europe and in the United States and the reasons for and consequences of these divergences. Thus, although the Iraqi crisis obviously took place long after the theme of the conference had been conceived (and it has to be said that Georg Nolte's conferences appear to have a habit of coming hard on the heels of related dramatic events in the real world, suggesting an almost magical foresight on his part), it should nevertheless be understood as falling within this movement.

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1 The Unidem Seminar was organized by Professor Georg Nolte of the University of Göttingen, substitute member for Germany to the Venice Commission (, in cooperation with the Institute of International Law at the University of Göttingen, Yale Law School and the Volkswagen Stiftung. The conference program can be found at: v Scholar

2 Robert O. Keohane, ‘Ironies of Sovereignty: The European Union and the United States’ (2002) 40 Journal of Common Market Studies 743, explains the policy disagreements between Europe and the United States in recent years in terms of a fundamentally different understanding of sovereignty – the former apparently moving away from ‘the classic conception of sovereignty’ that has become so deeply embedded in American thinking.Google Scholar

3 Giovanni Bognetti (University of Milano), ‘The Concept of Human Dignity in European and American Constitutionalism'.Google Scholar

4 For example, where the German Constitution has a general clause laying down the social nature of the state (Articles 20 and 28), those of France (Article 34) and Italy have specific clauses (in Italy's case several clauses, for example, Article 3, stating that all citizens enjoy “social dignity” and Article 32 providing for health care as a fundamental right and the free provision of health care in the attainment of that right; Article 36 (“Wages”) perhaps most clearly illustrates the differing approach of Europe to the constitutional protection of human dignity).Google Scholar

5 For a thoughtful comment on the impact of bioengineering on the individuality of the human being, see Slavoj Zizek, ‘Bring me my Philips Mental Jacket', London Review of Books, Vol. 25, 22 May 2003; available on-line at: Google Scholar

6 It is perhaps possible to suggest, as Whitman does, that the United Kingdom was closer to the US model until recently; however, it should be pointed out that the standards demanded by the European Convention on Human Rights has brought Britain into line, perhaps grudgingly, with its European partners.Google Scholar

7 The almost impossibly high standard of ‘intentional falsity’ for the law of defamation set down in New York Times Co. v. Sullivan [376 U.S. 264 (1964)], a standard extended from public officials to public figures in Curtis Publishing Co. v. Butts [388 U.S. 130 (1967)], saw the US stake out a position previously unknown in common law tradition.Google Scholar

8 See Bickel, Alexander M., The Morality of Consent (1975); see also Alexander M. Bickel, “Citizenship in the American Constitution”, 15 Arizona L. Rev. 369 (1973); ibid., The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955).Google Scholar

9 See, e.g., Henkin, Louis, Age of Rights (1996).Google Scholar

10 See, e.g., from the German debate the comprehensive studies Ruffert, Vorrang der Verfassung und Eigenständigkeit des Privatrechts, 2001; Bäuerle, Vertragsfreiheit und Grundgesetz. Normativität und Faktizität individueller Vertragsfreiheit in verfassungsrechtlicher Perspektive, 2001; see the review of these volumes by Karl-Heinz Ladeur in: 1 Annual of German & European Law (Russell Miller/Peer Zumbansen eds., forthcoming 2003); for the most recent cases of ‘horizontal effect’ in German constitutional law, see the case note by Zumbansen, Private Contracts, Public Values and the Colliding Worlds of Family and Market, 11 (2003) Feminist Legal Studies 74-87.Google Scholar

11 489 U.S. 189 (1989)Google Scholar

12 See on the history of the Lüth-case and its influence on the Federal Republic's early Case law: Elena Barnert/Natascha Doll, Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State in: 4 German Law Journal No. 3 (1 March 2003), available at: Scholar

13 See the Analysis of both cases with a concluding comparative perspective on US law by Dederer, in: Menzel (ed.), Verfassungsrechtsprechung 242-253 (2000)Google Scholar

14 See, e.g., Ladeur, Gesetzesinterpretation, “Richterrecht” und Konventionsbildung in kognitivistischer Perspektive, Archiv für Rechts- und Sozialphilosophie 1991, 176-194; see already Ladeur, “Abwägung” -ein neues Rechtsparadigma? Von der Einheit der Rechtsordnung zur Pluralität der Rechtsdiskurse, ARSP 1983, 463483.Google Scholar

15 See the reminisces by Gerhard Casper at the occasion of the Court's 50th Birthday celebration: The Karlsruhe Republic, in: 2 German Law Journal No. 18 (1 December 2001), available at: Scholar

17 [1995] 3 All England Law Reports 353. In the siblings’ case before the House of Lords, it was held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. This precedent was overturned at Strasbourg.Google Scholar

18 See, for a comprehensive analysis of the ECtHR's jurisprudence 2001/2002 the report by Florian Hoffmann in: 1 Annual of German & European Law (Russell Miller/Peer Zumbansen eds. forthcoming 2003), see here also the reports on the Jurisprudence by the Bundesverfassungsgericht by Felix Müller, that of the German Länder Constitutional Courts (Landesverfassungsgerichte) by Christian von Coelln and on that of the European Court of Justice by Dominik Hanf (all in the Annual).Google Scholar

19 Britain's accession to the European Community in 1972 and the Community's incorporation of the jurisprudence of the ECHR in the mid-1970s allowed UK courts to review UK statutes for compatibility with those rights within the scope of Community competence.Google Scholar

20 See the analysis of the US policy with regard to Iraq and the fight over another resolution: Craig Scott, Iraq and the Serious Word Games: Language, Violence and Responsibility in the Security Council in: 3 German Law Journal No. 11 (1 November 2002), available at: Google Scholar

21 See the so-called Freiburg Lawyers’ Declaration by Kai Ambos et al., in: 4 German Law Journal No. 3 (1 March 2003), available at: Google Scholar

22 Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (1926), 7th Ed. 1991.Google Scholar