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David Currie and German Constitutional Law

Published online by Cambridge University Press:  06 March 2019

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Without much doubt, the two great pillars of American scholarship on the German Basic Law and the jurisprudence of the Federal Constitutional Court are (in the order of first appearance) Donald Kommers's monumental casebook, The Constitutional Jurisprudence of the Federal Republic of Germany and David Currie's magisterial treatise, The Constitution of the Federal Republic of Germany. Professor Kommers's comprehensive work was a milestone in a long career that has been very substantially devoted to the study of German constitutional law. In the late 1960s, Kommers spent a research year at the German Constitutional Court and, drawing in part on personal interviews with the justices, he published the first major work in English on that court. Since then, Kommers has produced a steady stream of significant works on German constitutional law.

Type
Memorial: David Currie and German Constitutional Law
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1st ed. 1989; 2nd ed. 1997; 3rd ed., with Miller, Russell, forthcoming 2009).Google Scholar

2 David P. Currie, The Constitution of the Federal Republic of Germany (1994).Google Scholar

3 Donald P. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court (1976).Google Scholar

4 See infra note 27. In addition to traditional legal articles, Currie contributed numerous shorter articles on constitutional history and other topics to the second series of the Green Bag, a journal of informal commentaries on the law.Google Scholar

5 Currie, David P., Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, 1989 Sup. Ct. Rev. 333; Currie, David P., Separation of Powers in the Federal Republic of Germany, 41 Am. J. Comp. L. 201 (1993). These two articles are reprinted in this issue of the German Law Journal. See also David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986).Google Scholar

6 In addition to his attainments as a scholar, Professor Currie was, by all accounts, a great teacher in his decades at the University of Chicago Law School. According to friends and colleagues, he was also a notable performer in the operas of Gilbert & Sullivan. See generally, In Memoriam: David P. Currie (1936-2007), 75 U. Chi. L. Rev. 1 (2008).Google Scholar

7 See Grant Gilmore, The Ages of American Law 125 n. 3 (1977).Google Scholar

8 Currie, supra note 2, at 289.Google Scholar

9 Currie cites particularly the vast Maunz-Dürig commentary, which is probably the most comprehensive, highly respected and frequently cited of all commentaries on the German Basic Law. Grundgesetz Kommentar (Theodor Maunz, Günter Dürig, Roman Herzog et al. eds., edition with looseleaf supplements 2008). Interestingly, Currie also frequently cites the “Alternative Commentary” (AK), a more left-wing work that is generally intended to counter the conservative centrism of commentaries such as Maunz-Dürig. See Kommentar zum Grundgesetz für die Bundesrepublik Deutschland (Reihe Alternativkommentare) (Richard Baümlin et al., 1984). Even today, the AK is ignored in much German constitutional writing and frequent citation of the AK, in the German literature, generally counts as a statement of dissent from the “prevailing view” (herrschende Meinung) of the traditional German constitutionalists. Currie notes that his “secondary sources” have been “selected in order to afford a variety of views.” Currie, supra note 2, at xii. Other important commentaries on the Basic Law – also proceeding systemically through the constitutional text – include, for example, Kommentar zum Grundgesetz (Hermann v. Mangoldt, Friedrich Klein, Christian Starck eds., 5th ed. 2005); Grundgesetz-Kommentar (von Münch, Ingo & Kunig, Philip eds., 5th ed. 2000). In the American constitutional literature, a similar technique was employed, for example, in the classic constitutional commentary of Justice Story. See Joseph Story, Commentaries on the Constitution of the United States (3d ed. 1858).Google Scholar

10 See von Münch, & Kunig, , supra note 9.Google Scholar

11 To take one example, the contributions of Günter Dürig to the Maunz-Dürig treatise are frequently viewed as particularly distinctive and influential. See, e.g., Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 137 (20th ed. 1995). In fact, the recent replacement of one of Dürig's original chapters with a new version by another scholar – putting forth a considerably different view of human dignity – drew an emotional public rebuke from a former Justice of the Constitutional Court. See Ernst-Wolfgang Böckenförde, Die Würde des Menschen war unantastbar, Frankfurter Allgemeine Zeitung, Sept. 3, 2003.Google Scholar

12 Currie cites particularly Handbuch des Staatsrechts der Bundesrepublik Deutschland (Isensee, Josef & Kirchhof, Paul eds., 1st ed. 1987; 2nd ed. 2003). For another such “Handbook,” see Handbuch des Verfassungsrechts der Bundesrepublik Deutschland (Ernst Benda, Werner Maihofer, Hans-Jochen Vogel eds., 2nd ed. 1994). This type of work was also produced under the Weimar Constitution of 1919. See Handbuch des Deutschen Staatsrechts (Anschütz, Gerhard & Thoma, Richard eds., 1930).Google Scholar

13 Hesse, supra note 11. For another one-volume treatment by an eminent German law teacher, see, e.g., Peter Badura, Staatsrecht (3d ed. 2003).Google Scholar

14 Traditionally, the Lehrbuch or textbook has played a central role in legal education in Germany. Much more important than the American “hornbook,” which it resembles in some respects, the Lehrbuch tends to be the form of source material that is most widely read by students in the course of their studies.Google Scholar

15 On this point, see also Dubber, Markus Dirk, Book Review, 40 Am. J. Legal Hist. 107, 108 (1996). This review is reprinted in this issue of the German Law Journal. Google Scholar

16 BVerfGE 62, 1 (1983).Google Scholar

17 Currie, supra note 2, at 113–16.Google Scholar

18 Hesse, supra note 11, at 268.Google Scholar

19 Currie, supra note 2, at 178–207. In particular, Currie discusses a number of important cases at some length: BVerfGE 7, 198 (1958) (Lüth); BVerfGE 25, 256 (1969) (Blinkfüer); BVerfGE 12, 113 (1961) (Schmid-Spiegel); BVerfGE 30, 173 (1971) (Mephisto); BVerfGE 34, 269 (1973) (Soraya).Google Scholar

20 Currie, supra note 2, at 181.Google Scholar

21 Id. at 213–27.Google Scholar

22 341 U.S. 494 (1951).Google Scholar

23 Currie, supra note 2, at 125–34.Google Scholar

24 See Dubber, supra note 15, at 108: “It would have been unusual for a German book on the constitution to rely as heavily on opinions of the German constitutional court as does Professor Currie's. The German commentators are still having a hard time acknowledging that the deference to written law texts, characteristic of a formalistic civil law system that has developed marvelously complex interpretive techniques to subsume particular fact scenarios under statutory principles, goes out the window as soon as these techniques are applied to such texts as the guarantee of human dignity in Article 1(1) of the Basic Law.”Google Scholar

25 Currie, supra note 2, at xii.Google Scholar

26 See id. at xi.Google Scholar

27 David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985); Currie, David P., The Constitution in the Supreme Court: The Second Century, 1888–1986 (1990); Currie, David P., The Constitution in Congress: The Federalist Period, 1789–1801 (1997); Currie, David P., The Constitution in Congress: The Jeffersonians, 1801–1829 (2001); Currie, David P., The Constitution in Congress: Democrats and Whigs, 1829–1861 (2005); Currie, David P., The Constitution in Congress: Descent into the Maelstrom, 1829–1861 (2005).Google Scholar

28 Currie, supra note 2, at 103.Google Scholar

29 Id. at 110.Google Scholar

30 Id. at 121–25.Google Scholar

31 Id. at 68.Google Scholar

32 See David P. Currie, The Distribution of Powers after Bowsher, 1986 Sup. Ct. Rev. 19.Google Scholar

33 Currie, supra note 2, at 35; 81–100.Google Scholar

34 Grundgesetz [GG] [Constitution] art. 28(2) (F.R.G.).Google Scholar

35 Id. art. 23 (F.R.G.).Google Scholar

36 Currie, supra note 2, at 181.Google Scholar

37 Id. Currie's analysis ends of course in 1993, shortly before his treatise was published, but it seems fair to say in general that the period of greater protection has extended up to the present.Google Scholar

38 See also Currie, Positive and Negative Constitutional Rights, supra note 5.Google Scholar

39 See, e.g., Michelman, Frank L., Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).Google Scholar

40 BVerfGE 39, 1 (1975); BVerfGE 88, 203 (1993).Google Scholar

41 BVerfGE 75, 40 (1987).Google Scholar

42 198 U.S. 45 (1905).Google Scholar

43 Currie, supra note 2, at 337.Google Scholar

44 Id. at 338.Google Scholar

46 Id. at 290.Google Scholar

47 514 U.S. 549 (1995).Google Scholar

48 529 U.S. 598 (2000).Google Scholar

49 Currie, David P., Subsidiarity, 1 Green Bag 2ND Series 359, 361 (1998); Printz v. United States, 521 U.S. 898 (1997); City of Boerne v. Flores, 521 U.S. 507 (1997).Google Scholar

50 Currie, supra note 2, at 133.Google Scholar

51 See id. at 125–26.Google Scholar

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