Lawyers! The Constitution Needs You!

Until recently, the usual response from legal professionals I spoke with about what we do went something like this: “Oh, really? Constitutional law? Great! (brief pious Grundgesetz look …) Right! God, that was a long time ago. State institutions… constitutional complaints… last time I had to deal with these was during my first year at law school, I guess. Great that you’re working on this, must be incredibly fascinating and all. But, honestly? It has nothing whatsoever to do with my life and my work.”

That attitude has become quite rare in recent times, I think.

How much indeed has become clear to me last month at the Alte Oper in Frankfurt, on the occasion of the yearly JUVE Awards event which I had the honour of attending alongside my colleague Lennart Laude this year. The JUVE magazine awards the “Law Firm of the Year” prize to those firms that, according to its judgement, have made the most significant progress in specific areas of law in the past year. Winning such a prize is a big deal in the world of German white-shoe law firms, which is why they celebrate this event every year with a lavish party in evening gowns and tuxedos until the early hours. The invited firms are encouraged to donate to a good cause. And this year, that good cause… was us.

I had the privilege of receiving a large cheque which we greatly appreciate not only as recognition of our work but, more importantly, because this donation will support us over the coming months following the conclusion of the Thuringia project. The Thuringia Project and its success had pushed our organisation to the brink of overload, and at times beyond. Now we need to consolidate. With this donation, plus the proceeds from our crowdfunding efforts so far, I can keep the core of the team together until roughly mid-next year, and launch the first phase of Projekt Bundesrepublik. Our first target: the judiciary.

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Zum 01.02.2025 sind am neu gegründeten »Center for Diversity for Law« am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg

eine PostDoc-Stelle sowie zwei Promotionsstellen zu besetzen.

Das Center dient der empirischen, dogmatischen und rechtsvergleichenden Erforschung von Diversität im Rechtssystem und der Vernetzung von Wissenschaft, Praxis und Zivilgesellschaft. Es soll dazu beitragen, den Zugang zum Recht für marginalisierte und unterrepräsentierte Gruppen zu verbessern. Das Center wird von der Stiftung Mercator finanziert und vom Max-Planck-Fellow Prof. Dr. Emanuel V. Towfigh geleitet.

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That evening in Frankfurt, I spoke with many lawyers, all specialists in various areas of law, most of them far removed from constitutional law. Not a single one of them responded in the way described above. I had the same experience last week at the in-house counsel conference of the German Bar Association, where I had the honour of giving the so-called Horizont lecture. My impression is that the legal profession, whether involved in compliance, M&A, employment law, or whatnot, is mostly very clear about one thing: This is about us.

We lawyers possess knowledge about how the law works. This knowledge is an immensely valuable, powerful, yet highly threatened resource in these dark and increasingly authoritarian times. Open spaces where we, as free and equal but different individuals, can discuss and debate what the law is and what it should be, are becoming smaller, narrower, and rarer. Closing tendencies abound.

At Verfassungsblog, we are standing up against these closing tendencies. We are keeping a space open for a free and equal legal debate among different individuals. We don’t do paywalls. Our readers don’t have to be part of a major institution that can afford the eye-watering prices most publishers demand for access to scholarly legal knowledge. We are not in it for the money. We are committed to scholarship, and nothing else. Verfassungsblog is open-access and will remain so for as long as it exists.

Keeping such spaces open is linked to the protection of the Constitution. For the liberal democracy of the Federal Republic, the ongoing and free exchange of opinions is, to quote the Bundesverfassungsgericht’s most famous judgment, literally constitutive. When it comes to the possibility of spaces where such debates can take place, it won’t do to be “neutral”. Especially not in times when the demand for neutrality is increasingly abused for the gagging of a critical scholarship, administration, judiciary, civil society, and public sphere.

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Bedrohung und Verteidigung der liberalen Demokratie

Symposion des Dimitris-Tsatsos-Instituts für Europäische Verfassungswissenschaften der FernUniversität in Hagen

am 29. und 30. November 2024  

FernUniversität in Hagen und online über Zoom.

Das interdisziplinäre Symposion soll die Szenarien von Bedrohung und Verteidigung der liberalen Demokratie in zeitlicher Perspektive und im nationalen wie internationalen Rahmen in den Blick nehmen.

(Näheres hier: Link)

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With the Thuringia Project, we ventured beyond the publication into the generation of knowledge: knowledge about where the legal and constitutional order is vulnerable to the strategy of authoritarian legalism with which authoritarian populists have been successfully abusing democratic institutions and the rule of law for years in order to advance their goal of an authoritarian closing of open spaces. We generate knowledge about what people in these institutions can do to prepare for what lies ahead. And we make this knowledge accessible.

It’s so bad right now – what can I do? This is a question many people are asking these days, and probably especially us lawyers. For those who can take action within their field of expertise, for example by joining the Gegenrechtsschutz initiative, the answer is relatively straightforward. For those who can’t, here is an idea.

How about becoming a regular supporter of Verfassungsblog?

Seriously. How about that?

We lawyers, of all people, should be among the most willing to contribute to the protection of the Constitution. We have skin in the game, after all. And many of us do, let’s be honest, quite well. Which, of course, is perfectly fine. And expands the room for manoeuvre, compared to many others, to help protecting the Constitution.

Here is my suggestion: If €50 per month is the lower limit and €1,000 the upper limit, where would you place yourself? You, of course, are the best judge of that. My suggestion is that you set up a standing order (IBAN DE94 4306 0967 1302 0051 00, BIC GENODEM1GLS, GLS Bank) for this amount – with the purpose “regular support”.

Or, even simpler, enter the amount as a recurring donation on our new donation page:

Donate now!

Agreed? Thank you so much, you are the best!

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Editor’s Pick

by FRIEDRICH ZILLESSEN

Will the music heal my pain? The German debate about the new election date had some pathological qualities; the USA are politically in intensive care, and quite a few people would simply like to stay home during all this. I suggest seeking treatment from Veyls Mâneyr: Just in time, the Leipzig-based musician has released a new album with eight songs to get us through the rest of the year with his hymnic, melancholic melodies.

Behind Veyls Mâneyr (pronounced [ʋɛɪ​lᴢ mənʹɛːᵄ]) is the artist Tim Mettke. Under his alter ego Tim Adieu, he works on refining pop, ballad and disco – which is also highly recommended. Love, pain and tenderness come to the fore in all his egos and work better than homoeopathic pills!

Photo: Ingmar Nolting

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The Week on Verfassungsblog

…summarised by EVA MARIA BREDLER

This week, the Dutch judiciary made waves in climate litigation. The Hague Court of Appeal in Shell v. Milieudefensie overturned a lower court ruling that had held Shell accountable for its contribution to climate change. Ultimately, Milieudefensie failed to convince the court that the global obligation to achieve a 45% reduction in emissions by 2030 could translate into a binding duty for individual companies. ANDRÉ NOLLKAEMPER (EN) attributes the defeat to a strategic error by the NGO and draws four key lessons from the ruling, which could still influence how we understand corporate responsibility for climate contributions. Similarly, PHILLIP PAIEMENT (EN) does not consider the decision a setback: By recognizing obligations related to scope 3 emissions and the Paris 1.5°C target, the judgment could make loss and damage claims more probable. With such a bundle of duties, companies could be more efficiently held accountable than with a single absolute emissions reduction obligation.  CHRIS HILSON (EN) recommends Milieudefensie to include non-regression in that bundle when making a case before the Supreme Court.

Corporate liability is also a recurring topic in the context of artificial intelligence. AI needs input to generate output – data for data. Companies have not hesitated to scrape data despite legal protections. A ruling by the Hamburg Regional Court aims to change this. However, as JULIA DANEVITCH (GER) concludes, it only partially succeeds.

Last week, the Bundestag passed a controversial resolution on antisemitism, tying funding to the International Holocaust Remembrance Alliance definition of antisemitism. ALI IGHREIZ, SVENJA KANTELHARDT, KILIAN SCHAYANI, JOSCHKA SELINGER (GER) argue that while the resolution is legally non-binding, it could amount to an indirect and factual interference with the freedom of expression, art, and academia.

Meanwhile, the Bundestag is preparing a second, similar resolution specifically targeting schools and universities. ISABEL LISCHEWSKI (GER) expresses her concern: The draft promotes a restrictive approach to internal school conflicts and could close crucial spaces for discourse.

The Israel-Palestine conflict also sparks constitutional controversy in the Netherlands – or at least it should, as LUÍSA NETTO and OTTO SPIJKERS (EN) point out. They argue that the Dutch government is constitutionally obligated to address two pieces of advice: the ICJ’s advisory opinion from July 2024 and the opinion of the constitutionally mandated Dutch Advisory Council on International Affairs. So far, however, the government has not meaningfully engaged with either.

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Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, das seit 1949 in Heidelberg die Tradition der Berliner Gründung fortführt, kann 2024 auf eine 100-jährige Geschichte zurückblicken. Am Mittwoch, 20. November 2024, stellen wir das Projekt MPIL100, unseren Jubiläumsblog mpil100 sowie zwei aktuelle Buchpublikationen im Humboldt Labor (Humboldt Forum Berlin) und an der Juristischen Fakultät der Humboldt-Universität zu Berlin vor.

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Following Trump’s election, misogyny reveals its ugly face with less inhibitions. Far-right influencer Nick Fuentes twisted the feminist slogan “my body, my choice” into “your body, my choice”, with the video going viral. But reproductive rights are under pressure not only in the U.S. After massive anti-abortion protests outside clinics and counseling centers, all UK jurisdictions have now introduced buffer zones to ensure safe access for those seeking care. EMILY OTTLEY (EN) examines how these zones regulate silent prayer.

Incidentally, unrestricted access is also an issue for women at the CJEU: The latest swearing-in of judges and advocates-general has decreased the proportion of women. Of 27 judges, only five are women, and among the 11 advocates-general, only three. LAURE CLÉMENT-WILZ und FERNANDA G. NICOLA (EN) urgently call on member states to reform their national nomination processes and urge the 255 Committee to ensure full gender parity.

Interestingly, Hansa Mehta would not have supported this idea, despite her instrumental role in changing the first article of the Universal Declaration of Human Rights from “all men” into “all human beings”. For the November edition of the “Outstanding Women” calendar, KELLY AMAL DHRU (EN) paints a portrait of a fighter for women’s and human rights with calm tenacity.

Last week brought us upcoming elections for Germany. But when? That was the subject of intense debate. Now, the election date is finally set: 23 February 2025, with Scholz planning to call the vote of confidence on 16 December. For TRISTAN WISSGOTT (GER), the timing raises legal questions: Election law grants the Federal Ministry of the Interior discretion in setting deadlines, a freedom he argues is neither intended nor constitutionally justifiable.

The Federal Constitutional Court has already ruled twice on the vote of confidence. HAO-HAO WU (GER) sees a chance that the FCC might have to engage with Article 68 for a third time, as the current constellation as well as Scholz’s political maneuvering may test the boundaries of existing case law.

Speaking of confidence: After Volker Wissing decided he preferred staying in the Federal Government over remaining with his party FDP, his parliamentary state secretaries demanded their dismissal. Reportedly, Wissing refuses to dismiss them and wants to call upon the Federal President instead. RUBEN FABERS (GER) clarifies that in any event, dismissing a parliamentary state secretary solely upon their own request is not legally feasible.

Dismissing the Chancellor is also not straightforward, at least in theory: the German Basic Law does not know a term limit for the office. Latin America has had negative experiences with unlimited re-elections, which is why the Dominican Republic recently amended its constitution to turn presidential term limits into an intangible provision. JOSÉ IGNACIO HERNANDEZ (EN) warns that a constitutional amendment alone is not enough: Politically influenced constitutional courts can reinterpret even intangible provisions, as the case of El Salvador demonstrates. Therefore, a resilient constitutional court is essential to safeguard such provisions.

In Germany, this realization now demands action. This week, the Legal Affairs Committee of the Bundestag debated (also with Max Steinbeis as an invited expert) a Resilience Bill designed to protect the Federal Constitutional Court against authoritarian-populist takeovers. However, SIMON WILLASCHEK (GER) argues that a critical aspect of the proposal has been overlooked: The introduction of an alternative election mechanism could give certain parliamentary majorities new avenues to challenge the legitimacy and independence of the FCC.

Meanwhile, another coalition project might not make it within this legislative term: social housing. The severe shortage of affordable housing might turn this into a key campaign issue, though. However, the Federal Government cannot make credible promises in this area, as JOHANNA SCHNABEL and ANTONIOS SOURIS (GER) explain. Since the 2006 federalism reform, responsibility for housing lies with the states.

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That’s it for this week! Take care and all the best.

Yours,

the Verfassungsblog Editorial Team

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