half past nine in the morning in Karlsruhe. Two foremen take eight red robes out of the closet and prepare them for use in the next few hours. A little later the judges come into the room and the magistrates help them get dressed.
There is always a certain tension in the air here, remembers Susanne Baer, who was a judge at the Federal Constitutional Court for twelve years: "The oral hearing or the announcement, that is the appearance in the red robes. And that is a special day." The red robes are their trademark and those who wear them are particularly aware of the responsibility of the task, reports Susanne Baer.
Karlsruhe has the final say
For 75 years, since the founding of the Federal Constitutional Court on September 28, 1951, Karlsruhe has had the last word when it comes to the Basic Law, fundamental rights and the constitution of the country. The Federal Constitutional Court is something like the referee who blows his whistle when a foul is committed, compares Susanne Baer in the ARD documentary “Fateful Moments of the Republic”.
It ensures that all of us and society can play freely and that the ball doesn't go out of bounds.
Counter-proposal to the lawlessness of the Nazi era
When the Parliamentary Council drafted the Basic Law for the Federal Republic of Germany in September 1948, it certainly did not have this football comparison in mind. But one of the central ideas of the mothers and fathers of the Basic Law is: After the experiences of the Nazi era, protection against state arbitrariness is needed. The lawlessness of the Third Reich should never exist again.
And so they create a neutral supervisory body in the Basic Law with the Federal Constitutional Court and give it a lot of power. It can repeal laws and overturn court rulings. It is supposed to monitor the rules in the Basic Law, control power and protect minorities. But: It shouldn't do politics itself. The first president of the court, Hermann Höpker-Aschoff, pointed out this area of tension at the ceremonial opening of the court: "We must not succumb to the temptation to want to play the legislator ourselves."
In the 75 years of the court, this point has been an issue again and again; one often hears criticism from politicians that Karlsruhe is interfering too much. For example, when it comes to calculating Hartz IV rates, voting rights or climate policy requirements. But there is always criticism the other way around when Karlsruhe doesn't act or doesn't act enough. If it gives politicians a lot of leeway, for example during the corona pandemic.
When it comes to equality and taken seriously
The Federal Constitutional Court is an institution that has never existed before and that has shaped the country over seven and a half decades. For example when it comes to equality. The Basic Law states: Men and women have equal rights, but the laws in the young Federal Republic of the 1950s speak a different language. According to the Civil Code, for example, the father always has the last word in family disputes.
In 1959, the Federal Constitutional Court overturned this “fatherly decision” and thereby said: What is written in the Basic Law is meant seriously. Many more judgments on equality follow.
The Constitution set in time
Also significant for the Federal Constitutional Court: it has repeatedly placed the constitution in the respective times. For example, in 1983, when two Hamburg lawyers sued against the planned census and Karlsruhe read the right to “informational self-determination” from the Basic Law.
Or when the constitutional guardians emphasized climate protection and the protection of future generations in 2021.
Individual citizens can overturn laws
In Karlsruhe, anyone can complain. And so it is possible for an individual citizen to overturn an entire law because it violates his fundamental rights. The ban on headscarves for teachers ended up in Karlsruhe, for example. The judges ruled that simply banning it across the board is incompatible with religious freedom.
Or: The trial of Helmut Feldmann and other seriously ill people who opposed the ban on assisted suicide was very emotional. In February 2020, the Federal Constitutional Court made it clear: There is a right to “self-determined death”.
Dark spots
The history of the Federal Constitutional Court also includes a few judgments that today make one wonder how these decisions could have come about. In 1957, for example, the Federal Constitutional Court declared it constitutional to criminalize homosexual acts between men. Paragraph 175 of the Criminal Code, which the Nazis had drastically tightened, remained valid law in the Federal Republic of Germany for a long time.
“The verdict is one of the verdicts that you as a constitutional judge have to be ashamed of today,” said the then President of the Federal Constitutional Court Andreas Voßkuhle in an ARD television program in 2019.
Only Karlsruhe can ban parties
According to the Basic Law, the Federal Constitutional Court can also declare parties unconstitutional - as an expression of defensive democracy. If the conditions for this are met. And if the Bundestag, Bundesrat or Federal Government have previously requested the ban.
In the 1950s this happened twice: in 1952 the constitutional judges banned the Socialist Reich Party (SRP) and in 1956 the Communist Party of Germany (KPD). A ban on the National Democratic Party of Germany (NPD) fails twice in Karlsruhe. In 2017, the court ruled: Although the NPD pursues unconstitutional goals, it is too insignificant to be banned. There is currently no danger that it will be able to implement the goals.
The verdict also has value: the judges set the standards for future ban proceedings.
Protect the court itself from attacks
The Federal Constitutional Court protects democracy and the rule of law; in recent years and based on experiences in other countries, the question has arisen as to whether the court itself is sufficiently protected. What happens if authoritarian forces at some point want to weaken or paralyze the court itself?
To ensure that this cannot happen so quickly, the Bundestag has anchored some important rules on the functioning and structure of the court in the Basic Law in 2024. The court was therefore made more defensive.
Ceremony with the entire head of state
The red robes will remain in the closet today when the 16 judges celebrate the Federal Constitutional Court with around 1,000 guests from the judiciary, politics and society. Federal President Frank-Walter Steinmeier will give the ceremonial speech, and Federal Chancellor Friedrich Merz and the entire head of state are also expected in Karlsruhe.
