Über Partizipation zu einer postgrundgesetzlichen Verfassung Zum Potential des Art. 146 GG im Licht der europäischen Integration

According to recent constitutional court decisions further European Integration touches questions of constitutional identity in Germany, particularly aspects of statehood and democracy, as regulated in article 79 section 3 Basic Law (Grundgesetz). Constitutional identity as defined by the said article is guaranteed as unchangeable (Ewigkeitsgarantie) for the time the Basic Law is in power. Therefore, further Europeanization of the German polity requires a post-Basic Law constitution. Interestingly, the Basic Law itself provides for a way to create such a post-Basic Law situation in article 146, to allow a constitutional break without a revolutionary act. In this essay, I address the question whether article 146 is (still) a viable option today and what preconditions are to be fulfilled in order to use it. After unification in 1990, many scholars considered article 146 as obsolete as the original intention of it was to provide for another option to organize re-unification of Germany. Nevertheless, during constitutional modernization of the Basic Law after 1990, article 146 was re-confirmed and adjusted to the new polity. The question debated was whether the German legislator, as pouvoir constitué, is legitimately empowered to decide on the prolongation of this clause. After all, the clause seemed quite obviously to be a part of the temporary character of the Basic Law. However, this position is questionable as article 146 of the Basic Law was equally due to reserved rights of the allied powers after World War II. Therefore, it is argued, continuing the option of regulating a way to make a totally new constitution within the framework of the Basic Law is still given. This raises a tricky constitutional problem: how to balance the binding core of the article 79 provision, designed to restrict the German legislator's room for manouvre when changing the constitution, with the option of article 146, which effectively requires the legislator to act as an original source of constitution-making, a pouvoir constituant. In accordance with much of scholarly debate I claim that article 79 does not bind the the pouvoir constituant of article 146. Furthermore it is argued here that the legislator must have discretionary power to decide whether an evolutionary process of constitutional change within the limits of article 146 or a revolutionary act of creating a completely new constitution is chosen. If the pouvoir constituant opts for the article 146 evolutionary process, it must accept the binding restrictions as laid down in the concept of a »free decision of the German people«, as stated therein. That means, in essence, free communication and decision-making by the people. Therefore, all constitutional branches must guarantee a framework for the people to act as a pouvoir constituant itself, particularly a framework for a general vote on the »if« of taking this route and for the general election of a constitutional assembly. It is up to this very assembly to design ratification procedures which in turn will finally involve the people again.