Journal of National Security Law & Policy
Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – required the maturing German democracy to react to domestic terrorism. The third encounter – the security threat posed in the post-9/11 world by global fundamentalist terrorism – reveals Germany’s still unfolding response to global fundamentalist terrorism. Throughout the whole of its sixty-year existence, the Federal Republic of Germany has been engaged in a constitutional balancing of security and liberty in response to, or anticipation of, actual authoritarian and terrorist threats, which the United States, at least prior to 2001, had been fortunate to avoid. To scholars such as Bruce Ackerman, Germany seems a fitting candidate to teach the United States lessons from its experience with the struggle to honor constitutional commitments to liberty while maintaining national security in the face of terrorist threats.
This essay answers Ackerman’s comparative law summons by providing a brief survey of the decades-long struggle of German jurisprudence to balance security and liberty. The most noteworthy feature of this jurisprudence is the prominent role played by the Bundesverfassungsgericht (Federal Constitutional Court, hereinafter referred to as Constitutional Court, or Court) and its explicit use of proportionality and balancing analyses to resolve these cases. One consequence of the latter phenomenon that is sure to interest hawks in America’s so-called “war on terror” is the Court’s acknowledgment that national security is a public, constitutional interest of the highest order. American progressives, on the other hand, will take hope from the fact that the Court’s proportionality and balancing praxis has meant that national security is regarded as only one among many competing constitutional values, including human dignity, privacy, and individual self-determination. Notwithstanding the high importance that German jurisprudence attributes to national security, the Constitutional Court never has treated it as an absolute value that must be secured at any cost.
The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests. After providing a sketch of the German jurisprudence I will offer a few brief observations that, with additional research, might help explain the Court’s recent change in direction – and more fully illuminate the lessons Germany’s national security jurisprudence has to offer.
Russell A. Miller, Balancing Security and Liberty in Germany , 4 J. Nat'l Sec. L. & Pol'y 369 (2010).