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Rethinking the Fundamental Structures of the State with Reference to the Horizontal Application of Fundamental Rights

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Johan van der Walt*

“Entscheidend ging es jedoch sowohl der Déclaration als auch der deutschen

Grundrechtsdoktrin darum, daß es der Staat, vor allem der Gesetzgeber, war, der die

Freiheitssphäre auch im privaten Recht zu sichern hatte.” Klaus Stern Staatsrecht III/1, 1516.

I INTRODUCTION

Volume III/1 of Klaus Stern’s Staatsrecht der Bundesrepublik Deutschland introduced me to German Drittwirkung or horizontal application jurisprudence. It is in this volume of Stern’s monumental work on German public law that I read in 1999, as a Humboldt Scholar under Klaus Stern’s hospitable Betreuung, that the horizontal application of fundamental rights or Drittwirkung der Grundrechte always confronts the judiciary with the problem of two competing or conflicting fundamental rights. When one party in a private legal conflict deems it fit to articulate a legal claim in terms of a fundamental right, the other party will invariably be able to do the same. Stern puts the matter as follows:

“Die Besonderheit dieser Konstellation liegt darin, daß hier die Privatrechtssubjekte prinzipiell beide Grundrechtsberechtigte sind; entfalten in diesem Verhältnis die Grundrechte Wirkungen derart, daß hierdurch der eine gegenüber dem anderen Beteiligten geschützt wird, so kann dies zugleich eine Beeinträchtigung der grundrechtlichen Freiheit des anderen beteiligten Privatrechtssubjekts bedeuten. Die Grundrechte würden daher ‘in diesen Verhältnissen für alle Beteiligten gleichzeitigt zu Rechten und zu Pflichten führen.”1

“The specificity of this constellation lies in the fact that the private law subjects [involved in the dispute] are in principle both bearers of fundamental rights; when the fundamental rights relationship between the parties is such that the one party’s fundamental rights are protected against the other, the other can also claim that such protection would, in turn, abridge his fundamental rights. The fundamental rights would therefore in this case imply rights and duties for all parties involved.”

The conflict of fundamental rights that Stern describes here portrays a structural complexity at the heart of horizontal application jurisprudence. One of the dexterous ways by which legal theory has all along sought to sidestep this complexity was to deny that horizontal application involves a clash of fundamental rights in the way Stern describes it in this passage. In German literature it was especially Jürgen Schwabe who insisted persuasively on the “so-called” or “sogenannte” status of horizontal application. Horizontal application, according to Schwabe, was a non-issue or pseudo-problem; in the final analysis it is always the state and not the private individual that is the real object of constitutional review.2

* Professor of Law, University of Glasgow.

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Schwabe’s view can be said to have triumphed in the jurisprudence of the German Federal Constitutional Court (Bundesverfassungsgericht, hereafter referred to as the GFCC) when the GFCC commenced to emphasise the duty of the state to protect and guarantee the fundamental rights of citizens as the heart of its “horizontal application” jurisprudence.3And strictly speaking, the view that it is always the state and never the

individual that figures as the object of constitutional review, was all along quite evidently already embodied in the epochal Lüth case which precipitated the GFCC’s horizontal application jurisprudence in 1957. Already in Lüth does one encounter the crucial formula that the GFCC would use almost invariably in its later judgments. It is not the individual that abridged the right of the constitutional plaintiff (Verfassungsbeschwerde), but the trial court that failed to interpret and assess his fundamental rights correctly. This is the way the GFCC phrased the matter in Lüth:

“Das Bundesverfassungsgericht ist auf Grund dieser Erwägungen zu der Überzeugung gelangt, daß das Landgericht bei seiner Beurteilung des Verhaltens des Beschwerdeführers die besondere Bedeutung verkannt hat, die dem Grundrecht auf freie Meinungsäußerung auch dort zukommt, wo es mit privaten Interessen anderer in Konflikt tritt. Das Urteil des Landgerichts beruht auf diesem Verfehlen grundrechtlicher Maßstäbe und verletzt so das Grundrecht des Beschwerdeführers aus Art 5 Abs 1 Satz 1 GG.”4

“The decision of the Regional Court failed to recognise the significance which the right to freedom of expression enjoys also in those cases where it comes into conflict with private interests. As such it fell short of constitutional criteria and must be deemed to have violated the fundamental right which the plaintiff enjoys in terms of article 5 I.”

Considering the Schutzpflicht jurisprudence of the GFCC and this formula that it coined in Lüth, Schwabe would appear to be correct. Ultimately it is always the state, some state action or ommission, that constitutes the object of constitutional review, also when the conflict that necessitated the review has its origins in private legal relationships. This concession to Schwabe does nevertheless not mean that Stern’s asessment of Drittwirkung in terms of a conflict between fundamental rights is incorrect. One of the points that I will be stressing in this essay is that Stern is in fact correct, but at a much more fundamental and somewhat different way than is apparent at first glance. The special nature (Besonderheit) of Drittwirkung, I shall argue, consists in the way it reminds us that all constitutional review concerns a conflict between two fundamental rights. And this reminder, I shall argue further, is a crucial point of entry for a much needed rethinking of the fundamental structure of constitutional democracy in the era of increasing supra-statal governance evident in contemporary Europe and elsewhere in the globalised world. And Stern’s view regarding a conflict of fundamental rights, we shall see, goes to the heart of the structure that is at issue here.

2 Jürgen Schwabe, Die sogennante Drittwirkung der Grundrechte. Zur Einwirkung der Grundrechte auf den Privatrechtsverkehr (München, Wilhelm Goldmann, 1971) 9-25.

3 39 BVerfGE 1; 46 BVerfGE 116; 49 BVerfGE 89; 77 BVerfGE 381; 88 BVerfGE 205; 96 BVerfGE 56.

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My argument will proceed in four steps. Section II will briefly expound an analysis of American state action jurisprudence. The point of this exposition will be to point out the close correspondence between Schwabe’s state oriented approach to Drittwrikung and the state action jurisprudence of both the United States Supreme Court and prominent American legal theorists. Section III will contrast the state oriented understanding of constitutional review evident in the state action doctrine with the significantly different understanding of “constitutional review” prevalent in France, in terms of which the state is the subject and not the object of constitutional review. This contrasting comparison between American and French constitutional theory and practice will serve as a hermeneutic background for an engagement with a crucial point that Walter Leisner made in his epochal contribution to the German Drittwirkung debate.5 As will become clear

towards the end of Section III, Leisner espoused a typically French understanding of “constitutional review” in terms of which the state is not the primary suspect of constitutional transgressions, but quite to the contrary, the primary guarantor of the constitution and constitutional rights. Leisner forwarded this view to make a crucial point in his theoretical analysis of the Drittwirkung problematic: Constitutional review is primarily concerned with the review of private power, and not just anomalously, secondarily or indirectly so, as Drittwirkung jurisprudence has pervasively come to maintain in the wake of Jellinek’s emphasis of the Staatsrichtung of constitutional review. Leisner, we shall see, quite evidently viewed private power, not public power, as the primary threat to constitutional rights.

The view of the state as the primary guarantor of constitutional rights instead of the primary suspect of constitutional violations can be argued to have gained new significance in the wake of the GFCC’s Lisbon judgment in 2009. That private power and the subversion of public power by supra-statal governance have come to constitute more significant threats to constitutional rights than state conduct in the era of globalisation, has been observed by many European legal theorists in the wake of the Viking, Laval, Luxembourg and Rüffert judgements of the European Court of Justice (ECJ) in recent years. Section IV engages with the positions taken by the GFCC and ECJ in these cases against the background of the arguments developed in Sections I to III.

Section V concludes this essay with a number of reflections on how one might reconceive constitutional democracy in view of insights gained from Sections I to IV. What this essay as a whole hopes to convey with the thoughts developed in Sections I to V can provisionally be summarised as follows: The Drittwirkung question invites legal theory to return to and rethink the original raison d’être of the constitutional state in a time that has largely come to forget and suppress this raison d’être. The result of this suppression and forgetfulness is unsurprising. We live in a time of rampant private freedoms, glaring inequalities, and indistinct private/public modes of governance that threaten to displace public spheres and democratic accountability in just about all walks of life. The banking industry has in recent months and years come to demand entitlement to unimaginable sums of public money simply because they are “to big too fall”. This is a startling example, but just one of many that reveal the extent to which the power of contemporary constitutional democracies have come to be displaced by conglomerates of power that

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increasingly render the public-private distinction meaningless. This development may well be signalling the emergence of forms of power akin to pre-modern feudal powers that united the capacities of dominium and imperium. This is a point that legal theorists must ponder incisively today. A radical reflection on Drittwirkung, the state action doctrine or the horizontal application of constitutional rights provides legal theory with a crucial opportunity to do so.

II THE AMERICAN STATE ACTION DOCTRINE

The American State Action doctrine has its origin in a dictum of Justice Bradley in the majority opinion of the court in the Civil Rights Cases. This is how Justice Bradley put the matter:

“In this connection, it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by the State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under the State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress…. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights for which the States alone were or could be responsible was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that, in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.”6

The reasoning embodied in this dictum enabled the United States Supreme Court to develop an extensive jurisprudence according to which it was constitutionally unobjectionable for private individuals to discriminate against others on the basis of race; hence Charles Black’s famous description of the state action doctrine as “the last unexpunged clause of [America’s] long settled gentleman’s agreement about racism”.7

This gentleman’s agreement, however, no longer seemed so gentlemanly when the Supreme Court had to decide the epochal case of Shelley v Kraemer in 1948, and the court did its best to break out of it. The disputes in Shelley turned on the question whether the judicial enforcement of restrictive covenants between private individuals constituted Missouri state action that was subject to review in terms of the 14th Amendment of the

United States constitution. The Court decided that it did, thereby exploding the state action doctrine. If judicial enforcement constitutes state action, the existence or non-existence of state action can no longer be an interesting or significant question for the judiciary to consider, for this very consideration would as such already constitute state action. Had Shelley remained good law in all respects, it surely would have terminated the state action doctrine, but the Supreme Court subsequently restricted Shelley’s applicability severely enough to keep or restore America’s “gentleman’s agreement”, irrespective of how unsavoury this agreement had become for many. The explosion of the

6 109 U.S. 3 (1883) at 17.

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state action doctrine in Shelley could have been a watershed moment in American law, but it turned out to be nothing but a momentary hiccup, as will soon become clear. Shelley was not the only case that can be said to have exploded, albeit again only momentarily, the state action doctrine. Two other Supreme Court cases are also noteworthy in this respect, the most prominent of which is the 1963 case of New York Times v Sullivan.8 In Sullivan, Justice Brennan accepted without much ado that

defamation law embodied in the common law of the state of Alabama constitutes state action for purposes of the 14th Amendment. And Justice Frankfurter already decided in

the 1941 case of Labour v Swing that common law rules regarding unlawful picketing constituted state action under the 14th Amendment.9 Sullivan and Swing are very similar

as far as their acceptance of common law as a form of state action is concerned, but Sullivan would come to strike American legal theory as the pivotal case. State action should have been duly considered to be “out of business” after New York Times v Sullivan, Frank Michelman observes. If the constitution tolerates neither executive state administration, nor state legislation, nor state common law that falls foul of its guarantees, there is simply no basis left on which any judicial decision can escape state action review in terms of the 14th Amendment. Yet, anyone who knows something about

American law, also knows, contends Michelman further, “something persists in [American] jurisprudence that walks and talks like a state action doctrine with teeth.”10

How did this persistence of the state action doctrine come about? The answer is simple. The American judiciary simply chose to ignore the irrefutable logic of Shelley, Swing and Sullivan. This logic was eminently clear to former Chief Justice Rehnquist in Flagg Brothers, Inc. v Brooks,11but “he insisted that American constitutional legal doctrine must

pretend not to notice it, as Michelman explains elsewhere.12 Rehnquist simply stated dead

pan that “[i]t would intolerably broaden . . . the notion of state action under the Fourteenth Amendment to hold that the mere existence of a body of property law in a state, whether decisional or statutory, itself amounted to state action. . . .”13

Canaris can be said to have rallied to a “Rehnquist call” in Germany,14 but a significant

contingent of American legal theorists have all along refused to entertain the kind of pretence for which Justice Rehnquist (as he was at the time) called in 1978 and they continued to do so thereafter. They all basically endorsed the Schwabian point that no lawful individual action can be claimed not to involve some or other form of state

8 376 US 254 (1963). 9 312 US 321 (1941).

10 Michelman “The Bill of Rights, The Common Law, and the Freedom-Friendly State” (2003) 58 University of Miami Law Review 401, at 404.

11 436 U.S. 149 (1978), hereafter cited as Flagg Brothers.

12 Michelman “W(h)ither the Constitution?” 2000 (21) Cardozo LR, 1063, 1076. 13 Flagg Brothers at 160 n.10.

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involvement.15 In the United States this point is usually made with reference to a

Hohfeldian analysis in terms of which all lawful social relations, which for reason of their lawfulness attract no legal sanction or remedy, constitute a relation between liberties and non-rights. These relations constitute legal relationships as much as relations between rights and duties do, Hohfeld claimed.16 They are therefore as subject to constitutional

review as relations between rights and duties are. The upshot of this is that no existing legal rule and no absence of a legal rule can be exempted from constitutional review. As Michelman would put the matter, it is “child’s play to make the simple Hohfeldian point” that the state, as the sovereign author of all law, is responsible for every legislative and executive failure to protect the fundamental rights of citizens against other citizens.17

It may be indeed be a matter of child’s play,18 but this Hohfeldian approach to

Drittwirkung jurisprudence, which German theorists may well want to call a Schwabian approach, is a crucial move in the argument regarding horizontal application that I wish to develop in this essay. As already indicated above, I wish to rehabilitate with this essay Leisner’s historical and conceptual point that constitutional review concerns in the first instance the review of all private relations. The Hohfeldian/Schwabian argument allows one to do just that because it makes it clear that legally significant private relations are always mediated by state action and thus always potentially subject to constitutional review. However, this essay also seeks to move beyond this Hohfeldian/Schwabian focus on the state as incircumventible object of constitutional review for the sake of rehabilitating an understanding of the state as the subject of constitutional review and the guarantor of the constitution. In terms of this move beyond Hohfeld and Schwabe, the state only becomes the object of constitutional review once executive or legislative action becomes evidently unworthy of proper state conduct, that is, when the state begins to act like a cohort of or accomplice in private action. But in order to make this argument we need to turn to French constitutional theory and history. American constitutional review has been influenced so fundamentally by the epochal judgment of Justice Marshall in Marbury v Madison19 that it does not afford us much of a window for distinguishing

between infelicitous legislative or executive conduct, on the one hand, and felicitous or proper state conduct, on the other.

15 Cf. for instance Charles Black Jr (note 7 supra); Alexander “The Public/Private Distinction and Constitutional Limits on Private Power” (1993) 10 Constitutional Commentary 361, 371-372; Baker “Private Power, The Press, And the Constitution” 10 Constitutional Commentary (1993) 421; Gardbaum “The Horizontal Effect of Constitutional Rights” (2003) 102 Michigan LR 387, 414-415.

16 Cf. Hohfeld “Some fundamental legal conceptions as applied in legal reasoning” (1913) 23 Yale Law Journal 28; For an epochal discussion of Hohfeld’s views in this regard, see Singer “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld” (1982) Wisconsin Law Review 975-1058. 17 Michelman “W(h)ither the Constitution” (note 12 supra) 1067.

18 It nevertheless took me a while to get quite on top of this child’s play. For a whole series of engagements with the significance of Hohfeld for horizontal application jurisprudence, cf. Van der Walt, “Perspectives on Horizontal Application. Revisiting Du Plessis v De Klerk” (1997) South African Public Law 1-31; “Progressive Horizontal Application of the Bill of Rights: Towards a Co-operative Relation between Common-Law and Constitutional Jurisprudence” (2001) 17 South African Journal on Human Rights 341-363; “Horizontal Application of Fundamental Rights and the Threshold of the Law in view of the

Carmichele Saga” (2003) 19 South African Journal on Human Rights 517-540.

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The judgment in Marbury, focusing as it did on unconstitutional legislation, induced American constitutional jurisprudence to consider state conduct as such to be the primary target of constitutional review. This jurisprudential mindset has from the beginning no doubt also been informed by the principle of federalism in terms of which federal law (and thus also the constitution) only applies to states and not directly to individuals.20 But

the combination of the Marbury conception of constitutional review and the principle of federalism came to induce a quasi-naturalistic blind spot as regards the insight and conviction that all conduct that appears to be irreconcilable with the principles of the constitution, of which state conduct could be an example but not the only and not necessarily the primary example, should be subject to constitutionality tests. This quasi-naturalistic assumption that it is just in the nature of things that states and not private individuals are subject to constitutional review also precludes a clear regard for the insight that it is not state action as such but action unworthy of the state that is to be targeted by constitutional review. At stake here, in addressing this blind spot, is the need to rehabilitate a clear regard for the principle that true or worthy state action is in fact action defined and required by the constitution and not just limited by and subordinate to the constitution, as if states by their nature act at variance with or in tension with constitutions. Again, at issue here is the point that states become the target of constitutional review when it acts in ways which are unworthy of the state, given the way the idea of the state, or at least the post-revolutionary state (the absolutist and centralised state in pre-revolutionary France, no longer simply a matter of feudal principalities and their concomitant hierarchies but also by far not yet an embodiment of significant equality may be an exception which cannot be explored here) is historically fundamentally linked to the idea of constitutionalism.

At issue here then, to labour the point somewhat, is to restore the historical and conceptual link between stateness and constitutionalism and thus to highlight the definitional proximities between the constitutional, the public, equality, horizontality, liberty and the state. This move will of course also bring to attention the irreducible tension between the private and the constitutional, given the definitional inclination of the private towards inequality, hierarchy and verticality. For too long has imprecise legal theory duped common convictions into the belief that constitutionalism concerns the protection of private liberties. To be sure, not all inequalities and not all the privatisations that underlie them are unconstitutional. In fact, some inequalities and privacies may well claim constitutional support, but the question then is also whether these “privacies” are not better named by the personal liberty and integrity that Enlightenment thinking and the revolutionary tradition retained from the Thomistic notion of the inalienable elements of human personality, vita, membra and libertas, as Grotius still called it.21

III. CONSTITUTIONAL “REVIEW” IN FRANCE

20 Cf. Tribe American Constitutional Law (2nd ed, Mineola, The Foundation Press, 1988) 1691;

Burke/Reber “State action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth

Amendment” (1973) 46 So.C L Rev. 1003, 1011-7.

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The judicial format of constitutional review has up to very recently been a Fremdkörper in France. Constitutional review of state conduct has by and large always been restricted to the non-judicial review of administrative action by the Conseil d’État in terms of the rules of administrative law. The French Conseil Constitutionelle (Constitutional Council), the closest parallel institution to constitutional courts in other states, has up to 1971 never subjected legislation to substantive constitutional review. It viewed its task to consist in guarding the boundary between legislative and administrative law-making and not in checking legislative compliance with the Constitution. Up to March 2010 when the question prioritaire de constitutionalité came into force with the 2009 amendment of article 61(1) of the Constitution, the Conseil Constitutionelle also never functioned as a forum to which individuals could appeal against the constitutionality of laws that affected them. Such individual constitutional appeals are now possible and depending on whether the appeal derives from an administrative court or another court, they are referred to the Conseil Constitutionelle by either the Conseil d’État or the Cour de Cassation. Before March 2010 legislation could only be referred to the Conseil Constitutionelle between acceptance by parliament and promulgation by the President of the Republic. Constitutional review was for this reason until very recently little more than a phase of the legislative process itself that ensured the constitutionality of legislation before promulgation.

The decision of the Conseil Constitutionelle in 1971 which, on referral by the President of the Senate, declared unconstitutional proposed amendments to a 1910 statute regarding the registration of non-profit organisations nevertheless already then introduced an element of substantive review, if not quite of legislation, at least of the legislative procedure before its conclusion by promulgation.22 The decision evinced sufficient

elements of substantive review to elicit invocations of the importation of Marbury v Madison into France.23 It must nevertheless be kept in mind that the Conseil

Constitutionelle is a non-judicial body that has not broken significantly with the French predisposition towards non-judicial review that can be traced all the way back to the Sénat conservateur introduced by the Constitution of 1799 along the lines of the jurie constitutionnaire proposed by Sieyès in 1795. The French revolutionary spirit could contemplate the notion that the revolutionary government had to reflect on its own constitutionality. Robespierre’s proposal for a “national grand jury” which could vindicate the rights of citizens against the legislature is a case in point.24 But the rejection

of and resistance to substantive review of legislation by a judicial body has always been a key characteristic of post-revolutionary French politics that dates back to the Law of 16-24 August 1790 as well as articles 3 of the Constitution of 1791 and 203 of the Constitution of 1795, all of which sought to eradicate and prevent restoration of the powers of review of the courts of the ancien régime. These courts, called parlements (to be distinguished from parliaments) could uphold the fundamental law against royal

22 Constitutional Council, Decision of 16 July 1971, J.O. 7114; [1971] Semaine Juridique II 16832. Cf.

James Beardsley “Constitutional Review in France” (1975) 189 The Supreme Court Review 190.

23 F.L. Morton “Judicial Review in France: A Comparative Analysis” (1988) 36 The American Journal of

Comparative Law 90; Beardsley (note 22 supra) 190; George D. Haimbaugh “Was it France’s Marbury v

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decrees through their remonstrances and could even lay down general regulatory rules or arrêts de règlements unconnected to litigation. The revolutionary governments and constitutions sought to eradicate these legislative and review powers of the old courts so as to ensure the sovereignty of la loi (which included executive decrees and parliamentary legislation) and already in 1779 did the Court de Cassation have its first occasion to deny the competence of judiciaries to consider the constitutionality of legislation;25 hence the strong resistance to a veritable stare decisis doctrine in the French

legal system ever since. French judges are strictly speaking required to judge the case at hand, not to lay down general and enduring rules of law as English and American common law judges are understood to do.26

The point of this summary exposition of relatively well-known elements of French legal history is not to endorse old anti-juristocracy arguments like those of Lambert27 and Carré

de Malberg28 in France or more recent ones like those of Ran Hirschl29 in America. Nor is

it thus aimed at simplistically choosing for the French and against the American system. The point of engaging with this history is simply to take into account and refresh an understanding of constitutionality that the American legal system does not offer one readily, namely, the understanding of the state as an embodiment of constitutionality and not a democratic counter-force at loggerheads with constitutionality. This is exactly the point that Walter Leisner stressed in his contribution to the German Drittwirkung debate. Leisner’s whole narrative of German constitutional history sought to rectify Jellinek’s notion that constitutional review is fundamentally aimed against state violations of the constitution.30 In startling contrast with Jellinek, Leisner emphasised the historical reality

of an opposite understanding of constitutionalism among the French revolutionaries. In a passage on which Stern’s Staatsrecht III/1 comments at length,31 Leisner contended that

the principles of equality of the Constitution and the fundamental rights embodied in the Déclaration des Droits d’Homme et de Citoyen were not primarily aimed at curtailing or limiting the power of the state, but in fact at terminating the private law conceptions of arbitrary power with which the monarchy and feudal rulers reigned over people. These monarchical and feudal powers were essentially private powers and privi-leges that exempted some individuals from the fundamental equality before the law which the revolutionary constitutions came to stress. And the state was considered to be the essential vehicle for realising the revolutionary principle of equality before the law by programmatically terminating the private privileges afforded by the ancien régime. The state was generally perceived to do just this, even when it acted forcefully and sharply. That the state could itself violate the constitution was a secondary consideration that the revolutionary generation hardly took seriously. When state action itself indeed sometimes

25 Beardsley (note 22 supra) 191-192. 26 Cf. Davis (note 24 supra) 49-51.

27 Édouard Lambert Le Gouvernement des Juges et la Lutte Contre La Législation Sociale Aux États-Unis (Paris : Éditions Dalloz, 2005) 220-236; Cf. also Beardsley 204 with reference to the 1921 Giard edition. 28 Raymond Carré de Malberg La Loi Expression de la Volonté Générale (Economica, Paris, 1984 reproduction of the original 1931 Receuil Sirey Edition) 103-39; Cf. also Beardsley 203 referring (inadvertently?) to a 1930 edition.

29 Ran Hirschl “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions” (2000) 25 Law & Social Inquiry 91-152

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occasioned the need for constitutional scrutiny, it was considered to be the result of state powers having been appropriated or misappropriated in a privatising fashion unworthy of the state. Leisner articulated these points as follows:

“Die französische Déclaration war nicht primär eine Reaktion gegen ‘den Staat’: sie richtet sich gegen gewisse Übergriffe der königlichen Exekutive, nicht gegen den Staat an sich, wie die gleichzeitige Verstärkung der staatsgesetzlichen Allmacht beweist. Ausgangspunkt war deshalb weniger die Infragestellung eines staatlichen Machtsanspruchs als solchen, sondern vielmehr die Reaktion gegen die Ausübung der Gewalt über Menschen in einer privatrechtsähnlichen, willkürlichen Weise…dessen sich das niedergehende Königtum mit manchen Polizeimethoden schuldigmachte. Auch die antistaatliche Reaktion war rechtlich nur ein ‘drittgerichter’, privatrechtlicher’ Kampf….Die ‘Gleichheit’ stand so sehr im Vordergrund, dass immer wieder mit Verwunderung festgestellt worden ist, dass die Eingriffe staatlicherseits später oft weit schärfer waren, aber ertragen wurden in der Erkenntnis, dass hier Staatsgewalt in staatswürdiger Weise ausgeübt wurde.”32

“The French Revolution was not primarily a reaction against the state: It was directed against abuses of the royal executive, not against the state itself, as the increase of state power at the time of the revolution shows. The point of departure was therefore less the questioning of state power as such, but much rather the reaction against the exercise of power over people in a private law-like, arbitrary fashion of which the outgoing monarchy made itself guilty, often relying on police methods. Also the reaction against the state was juridically speaking only a private law struggle against the state as a third party…. Equality was so much on the foreground that it was constantly recognised with amazement that although state intervention became much sharper as time passed, it was tolerated in the knowledge that state power was exercised here in a state worthy way.”

What emanates from this passage is a conception or idea of the state as the embodiment of freedom and equality, not the threat and obstacle to such freedom and equality. And with this inversion of Jellinek’s conception that constitutional review is primarily or exclusively aimed at reviewing state conduct, comes an inversion of another notion that we also find at the core of Jellinek’s scheme of law and in standard dogmatic taxonomies of law. Jellinek defined public law relations in terms of the vertical relations between public authorities and subordinated subjects (Unterworfene). Private law relations, on the other hand, consisted for him in terms of the horizontal relations between private individuals (Nebengeordenete). 33 Leisner communicates exactly the opposite view in the

passage above: public law relations are equal and horizontal, private law relations are hierarchical and vertical. Considered against this background, the invocation of the notion of horizontal application of fundamental rights to describe the impact of fundamental rights in the private sphere may thus well be fundamentally wrong and miscued, unless we actually mean by horizontal application the horizontalising application of fundamental rights in the private sphere.34

IV THE STATE AND CONTEMPORARY EUROPEAN CONSTITUTIONALISM Again, the points expounded above do not seek to prompt a response here to the question whether American judicial review or French non-judicial review constitutes the better approach to constitutionally questionable conduct. Empirical and historical examples of constitutionally questionable executive and legislative conduct unworthy of state action

32 Leisner (note 5 supra) 22.

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abound and surely raise the question whether an independent judiciary does not provide a superior channel through which the state can scrutinise the compatibility of empirical executive and legislative conduct with the idea of the constitutional state and thus with conduct worthy of the state. That this question has all along enjoyed cogent purchase also in France is attested by formidable legal theorists such as Thaller, Jalabert, Duguit and Hauriou.35 In fact, it is a poignant question whether the task of upholding the

constitutional sovereignty of European states and thus of safeguarding the constitutional duties of these states to guarantee the constitutional rights of their citizens has not indeed fallen today to state constitutional judiciaries. This question is posed here against the background of three remarkable recent European cases, the Viking and Rüffert cases decided by the European Court of Justice (ECJ) in 200736and 200837 and the Lisbon

decision of the GFCC in 2009.38

The Viking and Rüffert cases are two of the quartet of cases (the other two being the Laval39 and Luxembourg40 cases)in which the ECJ has made its neo-liberal jurisprudence

conclusively clear. Viking is a typical “horizontal application” case that turned on the conflict between the fundamental rights concerns of private parties. At stake on the one hand were the rights of Finnish fisherman established by a collective bargaining agreement secured by the Finnish Seaman’s Union in terms of Finnish Labour Law and the fundamental rights to collective bargaining warranted by the Finnish Constitution and the European Charter of Rights. At stake on the other hand was the Charter liberty in terms of Art 43 (freedom of movement/establishment) of the owner of a fishing vessel to re-register the vessel in Estonia so as to benefit from less burdensome Estonian labour agreements and regulations, on the other. Rüffert is a typical or classical “vertical application” case in which the ECJ reviewed the compatibility of legislation of Niedersachsen with Art. 49 (freedom to provide services) of the European Charter and Art. 3(1) of Directive 96/71 of the European Council.

The ECJ decided the conflict in Viking in favour of Viking, the owner of the fishing vessel. The ECJ nevertheless stressed that this subordination was not a matter of simply disregarding social considerations and objectives but of recognising that economic and social objectives are “co-original” in European law. In other words, at stake in the case was the proper “balancing” of social and economic concerns in the dispute and “harmonising” them, as Advocat General Kokott put the matter with regard to the Laval decision of the ECJ, the second in the quartet of cases that followed the reasoning and judgment in Viking.41 Some credulous commentators actually believe this rhetoric of 35 For the views of Duguit, Hauriou, Thaller and Jalabert, cf. the references in Beardsley 199.

36 EU: Case C-438/05 (hereafter Viking). 37 EU: Case C-346/06 (hereafter Rüffert).

38 BVerfGE 2 BvE 2/08 of 30.6.2009 (hereafter Lisbon). 39 EU: Case C-341/05 (hereafter Laval).

40 EU: Case C-319/06 (hereafter Luxembourg).

41 Juliane Kokott “The ECJ’s Interpretation of the Posting Directive in the Laval and Rüffert Judgements”

http://www.bmas.de/portal/27236/property=pdf/2008__07__16__symposium__eugh__kokott__englisch.pd f. To be fair to Kokott, she insists that this was a case specific instance of “balancing” and not a

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“balancing” and “harmonising” without much ado,42 but many have others have pointed

out the privileging of economic liberties (and the economic constitution of Europe) over fundamental social rights that is evident in this and related decisions of the ECJ.43 And

one can surely imagine that the owner of the fishing vessel and the Finnish fishermen that worked for him also entertained entirely different and contradictory views regarding this “balancing” and “harmonising” invoked here.

What is new, one might well ask. Winners and losers of court cases do not feel the same about the outcome of these cases and there is no reason for being overly precious about this, one might continue. Law is a matter of sacrifice, some stress,44 but few deny. This

cavalier response, however, becomes somewhat problematic under circumstances where the losers in a conflict become typical (the same concerns always lose out) and, moreover, no longer have any significant say as regards the law in terms of which they always lose. And it has become a pervasive observation that this is exactly what is afoot in Europe today. Not only has Viking in a short time been affirmed by not less than three other similar cases. A general perception is spreading that European Community law is depriving citizens of the member states their democratic participation in making the law, given the way law-making in the intransparent corridors of bureaucracy has come to subvert and displace the participation of citizens in sovereign domestic law-making.45

When one loses in the game of democratic law-making, one can at least to some debatable extent argue that one has taken part in it. When one constantly loses in a game constructed and played by unknown players, the context turns rather Kafkaesque.

In Rüffert this Kafkaesque scenario evident in Viking turned towards consuming the last rests of accountable “democratic reality” that one may have hoped for in the regulatory affairs of contemporary Europe. Dirk Rüffert, liquidator of the assets of the company

42 Sabel/Gerstenberg “Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order” 2010 16 European Law Journal 551.

43 Barnard “Employment Rights, Free Movement Under the EC Treaty and the Services Directive” Europa Institute Mitchell Working Paper Series 5/2008

http://www.law.ed.ac.uk/file_download/series/44_employmentrightsfreemovementundertheectreatyandthes ervicesdirective.pdf; Barnard “Social Dumping or Dumping Socialism? Case note on Laval and Rüffert” (2008) 67 Cambridge Law Journal 262; Joerges/Rödl “Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval” (2009) 15(1) European Law Journal 1ff; Rebhahn “Grundrechte und Grundfreiheiten im Kollektiven Arbeitsrecht vor dem Hintergrund der neuen EuGH Rechtsprechung” http://www.etui.org/en/Headline-issues/Viking-Laval-Rueffert-Luxembourg/2-Articles-in-academic-literature-on-the-judgments/(offset)/45; Scharpf “The Only Solution is to Refuse to Comply with the ECJ Rulings” http://www.boeckler.de/164_92433.html. Cf. also, poignantly, Emilios Christodoulidis “A Default Constitutionalism? Some Cautionary Remarks on the Many Constitutions of Europe” in Tuori/Sankari (eds) The Many Constitutions of Europe (Farnham: Ashgate, 2010).

44 Van der Walt Law and Sacrifice 1ff.

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Objekt und Bauregie, pursued a claim of Objekt und Bauregie against Niedersachsen for services rendered in the building of the GöttingenRosdorf prison. The Hannover Landgericht (Regional Court) offset the claim with a penalty incurred by Objekt und Bauregie for contravening Niedersachsen legislation. The legislation at issue, the Landesvergabegesetz, required contractors and subcontractors to comply with Niedersachsen social security regulation and collective bargaining agreements whenever they tender for building and public transport service contracts with Niedersachsen authorities. The preamble of the legislation stated expressly that the aim of the legislation was to avoid “distortions of competition which arise in the field of construction and local public transport services resulting from the use of cheap labour” and to alleviate “burdens on social security schemes”.46 On appeal to the Celle Oberlandesgericht (Higher

Regional Court), the latter Court referred the case to the ECJ for purposes of testing the compatibility of the legislation at issue with European law, notably Art 49 EC and Council Directive 96/71, Art 3(1).

The ECJ decided that the restriction of the legislative requirements to building and transport service agreements with Niedersachsen public authorities made it clear that the regulations did not apply “universally” to “all similar undertakings in the geographical area and in the profession or industry concerned” as defined by Art. 3 par 8 of Directive 96/71. As such the legislation fell foul of Art 3 par 4 of the Directive which requires Member States to guarantee workers from other Member States posted to their territories the terms and conditions of employment that are “universally applicable within the meaning of Art. 3 par 8”. Thus did the Niedersachsen legislator lose its right to determine the working and social security conditions of employees involved in contracts (or subcontracts) with Niedersachsen public authorities and thus did Dirk Rüffert vindicate the right of Objekt und Bauregie to sub-contract 53 Polish workers to build the GöttingenRosdorf prison in Niedersachsen at 46.7% of the minimum wage laid down by the “Building and Public Works Collective Agreement” in Niedersachsen.

In the time of globalisation and the increasing displacement of national public authorities by supra-national authorities with ever more indirect, ever vaguer and ever thinner public accountbility, non-recognition of the horizontal application of constitutional rights cannot but contribute to the general withering away of national Constitutions and national Constitutional rights, Frank Michelman argues.47 This is so, goes his argument, because

vertical application of fundamental rights will become the less significant the more legislative and executive powers of the state get marginalised by supra-statal governance. The Rüffert case shows us in the clearest terms what Michelman is getting at. Whether horizontal application might still act as a panacea in this regard, that is, act as a last resort for national Constitutions and the rights embodied in them, as Michelman’s argument implies (and as everyone concerned with the proscription of unconstitutional exercises of private power have argued for some years now48) has nevertheless become debatable if 46 Rüffert par 15.

47 Michelman “W(h)ither the Constitution?” (note 12 supra) 1081-1083.

48Consider the exemplary statement of this position by the South African Constitutional Justice Madala in

Du Plessis v De Klerk (1996) 5 BCLR 658 (CC) para 154/727H-J: “I agree that our Constitution has

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not downright doubtful in view of the Viking and Laval cases. These cases were horizontal application cases, but they too contributed to the circumvention of national constitutional rights.

It is against this background that one begins to appreciate the significance of the judgement of the GFCC in its Lisbon decision. The GFCC stated clearly in Lisbon that it would generally defer to European Community law on the basis of trust that the ECJ would generally safeguard the fundamental rights embodied in the German Constitution sufficiently. The GFCC nevertheless reserved for itself the right not to comply with European law in exceptional cases when this is the only way of averting violations of German Constitutional rights. This is a remarkable development that attests to a judiciary acting in the interests of state sovereignty and not against it. As such it introduces a new phenomenon (already anticipated by the GFCC’s Solange judgements49) that conforms

neither to the American limitation of state sovereignty by a constitutional judiciary, nor the traditional French rejection of the judicial review of democratic sovereignty. At issue in this development is nothing less than a judicial endorsement, through judicial review at that, of state sovereignty, but a state sovereignty aspiring to be worthy of the concept and idea of constitutional state sovereignty. As the GFCC put the matter in a number of key observations:

“Die europäischen Vereinigung auf der Grundlagung einer Vertragsunion souveränen Staaten darf allerdings nicht so verwirklicht werden, dass in den Mitgliedstaaten kein ausreichender Raum zur politischen Gestaltung der wirtschaftlichen, kulturellen und sozialen Lebensverhältnisse mehr bleibt. Dies gilt inbesondere für Sachbereiche, die die Lebensumstände der Bürger, vor allem ihren von den Grundrechten geschützten privatem Raum der Eigenverantwortung und der persönlichen und sozialen Sicherheit prägen, sowie für solche politische Entscheidungen, die in besonderer Weise auf kulturelle, historische und sprachliche Vorverständnisse angewiesen sind, und die sich im parteipolitisch und parlamentarisch organisierten Raum einer politischen Öffentlichkeit diskursiv entfalten.”50

“The unification of Europe on the basis of a contractual federation of sovereign states may surely not be realised in a way that deprives the member states of sufficient space for the political formation of economic, cultural and social relations. This applies especially to areas that determine the living conditions of citizens, especially their constitutionally protected private sphere of individual responsibility and social security, but also to political decisions that are especially dependent on cultural, historical and linguistic pre-understandings and which take form discursively in the party political and parliamentary based space of the political public sphere.”

The GFCC articulated a ringing promise with this statement, a promise that it would see to it, at least as far as its own jurisdiction is concerned, that the state remains a last resort for the constitutional review of all power, irrespective whether this power is wielded by private or public actors. In the same breath it left much doubt as to whether it is actually going to live up to this promise. Referring amongst others also specifically to the Laval and Viking cases, it commended the jurisprudence of the ECJ to be fundamentally in

African Constitution of 1993] also operate directly in the area of relations between private individuals. Those who would widen the scope of the operation of the Bill of rights hold the view that the verticality approach is unmindful of the modern day reality - that in many instances the abuse in the exercise of power is perpetrated less by the State and more by private individuals against other private individuals.”

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keeping with the social state principle of the German constitution,51 notwithstanding

having taken due notice of the academic criticism of these cases by Rebhan, Joerges and Rödl, amongst others.52 The ECJ’s Rüffert judgement (delivered 3 April 2008) may have

come too late to be taken into account in the Lisbon decision (delivered 30 June 2009). If not, one would have to assume that Lisbon just turned a blind eye to Rüffert for the time being. For it is hardly conceivable that the decision in Rüffert does not at least warrant incisive scrutiny in view of the sovereignty-protecting role the GFCC assumed in Lisbon. V. CONCLUSION

The reading of the Lisbon case expounded above affords us a remarkable opportunity to rehabilitate and rethink the idea of the state as the embodiment of the constitutional idea of public freedom and equality. This idea requires rehabilitation today as a result of the negative understanding of the state as the principal threat to constitutionalism that became dominant in the course of the twentieth century as a result of so many totalitarian and fascist abductions of the state. These abductions, however, should indeed be understood as abductions and not as instantiations or instances of the state. They should especially not be understood as excessively powerful instantiations of the state that were prone to abuse because of their excessive power. Chris Thornhill argues cogently that all the histories of twentieth century fascism can be analysed in terms of states that were too weak to uphold and safeguard a proper public sphere vis-à-vis the private sphere and for this reason were far too exposed to the designs and pursuits of private interests.53 Against

this background the pervasive substitution today of public authorities informed by the idea or concept of democratic accountability by semi-private modes of governance the public accountability of which becomes increasingly vague and thin, begins to attain a somewhat ominous dimension as far the idea and ideal of constitutional and democratic government is concerned.54

The argument that I have developed here surely evinces echoes of the Hegelian idea of the state as the embodiment of the ideals of the French revolution, of Kantian moral autonomy and thus of the Idea of universality or Allgemeinheit that keeps the all devouring conflict of particular and private interests in civil society at bay.55 Some may

also discern in this Hegelian or quasi-Hegelian argument an echo of Carl Schmitt’s concern with neutral commissionary dictatorial institutions (the imperial president, the Beamtentum or offices of civil service, the judiciary, the reserve or national bank and the national railway company) that safeguard the constitution and prevent the state from

51 Lisbon par 398.

52 For the references, cf. 43 above.

53 Cf. Thornhill “Towards a historical sociology of constitutional legitimacy” (2008) 37 Theory and Society 161, 188-195. In making this point I am also indebted to Thornhill for access to unpublished papers and the manuscript of his forthcoming book A Sociology of Constitutions (Cambridge, Cambridge University Press).

54 Cf. the poignant responses to this development in the contributions to Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (Oxford: Oxford University Press, 2006); Fabrizio

Cafaggi/Horatio Muir-Watt (eds) Making European Private Law (Edward Elgar 2008).

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falling prey to the factional interests of society.56 Both Hegel and Schmitt have for good

and bad reasons been linked to totalitarian conceptions of the state, but the elements of their thought that I have invoked here also evince a remarkable anticipation of key concepts that Claude Lefort would bring to bear on the concern with (post-politico-theological) democratic constitutionalism. For Hegel the universal (Allgemeinheit) was the negative concept that had no positive content but existed only in and through its negation of all factional particularity and determination.57 Schmitt, citing Constant,

described the power of the imperial president charged with safeguarding the state as a pouvoir neutre. The imperial president reigned and did not govern. He simply kept the state intact and did not pursue particular or personal political interests.58

Empirically the idea of the imperial president turned out to be disaster for it culminated historically in the absolute abduction of the state when Hitler took over the presidency from Hindenburg, united it with the chancellorship, and began to govern and reign simultaneously. Remarkably, Schmitt still seemed to endorse his earlier distinction between reigning and governing (auctoritas and potestas) in his 1933 analyses of the National Socialist State, but here he evidently was more intent on neutralising the imperial president so as to clear the field of government for the autocratic rule of the Führer and not on retaining the neutral power of the president as guarantor of the constitution.59

The Hegelian idea of the state as the embodiment of universality was not an empirical success either. On the one hand, it never got far until 1848 and soon after gave way to the restoration and renewed hegemony of the ancien régime of Prussia in Germany. And the short-lived moment of the Paulskirche constitution was as such more a reflection of the desire for German unification than it was with constitutionalism. On the other hand, it soon became increasingly accused of merely being a vehicle for the protection of class interests. Yet, the ideas of state Allgemeinheit and the socially neutral power of the state embodied in commissionary dictatorial institutions can also be read as early intimations of the empty space (lieu vide) of power that Lefort identified as the defining element of democracy.60 Schmitt’s Verfassungslehre would of course take leave of this empty or

emptied concept of the state and of constitutionalism and replace it with the existential concreteness of the pouvoir constituant, the fullness of which could imaginably only be surpassed still by the Bewegung.

The ideas or concepts of state universalism, public freedom, neutral power or the empty space of democratic power would appear to be, empirically speaking, the most precarious concerns constitutional and political theory can entertain. The paradox that Thornhill leaves us to ponder in this regard is this: The stronger the state, the greater are its chances to keep the space of power empty and the better are its chances to reign as a neutral power. The weaker it is, the more exposed it will be to factional replenishments eager to

56 Carl Schmitt Der Hüter der Verfassung (Berlin: Duncker & Humblot 1996) 149-159.

57 GWF Hegel Logik II, Werke in zwanzig Bänden 6 (Frankfurt a.M: Suhrkamp, 1969) 274-275. 58 Carl Schmitt Der Hüter der Verfassung 132-140.

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swamp its lieu vide, public space and pouvoir neutre with private interests.61 The ideas of

the state, neutral power, and the empty space of public freedom have proved to be historically precarious and empirically fragile, no doubt. But the future of constitutional democracy and the future of the Lisbon jurisprudence of the GFCC, may well turn on the extent to which we can hold on to them. It is also for this reason that we must take Leisner’s narrative regarding the horizontal application or Drittwirkung at the heart of all constitutional review seriously. The idea that all constitutional review concerns the Drittwirkung of constitutional rights goes hand in hand with the idea of the state that maintains the neutral power and empty space of constitutional democracy, the state that does not fill this space with any pursuits of its own. As Leisner put it:

“Weil ‘Werte’ aber nach der naturrecthlich-personalen Auffassung nur vom Menschen ausgehen können, verliert eine Freiheitsbetätigung ihre ‘Werthaftigkeit’ stets bei Kollision, nicht primär mit der staatlichen, sodern mit der ‘Wertsphäre’ anderer Individuen. Der Bedeutungswandel zur Werthaftigkeit führt also einerseits zu einer grundsätzlich-primären ‘Drittwirkung’ aller Freiheit, weil ein Zusammenstoß mit dem ‘Staat’, der seines ‘Selbstzwecks etkleidet ist, nur mehr eine Verletzung (vieler, mediatisierter) anderer persona-Werte ist.”62

“Because values can, from a natural law conception of the human person, derive only from human beings, an expression of liberty loses its value, not primarily when it collides with the state, but when it collides with the sphere of values of other individuals. This understanding of value therefore amounts, on the one hand, to the primary horizontal application of all freedom, given that a conflict with the state that is de-robed of any independent ends of its own, is only a conflict with or injury to the mediated values of many other personal values.”

To rephrase with reference to the passage from Stern’s Staatsrecht with which we began: Not only does Drittwirkung always involve the competition, conflict or mutual limitation between two fundamental rights and between two subjects of fundamental rights. All limitations of rights, also limitations imposed by the state, concern competition, conflict or mutual limitation between two fundamental rights and two subjects or two groups of subjects of fundamental rights. Against the background of the post-metaphysical insistence that all values have their origins in human evaluations, against the background of secular states that no longer pursue their own transcendent metaphysical or politico-theological ends, against the background, in other words, des selbstzweckentkleideten Staats, limitations of freedom are always limitations by third parties and the constitutional review of these limitations always a matter of Drittwirkung der Grundrechte. Hans Kelsen had exactly the same thought in mind when he insisted that that constitutional democracy is not concerned with truth, only with the maintenance of compromises between majorities and minorities.63 The importance of Kelsen’s thought in

this regard lies not only in the astoundingly simple way in which he resolves the paradox of constitutional democracy and the enigma of the co-originality of democracy and rights to which Habermas has paid extensive attention.64 Given that the concept of the majority,

as opposed to or in contrast with the sheer fact of mute overpowering force, depends on the concept of the minority for its meaning, the constitutional identification and protection of minorities also constitutes the constitutional protection of majorities. Kelsen

61 Cf. again Thornhill (note 53 supra).

62 Leisner Grundrechte und Privatrecht (note 5 supra) 144.

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saw clearly that there is no democracy-rights conflict at issue here but the necessary co-existence of both.

This thought is crucial for the understanding of horizontal application constitutional review that I have developed in this essay. If the intransparent ordo-liberal consensus in which Europe again appears to be shrouded today is ever to be dignified with the concept of a “democratic majority” and not to degenerate completely into some silent bureaucratic movement (Bewegung) that consumes all like Hegel’s civil society ([d]ie bürgerliche Gesellschaft is die ungeheure Macht, die den Menschen an sich reißt, von ihm fordert, daß er fur sie arbeite und daß er alles durch sie sei und vermittlest ihrer tue),65 constitutional review had better start identifying and come to the avail of real

dissent and real dissenting minorities. For this purpose constitutional review may well wish to avoid glib invocations of balancing and harmonising interests and constitutional scholarship may well wish not to embellish these facile invocations further with inane imputations of overlapping consensus.66 The understanding of constitutionalism and

constitutional review in terms of the active and acute judicial concern with the identification of dissenting minorities is indispensable for the understanding of the constitutional state as disrobed, as it were, of all substantive goals (der selbstzweckentkleidete Staat). The judicial identification of dissenting minorities is crucial for the understanding of the constitutional state as an empty public space (lieu vide). It is not enough to simply insist in this regard on a strong state that will actively maintain public space as an empty space that de jure belongs to everyone and no-one (Lefort), only to see this “evacuated public space” de facto occupied by non-statal elites and dominant private actors that in fact require exceedingly forceful state machinery to safeguard these “private” occupations of the “public”, however “minimal” this forceful machinery may have appeared to the likes of Nozick and Hayek. It is important to remember that the ordo-liberals, the prototypes of contemporary neo-liberals, were also fiercely in favour of a strong state.67

The only way of forcefully protecting the empty space of constitutional democracy against de facto occupations of spaces that are no longer maintained but simply evacuated by the state, is to constantly rely on the state to retain and re-open space for those sidelined by these de facto occupations of public space. This is what constitutionalism and the constitutional protection of minorities through judicial review are all about. Considered against the background of supra-statal or Großraum governance, this is no longer a simple matter of protecting electoral minorities against electoral majorities. In the context of supra-statal governance, the identification of electoral majorities and

65 Hegel Grundlinien der Philosophie des Rechts §238 Zusatz (386). For a penetrating discussion of Hegel’s view of the relation between the state and civil study, cf. Joachim Ritter’s ever poignant 1965 essay

Hegel und die französischen Revolution in Ritter Metaphysik und Politik (Frankfurt a.M, Suhrkamp, 2003)

183- 255).

66 Sabel/Gerstenberg (note 42 supra) 551 ff.

67 Joerges Europe A Großraum? Shifting Legal Conceptualisations of the Integration Project in Christian

Joerges/ Navraj Ghaleigh (eds) Darker Legacies of Law in Europe: The Shadow of National Socialism and

Fascism over Europe and its Legal Traditions (Oxford: Hart Publishing, 2003) 167-191; “Wurde Europa ein Großraum? Zäsuren, Kontinuitäten, Re-Konfigurationen in der rechtlichen Konzeptualisierung des Integrationsprojekts” in Jachtenfuch/Knodt (eds) Regieren in internationalen Institutionen. Festschrift

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minorities become increasingly complex and insignificant. This is clear from the Rüffert case (who votes for what in Niedersachsen does not seem to be all that significant after Rüffert) and well reflected in the constitutional complaints articulated in the Lisbon case (that electoral politics in Germany will generally be distorted by electoral majorities elsewhere in Europe that have neither quantitative nor qualitative claims to democratic sovereignty in Germany). Against this background, the identification of constitutionally relevant minorities (and majorities!) may well turn on the judicial identification of precarious and threatened constitutional interests. Judicial constructions in lieu of electoral identifications of “minorities” and “majorities” will of course remain irksome to die hard exponents of popular sovereignty. But then, one also learns from Kelsen that electoral minorities and majorities are themselves legal fictions and therefore ultimately and potentially judicial constructions.68 Unless law is bid farewell and recourse is taken,

say, to civil war, electoral disputes will ultimately also be resolved and decided by constitutional judiciaries with reference to constructive rules that concern much more than mere head counts.69

Thus do judges construct political majorities and minorities when electoral processes run into trouble. They also do so every time they move to safeguard a constitutional right against legislating majorities and against dominant social powers represented by common law or private law judiciaries. When the latter happens, they identify a minority by virtue of identifying a politically precarious constitutional concern and by protecting it at the cost of a constitutional concern that they deem less precarious. The Viking, Ruffert and Lisbon cases show that supra-statal and statal judiciaries may well come to have different views as to who or what constitutes the relevant minority and majority in a particular case. When this happens, a national or statal constitutional judiciary may well come to protect its own electoral majority, its own embodiment of popular sovereignty, as the relevant minority. And thus can constitutional review and horizontal constitutional review, considered in terms of the familiar old state action doctrine or the duty of the state to protect the rights of its citizens, come to the rescue of state sovereignty in a strikingly new way. But as Kelsen shows us well, they also do so when they protect their own national minorities against their national majorities, because by doing so, they construct a constitutional democratic majority out of a mere electoral majority which otherwise may well turn out to be, as history has surely shown Kelsen, nothing but a delirious and blind social force. This is so because there is no such thing as a constitutional majority without a constitutional minority. And all of this, I wish to argue, can be inferred from thorough reflection on Stern’s simple observation that the horizontal application of fundamental rights concerns, constitutionally speaking, a clash between two fundamental rights.

68 Kelsen (note 63 supra) 31-32.

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