This chapter explores the German Constitutional Court’s engagement with the memory of Nazism in the first quarter century of the Court’s operation. The chapter shows how the Court came to identify itself, internally and externally, as an overtly anti-Nazi institution. It highlights how the Court construed the postwar German Basic Law as a fundamentally anti-Nazi document and the basis of an anti-Nazi state. The most dramatic case in this regard is the Court’s Civil Servants judgment of 1953, which is discussed at length. The chapter also explores the mnemonic backdrop to the Court’s landmark fundamental rights judgments of the late-1950s. The chapter concludes by discussing the Court’s 1975 abortion judgment, which controversially invoked the memory of Nazism to explain why the right to life had a different valence in Germany than in other democratic states, and why the German Constitution accordingly required the state to protect unborn life throughout the duration of pregnancy.
This chapter highlights how the Constitutional Court of South Africa has engaged with the memory of apartheid since 2005. It shows how many of the patterns of earlier years persisted—aggressive invocations of apartheid in cases of criminal law or criminal procedure, or when the political stakes were low, but more reticence when confronting the government or applying socio-economic rights provisions. But there was a definite sea change as the Court increasingly confronted the clientelism, cronyism, and corruption that had become endemic to uninterrupted single-party rule. In 2016, the Court dramatically invoked the memory of apartheid to underwrite its decision requiring President Jacob Zuma and his abettors to repay the millions spent from the public treasury on a “security upgrade” to the president’s private residence in Nkandla. The chapter concludes by noting the problematic relationship between constitutional justice and collective memory, and describing how the Court, although it recognizes the problem, nonetheless remains committed to adjudicating in the present by the light of the past.
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