The Justicization of Politics: Constitutionalism and Democracy in Germany after 1949

Abstract

By engaging with the historiography of German constitutionalism after 1949, this article reconstructs a profound change of the meaning of the concept of constitution. The constitution evolved from a rather formal and provisional instrument of government to the just value order of politics, which scholars worldwide have celebrated as the value model of constitutionalism. The article critically examines the democratic consequences of this justicization of politics and disentangles the relationship between law and politics within German constitutional thinking by tracing its traditions and transformations back to scholarly debates and early Constitutional Court's landmark decisions.