Unconstitutional and Outlawed Political Parties: A German-American Comparison
![handle is hein.journals/bcic5 and id is 57 raw text is: Unconstitutional and Outlawed Political Parties:
A German*-American Comparison
by Paul Franz**
I. INTRODUCTION
The West German Constitution includes a provision' that allows that country's
highest constitutional court2 to declare political parties unconstitutional and to
order them dissolved.3 To an American, such a provision may seem harsh if not
drastic. A comparison of the decisions of the German Federal Constitutional
Court under this provision with contemporaneous decisions of the United States
Supreme Court dealing with political parties belies that first impression. The
conclusion reached from this comparison is that, whatever one might think of
the wisdom of this constitutional provision, the German court has been more
honest, as well as more activist, in its treatment of political parties than has the
American Court.
This article will outline how two democratic constitutional systems have tried
to remain open to historical change while preserving an existing order that
ideally is the product of popular choice.4 Since this is a constitutional dilemma,
this article will focus on the decisions of the authoritative interpreters of the two
* (Editor's note: unless otherwise noted, all quotations from German-language sources are the
author's).
** B.A., U. of Cincinnati; J.D., U.C.L.A. Mr. Franz is currently a law clerk for the Honorable John
W. Peck, Senior Circuit Judge, U.S. Court of Appeals for the Sixth Circuit; Judge, Temporary Emer-
gency Court of Appeals.
1. For a discussion of the legal effect of the document entitled the Basic Law of the Federal Republic
of Germany (Grundgesetz), see note 10 and accompanying text infra.
2. GRUNDGESEZr [GG] art. 21 (W. Ger.). For the text of this article, see text accompanying notes 19-20
infra. For a brief description of the Constitutional Court, see notes 11- 18 and accompanying text infra.
3. GG art. 21(2).
4. Commentators in both systems have noted this constitutional dilemma. See, e.g., 3 KOMMENTAR ZUIM
BONNER GRUNDOESTZ 32 (1976). The contradictory principles of openness of the political order to
historical change and preservation of this same order can be reconciled only through practical political
reason, through careful progress and through piecemeal change, which preserves the continuous
existence of the whole.Id. See also Tribe, Toward a Metatheosy of Free Speech, 10 Sw. U. L. REV. 237(1978)
[hereinafter cited as Tribe, Metatheory].
It should be clear that no satisfactory theory of free speech can presuppose or guarantee the
permanent existence of any particular social system. For ekample, a free speech theory must
permit evolution from a society built on the ideals of liberal individualism to a society aspiring
to more communitarian visions -just as it must permit evolution from communitarianism to
individualism.
Id. at 239.](ViewImageLocal?handle=hein.journals/bcic5&div=7&collection=journals&method=preview&ext=.png&size=3)
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Unconstitutional and Outlawed Political Parties: A German-American Comparison
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