1 Kokott, Juliane, From Reception and Transplantation to Convergence of Constitutional Models in the Age of Globalization-With Particular Reference to the German Basic Law, in Constitutionalism, Universalism, and Democracy-A Comparative Analysis 71–134 (Christian Starck ed., 1999).Google Scholar

2 See, e.g., Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 161 (1997); Markus Dubber, 40 Am. J. Legal Hist. 107 (1996) (reviewing David P. Currie, The Constitution of the Federal Republic of Germany (1994)); Peter Quint, What is a Twentieth-Century Constitution? 67 MD. L. Rev. 238 (2007); Ackerman, Bruce, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000).Google Scholar

3 See Kokott, , supra note 1, at 71.Google Scholar

4 See, generally, Kommers, Donald, Germany: Balancing Rights and Duties, in Interpreting Constitutions: A Comparative Study 161–214 (Jeffrey Goldsworthy ed., 2006,); Edward Eberle, Dignity and Liberty: Constitutional Visions in Germany and the United States 29 (2002); Quint, Peter, “The Most Extraordinarily Powerful Court Of Law The World Has Ever Known”?–Judicial Review In The United States And Germany, 65 MD. L. Rev. 152 (2007). On civil liberties generally, see Boyne, Shawn, The Future of Liberal Democracies in a Time of Terror: A Comparison on the Impact on Civil Liberties in the Federal Republic of Germany and the United States, 11 Tulsa J. Int'l. & Comp. L. 111 (2003). On privacy, see Eberle, Edward, Human Dignity, Privacy, and Personality in German and American Constitutional Law, 1997 Utah L. Rev. 963 (1997). On freedom of expression, see Krotoszynski, Ronald, A Comparative Perspective on the First Amendment: Free Speech, Militant Democracy, and the Primacy of Dignity as a Preferred Constitutional Value in Germany, 78 Tul. L. Rev. 1549 (2004). On free exercise, see Kahn, Robert, The Headscarf as Threat: A Comparison of U.S. and German Legal Discourses, 40 Vand. J. Transnat'l L. 417 (2007). On tort law, see Rösler, Hannes, Dignitarian Posthumous Personality Rights – An Analysis of U.S. and German Constitutional and Tort Law, 26 Berkeley J. Int'l L. 153 (2008). On abortion, see Kommers, Donald, The Constitutional Law of Abortion in Germany: Should Americans Pay Attention?, 10 Cont. J. Health L. & Pol'y 1 (1993). On the exclusionary rule, See Kuk, Cho, “Procedural Weakness” of German Criminal Justice and Its Unique Exclusionary Rules Based on the Right of Personality, 15 Temp. Int'l & Comp. L.J. 1 (2001). On property, see Alexander, Gregory S., Property as a Fundamental Constitutional Right? The German Example, 88 Cornell L. Rev. 733 (2003). On consular rights, see Hoppe, Carsten, Implementation of Lagrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights, 18 Eur J. Int'l L. 317 (2007).Google Scholar

5 See, e.g., Gutmann, Amy, Preface, in Antonin Scalia, A Matter of Interpretation (1997); Fernando Atria and D. Neil MacCormick, Introduction, in Law and Legal Interpretation (2003).Google Scholar

6 Indeed, Dworkin himself has stated that “interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong.” See Ronald Dworkin, Law's Empire 226 (1986).Google Scholar

7 Constitutional provisions relating to the freedom of expression include Article 5 (“(1) Everyone shall have the right to freely express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship. (2) These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth, and by the right to inviolability of personal honor. (3) Arts and science, research and teaching shall not absolve from loyalty to the Constitution”) and Article 18. See Grundgesetz [GG] [Basic Law or Constitution] art. 5 and 18.Google Scholar

8 See, e.g, Cohen, Marshall, He'd Rather Have Rights, The New York Review of Books (1977) (reviewing Ronald Dworkin, Taking Rights Seriously (1977)); Associated Press, American Ronald Dworkin Wins Norway's Holberg Prize for Theory of Morality in Law, Int'l Herald Tribune, Sept. 18, 2007; Arthur Ripstein, Ronald Dworkin (2007).Google Scholar

9 See Ronald Dworkin, Taking Rights Seriously Chapters I-IV (2002) (1977).Google Scholar

10 Id. at 22.Google Scholar

11 H.L.A. Hart, The Concept of Law (1994) (1961).Google Scholar

12 John Austin, The Province of Jurisprudence (1998).Google Scholar

13 Hans Kelsen, A Pure Theory of Law (1997).Google Scholar

14 Dworkin, supra note 9, at xi-xii.Google Scholar

15 Hart, supra note 11, at 103; Joseph Raz, The Authority of Law 146 (1979).Google Scholar

16 Hart, supra note 11, at 103.Google Scholar

17 Id. at Chapter V.Google Scholar

18 Dworkin, supra note 9, at xi.Google Scholar

19 See id. at 7 (“[The positivists] ignored the crucial fact that jurisprudential issues are at their core issues of moral principle, not legal fact or strategy.”).Google Scholar

20 Id. at 28.Google Scholar

21 Hart, supra note 11, 121–32.Google Scholar

22 Dworkin, supra note 9, at 22.Google Scholar

23 Id. Google Scholar

24 Ronald Dworkin is by no means the origin of the notion that rights flow from moral principles in German jurisprudential thought. From the Weimar period, see Rudolph Smend, Constitution and Constitutional Law (1928). See also Peter Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law 142 (1997).Google Scholar

25 Dworkin, supra note 9, at 105–10.Google Scholar

26 Id. at 22.Google Scholar

27 The origins of the morality of rights, and how that morality might be derived, are explored in further detail below. For now it is simply important to note that FCC jurisprudence, by its terms, does not appear to accept the positivist claim that law is value-neutral.Google Scholar

28 Dworkin, supra note 9, at 48.Google Scholar

29 Hart, supra note 11.Google Scholar

30 Caroline von Monaco II, BverfGE 101, 361 (1999).Google Scholar

31 Dworkin, supra note 9, at 27.Google Scholar

32 Article 20 states:

The Federal Republic of Germany is a democratic and social federal state. (2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies. (3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. (4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available. Grundgesetz [GG] [Basic Law or Constitution] art. 20.Google Scholar

33 See Eberle supra note 4, at 19 (“Thus, we can conceive of the Basic law as a value-oriented constitution that obligates the state to realize a set of objectively ordered principles, rooted in justice and equality, that are designed to restore the centrality of humanity to the social order and thereby secure a stable democratic society on this basis. These values are not to be sacrificed for the exigencies of the day, as they had been during the Nazi time. Thus the Basic law provides a new avenue of substantive moral vision to check human passion and self-interest.”).Google Scholar

34 Kommers, supra note 2, at 1 (“German Constitution makers gave up the old positivist idea that law and morality are separate domains. Constitutional morality would not govern both law and politics.”). Compare Robert Alexy, who says that the only moral content of the basic values is that they are to be optimized (as enacted by the positive law), and so are values in a non-axiological sense. See Robert Alexy, A Theory of Constitutional Rights 67 (2002).Google Scholar

35 Abortion I, BVerfGE 39, 1 (1975).Google Scholar

36 Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

37 Mephisto, BVerfGE 30, 173 (1971) (translation from Kommers, supra note 2, at 302).Google Scholar

38 Kommers, supra note 2, at 1.Google Scholar

39 This decision to leave pure positivism behind was evident from the initial drafts of the Basic Law, the first article of which read, “The dignity of man is founded upon eternal rights with which every person is endowed by nature.” Id. at 301.Google Scholar

40 Alexy calls these “deontic statements” because they express what should be. However, Alexy's theory differs from Dworkin's in that Alexy's does not presuppose moral content to such statements. See Alexy, supra note 34, Chapter II.Google Scholar

41 Kommers, supra note 2, at 96–98.Google Scholar

42 Dworkin, supra note 9, at 107–09.Google Scholar

43 See id. at 108.Google Scholar

44 Lebach, BVerfGE 35, 202 (1973) (translation from Kommers, supra note 2, at 417).Google Scholar

45 Id. Google Scholar

46 Id. at 418–19 (“The decisive criterion is whether the report in question is likely to inflict upon the criminal new or additional harm compared with information that is already available”; “The criminal's vital interest in being reintegrated into society and the interest of the community in restoring him to his social position must generally have precedence over the public's interest in a further discussion of the crime.”).Google Scholar

47 Id. at 418 (“On the other hand weighty considerations suggest that the public should be fully informed of the commission of crimes, including the identity of the accused and the events which led to the act.”).Google Scholar

48 Infra, Section D.Google Scholar

49 In particular, the communitarian principle of Sozialstaat (the social state), explicitly mentioned in Article 20 of the Basic Law, colored the Court's opinion. See Eberle, , Human Dignity, Privacy, and Personality in German and American Constitutional Law, supra note 4 at 1021.Google Scholar

50 Dworkin, supra note 9, at 94–96. See also Smend, supra note 24.Google Scholar

51 Put differently, a property owner has a “right to exclude” others from the use and enjoyment of his or her property. See Harold Demsetz, Toward a Theory of Property Rights, in Property 35 (Jesse Dukeminier ed., 2006).Google Scholar

52 In practice, the role of principles is undoubtedly more important in civil litigation under the common law than under the civil law. Common law judges who must interpret judicial practice over time are more likely to find principles on which to base their decisions than civil law judges who must interpret statutes which are often written with precision. See Kommers, , supra note 2, at 207; Cappalli, Richard, At the Point of Decision: The Common Law's Advantage Over The Civil Law, 12 Temp Int'l & Comp. L.J. 87, 90 (1998).Google Scholar

53 See, e.g., Dworkin, supra note 9, at Chapter 5; Chemeinsky, Erwin, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B. U. L. Rev. 1069, 1071 (2006).Google Scholar

54 The complications posed by the horizontal application of the German Basic Law are not so serious as they might at first seem, as discussed infra this section.Google Scholar

55 See Dworkin, supra, note 9, at 90 (emphasizing that while individuals have “rights” governments have “goals”) and Dworkin, supra, note 9, at 100 (applying these concepts to criminal cases).Google Scholar

56 Id. at 84–85.Google Scholar

57 Id. at 191.Google Scholar

58 Id. at 188.Google Scholar

59 Id. at 92 (“Suppose for example some man says he recognizes the right of free speech, but adds that free speech must yield whenever its exercise would inconvenience the public. He means, I take it, that he recognizes the pervasive goal of collective welfare, and only such distribution of liberty of speech as that collective goal recommends in particular circumstances. His political position is exhausted by the collective goal; the putative right adds nothing and there is no point in recognizing it as a right at all.”).Google Scholar

60 Kokott, , supra note 1, at 92.Google Scholar

61 Buchanan, G. Sidney, Note, A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility, 34 Hous. L. Rev. 333 (1997).Google Scholar

62 Note, also, that Dworkin agrees that it would be contradictory for a constitution to prohibit censorship by the government but then allow private citizens to physically prevent others from speaking. See Ronald Dworkin, Two Concepts of Liberty, in Law and Morality: Readings in Legal Philosophy 887, 895 (David Drysenhaus and Arthur Ripstein eds., 2001).Google Scholar

63 See Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

64 Id. Google Scholar

65 Id. Google Scholar

66 Schmid-Spiegel, BVerfGE 12, 113 (1961) (translation from Kommers, supra note 2, at 370).Google Scholar

67 See Grundgesetz [GG] [Basic Law or Constitution] art. 5.Google Scholar

68 Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

69 See Dworkin, supra note 9, at 85.Google Scholar

70 Although Dworkin does not describe the situation of horizontal application of the constitution, he does argue that rights may be limited by each other. See Dworkin, supra note 9, at 200.Google Scholar

71 Lebach, BVerfGE 35, 202 (1973) (translation from Kommers, supra note 2, at 417).Google Scholar

72 Id. Google Scholar

73 Id. at 231.Google Scholar

74 Id. at 234.Google Scholar

75 Id. at 233, 235.Google Scholar

76 Id. at 208–09.Google Scholar

77 Dworkin, supra note 9, at 194.Google Scholar

78 Dworkin, supra note 6.Google Scholar

79 Id. Chapters 4 and 5.Google Scholar

80 Id. at 226.Google Scholar

81 Id. at 228.Google Scholar

82 Id. Google Scholar

83 Id. Google Scholar

84 Id. at 227.Google Scholar

85 Dworkin, supra note 9, at 126.Google Scholar

86 At least not directly. However, government may play an important role in the discourse of morality.Google Scholar

87 Dworkin, supra note 9, at 40.Google Scholar

88 Id. Google Scholar

89 Constructive interpretation is not new to Germany. Pieces of it were evident in the early 19^th century in the work of the German philosopher Friedrich Carl von Savigny, who declared that each “people” had its own individual character or national soul. See J.M. Kelly, A Short History of Western Legal Theory (1992).Google Scholar

90 Dworkin, supra note 9 at 40.Google Scholar

91 Id. Google Scholar

92 Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

93 Kommers, supra note 2, at 377–78.Google Scholar

94 See also Eskridge, William, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1505 (1987).Google Scholar

95 See Dworkin, supra note 9, at 272.Google Scholar

96 See id. (I presume that we all accept the following postulates of political morality. Government must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived. Government must not only treat people with concern and respect, but with equal concern and respect. It must not distribute goods or opportunities unequally on the ground that some citizens are entitled to more because they are worthy of more concern.”). However, these postulates are not immediately clear from the text and original intent of the U.S. Constitution. For further analysis, see, e.g., Sanford Levinson, Hercules, Abraham Lincoln, the United States Constitution, and the Problem of Slavery, in Ronald Dworkin 136–168 (Arthur Ripstein ed., 2007).Google Scholar

97 Though space constraints prohibit such a discussion here, it is important to note that Dworkin's theory of interpretation takes into the account that mistakes, sometimes very large ones (such as slavery) will be made; it is the judge's duty to find these mistakes and keep a society consistent in its values. See Dworkin supra note 9, at 118–123; Levinson, , supra note 96.Google Scholar

98 See, e.g., Thomas, Kendall, The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the U.S.A., 5 Colum. J. Eur. L. 329 (1999).Google Scholar

99 See Eberle, supra note 4 at 19.Google Scholar

100 See Bollinger, Grutter v., 539 U.S. 306 (2003) (in upholding affirmative action in state-supported universities the Supreme Court stated “Context matters when reviewing race-based governmental action under the Equal Protection Clause.”).Google Scholar

101 See Minsker, Natasha L., “I Have a Dream-Never Forget”: When Rhetoric Becomes Law, a Comparison of Race in Germany and the United States, 14 Harv. Black Letter L.J. 113 (1998).Google Scholar

102 See Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, supra note 4, at 967 (“Seeking distance from the horrors of Naziism, the Basic Law made a sharp break from this immediate past, instead drawing deeply upon German tradition to found the legal order on moral and rational idealism, particularly that of Kant.”).Google Scholar

103 Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

104 Soraya, Princess, BVerfGE 34, 269 (1973). The social norms to which the Court was referring were captured by the term “good morals” found in Article 826 of the Civil Code.Google Scholar

105 Id. (emphasis supplied).Google Scholar

106 See Krotoszynski, , supra note 4, at 1589.Google Scholar

107 The Holocaust Denial, BVerfGE 90, 241 (translation from Kommers, supra note 2, at 382).Google Scholar

108 Id. (quoting the Federal Court of Justice).Google Scholar

109 Supra, section D(II). See supra note 99.Google Scholar

110 Dworkin, supra note 9, at 198.Google Scholar

111 Id. at 198.Google Scholar

112 Ronald Dworkin, Life's Dominion 236 (1993).Google Scholar

113 Id. Google Scholar

114 Eberle, , Human Dignity, Privacy, and Personality in German and American Constitutional Law, supra note 4 at 975.Google Scholar

115 These different outcomes are the result of differing political moralities which will provide different substantive definitions of human dignity depending upon the political community in which they operate. See Dworkin, supra note 112, at 236–37.Google Scholar

116 Sabine Michalowski and Lorna Woods, German Constitutional Law: The Protection of Civil Liberties 99 (1999).Google Scholar

117 Id. See also Life Imprisonment, BVerfGE 45, 187 (1977) (“[E]ach person must always be an end in himself.”) (translation from Kommers, supra note 2, at 305). Dworkin also defines dignity such that it exists independent of desert, social condition, or the individual's assertion of it. See Dworkin, supra note 112, at 238 (“Dignity … means respecting the inherent value of our own lives.”).Google Scholar

118 Horror Film, BVerfGE 87, 209 (228) (1992).Google Scholar

119 Dworkin, supra note 9, at 200.Google Scholar

120 See Princess Soraya, BVerfGE 34, 269 (1973).Google Scholar

121 The Holocaust Denial, BVerfGE 90, 241 (translation from Kommers, supra note 2, at 382).Google Scholar

122 Id. Google Scholar

123 See supra, Section C(III).Google Scholar

124 Dworkin, supra note 9, at 200–01.Google Scholar

125 Here, an important distinction can be discerned between Dworkin's concept of “grave harm” and the sort of collective justification that the FCC employs to override strong rights. Germany's heightened sense of communitarianism, as opposed to U.S. individualism, creates a lower threshold for the restriction of strong rights. See Kommers, supra note 2, at 32 (citing the communal guarantees of the Basic Law); Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, supra note 4 at 973–74.Google Scholar

126 Kommers, supra note 2, at 165.Google Scholar

127 Krotoszynski, , supra note 4, at 1590. See also George P. Fletcher, Human Dignity as a Constitutional Value, 22 U.W. Ont. L. Rev. 171, 178–79 (1984).Google Scholar

128 Grundgesetz [GG] [Basic Law or Constitution] art. 9.Google Scholar

129 Socialist Reich Party Ban, BVerfGE 2, 1 (translation from Kommers, supra note 2, at 218). See also Krotoszynski, supra note 4, at 1591.Google Scholar

130 Dworkin, supra note 9, at 365 (“But many rights are universal, because arguments are available in favor of these rights against any collective justification in any circumstances reasonably likely to be found in political society. It is these that might plausibly be called human rights.”) (emphasis supplied).Google Scholar

131 See, e.g., Microcensus, BVerfGE 27, 1 (1969); Life Imprisonment, BVerfGE 45, 187 (1977).Google Scholar

132 See, e.g., Religious Oaths, BVerfGE 33, 23 (1972) (translation from Kommers, supra note 2, at 455 (“Nonetheless, the complainant's overriding fundamental right to refuse to take an oath according to his understanding of his faith and his right not to be forced indirectly by means of a penalty to commit an act contrary to his understanding, is not subject to any limitation derived from the value system of the Basic Law itself.“) (emphasis supplied).Google Scholar

133 See also Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, supra note 4 at 997.Google Scholar

134 Article 5(3) allows the right to free expression to be limited by interests in the protection of youth, and personal honor. Article 18 allows expression to be limited when used to combat the basic democratic order. See Grundgesetz [GG] [Basic Law or Constitution] arts. 5, 18.Google Scholar

135 Tucholsky, I, Bundesverfassungsgericht [BVerfG – Federal Constitutional Court], 21 EuGRZ 463–465 (1994) (translation from Kommers, supra note 2, at 388); Tucholsky II, BVerfGE 93, 226 (1995) (translation from Kommers, supra note 2, at 393).Google Scholar

136 Id. Google Scholar

137 Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363).Google Scholar

138 Alexy, supra note 34, at 353.Google Scholar

139 Id. Google Scholar

140 See the Lüth judgment, in which the FCC refers to the objective order of values as “ranked.” Lüth, BVerfGE 7, 198 (1958) (translation from Kommers, supra note 2, at 363). See also Alexy, supra note 34, at 93. Alexy proposes that this problem be solved by giving the basic values “prima facie” preference, such that certain values would always be ahead of competing values unless a competing value was so affected that it should take precedence. See Robert Alexy, Sistema Jurídico, Principios Jurídicos, y Razón Práctica, IV Jornadas Internacionales de Lógica e Información Jurídicas 139, 147 (1988), available at http://www.cervantesvirtual.com/servlet/FichaTituloSerieDeObra?id=327&portal=0.Google Scholar

141 Alexy, supra note 34, at 93 (citing Lüth).Google Scholar

142 Id. Google Scholar

143 Id. at 98–104.Google Scholar

144 Id. at 93.Google Scholar

145 Id. at 100–110.Google Scholar

146 Kommers, , supra note 2, at 180, fn 70.Google Scholar

147 Dworkin, , supra note 9, at 279. Also, see generally Chapter XIII.Google Scholar

148 Id. (rejecting the notion that there is “a set of answers and arguments that must be acknowledged to be from any objective or neutral standpoint, equally good.”).Google Scholar

149 Dworkin, , supra note 9 at 280.Google Scholar

150 Id. at 281–82.Google Scholar

151 Alexy, , supra note 34, at 100–101.Google Scholar

152 See, e.g., Lebach, BVerfGE 35, 202 (1973) (translation from Kommers, supra note 2, at 417); Tucholsky I, Bundesverfassungsgericht [BVerfG – Federal Constitutional Court], 21 EuGRZ 463–465 (1994) (translation from Kommers, supra note 2, at 388); Tucholsky II, BVerfGE 93, 226 (1995) (translation from Kommers, supra note 2, at 393).Google Scholar

153 See Dworkin, , supra note 9, at 284–85, 332.Google Scholar

154 See id. at 290 (“The ‘myth’ that there is one right answer in a hard case is both recalcitrant and successful. Its recalcitrance and success count as arguments that it is no myth.”). Alexy asserts that when the objective order of values is conceived as “soft” (unranked) and not “hard” (ranked) the “tyranny of values” disappears, because there is room for factual contexts to shape decisions. Therefore, the threat that an “objective order of values” might have otherwise posed is “destroyed.” See Robert Alexy, A Theory of Legal Argumentation 98–99 (2002).Google Scholar