Rethinking the rise of the German Constitutional Court: From anti-Nazism to value formalism

The German Constitutional Court, we often hear, draws its strength from the reaction to the German Nazi past: the Nazis abused rights and had been elected by the, the argument runs, it was necessary to create a strong to guard these rights in the future. This contribution in two steps. First, it sets out to show that this “Nazi ” provides an inadequate explanation for the Court’s and rise. The German framers did not envisage a strong, -protecting, counter-majoritarian court. Even where the Nazi does find some application during the transitional 1950s 1960s, its role is more complicated and limited than its assume. In the second part, this paper offers an way of making sense of the German Court’s rise to. Against a comparative background, I argue that the German ’s success is best understood as a combination between a (weak) version of transformative constitutionalism and a legal culture with a strong emphasis on a scientific of law and expertise. The Court could tap into the of legitimacy available in this culture by formalizing its transformative decisions, producing its own particular style, ‘Value Formalism’. Value Formalism, however, comes with costs, notably an interpretive monopoly of lawyers shutting out voices from constitutional interpretation.