The Curious Life of the Grundgesetz in America
Symposium in Honor of Donald P. Kommers
In the mid-1970s Donald Kommers published his book Judicial Politics in West Germany: A Study of the Federal Constitutional Court. It was a path-breaking work that pointed American legal scholars to the possibilities of comparative constitutional law, a field that was still-nascent at the time. It also was a revelation for German jurists who were unaccustomed to viewing their Court from the perspectives opened up by Kommers’ expertly deployed political science methodology. The strong interest stirred by Judicial Politics inspired the publication, more than a decade later, of Kommers’ treatise The Constitutional Jurisprudence of the Federal Republic of Germany. This book’s insightful commentary, illustrated by scores of translated excerpts of the Constitutional Court’s decisions, was a milestone in comparative law. It was a nearly-comprehensive survey of its subject written with a deep awareness of German constitutionalism’s socio-political roots.
In the years that followed, which saw the publication of an updated and revised edition of Constitutional Jurisprudence, something curious occurred. Thanks almost exclusively to Kommers’ work, German constitutional law achieved a remarkable degree of familiarity and currency among American constitutional lawyers. Succeeding generations of American legal scholars took up the German Basic Law and the Constitutional Court as the subject of their work. Yet, all of this engagement with German constitutionalism was carried out from a distinctly American perspective and was framed by distinctly American approaches to constitutional law and legal scholarship. These efforts recast the Basic Law in ways not altogether familiar to German Staatsrechtslehrer. Indeed, the “Americanization” of the Basic Law might be said to have begun with Kommers, whose treatise, in structure, content and style, more closely resembled an American constitutional law casebook than a traditional German commentary on the Basic Law.
This comparative constitutional appropriation does not easily align with the discipline’s usual theories, which involve functional assessment, transplantation, dialogue or migration. But it invites the kind of self-reflection—the distancing and differencing—urged on comparitists by the field’s prominent critics. What truths about ourselves might American comparative constitutional law scholars discover through a reflection on our uses of the Basic Law? This invitation-only symposium, which runs from Friday, October 26 through Sunday, October 28, recognizes Professor Kommers on his 80th birthday and coincides with the publication of the third edition of his treatise, will explore this question. -- Russell A. Miller
In cooperation with ‘Recht im Kontext,’ Wissenschaftskolleg zu Berlin