Largely because of the success of the Court in winning public support for the liberal democratic order enshrined in the Basic Law, there was virtually no demand from the political leaders or people in either the East or the West to call a constituent assembly. For all practical purposes, the Basic Law (GRUNDGESETZ) had come to be a Constitution (VERFASSUNG), and the Constitution had come to be embodied in the interpretations of the Constitutional Court. Of all the organs of the federal government, including chancellor, cabinet, president, parliament and political parties, the Constitutional Court had earned the highest level of public trust. The German Constitutional Court is the most successful of the new judicial institutions established during the U. S. occupation of Germany, Austria, Italy and Japan to exercise judicial review over acts of the legislative and executive branches of government. The Court is the paramount organ of the German political system–exercising final authority over the acts and omissions of the federal government, federal parliament and the states–and, as such, deserves the close attention of students of German politics in particular and comparative politics in general.

The book is both a political science analysis of the role of the Constitutional Court in German politics and a casebook analogous to those used to teach American constitutional law to law students. Kommers has selected and abridged the Court’s most significant judgments. The abridgments average three pages in length and are supplemented by dozens of half-page "notes" summarizing less important decisions.

The author followed the plan of organization informing most U. S. constitutional law casebooks. Part One, which summarizes the principles of German constitutionalism, is followed by a part on national powers and federalism, and the book concludes with Part Three, devoted to the Court’s decisions dealing with civil rights and civil liberties. The two chapters in Part One are dedicated to the origin and jurisdiction of the Federal Constitutional Court, the structure of the Basic Law, constitutional interpretation and judicial review. In Part Two the reader finds commentary and cases expounding the meaning of federalism, separation of powers and democracy. Each part is divided into chapters, with a total of nine. Again, reflecting American constitutional law casebooks, Part Three is the longest, with four chapters presenting cases and commentary on economic liberties, human dignity and parenthood, freedom of speech and freedom of conscience and religion.

Fortunately for the reader, the percentage of the casebook devoted to background information, commentary and analysis is considerably higher than in most U. S. constitutional law casebooks. The book is addressed to an American audience, and the author does an admirable job of making the jurisprudence of a foreign high court accessible by supplying basic information on the jurisdiction and operation of the Court and by making extensive comparisons with the structure and jurisprudence of the U. S. Supreme Court. In fact, students of American constitutional law will benefit by reading this book because they will come away with a heightened appreciation for what is distinctive about American judicial review and the United States Supreme Court.

Kommers’ thesis is that the German Constitutional Court rivals the U. S. High Court in terms of both power and influence and has become a model for countries throughout the world struggling to build liberal democracy. The growth in the Court’s authority has had the recent predictable consequence, says Kommers, of subjecting the tribunal and its justices to increasing criticism from academics, politicians, interest group leaders and journalists that the justices are making rather than interpreting the law. The Court has made so many deposits into Germany’s constitutional bank account, however, that it can freely make withdrawals by rendering unpopular decisions without worrying about political retaliation.

The story of the Constitutional Court is a remarkable one. In less than fifty years, it evolved into the second most powerful judicial institution in the world, subordinate in status only to the U. S. Supreme Court. It is the most potent court in nations with Civil law traditions. "Judicial activism" aptly captures the Court’s work vis-a-vis the government and parliament. This activism manifests itself in the Court’s mode of constitutional interpretation. It is not bound by the intent of the framers or by the rule of precedent. It examines the meaning of particular constitutional phrases in the context of the constitutional order as a whole and has even said that certain amendments would be unconstitutional because they are repugnant to the liberal democratic order. The justices do not need to wait for litigation between hostile parties to bring constitutional questions before them. Every significant controversial statute to which constitutional objections are raised makes its way to the Constitutional Court. Between 1951 and 1989 the Court invalidated 423 laws and administrative regulations. Seventy per cent involved provisions of federal law. It only "voided" 264. The remaining 159 were found to be "incompatible" with the Basic Law. Such laws remain in force during a transition period pending its correction by the state or federal parliament.

At the same time, Kommers admits that the justices have exercised a high degree of restraint and statesmanship when confronting highly controversial constitutional issues. Through its constitutional duty to provide abstract review on the request of members of parliament or the government, the Court is subject to political manipulation. It has learned to cope with this mandatory jurisdiction by occasionally delaying so long in deciding highly controversial issues that the opposing sides are able to work out a constitutionally acceptable compromise in parliament, prompting the moving party to withdraw the case after sitting on its docket for several years. Withdrawal following long delay has happened in more than half the disputes between legislative and executive branches of government submitted to the Court since 1951.

Kommers offers answers to one of the principal questions posed by students of comparative judicial systems--what are the conditions associated with the emergence of a politically powerful judiciary. The justices enjoy a high degree of independence. They serve a single twelve-year term, and the Court controls its own administration and budget. The mode of appointment guarantees that the lower house, the upper house, the government, the states and the opposition parties all have a voice in the selection of justices. This widespread participation gives the Court’s opinions a high degree of legitimacy. Germany’s competitive party system means that the Court always has allies in parliament, regardless of its ideological leanings. Party conflicts are intensified by the division of powers between the national and state governments. Over the years, socialists, greens, liberals and conservatives have criticized the Court. The adoption in 1971 of the practice of writing dissenting opinions has encouraged constitutional dialogue among the justices and more importantly between the Court and the academic community.
 
Since reunification, the Court has been the subject of sustained right-wing criticism. It has been often at odds with the Christian Democratic Party and the government of Chancellor Helmut Kohl. In the HASHISH DRUG case (1994), for instance, the Court, although upholding the constitutionality of existing drug laws, advised parliament to decriminalize the possession and use of small amounts of soft drugs, including hashish and marijuana. In the CLASSROOM CRUCIFIX case (1995), the Court seemed to mandate the removal of crucifixes from all elementary public school classrooms. The state of Bavaria threatened noncompliance, leading Justice Dieter Grimm to publish a response in Germany’s major newspaper, the FRANKFURTER ALLGEMEINE ZEITUNG, entitled "Why a Judicial Ruling Merits Respect." In a press release following the public outcry over its decision, the Court supported Bavaria’s interpretation of its ruling that the constitution only required removal of the crucifix when a student objected to its presence on religious grounds.

The Constitutional Court acts as "a republican schoolmaster"--a term applied to the U. S. Supreme Court during the leadership of Chief Justice John Marshall--instructing the German people in the principles of liberal democracy. Many countries in Latin America, Africa and Asia have constitutions but lack constitutionalism, the governmental habit of conforming official actions and policies to a preestablished set of principles and procedures. The Federal Constitutional Court is a model for reformers in developing countries who wish to place their basic document under the guardianship of independent courts of justice.