Modern liberal democracies are awash in rights, enforced by powerful (constitutional) courts. Paradoxically, though, it’s an open and serious question whether constitutional structure still constrains nominally democratic but poorly monitored institutions and whether courts can still enforce the groundrules of liberal, democratic politics. NFIB v. Sebelius raised that central question in one form. The ESM/Fiscal Pact case(earlier post here) pending before Germany’s Bundesverfassungsgericht (“FCC”) raises it in a somewhat different form: does the German Constitution pose any limit to the political branches’ power to delegate authority to the European Union and its various institutions? That is the central question of German politics and of European politics: barring further German transfers of money and authority, the Euro will fall apart. Hence, all eyes in Europe are on the FCC.
The European Union’s ongoing efforts to create a “closer fiscal union,” especially including the most recent (January 31) fiscal union pact, pose serious legal problems. In practical terms, that may not matter much: even if fully implemented, the reforms will fail to calm the financial markets, and they will disintegrate or become irrelevant long before any court could examine their legality. Still, and for what it’s worth, the EU prides itself on being a “community of law.” How does it measure up?