Eternity clause

The eternity clause or eternity warranty is in Germany a provision in Article 79 paragraph 3 of the Basic Law (GG), should be withdrawn after certain constitutional principles of a constitutional amendment forever.

Article 79 paragraph 3 of the Basic Law reads:

" Amendments to this Basic Law affecting the division of the Federation into Länder, the fundamental participation of the Länder in the legislative process, or the principles set out in Articles 1 and 20 principles to be touched, is not permitted. "

With this regulation, the Parliamentary Council wanted to confront the experiences from the time of National Socialism and natural law principles in the form of human dignity (Article 1 of the Basic Law for the Federal Republic of Germany ) and the structural principles in Article 20 ( Republic, Democracy, State, Rule of Law and the Welfare State ) provided with an additional safeguard. By this eternity clause arises even within the Basic Law a hierarchy. Up to a replacement of the Basic Law by another Constitution (Article 146 of the Basic Law ) eternity clause can not be canceled pursuant to the prevailing opinion today. The term eternity clause itself is not in the constitution, but belongs rather to the legal vernacular.

Scope

From a change will be deemed invalid:

• The protection of human dignity (Article 1, Section 1 of the Basic Law),
• The recognition of human rights as the basis of every community (Article 1 paragraph 2 of the Basic Law ),
• The obligation of public authorities to respect fundamental rights (Article 1, paragraph 3 GG )
• The federal principle (Art. 20 para 1 of the Basic Law ),
• The form of government of the Republic ( republican principle ) (Art. 20 para 1 of the Basic Law ),
• The welfare state principle (Art. 20 para 1 of the Basic Law ),
• The principle of democracy (Article 20 paragraph 2 of the Basic Law ),
• The principle of popular sovereignty (Article 20, paragraph 2, sentence 1 of the Basic Law ),
• The separation of powers (Article 20, paragraph 2, sentence 2 of the Basic Law ),
• The binding of the legislation to the Constitution (Article 20, paragraph 3 ms 1 GG),
• The binding of the executive ( executive power ) and the judiciary (the Court ) to the Constitution and other legal provisions (Art. 20 para 3 ms 2 GG).

The protection of eternity clause extends in principle also Article 1 of the Basic Law in all other fundamental rights, provided that such concretions of claim respect for human dignity. In quantitative terms, this is debatable in detail. Thus, although the basic rights can be changed, and they must meet the requirements of Article 19, paragraph 1 and 2 of the Basic Law; However, it is questionable whether the core of a fundamental right with him also inherent human dignity content is identical.

Rule of law

The rule of law as such does not know the Constitution. It can be found - in addition to Article 20 of the Basic Law - though at different points other features of the rule of law, such as Article 19, paragraph 4 of the Constitution. But not this be under the protection of eternity clause. Also, although this is disputed.

Right of resistance

The in Article 20, paragraph 4 of the Constitution guaranteed the right of resistance does not fall under this protection, since it was inserted later in Article 20 of the Basic Law. This view is under constitutional lawyers today hardly controversial. It is argued, in essence, that the perpetuity clause and vice versa is true and it does not allow to withdraw a decision of the constitution-amending legislature to future changes, this may be done by systematically adding to Article 20 of the Basic Law or by express Unabänderlichkeitserklärung. Because of the constitutional amendment legislature may not decide where the limits of his power are changing. This is unique and lasting done by Article 79 of the Basic Law.

Legal consequences

If there is but to such impermissible constitutional revision, the result is ineffective unconstitutional constitutional law.

Self-protection clause of Eternity

The fact that Article 79, paragraph 3 of the Basic Law also enjoys the protection of immutability, it is generally believed, although it is not clear from the wording. However, the functional interpretation speaks for it, because otherwise the protective effect would be meaningless, which does not correspond to the purpose of the standard and purpose of the constitutional legislator. In addition to an immanent justification also positive reasons to be represented for the immutability of eternity clause.

Even in an essay from 1952, the constitutional lawyer Theodor Maunz has recognized what he called the principle of " standard logic " that article 79, paragraph 3 GG its protective effect can only be achieved if the intangibility, he expresses for certain constitutional principles also applies to himself. This means that also the justification for the inviolability in Article 79 paragraph 3 of the Basic Law itself subject to the eternity clause.

However, the eternity clause does not prevent the German people could create a detaching constitution, the Basic Law, even if these changes brings with it, which would be better prevented through eternity clause. This ability to create a new constitution, Article 146 of the Basic Law in the old and the new version - hereafter extremely appropriate as a total revision of the constitution - above. Some constitutional scholars have assumed, however, that Article 146 of the Basic Law aF had entered with the German reunification repealed and that the new version was invalid insofar as it concerned changes that are inadmissible under article 79, paragraph 3 GG. The Federal Constitutional Court, Article 146 of the Basic Law to be effective, but has expressly left open whether even the constituent power is bound to the protected in perpetuity clause principles " because of the universality of dignity, freedom and equality".

Criticism

The eternity clause makes a resolution of the Federal during the validity of the Basic Law impossible and built about the way to a federally organized state, for example, not being - about the French model of a centralized state structure. Such changes would be possible only under the condition of a completely new constitution.

In part, it is considered practically impossible to prevent significant constitutional changes through eternity clauses in the long term. In addition, by changing the text of the Constitution can also be obtained by a new interpretation of the same in fact a modification of the protected through eternity clause legal interests arise.

On the other hand, it is also legally impossible, that while man put something in place, but it can not pick up again by the same mechanism is. Therefore eternity guarantee can never be more than a formal declaration and actually develop effective only with respect to the validity of laws or other fundamental law articles.