The Crucifix and German Constitutional Culture

Essay Excerpt

On August 10, 1995, the Federal Constitutional Court in Germany released a decision overturning a Bavarian regulation that required that a cross be installed in every primary school classroom. The Court declared the regulation null and void, stating in the "guiding principle" of the decision, "Installing a cross or crucifix in the instructional rooms of a state-run, compulsory school that is not a confessional school violates Article 4, Paragraph 1 of the Basic Law" (Bundesverfassungsgericht [BVerfG] 1995b:2477). The Basic Law-the name given to the West German constitution of 1949-states in that article, "Freedom of faith, of conscience, and freedom of creed, religious or ideological [weltanschaulich], shall be inviolable" (Hucko 1987:194).'

The decision occasioned a public uproarin Bavaria and among the major political partiesof the former West Germany. For many Bavarian Catholics, the decision represented an unauthorized federal intervention in state affairs and an attempt to limit the religious expression of a community, in this case the overwhelmingly Catholic population of Bavaria within the majority Protestant population of Germanyas a whole. In these respects, the controversy resembled debates in the United States over prayerin public schools or the display of religious symbols in state institutions. But the specific way the debate unfolded illuminated fundamental differences between the constitutional cultures of the United States and the Federal Republic. In particular, German constitutionalism does not make the strict separation between church and state that U.S. constitutional law does, nor does it assume that a constitutional right is first and foremost a protection against the state. Instead, debates over rights in the Federal Republic of ten concern what the state should do positively to realize community or individual values, a position that offered critics in this case a strong point from which to attack the decision. Providing communities with "positive rights" raises a further important issue in Germany today, that of the place of a growing minority of inhabitants who are neither of German descent nor of the Christian faith. The issue of minority rights has become intertwined with an ongoing discussion about the relationship of the German past, especially the Nazi dictatorship, to contemporary Germany; indeed, Germany's history was a constant undercurrent of the debate on the decision. The way German constitutional law formulated the problem of religious freedoms inevitably brought these social and cultural matters into the legal decision itself-and with them the resentment and sense of victimization that marks majority sentiment in Germany.  (Caldwell, 259)

About the Author

Professor Caldwell is Professor of History at Rice University. He is a Humboldt Fellow, and has received grants from the DAAD and the Humboldt Foundation, as well as a residential fellowship at the Center for German and European Studies at Georgetown University.

Professor Caldwell's scholarly work has focused on the meanings of democracy and constitutionalism in Germany's first republic, conservatism and state theory, legal theory and the welfare state, and the economics and law of planning under state socialism. His first book, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism, appeared with Duke University Press in 1997, and in 2003 Dictatorship, State Planning, and Social Theory in the German Democratic Republic appeared with Cambridge University Press. A third book on Ludwig Feuerbach, Moses Hess, Richard Wagner, and Louise Dittmar, appeared with Palgrave-Macmillan: Love, Death, and Revolution in Central Europe He is presently working on a project linking the development of political thought and culture in West Germany to the real and perceived crises of the welfare state.

Professor Caldwell offers courses at both undergraduate and graduate level on comparative political history of Europe, German history and the history of European thought. Recent undergraduate lecutre courses include European History 1789-1989; Germany 1871-1945; and European Society and Politics, 1890-1945. Undergraduate and graduate seminars have focused on comparative revolutions; the western European welfare state; Stalinism; Marx and Weber; and Ethics and Politics after Religion, focusing on Feuerbach, Marx, Wagner, and Nietzsche. Recent syllabuses may be viewed on Professor Caldwell's webpage at www.academia.edu.

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