Judgment on the federal emergency brake: backing for politics - and for freedom

The government can breathe a sigh of relief: the - long expired - federal emergency brake is constitutional.

In keeping with the new situation and the crisis meeting between the Prime Ministers and Merkel and Scholz, this is an important signal both for the current government, but above all for the future federal government as well as for the federal states.

You still have the full arsenal to combat the corona pandemic: contact restrictions, curfews, school closings - everything remains possible.

However, within limits, of course: the executive and parliaments must continue to keep in mind that these are far-reaching encroachments on fundamental rights that require plausible justification and must be continuously checked. The severe restrictions were justified "in the extremely dangerous situation of the pandemic". With a view to the school closings, the First Senate, chaired by Court President Stephan Harbarth, has even created a new basic right: a right of children to school education. Up to now, their basic rights in this field have mainly been conveyed through their parents. Now, for the first time, there are original rights of children and adolescents vis-à-vis the state, i.e. those young people who are a driver of the pandemic, although they cannot become seriously ill themselves,and who suffered particularly in lockdown.

Food for conspiracy myths

Those who consider Corona to be a very large conspiracy will also see themselves confirmed by this decision: the Senate unanimously follows politics. And wasn't there the dinner of the constitutional court at the federal government, which followed a decades-long practice among the constitutional organs, but at which, for example, decisions were made in uncertain situations? But the idea that the politically rather colorful Senate fulfills government mandates is absurd. And if the Federal Constitutional Court had now fallen into the arms of the executive, the shouting would have been great: What do Karlsruhe allow? - it would have been said. After all, the constitutional judges did not decide that those restrictions on fundamental rights were “correct”, but that the legislature was allowed to come to this assessment.

After all, the court and the First Senate are responsible for protecting fundamental rights - and in the past it has already put the legislature in their place with clear words.

The expectations were correspondingly high among many that Karlsruhe would rise to become an emergency legislature.

But that too would have been an overstretching of his role.

Were the fundamental rights massively and broadly restricted in the pandemic in a way that was unprecedented in post-war history?

Yes.

Was that a breach of the constitution?

No.

It was an emergency in which action was taken in favor of basic human rights and superior common goods.

Can one also come to a different conclusion than the Karlsruhe judges when considering the matter?

Yes.

But that doesn't change the power of the decision.

It undoubtedly gives politics a tailwind - but also warns them.

The decision is by no means a carte blanche.

It should be noted that, according to the findings of the time, the court believed that the lockdown was justified.

However, it cannot be concluded from this that curfews and school closings are now standard measures of pandemic control that can be imposed at will.

Everyone has a duty to constantly wonder whether there are measures to combat the pandemic that are less likely to interfere with the freedom of citizens.