When are Governmental Interventions into Freedom Constitutionally Legitimate?

Abstract

The German constitution stands out for the exceptionally powerful position of the Constitutional Court. Any governmental intervention into freedom, and any unequal treatment, are constitutional issues. And any inhabitant can attack any administrative act, and any piece of legislation, in the Constitutional Court. The basic test is proportionality. Given the legislators', or the administrators', end the interference must be conducive, least intrusive, and not out of proportion. All three tests are relative. How powerful they are depends on the definition of the governmental aim. Unlike constitutional jurisprudence, doctrine is hesitant to say which governmental aims are constitutionally legitimate. The paper does two things: it reconstructs dogmatic principles for the definition of governmental aims from the jurisprudence, and it demonstrates how the quality of these definitions can be improved by relying on concepts from the social sciences, like the economic theory of market failure. Sceptics raise three concerns: there is no universally agreed philosophical starting point from which the legitimacy of governmental aims could deductively be derived; the Constitutional Court is ill prepared for engaging in the application of theories from the social sciences; strict dogmatic principles for the definition of legitimate aims siphon power away from the democratically elected legislator. The paper rebuts all three concerns.