Germany Starts Constitutional Overhaul

The long-awaited federalism reform is expected to newly regulate the jurisdictions of the federal government and Germany's 16 states.

The latter are generally responsible for making laws -- a concept that forms the basis of the original idea of federalism, according to Herbert von Arnim, a professor at the University for Administrative Sciences in Speyer.

"States are closer to the citizens," he said. "They know what things are like on the ground and find it easier to adjust rules to the needs of the people. They can also compete with each other, meaning that the best system will succeed in the end."

Historic foundation

Germany's principle of federalism has its roots in history. For centuries, Germany consisted of autonomous principalities and so-called "free cities." This patchwork quilt long resisted any attempts for unification. When the German Reich was eventually founded in 1871, individual states still didn't hand over much sovereignty.

Some of this diversity has been preserved today, such as in the area of culture. Few countries have as many opera houses and theaters as Germany.

"Federalism clearly brings about diversity," said Martin Molok, a law professor at Düsseldorf University. "It encourages progress. If we have different model, we can test which one works best and choose it."

Germany's Nazi dictatorship also influenced the postwar constitution, which was meant to prevent a concentration of power in Berlin. Germany's first federal president, Theodor Heuss, declared his support for federalism in September 1949.

"We are a federal republic," he said. "We don't want centralism in German. We have behind us the lesson of National Socialism that showed us what happens when Germans are meant to fit a norm. We don't want that."

Federal rights increase

But there are cases -- by now a majority -- where the federal government has the power to legislate.

"There are a number of areas, such as foreign policy, where it would not make sense to leave it up to the states," Morlok said, adding that globalization has increased the number of areas where laws are made in the country's administrative center.

Defense, trade and currency issues and transport are fields were federal legislation is warranted. In other areas, states can only adopt laws if the federal government has not done so already. This includes social, civil and criminal law. The federal state also regulates almost everything that has to do with immigration.

The states maintain jurisdiction over police and education matters. But even in these areas, states are increasingly coordinating their decisions.

"There are no less than 1,000 coordinating committees," von Arnim said.

Adding the EU layer

Adding to the confusion is the supranational level of the European Union.

"We have some areas, such as agriculture and environmental protection, where the basic guidelines come from Brussels and national parliaments have to turn them into law," Morlok said. "That means that federal and state governments have to deal with this one after the other. And that leads to people being totally confused about who is in charge."

Reacting to a waning right to legislate, states have been trying to influence federal legislation. Since they have to approve regulations that affect them directly, if they reject them in Germany's upper house, the Bundesrat, proposed legislation cannot become law.

The number of laws that require state approval has risen from 40 percent to 60 percent, allowing states to block laws in power struggles with the national government. This happened frequently under the previous Red-Green coalition as the Bundesrat was controlled by the Christian Democratic opposition.

Federalism reform is meant to untie these sometimes gnarled interconnections and make the state more effective again.