Das Verbot der Verfassungsumgehung

The Prohibition of Circumventing the ConstitutionJurisprudence on constitutional law sometimes makes use of the idea that the norms of the Basic Law may not be circumvented. However, while scholarship on private law has long debated whether a prohibition of circumvention exists and how to place it methodologically, a “prohibition of constitutional circumvention” has not yet been examined in detail. As this article demonstrates, the fact that many constitutional norms are very abstract prevents circumvention, and the specifics of constitutional interpretation must be taken into account. Nevertheless, the Basic Law also contains rigid norms that are susceptible to circumvention. In this case, a prohibition of circumvention can be put into effect by extending a norm’s scope of application beyond its literal meaning. This teleological extension of the constitution, a form of judicial development of the law, must be carried out if the literal meaning and the purpose of a constitutional norm diverge, if a sovereign act runs counter not to the literal meaning but to the objective of a norm, and finally, if a threshold of interference is exceeded. This threshold is particularly high in the case of the further development of the constitution for reasons explained in greater detail. In particular, an intention to circumvent can become relevant here