Diffuse Constitutionality Review in Germany

This contribution provides a more nuanced view about the German model of constitutionality review which is traditionally classified as belonging to the centralized “Kelsenian” model, in which a constitutional court has the monopoly over such review. This Kelsenian model is juxtaposed to the United States’ model of diffuse judicial review where any judge can exercise constitutionality control. However, in the past there existed instances where ordinary judges were allowed to review the constitutionality of statutes under Weimar and in West Berlin. And even today, in certain cases ordinary courts can declare statutes unconstitutional if they are pre-constitutional or statutes from former Eastern Germany. Moreover, at the state level courts can also review the constitutionality of state laws. In other words, the German model of centralized constitutionality review is not as pure as one might suspect at first glance.