Opinion of Article 79 Sec. 3 of the German Basic Law?
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  Opinion of Article 79 Sec. 3 of the German Basic Law?
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Freedom article
 
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Horrible article
 
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Author Topic: Opinion of Article 79 Sec. 3 of the German Basic Law?  (Read 249 times)
President Johnson
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« on: February 26, 2024, 03:01:23 PM »
« edited: February 28, 2024, 03:34:54 PM by President Johnson »

Quote
Article 79
[Amendment of the Basic Law]


(1) [...]

(2) [...]

(3) Amendments to this Basic Law affecting the division of the Federation into States (Länder), their participation in principle in tqhe legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0412

Basically says that the division into states (federalism) and the articles 1 and 20 of the constitution can't be repealed or changed.

Freedom article, though I always found it weird to include a provision that states certain paragraphs can't be amended at all. Interestingly there's some debate among scholars whether Article 79 itsself can be repealed since it's not included in itsself.
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Vosem
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« Reply #1 on: February 26, 2024, 03:20:13 PM »

Freedom article, I guess. Seems vaguely inspired by Article V, which puts limits on the ways in which the US Constitution can be modified (though only one limit is perpetual or still in effect: the one which prohibits altering equal state representation in the Senate).
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President Punxsutawney Phil
TimTurner
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« Reply #2 on: February 27, 2024, 05:47:23 PM »

FA I suppose.
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Middle-aged Europe
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« Reply #3 on: February 27, 2024, 07:10:19 PM »
« Edited: February 27, 2024, 07:16:13 PM by Middle-aged Europe »

Quote
Article 79
[Amendment of the Basic Law]


(1) [...]

(2) [...]

(3) Amendments to this Basic Law affecting the division of the Federation into States (Länder), their participation in principle in tqhe legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0412

Basically says that the division into states (federalism) and the first 20 articles of the constitution can't be repealed or changed. Article 1-20 are fundamental and civil rights like human dignity, freedom of speech and religion, each person is equal before the law etc.

Freedom article, though I always found it weird to include a provision that states certain paragraphs can't be amended at all. Interestingly there's some debate among scholars whether Article 79 itsself can be repealed since it's not included in itsself.

Article 1 and Article 20 can't be repaled, not Article 1 to Article 20.

Of course the military draft (Article 12a) could be repealed, for instance. The fact that it has just been "suspended" instead of outright repealed is a result of not having the necessary two-third majority for such an action (like due to the opposition from the CDU).

Back in 1996, the Consitutional Court had also ruled that the right to asylum laid down in Article 16/16a could in theory be repealed altgother since such a action wouldn't violate the sanctity of human dignity of Article 1.
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Wiswylfen
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« Reply #4 on: February 27, 2024, 07:27:21 PM »

Stupid article. Indicative of everything wrong with modern Germany.
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buritobr
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« Reply #5 on: February 27, 2024, 07:38:00 PM »

Good.

Some basic rules of a democracy should not be object of amendment. There was a great justification for the Federal Republic of Germany to adopt this rule in 1949: the memory of Hitler rising to power in the Weimar Republic in 1933.

The Brazilian Constitution of 1988 was inspired a lot by the German Basic Law of 1949. We also have articles in which amendments are banned, the "cláusula pétrea". These are the articles about the basic civil rights, the universal suffrage, the regular elections and the federal state. The Congress is not allowed to make amendments in order to introduce death penalty for civilians, disfranchise people, introduce a 20 year term and eliminate the states and transfer all the powers to the national government.

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Hash
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« Reply #6 on: February 28, 2024, 03:30:20 PM »

They're called eternity clauses and they're not uncommon in constitutions. The Constitute Project has a list of 75 constitutions with 'unamendable provisions' in its database (this may not be entirely accurate given how they coded it, but whatever). Besides Germany, which is probably the most famous example of an eternity clause, of major democracies, Brazil, Greece and Portugal have eternity clauses which protect some fundamental rights. The French Constitution of 1958 (and before that the 1946 constitution and the constitutional laws of the Third Republic following the amendments of August 1884) states, in article 89, that the "republican form of government shall not be the object of any amendment", although article 89 itself is not unamendable. The Italian constitution (and probably some others) prevents any amendments to the republican form of government.

Eternity clauses banning any modifications to the bans on presidential reelection didn't prevent authoritarian presidents in Honduras and El Salvador from getting reelected anyway, thanks to lackeys on the courts coming up with creative interpretations of the constitution. It seems like Egypt's 2014 constitution also blocked amendments to provisions on presidential reelection, amusingly.

Dictatorships can also use eternity clauses to entrench the regime: the Cuban and Iranian constitutions both have eternity clauses which effectively prevent any amendments to the forms of government.

Some constitutions also have entrenched clauses which requires special majorities for amendments to certain provisions. I guess the most famous one would be the unanimous consent formula (s. 41) for amending the Canadian Constitution, which requires the unanimous consent of federal Parliament and each provincial legislature for any amendments to the monarchy, bilingualism, the Supreme Court's makeup, the 'senatorial clause' for provincial representation in the House of Commons (no province has fewer seats than it does in the Senate) and s. 41 itself. In 2014, the Supreme Court, answering a reference question from the Harper government on Senate reform, also held that abolishing the Senate would require unanimous consent. In actual Canadian practice (the unwillingness of federal governments to undertake serious constitutional reforms and the near-impossibility of obtaining unanimous consent from all provinces), s. 41 is basically an eternity clause.
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