Constitutional Amendment Under Article 79 of the Grundgesetz

Constitutional amendment under the Grundgesetz is governed by Article 79 GG, which establishes the procedures and limits for changing the constitution. The article reflects the framers’ response to the Weimar Republic’s collapse, during which the constitution was formally amended to enable the National Socialist seizure of power. Article 79 GG imposes procedural requirements stricter than ordinary legislation, requires express amendment language, and protects certain fundamental constitutional principles from any amendment. The eternity clause (Ewigkeitsklausel) of Article 79(3) GG is the strongest protection of constitutional essentials in any democratic constitution.

The Express Amendment Requirement

Article 79(1) GG requires that any law amending the Grundgesetz must expressly amend or supplement the text of the constitution. This express requirement (Textänderungsgebot) prevents implied or informal constitutional change. A statute cannot modify the constitution merely by contradicting it or by being inconsistent with its provisions; the text of the Grundgesetz itself must be altered. This requirement ensures transparency in constitutional change and prevents the legislature from circumventing constitutional limits through ordinary legislation. The provision was adopted in response to the Weimar experience, where the constitution was eroded by ordinary statutes that, while formally constitutional, undermined the constitutional order in substance. The Federal Constitutional Court has enforced the express requirement strictly, holding that even provisions that would have the same effect as a constitutional amendment must be adopted as formal amendments if they affect the text of the Grundgesetz. The requirement applies both to the federal legislature and, by implication, to Land constitutions.

The Two-Thirds Majority Requirement

Article 79(2) GG requires that constitutional amendments be adopted by a two-thirds majority in both the Bundestag and the Bundesrat. In the Bundestag, at least two-thirds of the members must vote in favour; in the Bundesrat, at least two-thirds of the votes must be cast in favour. The qualified majority requirement ensures that constitutional amendments command broad consensus across party lines and between the federal and Land levels. The Bundesrat’s involvement is particularly significant because it gives the Länder a veto over changes to the federal constitution, reflecting the federal character of the German state. The requirement has made comprehensive constitutional reform difficult but has also ensured stability and continuity. Major constitutional amendments, including the 1994 constitutional reform, the 2006 federalism reform, and the 2009 debt brake, have required extensive negotiation between the governing coalition and the opposition, as well as between the federal government and the Länder.

The Eternity Clause (Ewigkeitsklausel)

Article 79(3) GG prohibits any amendment that would affect the division of the Federation into Länder, the principle of Länder participation in legislation, or the principles laid down in Articles 1 and 20 GG. Articles 1 and 20 GG protect human dignity, the commitment to fundamental rights, the democratic principle, the Rechtsstaat principle, the social state principle, and the principle of federalism. These provisions are unamendable (änderungsfest) and cannot be abolished even by the amending power. The eternity clause creates a distinction between constitutional amendments and unconstitutional constitutional amendments — a paradox that has generated extensive scholarly debate. The clause reflects the concept of militant democracy (streitbare Demokratie) and the framers’ determination that the mistakes of the Weimar Constitution should not be repeated. The Federal Constitutional Court has confirmed that the eternity clause is constitutionally valid and enforceable, holding that it protects the core identity of the constitution (Verfassungsidentität) from gradual erosion.

Identitätskontrolle: Identity Review

The Federal Constitutional Court has developed the doctrine of identity review (Identitätskontrolle) as a corollary of the eternity clause. In the Lisbon judgment of 2009 (BVerfGE 123, 267), the Court held that it has the authority to review whether European Union acts侵犯 the constitutional identity of the Grundgesetz. Constitutional identity comprises the principles protected by Article 79(3) GG, which cannot be surrendered even in the process of European integration. The Court held that the Bundestag cannot transfer to the European Union powers that would affect the core content of German constitutional identity. The identity review extends to acts of EU institutions: if an EU act manifestly exceeds the competences conferred on the Union or affects the constitutional identity of the Grundgesetz, the Federal Constitutional Court may declare it inapplicable in Germany. The Court has exercised this review with restraint, but the European Arrest Order II decision of 2015 and the Right to be Forgotten decision of 2019 demonstrated that identity review is a real constraint on European integration where fundamental constitutional principles are at stake.

Limits on Constitutional Change

The eternity clause imposes both substantive and structural limits on constitutional change. Substantively, the values of Article 1 GG (human dignity and fundamental rights) and the principles of Article 20 GG (democracy, Rechtsstaat, social state, federalism) cannot be abolished or fundamentally weakened. Structurally, the division of the Federation into Länder and their participation in legislation cannot be eliminated. The Federal Constitutional Court has held that these limits apply not only to formal amendments but also to any reinterpretation of the constitution that would circumvent the eternity clause. The amending power is not a sovereign constituent power but a constituted power limited by the constitution’s fundamental decisions. The distinction between the original constituent power (pouvoir constituant) and the amending power (pouvoir constitué) is fundamental to German constitutional theory: the people as the bearer of constituent power established the constitution, and the amending power created by the constitution cannot destroy the constitution’s basic identity.

Constitutional Amendment in Practice

Despite the strict requirements of Article 79 GG, the Grundgesetz has been amended over sixty times since 1949. The amendments have addressed European integration (Article 23 GG), the right to asylum (Article 16a GG), the debt brake (Article 109 GG), and federalism reform (Articles 84, 85, 104b GG). The Federal Constitutional Court has reviewed several amendments for compliance with the eternity clause, upholding all challenged amendments to date. The Court has held that the eternity clause protects only the core principles of Articles 1 and 20 GG, not every specific provision of the Grundgesetz. The amendment procedure has proven flexible enough to accommodate changing circumstances while preserving the constitution’s fundamental character. The stability of the Grundgesetz — the oldest written constitution still in force in a major democratic state, alongside the United States Constitution — is attributable in significant part to the careful balance between amendability and entrenchment established by Article 79 GG.