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Constitutional and Political Theory: Selected Writings. Volume I. First Edition. Ernst-Wolfgang Böckenförde, Mirjam 
Künkler, and Tine Stein. @ Ernst-Wolfgang Böckenförde, Mirjam Künkler, and Tine Stein 2016. Published 2016 by Oxford 
University Press.
Böckenförde’s Constitutional Theory
Mirjam Künkler and Tine Stein
Part II brings together four of Böckenförde’s essays on the constitution, consti-
tutionalism, and constitutional adjudication. Böckenförde has been particularly 
concerned with the history and evolution of constitutionalism, and with the 
changes in meaning that the very concept of ‘constitution’ has undergone in 
modernity. His work on the constituent power of the people as a liminal con-
cept in constitutional law is of particular relevance to debates in political science 
and democratic theory about claims to popular sovereignty— a topic which 
does not cease to lose relevance and urgency, as political transformations and 
ongoing constitutional projects around the world attest. In asking who guards 
the guardians in the final essay included here, Böckenförde returns to the ques-
tion that drove his inquiry on constitutionalism in the first place: what is the 
relationship between sovereignty and the constitution?
In the essay The Concept and Problems of the Constitutional State (Chapter V), 
Böckenförde provides an in- depth exploration of the term ‘Verfassungsstaat’ 
(constitutional state). He investigates the historical roots of the term ‘consti-
tution’ and differentiates between two dimensions:  ‘constitution’ in a formal 
sense as the primary binding law for all state action, and ‘constitution’ in a more 
substantive sense as the last sovereign authority. If a conflict over the appro-
priate meaning of general constitutional rules arises, the constitution must 
designate the final power of interpretation and of enforcement, thus raising 
questions about the locus of power with regard to legitimation by the people. 
Where does sovereignty lie in the constitutional state? Is the constitution itself 
sovereign, or is sovereignty the necessary political fundament to support the 
constitution?
One might assume that ‘sovereign is if anything, the constitution’, as Martin 
Kriele put it,1 but Böckenförde argues this is misleading. He calls the notion 
of ‘the sovereignty of the constitution’ a fiction. ‘No norm is self- enforcing or 
self- applying’, Böckenförde writes. Sovereignty does not disappear ‘by being 
replaced or dissolved by the constitution. Its potential is preserved and finds its 
concrete bearer— which it always requires— in the organ that is effectively able 
in a case of conflict to make the final binding decision about the content and 
application of the constitution.’2
1 Martin Kriele, Einführung in die Staatslehre (Hamburg, 1975), §§ 28, 57.
2 'The Concept and Problems of the Constitutional State’, see Chapter V, p. 146.
Böckenförde’s Constitutional Theory • 135
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Böckenförde goes on to outline that this final binding decision can come 
about on the basis of a constitutional authorization and its interpretation (i.e., 
in a constitutional court), or if that does not exist, on the basis of ‘the actual, 
successful assertion of such an authorization’, practically, by intervention of 
the military, or a dominant branch of government.3 So where may sovereignty 
lie in democratic constitutional states that do not possess the institution of a 
constitutional court? Ultimately this depends on belief, Böckenförde holds. 
Where is sovereignty assumed to be located? Is it located in the parliament, as 
in the Westminster model? Between president and legislature in a presidential 
system? Böckenförde contents himself with this vague localization of sover-
eignty in political systems where constitutional jurisprudence is not regulated. 
‘As long as the belief in popular sovereignty and in the popular representative 
body as the representation of the people appears unbroken, this seems inter-
nally consistent.’4
Böckenförde reiterates his position, articulated already elsewhere, that state 
and constitution cannot be conceived as a legal unity; the idea of the state does 
precede the constitution- making process. He supports Schmitt’s notion that 
there first must be a political entity, embodied in the state, before a constitu-
tion can be promulgated. Böckenförde underpins this assumption with empiri-
cal findings:  After a revolutionary change occurs, all efforts are first directed 
towards establishing a stable political order; only once this is achieved are there 
grounds for beginning a constitutional process.
But the survival of the state does depend on procedures and rules:
[The state] is not in place as an entity that is fixed once and for all, and is not inde-
pendent of individuals and their willingness to integrate into and commit to the 
state. As a unifying actor, the state requires continuous affirmation and reproduc-
tion in and through the actions of the humans who constitute it. That is accom-
plished in a sustained way only if (1) some kind of ordering and structured system 
exists in the first place; and (2) that system legitimizes itself in some way in terms 
of the consciousness of freedom and legal principles alive within individuals and 
the people through its orientation to organizational concepts and commitment to 
forms, procedures, and controls.5
Ultimately, Böckenförde returns to a Schmittian position when he suggests 
that the notion of popular sovereignty ‘ceases to apply once it acts as an expla-
nation of reality and of the conditions behind the creation and existence of 
state and constitution. For in that case it fails to grasp that in political- social 
reality, the actual way in which people share and organize their lives never exists 
without concrete power constellations and without relationships of superor-
dination and subordination, which precede every legal constitution.’6 In other 
words, in the end, concrete power constellations reveal where sovereignty lies.
3 Ibid. 4 ‘The Concept and Problems of the Constitutional State’, see Chapter V.
5 See ‘The Concept and Problems of the Constitutional State’, Chapter V, p. 149, where Böckenförde explicitly 
refers to Heller, Staatslehre, 3rd edn. (Leyden, 1971), pp. 190ff., 253ff.
6 ‘The Concept and Problems of the Constitutional State’, see Chapter V, p. 148.
136 • Böckenförde’s Constitutional Theory
136 137
In Chapter VI on The Historical Evolution and Changes in the Meaning of the 
Constitution, Böckenförde stresses the contractual roots of the phenomenon of 
constitutionalism. In the Magna Carta as well as other limited legal arrangements 
between single actors of medieval times, no such thing as a sovereign power did yet 
exist, so constitutional contracts (leges fundamentales) functioned as an assignment 
of governance spheres that, in principle, were uncontested. Reflecting on the early 
constitutions of the Holy Roman Empire of German Nation, Böckenförde writes 
that the Reich constitution had its basis in the Reichsgrundgesetze [Basic Laws of the 
Empire], ‘a bundle of power- regulating and power- limiting “laws”, which did not 
have the character of unilateral mandatory law, but of agreements, of statutes in 
the older sense between the emperor and the imperial estates’.7 In other words, 
these Basic Laws of the Empire must not be seen as provisions imposed by the 
emperor from above, but as contracts between the constituent parts of the empire 
and the emperor.
With the rise of the sovereign state in the seventeenth and eighteenth cen-
turies, especially in the form of absolutist monarchies, the constitution gained 
a new function: limiting political power to protect the subjects’ liberty against 
the monarch’s arbitrary will. In the late- eighteenth, early- nineteenth century, yet 
another model arises: ‘constitution’ as a federal contract between states, as rel-
evant to theUnited States, Canada, Australia, Switzerland, and, later, of course 
Germany.
After this historical examination, Böckenförde turns to the concept of the 
constitution as the legal normative foundation of the modern democratic 
state: A constitution both constitutes and limits the state’s power, embracing 
every sphere of political and societal life. Böckenförde writes elsewhere in more 
detail about why he opposes a value- based grounding of law, included here as 
Chapter IX (Critique of the Value- Based Grounding of Law), but his rejection of 
such a position also comes to light in his elaboration on the concept of the 
constitution. Taking a position contrary to post- war West German constitu-
tional jurisprudence, particularly the Lüth decision, according to which values 
of the Basic Law should be recognized as radiating into all other areas of law, 
Böckenförde warns ‘[t] he value- based conception of the constitution means a 
reach toward a new totality: the constitution is no longer limited to its tradi-
tional subject matter, [instead] its value- creating standardizations are univer-
sal and extend into all areas of social life. The constitution encompasses the 
whole of society and— as a structure and system of values— advances an abso-
lute claim to validity, one that reaches into all areas of the law. The Federal 
Constitutional Court has accordingly stated as much.’8
Böckenförde’s article on the Constituent Power of the People, included as 
Chapter VII, has particularly reverberated in democratic theory and the body 
of literature that has most recently emerged under the rubric of constitutional 
7 See Chapter VI, ‘The Historical Evolution and Changes in the Meaning of the Constitution’, p. 154.
8 See Ibid., p. 167.
Böckenförde’s Constitutional Theory • 137
 137
design.9 Böckenförde first outlines the problems involved in defining the con-
stituent power of the people, inter alia by showing that this power is a liminal 
concept, where politics and law meet. The constituent power is more than a 
Kelsenian basic norm (Grundnorm), i.e., more than a mere hypothetical presup-
position explaining a particular constitution’s validity. The people’s constituent 
power is truly the source of a constitution’s legitimacy, not only at the begin-
ning of a political unit but from there onwards.
Böckenförde then recapitulates the development of the concept of pouvoir 
constituant as developed in 1788– 89 by Abbé Sieyès. ‘Its goal’, Böckenförde writes,
was to counter the king’s sovereign powers (grounded in law and tradition) 
and the institutions of the monarchy with the original and unbounded political 
decision- making power of the nation as the force that brings forth the constitu-
tion. Substantively, with the concept of the pouvoir constituant, Sieyès— himself 
a theologian— transferred to the people certain attributes of God as had been 
developed in Christian theology:  potestas constituens, norma normans, creatio ex 
nihilo. The purpose of this translation of theological into political concepts— a 
striking case of ‘political theology’ in the original sense— is clear: the people, as a 
human subject, is to be accorded full authority to shape the politico- social order.10
Böckenförde then outlines different procedures through which the constit-
uent power can express itself. Here again it is important to acknowledge the 
character of the concept of constituent power as a liminal concept between 
politics and law, or between facts and norms: To what extent can the constit-
uent power of the people be bound itself to norms, rules, or any limiting set-
ting without being disconnected from the political force behind the concept? 
Böckenförde relies on Sieyès’ distinction between pouvoir constituant and 
pouvoir constitué to show that the people acts in two ways. In giving itself a 
new constitution, the people operates in accordance with pouvoir constituant 
(either in a constituent assembly without a referendum, or in a convention 
representing the people, with a referendum at the end of the constitutional 
process), while in choosing to change an existing constitution, the people act 
as part of the pouvoirs constitués. Though there are no legal limitations on 
the people’s exercise of pouvoir constituant, there are pre- legal bounds, such 
as the idea of pre- existing human rights and human dignity. These ‘rights’ 
are not rights in a legal sense but have an obliging character as being moral 
principles; it is a question of the ‘living ethos’ in a political community to 
what extent the people as constituent power considers itself bound to such 
principles.
9 E.g. see Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’ Cardozo Law Rev 
1995.17: pp. 191– 231; Jon Elster, Claus Offe, and Ulrich K. Preuss, Institutional Design in Post- Communist Societies: 
Rebuilding the Ship at Sea (Cambridge, UK/ New York: Cambridge University Press, 1998).
10 ‘Constituent Power of the People’, see Chapter VII, p. 172, explicitly drawing on Schmitt as well as 
Böckenförde’s own, ‘Organ, Organismus, Organisation, Politischer Körper VII– IX’, in Geschichtliche 
Grundbegriffe, vol. 4, pp. 567– 9.
138 • Böckenförde’s Constitutional Theory
138 139
While both the distinction between pouvoir constituant and pouvoir constitué, 
and the aspects of institutional design which make up part of the article’s discus-
sions are well represented in the relevant literature, the more original contribu-
tion of the article lies in Böckenförde’s discussion of the relationship between the 
legitimacy of a constitution and the democratic motivations of those involved 
in the constitutional process— what is sometimes referred to as the question of 
‘ownership’. Without the latter, Böckenförde suggests, no constitution, however 
well- designed, will have great chances of being implemented. ‘(N)o supra- positive 
law and no idea of political order becomes concretely effective unless a historical- 
political force appropriates them, presents them as its own belief and idea, and acts 
on their behalf.’11 What is required of a pouvoir constituant is ‘a living awareness of 
justice, efficacious ideas of order, and a formative ethical- political will … in short, a 
“spirit” that can and does take shape in institutions, regulations, and procedures. If 
that is lacking, even the best- justified postulates cannot bring about the validity of 
something that is not alive as a separate spirit in the people or the nation.’12
In the last essay included in this section, Constitutional Jurisdiction: Structure, 
Organization, and Legitimation (Chapter VIII), Böckenförde turns to the question 
of who guards the guardian. How can one prevent the guarantor of the consti-
tution (Carl Schmitt’s ‘Hüter der Verfassung’) from becoming the master of the 
people? On the one hand, ‘every political community that organizes itself as a 
system of peace and law needs to locate somewhere the authority for an obliga-
tory, final decision, the “last word” against which there is no further appeal’.13 
On the other hand, this creates a situation where an institution that is called 
upon to be the guardian of the constitution simultaneously institutionalizes the 
‘last word’ about the content and validity of the constitution. Böckenförde notes 
that this problem is inescapable: it cannot be solved by wise institutional design. 
One can shift this authority, for example from the monarch to the parliament or 
a court, ‘one can divide it up for specific areas and hedge it about procedurally, 
but one cannot get rid of it’.14 No state that is organized as a peace- providing 
framework can avoid the necessity of institutionalizing somewhere the authority 
of having the ‘last word’. If a constitution— like the Basic Law— envisages a con-
stitutional court with the authority to decide the constitutionality and thus the 
validity of laws and constitutional changes,the authority of having the binding 
‘last word’ passes to it; the height of sovereignty is thus manifest in such a court.
Constitutional courts have been rising stars since World War II. Still, 
Böckenförde shows that constitutional adjudication ‘has far less backing within 
the legal system itself than regular adjudication. Itself active at the level of the 
political system, it must make institutional provisions for the recognition of its 
decisions, and it is highly dependent on their acceptance.’15
11 ’Constituent Power of the People’, see Chapter VII, p. 184. 12 Ibid.
13 ‘Constitutional Jurisdiction: Structure, Organization, and Legitimation’, see Chapter VIII, p. 188.
14 Ibid., p. 188.
15 Ibid., p. 192. Characteristically, in its early history the Federal Constitutional Court had to struggle to be 
recognized as one of five constitutional bodies (Verfassungsorgan) of the Federal Republic of Germany.
Böckenförde’s Constitutional Theory • 139
 139
Although all constitutional adjudication has the same purpose— namely, to 
guarantee the rule of law itself— there is a wide range of different models with 
regard to its structure, organization, and legitimation. As a former judge on the 
constitutional bench, Böckenförde is able to categorize these models with great 
clarity as well as a deep sense of the specific challenges facing constitutional 
adjudication in democracy.
He distinguishes between three types of institutional organization. The first 
is the unitary model, as found in the USA and Japan. Here constitutional juris-
diction is exercised by the highest court of the general judicial system. It does 
not enjoy organizational and institutional independence from the rest of the 
judiciary. Böckenförde notes that this model is carried by the idea that consti-
tutional adjudication should not be seen as different from normal adjudication. 
‘Constitutional jurisdiction remains fully integrated into the normal justice sys-
tem; its specific character of being connected to politics is not highlighted or 
recognized, but rather negated. There is no separate procedural law and no 
special types of complaints and claims, nor a separate bench for constitutional 
disputes.’16 As a consequence, the review of the constitutionality of laws takes 
place only within the framework of an individual trial, when it matters for a 
concrete dispute, i.e., as incidental review.
Böckenförde is clear that the underlying concept can be reversed by prac-
tice. He notes that at his time of writing about 50 per cent of the US Supreme 
Court’s cases concern disputes over constitutional law. ‘Incidental constitu-
tional jurisdiction becomes dominant, also in its relationship to politics, while 
the other matters, originally the chief disputes, recede in importance and cease 
to shape the court.’17
The model at the other end of the spectrum is that of Germany, where the 
constitutional court is an independent court, and in addition to being organi-
zationally autonomous is also superior to the rest of the judiciary. The court 
reviews the actions of the government, the administration, the legislature, and 
also the courts with regard to their constitutionality, and the decisions of courts 
can be annulled where they are found to violate the constitution.
This is achieved by making it possible to assert the violation of constitution-
ally guaranteed rights before the constitutional court itself through a constitu-
tional complaint, though it must be preceded by an exhaustion of the given legal 
recourse. For one, this requirement eases the burden on the constitutional court, 
since claims of violations of fundamental rights can be dealt already within the 
specialized legal protection. For another, the result is that the function of the con-
stitutional complaint, with a few exceptions, consists precisely in oversight of the 
specialized courts (including the highest federal courts) as to the constitutionality 
of their adjudication.18
16 Ibid., p. 196.
17 Ibid., p. 197, drawing on the work of his former student Joachim Wieland, ‘Der Zugang des Bürgers zum 
Bundesverfassungsgericht und zum Supreme Court’, in Der Staat 29 (1990), p. 343.
18 ‘Constitutional Jurisdiction: Structure, Organization, and Legitimation’, see Chapter VIII, p. 198.
 141
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140
A model in between these two is that of Austria, where the constitutional 
court exists as an autonomous court with its own jurisdiction, but is not placed 
above the other courts either functionally or in terms of jurisdiction. The con-
stitutional court can review only administrative acts, and indirectly through 
them also decrees and laws, but not judicial decisions. It is merely the court for a 
special branch of the judiciary within the unitary judicial power. Consequently, 
Böckenförde notes, ‘this model thus seeks to integrate constitutional jurisdic-
tion fully into the judicial system, irrespective of its organizational- institutional 
independence. As much as possible, the goal is to prevent the constitutional 
court from ascending to the status of a constitutional body [Verfassungsorgan].’19
No matter which model is at work, the judges have the last word in interpret-
ing the constitution, and their word is binding. In presenting the main types 
of recruitment and legitimation of judges in different constitutional democra-
cies, Böckenförde shows that, ultimately, constitutional court judges themselves 
need to be aware of their responsibility not to seek political ends by means of 
constitutional interpretation. No particular institutional design can provide a 
watertight insurance against political justice.
19 Ibid., p. 197.