The book of judges: reoccupation, religion, and constitutional adjudication at the origins of the US Supreme Court (1789-1935) and the German Federal Constitutional Court (1951-1969)

Franklin D. Roosevelt recommended that “like the Bible, [the Constitution] ought to be read again and again.” Gustav Heinemann portrayed the Grundgesetz as a “great offering” whose words must become flesh. Nevertheless, does this have any bearing on constitutional adjudication? Although presidents didn’t – and more and more don’t – shy about handling their respective constitutions as bibles, have justices and constitutional scholars proceeded otherwise? Common wisdom may answer yes, they did. The aim of my study is to show that this is not quite the case. I pursue it in reference to two leading liberal democratic constitutional courts, the US Supreme Court and the German Federal Constitutional Court. This happens in three parts: (1) I will engage with court architecture, understood as a testimony to each institution’s articulation for self-justification and self-empowerment; (2) the semantic consecration of constitutional adjudication especially regarding politics, as it took place in the struggles over what was implied by the innovations pushed forward in the contexts of Marbury v. Madison, on the one hand, and of the German Constitutional Court’s Status-Denkschrift, on the other; (3) and legal-methodological debates on the relationship between the Christian Bible and constitutional provisions that run in parallel and connection to these two landmark events. My findings point out that by dint of the disruptive social development that the differentiation between law and politics was and is, constitutional actors in the 19th century United States and 20th century Germany frequently, if not invariably, relied upon religious resources to embed their positions. I interpret this reliance using Hans Blumenberg's phenomenology of history and epochal thresholds and his theory of reoccupations.