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To: wolf78

If one wants to, one can always find some outrageous laws to spin a narrative. E.g.: the laws regarding drinking in public in the US are blatantly anti-freedom. The municipal by-laws of some communities (down to the sort of grass you have to use for your lawn) are outright fascist
You seem to be putting a personal definition of “anti-freedom” and “fascist” in here. Any state law that goes against the federal constitution can be challenged. Are these worse than banning circumcision, which appears to blatantly go against Germany’s Article 4 (Federal law)?

Please, elaborate. I think it would be fascinating to discuss the specific clauses
They’re a bit exhaustive, but if you insist. How about Article 5 for a start?
  1. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
  2. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
  3. Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
A giant hole that allows freedom of speech to be legislated away at a whim. This is one of the most important basic rights, and the wording is even more restricting than in the USSR’s constitution.

Article 8 reads as follows:
  1. All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.
  2. In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.
Another opening to legislate away a basic right. Compare both of the aforementioned with the USA’s First Amendment now.

Article 14 is very interesting.
  1. Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
  2. Property entails obligations. Its use shall also serve the public good.
  3. Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.
That goes way beyond eminent domain as understood in the USA; it puts property intended to remain private at the obligation of “public good”, definition left vague. That is almost into the territory of the Marxist concept of socialist property, but altered to give a nod to the right of inheritance that Marxism abolishes.

And of course, there are Articles 18 and 19.
Article 18

Whoever abuses the freedom of expression, in particular the freedom of the press (paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5), the freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence, posts and telecommunications (Article 10), the rights of property (Article 14), or the right of asylum (Article 16a) in order to combat the free democratic basic order shall forfeit these basic rights. This forfeiture and its extent shall be declared by the Federal Constitutional Court.

Article 19
  1. Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears.
  2. In no case may the essence of a basic right be affected.
  3. The basic rights shall also apply to domestic artificial persons to the extent that the nature of such rights permits.
  4. Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. The second sentence of paragraph (2) of Article 10 shall not be affected by this paragraph.
Why are such stipulations necessary? What entails “abuse” of a right?—the term is left undefined, and that leaves it up to the whim of a court to insert personal opinion (i.e. the “rule of man” into). And the Constitutional Court in Karlsruhe seemingly has the power of forfeiture of any and possibly all rights; not even the USA’s SCOTUS wields such power.

FTR, I am using this translation.
103 posted on 07/04/2012 10:29:12 AM PDT by Olog-hai
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To: Olog-hai
You seem to be putting a personal definition of “anti-freedom” and “fascist” in here.

Nope. Personally I don't drink alcohol. I don't smoke. The only drug I do is caffeine. But I think that in a free country drinking wine in public should be permissible. Same with the TV station that got fined because a soldier cursed on live television when being shot at (Thankfully that mistake got corrected). But that is all a propos. I don't want to do comparisons AT ALL. My point is that it is easy to cherry-pick some examples to create a narrative.

And if your neighbors get to decide which grass you have to use for your lawn, that is borderline fascist in that it seeks to promote stregth trough conformity. I know it's all about property values. But next your neighbors will want to take your guns because a gun-free neighborhood is a selling point. But again, my argument doesn't go beyond illustrating how taking things out of context is used to fit a certain line of argument. Europeans do it to paint Americans as >insert stereotype here<, same as those "no wonder, it's the Germans" clichees. Personally, I don't give a bleep about stereotypes.

Are these worse than banning circumcision, which appears to blatantly go against Germany’s Article 4 (Federal law)?

That's the interesting point. The judge's argument was that Sharia law doesn't trump article 2. Official translation: "Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable." What he overlooked is one of these pesky exceptions you mentioned: "These rights may be interfered with only pursuant to a law". That's were article 4.2 comes into play: "The undisturbed practice of religion shall be guaranteed." In my personal opinion - and as I believe most likely that of the Consitutional court - that makes circumcision legal.

These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

A literal reading of the first amendment would make any kind of defamation law outright unconstitutional. Yet they exist. The difference is that the German constiution recongnizes that there is a need for such laws. Both legal traditions create their own sets of problems. In the US an insufficient basis for protection against libel and slander, in Germany the possibility of judicial overreach. Three years for insulting the pope (article 166 penal code)? Good grief! I actually do agree with you that there is this kind of overreach in Germany. I just disagree that it is a specifically German concept.

Another opening to legislate away a basic right. Compare both of the aforementioned with the USA’s First Amendment now.

The first amendment doesn't mention the question of public spaces. In practice, the right to assemble outside doesn't seem to be absolute. Which in some cases only seems logical. Otherwise PeTArds would block the roads to meat processing plants 24/7....

to be continued
111 posted on 07/05/2012 5:41:01 AM PDT by wolf78 (Inflation is a form of taxation, too. Cranky Libertarian - equal opportunity offender.)
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