Theory and constitutional framework of German federalism
in The Länder and German federalism

As in the case of the American states, the Länder in Germany existed before the federation. But, unlike the United States, there is no legal controversy in Germany over the role of the states as opposed to the ‘people’ in creating the federation. Representatives from the Länder met at Herrenchiemsee in 1948 to draft the new constitution and formed the Parliamentary Council, which negotiated with the Allies over the final text in 1949. The German Constitution, or Basic Law, was then approved by the parliaments of the Länder (except Bavaria) rather than by popular referendum. This chapter explores the theory and constitutional framework of German federalism, first considering the controversy over the location of sovereignty between two tiers of government or, at the very least, over the proper distribution of powers between them. It then discusses the separation of powers between the legislature, executive and judiciary, and finally examines the organisation of the judiciary.

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