Babies and bathwater

MUCH of the world outside Germany may be under the impression that neither Angela Merkel, the chancellor, nor the German parliament is acting fast or zealously enough to avoid a collapse of the euro zone. Inside Germany, a different view is taking hold: Mrs Merkel and even parliament may be forging ahead too fast, and possibly with unconstitutional zeal. It so happens that this view seems to hold sway in a crucial constituency: the red-robed judges of the federal constitutional court in Karlsruhe.

This month, in a first signal of the court's thinking, the judges agreed with a complaint by the Greens, an opposition party, that Mrs Merkel's government has not been informing and consulting parliament early and thoroughly enough about her plans to rescue the euro. Mrs Merkel can do summitry with world and European Union (EU) leaders. But, the court said, the Bundestag is the only directly elected institution in Germany's parliamentary democracy, so the executive branch must genuinely include it in decision-making.

Now the court has sent a reminder that even parliament is subject to judicial review. It has asked Joachim Gauck, Germany's president, to delay signing two huge legislative packages dealing with the euro crisis to give the court time to examine complaints that they are unconstitutional. One is the so-called fiscal compact, a proposed system of restraints by Brussels on the budgets of most European countries, including Germany, with the aim of disciplining spending. The other is the European Stability Mechanism (ESM), intended as a permanent emergency-lending mechanism for countries in trouble.

Mrs Merkel has hurried both packages onto the floor of parliament for a vote on June 29th, Germany's last legislative session before the summer break. Acknowledging the constitutional issues, she aims to have the laws passed by two-thirds super-majorities in both chambers, as is required when parliament wants to amend the constitution. After impressive dealmaking with the opposition in the Bundestag and the Länder (states) in the upper chamber, Mrs Merkel seems assured of getting her way.

The problem, however, is that Germany and other EU countries have, in the two years of the euro crisis, already ceded parts of their sovereignty to EU institutions and are being asked to cede ever more. Karlsruhe worries that there will come a point when Germany has given up so much power that parliament becomes irrelevant, says Dieter Grimm, a former judge on the federal constitutional court. Voters would then be reduced to checking boxes on ballots, without any actual say in matters of government. Germany's constitution forbids this. An “eternity clause” in Germany's constitution says that certain things, above all democracy, can never be changed, even by parliament.

The question is where precisely this clause bites. Is the ESM innocuous, but the fiscal compact suspect? What about future steps such as euro bonds? Andreas Vosskuhle, the president of the federal constitutional court, has recently expressed his general concern that “essential decisions are negotiated in the anonymous thicket of the Brussels bureaucracy, in nightly sessions of the European Council, or somewhere else, without adequate public discussion and influence.” Budgeting decisions, in particular, must remain in the power of elected representatives, he thinks, adding: “It would be tragic if we were to lose democracy on the way to a rescue of the euro and more integration.”

Wolfgang Schäuble, the finance minister, has now broken a taboo of sorts by predicting that the Germans will probably have to change or replace their constitution in a plebiscite. Mrs Merkel, caught off guard, agrees in principle but thinks such a referendum still lies far in the future. The federal republic has never had one, although its constitution allows for plebiscites. Yet, even a plebiscite may fall foul of the eternity clause. Karlsruhe may conclude that, for European integration to proceed, the EU itself must first become genuinely democratic.