Lustration as a Problem of the Social Basis of Constitutionalism

One part of building a new constitution after wars, revolutions, civil wars, or dramatic regime changes is to draw a cultural boundary in time, declaring various aspects of the old regime illegitimate and various legalities and constitutional principles of the new regime legitimate. One part of that process, in turn, is to decide how the new regime should treat the guilt of individuals for terror, collaboration, betrayal of information to the regime, and the like. This essay argues that such lustration processes should be a very minor part of the definition of the meaning of the pat, and even less of a part of building social supports under the new constitution. It also assesses the contributions on lustration in this issue in light of this view of what place lustration should play in the construction of democratic constitutions after authoritarian regimes.     

Constitutional Law and the Protection of Subnational Governments in the United States and West Germany

In Garcia v. San Antonio Metropolitan Transit Authority (1985),the U.S. Supreme Court concluded in a 5–4 decision thatthe Tenth Amendment does not protect state and local governmentsfrom federal intervention into their "traditional governmentfunctions." The Court majority insisted instead that the protectionof state and local functions lies in the political process and,thus, reversed the previous majority decision in National Leagueof Cities v. Usery (1976). Constitutional provisions in WestGermany grant the states a general protection rather comparableto the Tenth Amendment. These provisions also give explicitprotection to local governments. In spite of the apparent differencesthat suggest greater legal protection for their autonomy, Germanstates and local governments are now sharing most of their protectedfunctions with the federal government in a complex system ofintergovernmental relations. The Federal Constitutional Courthas allowed numerous federal and/or state incursions in localgovernment decisionmaking based on considerations of the commongood.