The Effectiveness Of Their Basic Constitutional Rights Of Private

Whether the clauses of constitutional basic rights can apply to the private realm or not, and if it can, what is the degree and the scope? This is a question which is disputed in America and Germany. The major idea of the paper is to open out the basic complexion of the question in both countries.In the first part, the author discusses the principal function of the basic rights clauses which is to control the nation and restrict the power of state in the view of the history of constitution.In the second part, the author discusses the doctrine of state action which solve the problem of the effect of American constitution in the private realm .Firstly, the author retrospect the origin of the doctrine of state action, then, explains the three instances that can apply the doctrine of state action .Theses instances involve the performance of "public functions", judicial enforcement of private discrimination, and the significant state involvement. At last, the author points out the embarrassment of the doctrine of state action.In the third part, the author discusses the doctrine of indirect effect which solves the problem of the effect of Basic law in the private realm. At first, the author expatiates on the major function of constitution in the traditional German theory, then introduces the debate in this problem of the German scholars from the 1950's.After this, the author stresses the attitude of the federal constitutional court which points out the theory of indirect effect and the manner to apply the theory.In the fourth part, the author induces three differences between America and Germany, by way of the presentations of the doctrine of state action and indirect effect.In the last part, the author try to explore the whys which bring on the differences between America and Germany, and indicate that the divergences root in three different basic notions.