## Facts

- After World War II, the southwest German territories were reorganized into three constituent states: Baden, Württemberg-Baden, and Württemberg-Hohenzollern.
- The Basic Law created a special mechanism for reorganizing these three states: reorganization should occur by agreement among the affected states; failing that, it must be regulated by federal statute providing for a referendum.
- The affected states failed to reach agreement, and the federal legislature enacted two reorganization statutes.
- One statute extended the terms of certain state parliaments to allow the reorganization question to be decided before new elections.
- The other statute set the referendum procedure and territorial voting structure for deciding whether and how to merge the three states into a new state.
- Baden challenged the statutes, arguing the referendum framework effectively predetermined a merger outcome and did not provide a genuine opportunity for Baden’s population to preserve Baden.
- Baden also alleged the referendum design treated voters unequally and conflicted with democratic requirements applicable to state constitutional order.

## Issues

1. Whether the court had proper jurisdiction and whether internal assignment of the matter to a senate was final.
2. Whether government members qualified as “officials” for purposes of recusal rules.
3. Whether constitutional review extends to political wisdom or is limited to legality, including the scope of legislative discretion.
4. What legal effect follows from a declaration that a post-constitution statute is unconstitutional, including temporal effect and binding force.
5. Whether a “referendum” for southwest reorganization requires a result that is determinative for the reorganization, rather than merely advisory.
6. Whether the challenged reorganization statutes complied with the constitutional requirements governing southwest reorganization and democratic equality.

## Decision

- The court held that the plenary assignment decision fixing which senate would decide the case was final and not subject to re-transfer.
- The court held that members of governments are “officials” within the meaning of the relevant recusal provision.
- The court held it reviews constitutional legality, not political expediency; determining whether and how far the legislature has discretion is itself a legal question.
- The court held that unconstitutional post-constitution statutes are void from the beginning and that decisions declaring invalidity bind constitutional organs, including through the controlling reasons.
- The court held that the constitutionally required “referendum” exists only if the popular result is determinative for the form of reorganization, not merely a nonbinding guide for the legislature.
- The court found constitutional defects in parts of the reorganization framework that failed to secure the referendum’s determinative character, while accepting that federal reorganization could proceed if structured to satisfy the binding-referendum requirement.

## Legal Principles

- Constitutional provisions must be interpreted in relation to the constitution’s overall structure and basic commitments, not in isolation.
- Constitutional review addresses legality; courts do not invalidate statutes on the ground that legislative choices are unwise, but do police the legal limits of legislative discretion.
- When a post-constitution statute conflicts with the constitution, it is void ab initio; invalidity determinations bind all relevant organs.
- A “referendum” required for territorial reorganization must be outcome-determinative for the reorganization decision; an advisory vote is insufficient.
- Legislative classifications affecting democratic participation must rest on an objectively reasonable justification; unsupported unequal treatment is impermissible arbitrariness.

## Conclusion

The court permitted federal-led reorganization of the southwest states only through a referendum whose result determines the reorganization, invalidated incompatible parts of the statutory scheme, and articulated foundational doctrines on constitutional interpretation, the limits of review, and the binding, retroactive effect of invalidity decisions.


Southwest State Case (Südweststaat), 1 BVerfGE 14 (Ger. Fed. Const. Ct. 1951)