In this connection, Article 146 of the German Basic Law deserves special mention. In that provision, the Basic Law, consistent with its *727 enactors’ understanding that it was a mere provisional constitution pending eventual German unification, “contemplated its own termination.”61 It states that “this Basic Law will lose its validity on the effective date of a constitution that has been chosen by the German people in a free decision.”62 The text is silent both as to the definition of the “German people” and the manner in which it might manifest its “free decision.” The limited force of this kind of provision is demonstrated by the fact that, at the moment of unification, the powers-that-were, prominently including the holders of power conferred by the Basic Law, refused to invoke it. They chose instead to amend the Basic Law and leave it, so amended, in place over the now enlarged territory and population.63 Significantly, however, Article 146 was retained in the Basic Law after unification. It is unclear how the constituent authority that it recognizes fits with Article 79 stipulating the process of constitutional amendment. It has been suggested that, like the ordinary amending authority, the “free decision” of the German people could not extend to alteration of the unamendable aspects of the Basic Law referred to in Article 79(3).64 It says something about the nature of provisions like these that one astute commentator has assumed that these questions would have to be resolved by the Constitutional Court, itself of course, a creature of the Basic Law.65
In this connection, Article 146 of the German Basic Law deserves special mention. In that provision, the Basic Law, consistent with its *727 enactors’ understanding that it was a mere provisional constitution pending eventual German unification, “contemplated its own termination.”61 It states that “this Basic Law will lose its validity on the effective date of a constitution that has been chosen by the German people in a free decision.”62 The text is silent both as to the definition of the “German people” and the manner in which it might manifest its “free decision.” The limited force of this kind of provision is demonstrated by the fact that, at the moment of unification, the powers-that-were, prominently including the holders of power conferred by the Basic Law, refused to invoke it. They chose instead to amend the Basic Law and leave it, so amended, in place over the now enlarged territory and population.63 Significantly, however, Article 146 was retained in the Basic Law after unification. It is unclear how the constituent authority that it recognizes fits with Article 79 stipulating the process of constitutional amendment. It has been suggested that, like the ordinary amending authority, the “free decision” of the German people could not extend to alteration of the unamendable aspects of the Basic Law referred to in Article 79(3).64 It says something about the nature of provisions like these that one astute commentator has assumed that these questions would have to be resolved by the Constitutional Court, itself of course, a creature of the Basic Law.65
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