Carl Schmitt's Constitutional Textbook

Carl Schmitt. Constitutional Theory. Translated by Jeffrey Seitzer. Durham: Duke University Press, 2008. xix + 468 pp. $29.95, paper, ISBN 978-0-8223-4070-6. Reviewed by Robert D. Rachlin Published on H-German (October, 2009) Commissioned by Susan R. Boettcher This frst English translation of Carl Schmitt's The trajectory of his legal-political thought Verfassungslehre (1928), prepared by Jeffrey tended toward justification of strong executive Seitzer and published under the title Constitution‐ government. His Die Diktatur (1922) distinguished al Theory, makes a welcome contribution to the between what he called "commissarial dictator‐ growing corpus of Schmitt's writings available in ship" and "sovereign dictatorship." The former, English. His scholarly works span several eras of characteristic of the dictators appointed for limit‐ German history, beginning in the Wilhelmine Em‐ ed terms during the Roman republic, functioned pire of 1910, traversing the First World War years, in times of emergency, not to abrogate, but to pre‐ the Weimar Republic, the Third Reich and World serve the constitutional footing of the nation. A War II, and postwar Germany. The last work pub‐ sovereign dictator, on the other hand, replaced lished in his lifetime appeared in 1970.[1] Schmitt the constitutional foundation of the state and be‐ (1888-1985), the so-called Crown Jurist of the came a tyrant with unlimited tenure. In Die geis‐ Third Reich, published his Verfassungslehre dur‐ tesgeschichtliche Lage des heutigen Parlamen‐ ing the only sustained period of calm that the tarismus (1923), translated as The Crisis of Parlia‐ Weimar Republic enjoyed. Schmitt's reputation mentary Democracy (1988), Schmitt doubted the suffered from his membership in the NSDAP and viability of parliamentary government, predicting his many publications in support of the Third Re‐ that factionalism would doom it to stalemate. The ich from 1933 to 1936--whether sincere or oppor‐ prediction was accurate in the case of Weimar, tunistic--has been a matter of vigorous debate. His with a Reichstag beset with multiple parties that copious political and legal writings continue to were unable to form the coalitions necessary to challenge liberal thought, engendering countless agree for long on the composition of the cabinet. scholarly books and articles and a quasi-cottage The fourteen years and two months of the industry of articles in the journal Telos. Weimar Republic witnessed ffteen governments, H-Net Reviews thirteen different chancellors, and ffteen coali‐ dictatorship of which Schmitt had written in 1922 tions. What stability existed in Weimar Germany became a reality as the multiparty Reichstag fnal‐ was provided by the president, as the framers of ly proved unable to muster the majorities neces‐ the constitution foresaw. In the Weimar Republic, sary to govern. The commissarial dictatorship of there were only two: Friedrich Ebert and Paul von Hindenburg eventually metamorphosed into the Hindenburg. sovereign dictatorship of Adolf Hitler. In August In Constitutional Theory, Schmitt defended 1934, Hitler united the offices of chancellor and the Weimar constitution, which had been adopted president in his own person. The stability of the August 11, 1919. Its most controversial feature republic can be roughly gauged by the frequency was Article 48, which empowered the president to with which the president's emergency powers preserve public security and order with "neces‐ were invoked. From October 20, 1919 through De‐ sary measures," including the use of armed force. cember 29, 1924, Article 48 was invoked 135 Article 48 explicitly authorized the president to times, but only 10 times from January 29, 1925 suspend the operation of six constitutional arti‐ through July 15, 1930. From July 16, 1930, through cles that protected basic civil rights: inviolability September 27, 1932, Article 48 was invoked 88 of living quarters, privacy of communications, times.[3] freedom of speech, freedom of association, free‐ In Constitutional Theory, Schmitt contextual‐ dom from arbitrary expropriation, and an analog ized the Weimar constitution within the historical of habeas corpus. development of constitutional government in In the fnal three years of the Weimar Repub‐ France, Switzerland, Belgium, the United States, lic, parliamentary party factionalism brought con‐ England, and Germany itself--with particular con‐ ventional legislative and cabinet government to a sideration of the 1871 constitution of the Second halt. The German state became governed by presi‐ Reich. The Weimar constitution, approved on Au‐ dential decree, in reliance on Article 48. During gust 11, 1919, attempted to balance representative this period, Schmitt emerged from academic life parliamentary government with a cabinet headed and became an advisor to the government thanks by a chancellor and a popularly elected president. to his friendship with General Kurt von Schleich‐ Clearly recognizing the challenge of factionalism er, who served as Weimar's last chancellor in the to a functioning German republic, the framers of republic's fnal two months. Although Schmitt the constitution placed special trust in the presi‐ owed his political influence largely to Schleicher's dent as an official above party and beholden only patronage, he offered no protest when Schleicher to the electorate as a whole. Schmitt's methodolo‐ and his wife were murdered during the Night of gy is historical. He identifies threads running Long Knives on June 30, 1934. On the contrary: through constitutions from the French and Ameri‐ Schmitt celebrated the bloody events with an arti‐ can revolutions onward and rejects the "contract" cle bearing the jaw-dropping title "The Führer theory of state formation. The state is formed, not Protects the Law."[2] by a fctional agreement among constituent indi‐ viduals, but by a unity of purpose among the ho‐ To many, the quasi-dictatorial powers allotted mogeneous many that fnds expression ultimately to the popularly elected president represented a in the decisive action of the one or the few. This welcome restoration of the kaiser, functionally if process comes about by virtue of what Schmitt not in name. Indeed, the president was seen by calls "the people's ever-present, active constitu‐ many as an Ersatzkaiser. Presidential prerogative tion-making power" (p. 139). was invoked repeatedly in the frst fve years of the republic. Toward its end, the commissarial 2 H-Net Reviews The book is divided into four broad parts, The Rechtsstaat is based on bourgeois freedom, treating respectively the concept of the constitu‐ which, in turn, leads to a pair of principles: the tion, its Rechtsstaat component, its political com‐ principle of distribution and the organizational ponent, and the constitutional theory of the feder‐ principle. The principle of distribution presuppos‐ ation. For Schmitt, "constitution" is a concept sep‐ es complete freedom for the citizen and limited arate from the document customarily given that authority for the government. By virtue of the or‐ name. The constitution in the ideal sense is not a ganizational principle, government is divided into law or series of laws, but an act of political will, a system of defined competen‐ whereby a people united by a common purpose cies--"Gewaltenteilung," which Seitzer translates creates a state. Schmitt subdivides the concept as the familiar "separation of powers" (p. 170). into three categories. "Constitution in the absolute Schmitt's Verfassungslehre was written at the sense" is "the concrete manner of existence that is same time as his seminal Der Begriff des Politis‐ a given with every political unity" (p. 59). A sec‐ chen (1932), translated by George Schwab as The ond sense is constitution as "a special type of Concept of the Political (2007). Schmitt's idea of supremacy and subordination" (p. 60). In this the constitution can best be grasped via an under‐ sense, "the state is a constitution. It is a monarchy, standing of his idea of the political. For Schmitt, aristocracy, democracy, council republic, and does the political impulse arises from the recognition not have merely a monarchical or other type of of the friend-enemy distinction, a notion elaborat‐ constitution" (p. 60). The third sense of constitu‐ ed at length in The Concept of the Political. The tion is dynamic: "the principle of the dynamic threat posed by the "other" (however defined) emergence of political unity, or the process of con‐ generates the political impulse. The political im‐ stantly renewed formation and emergence of this pulse, in turn, generates the state. As Schmitt unity from a fundamental or ultimately effective writes at the very beginning of The Concept of the power and energy" (p. 61). (The copious italiciza‐ Political, the definition of a state inherently re‐ tion is present in the German original, as well as quires the previous definition of the political. But in the translation under review.) if the political impulse is founded on the friend- What we customarily call a "constitution" (for enemy distinction, what is the characteristic of a example, when we refer to the United States Con‐ people that permits it to identify itself as "us" and stitution) to Schmitt is "constitutional law" or the the enemy as "them"? For Schmitt, the defining "relative concept of the constitution" (p. 67). Both quality of a Volk is homogeneity, in Schmitt's the United States and Weimar Germany would be hands a protean term. It signifies a sameness that categorized as Rechtsstaaten. As Schmitt points can describe culture, religion, ethnicity, custom, out, the majority of contemporary constitutions all or some of these, or, more generally, the "self- are of the "modern, bourgeois Rechtsstaat" type identity of the people" (p. 260)--a quality or cluster (p. 169). The German Rechtsstaat cannot be trans‐ of qualities shared by a group of people with suffi‐ lated into English with a single word. A cient intensity to set that people apart from some Rechtsstaat is a state governed by law, as distin‐ other group of people having contrasting quali‐ guished from (say) a tyranny.

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