Carl Schmitt. Constitutional Theory. Translated by Jefrey 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 Jefrey tended toward justifcation 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 sufered 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 diferent 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 ofces 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 infuence largely to Schleicher's dent as an ofcial above party and beholden only patronage, he ofered 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 identifes 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

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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 defned 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 Begrif 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 defned) 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 efective writes at the very beginning of The Concept of the power and energy" (p. 61). (The copious italiciza‐ Political, the defnition of a state inherently re‐ tion is present in the German original, as well as quires the previous defnition 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 defning "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 signifes 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 suf‐ 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. Seitzer wisely ren‐ ties. Schmitt also incorporates the sense that the ders Rechtsstaat in the original German. He "other" people, the enemy, constitute a threat to thereby avoids repeated, awkward resort to mul‐ the "us" people. tiverbal English locutions. The terms "constitu‐ Read by itself, Constitutional Theory ofers a tional state" (Verfassungsstaat) and "bourgeois rigorous, in-depth study of the ideas informing Rechtsstaat" (bürgerlicher Rechtsstaat) are often the modern Rechtsstaat constitution. Read togeth‐ used interchangeably in common usage (p. 169).

3 H-Net Reviews er with The Concept of the Political, Constitution‐ view follows the same practice. The translator has al Theory presages an ominous grouping of mutu‐ a small number of notes of his own, located at the ally hostile nation-states, each formed on the ba‐ end of the text. Constitutional Theory contains a sis of a homogeneous people that has willed its useful introduction by Seitzer and Christopher separateness and is enclosed by impermeable Thornhill and, in an appendix, the text of the boundaries. Just as the post-Westphalian nation- Weimar constitution, translated into English. This state concept is undergoing serious rethinking,[4] inclusion is particularly useful, as Schmitt's text the relevance of Schmitt's constitutional schema makes frequent reference to that document. on a shrinking planet with massive population Notes movement and interchange may be reasonably [1]. Carl Schmitt, Politische Theologie, vol. 2 called into question. Schmitt himself hints as (Munich: Duncker & Humblot, 1970). much when he questions whether public opinion as such can exist in a society defned by classes. [2]. Carl Schmitt, "Der Führer schützt das Translated to contemporary terms: can homo‐ Recht," Deutsche Juristen-Zeitung (1934): 945. geneity, necessary according to Schmitt to genera‐ [3]. Linsay Rogers, Sanford Schwarz, and tion of the political presupposition of the state, ex‐ Nicholas S. Kaltchas, "German Political Institu‐ ist in the face of "identity politics"? tions, II. Article 48,"Political Science Quarterly 47 Seitzer's translation is readable and faithful (1932): 583-594. to the original. No reviewer of a translation can [4]. See, for example, Philip Bobbitt, The leave the translator's labors unmolested, and Shield of Achilles: War, Peace, and the Course of there are a (very)few ambiguities or inelegancies. History (New York: Knopf, 2002), 213-242, and An example is on p. 313, where Seitzer ofers "po‐ Bobbitt's concept of the Market State. litical party conficts ... would lead to appeals for [5]. Carl Schmitt, Verfassungslehre (Berlin: help by foreign governments." Reference to the Duncker & Humblot, 2003). original suggests that "appeals for the help of for‐ eign governments" would have been clearer. But such cavils serve little purpose other than to con‐ vince the reader that the reviewer has actually read the book. The translation helpfully inserts the pagination of the original German text within the English text. This inclusion facilitates refer‐ ence to the original, whose pagination is essential‐ ly unaltered in the most recent paperback edition. [5] In any future edition of the translation, it would be helpful if the bracketed pagination were printed in boldface, as it is often difcult to fnd the page reference to the original within the text, because the page reference is printed in the same type as the main text. The editors of the original German text fol‐ lowed the ingratiating practice of including Schmitt's extensive notes sequentially within the text, but in smaller type. The translation under re‐

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