Constitutional Failure: Carl Schmitt in Weimar

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Kennedy wrote the forward to the translation of Constitutional Theory. In fact, papers growing out of the Schmooze may be considered for this special issue, as Andreas will explain to us when we meet. While we can adjust the topics to whatever the group wishes to discuss, I suggest that we organize our six different sessions over the two days as follows:.

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This proposed schedule leaves out the last big section of the book on federalism, which we can include if enough so wish. Traditional Schmooze rules apply. Invitations are going out to a distinguished list including both Schmooze regulars law professors and political scientists working in constitutional law and new invitees who specialize in Schmitt. When we meet, there will be no formal presentation of papers, but the organizers will pick a couple of discussion leaders for each session to get the topic launched.

For those of you who have been at these discussions in the past, you know how fruitful it can be to have this sort of wide-ranging and yet thematically focused discussion with a group of peers who are knowledgeable about the topic. Reich was faulty. Prussia had protested to the Court that the President had violated his impartiality, intervening on behalf of an alliance between von Papen and the Nazis.

Schmitt argued that von Papen had full legitimacy, since his mandate was given by the President, the guardian of the constitution. I argued that this was a sophism: neither von Papen nor Hindenburg had been independent of party politics. Schmitt would deny that the Nazis were an ordinary party, since they had the support of the Volk , the true sovereign.

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Not true: the Communist party had strong support too. Schmitt generally believed that liberalism is unable to draw the friend-enemy distinction without contradiction, because it grants equal rights to power to its opponent. Hence, pluralism is less preferable than a homogeneous society, in which the internal enemy has been eradicated. As workshop participants pointed out, this rejection of negotiation and compromise is reminiscent of the sharp polarisation of the political landscape in Hungary and Romania.

Anybody acting or intending to act against it will be a prosecutable enemy of the constitution. It seems to me that like Schmitt the new authoritarians of Eastern Europe confuse legitimate political opponents with enemies of the nation or people.

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Schmitt also denied that the Reichsgericht had jurisdiction over the constitutional problems involved in Prussia vs. The Court, in his view, guarded the constitution only in legal matters, but the deposition of the Prussian government had been a political issue, and here the guardian of the constitution was the President.

This is ambiguous, as Dyzenhaus shows. The powers of the Romanian Court were curtailed by the Ponta government during the crisis, and individual judges, such as Aspazia Cojocaru and Iulia Motoc, were threatened with dismissal, attacked in USL -friendly media and even had their lives threatened.

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As Motoc later explained , such attacks against constitutional judges are without precedent in Europe. They did not occur even in Weimar. Cristina Arion European Parliament explained that the Romanian CC tried to assume its function as the guardian of the constitution as best as it could, defending its own powers to rule on the constitutionality of decisions adopted by the Parliament. Being placed under tremendous pressure, however, the Court was polarized and its decisions ultimately lacked coherence. For instance, the Court upheld the removal from office of the speakers of both houses of the Parliament, despite procedural irregularities, and refused to take a stance on the constitutional conflict between Parliament and President.

Several points emerged repeatedly during the discussion. One concerned the role the EU ought to take towards the erosion of constitutionalism in Eastern Europe. The consensus was that the EU does not only have the right, but the duty to intervene against nefarious political developments. In order to establish a permanent need for political authority, negative political anthropology must be given a theological reading that portrays the dangerous nature of man as an irrevocable result of original sin.

Liberal de-politicization, from this perspective, is to be rejected as a sign of human pride that rebels against God, who alone, but only at the end of history, can deliver humanity from political enmity.

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Schmitt himself admits that the theological grounding of politics is based on an anthropological confession of faith CP And one is tempted to say that Schmitt's theory turns out to be philosophically irrelevant if this is really the last word. Schmitt would likely have replied that the liberal assumption that man is perfectible, that humanity can overcome political enmity, and that to do so is desirable, is also an article of faith.

The theological partisan of the political, in Schmitt's view, is as justified in practicing his creed as the liberal cosmopolitan and to engage in a deliberate cultivation of political enmity CPD 65— As long as the political theologian can make sure that the friend-enemy distinction survives, liberals will be forced to enter the arena of the political and to go to war against the partisans of the political.

And this fight, Schmitt hopes, is going to secure the continuing existence of political enmity and prevent the victory of liberal de-politicization CP Schmitt's conception of politics tends to radically dissociate democracy from liberalism and, more controversially, from the constituted, rule-bound practices of popular election and parliamentary legislation that characterize the ordinary workings of modern democracy.

How, then, did Schmitt apply his radical perspective to the sphere of constituted democratic politics in the Weimar Republic? In The Crisis of Parliamentary Democracy , Schmitt understands democracy as the self-rule of the people. In a democratic polity, the decisions taken by the rulers express the will of the people CPD 25—6. However, the principle of democracy, taken in the abstract, is open to different and competing interpretations.

In political practice, the identity of the ruling will with the will of the people is never a simple given. Rather, it is always the result of an act of identification. When political decisions are taken through majority vote, the will of the majority is identified with the will of the people, and every citizen is expected to obey regardless of whether he voted with the majority CPD 26— But what, Schmitt asks, is the basis of this identification?

If a majority can overrule a minority, and identify its will with the will of the people, why should it not be possible for the will of a minority to express the will of the people? What if a group of democratic revolutionaries want to establish a democracy in a society where most people are opposed to the principle of democracy? Would they not be justified, from a democratic point of view, to abandon majority rule, to identify their own will with the true will of the people, and to subject their compatriots to a re-educative dictatorship?

Schmitt suggests that such a dictatorship would still have to be considered democratic, since it still appeals to the idea that political rule ought to be based on the will of the people CPD 28— Once one accepts this claim, the conclusion that Schmitt aims to establish in The Crisis of Parliamentary Democracy will follow: The electoral institutions that we usually take to be paradigmatically democratic are not, in truth, any more intimately connected with the principle of democracy than a dictatorship in the name of the people CPD But this conclusion must surely be an overstatement.

Even democratic dictatorship, however crucial to the establishment of democracy, is exceptional and limited in time. Hence, there must be a characteristically democratic condition of legal normality, and a theory of democracy should tell us what it is. Schmitt's apparent attempt to dissociate the idea of democracy from any particular method of will-formation fails to explain why the democratic tradition has considered institutional provisions like the election of officials or the extension of the franchise to be characteristically democratic.

Schmitt acknowledges this problem in his Constitutional Theory. The idea that legitimate political rule must make appeal to the will of the people, Schmitt now claims, is grounded in the value of political equality CT — Political equality commits us to the denial of natural differences in status among citizens. Per se, no citizen has more of a right than any other citizen else to hold political power. Every citizen, therefore, should participate on equal terms, as far as practically feasible, in the exercise of political rule.

What is more, where it is necessary to appoint public officials with special powers not shared by all citizens, these officials must be appointed through periodical elections. The value of political equality, then, explains why certain forms of will formation are considered to be more intimately associated with the idea of democracy than others CT —5.

However, Schmitt's concession to the value of equality comes with a twist. The political equality that constitutes a political community, Schmitt argues, cannot be based on the non-exclusive equality of all human beings as moral persons.

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Every political community is based on a constitutive distinction between insiders and outsiders or friends and enemies. A democratic political community, as much as any other, must therefore rest on some marker of identity and difference that can ground an exclusive form of political equality which will only apply to insiders CT — Schmitt goes on to define democracy as a political system characterized by the identity of ruler and ruled. Ruler and ruled are identical if and only if the rulers and all the ruled share the substantive identity that the community as a whole, in deciding who its enemies are, has chosen to turn into the basis of its political identity CT —7; See also CPD 8— If all those who live together as legally recognized citizens of a constituted democratic state happen to distinguish between friend and enemy in exactly the same way, the equal participation of all citizens in the political process and the electoral appointment of officials would indeed be a requirement of democratic political justice.

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It would be possible, moreover, to identify the outcomes of the political process with the will of the people, and to consider them democratically legitimate, even if some citizens find themselves in a temporary minority. But the reason why it has become possible to identify the outcomes of democratic procedure with the will of the people is not to be sought in inherent virtues of democratic procedure itself. Rather, the identification is possible only in virtue of the prior identity of all citizens as members of a group constituted by a shared friend-enemy distinction CPD ; LL If, contrary to our initial assumption, those who live together as legally recognized citizens of a constituted democratic state do not share a political identity in Schmitt's sense, the identity of the rulers with all the ruled will no longer obtain, and the constituted democratic state will no longer be truly democratic.

The rule of the majority will degenerate into an illegitimate form of indirect rule of one social faction over another HV 73—91; LL 17—36; L 65— Sovereign dictatorship, then, is still necessary to create the substantive equality that grounds the legitimate operation of constituted, rule-governed democratic politics. The understanding of democracy so far outlined informs Schmitt's interpretation of the Weimar constitution Dyzenhaus , 38—; Caldwell , 85—; Scheuerman , 61—84; Hofmann , —52; Kennedy , — A democratic constitution, Schmitt argues in his Constitutional Theory , is the product of an exercise of constituent power on the part of a politically united people CT 75—77, —30, —6.

If the people did not already exist, Schmitt reasons, it would not be able to give itself a constitution, and a constitution not given by the people itself to itself would not be a democratic constitution. In giving itself a constitution a politically united people determines the concrete form of its political existence, but it does not bring itself into existence. Since a democratic constitution is a unilateral determination, on the part of an already existing people, of the concrete form of its political existence, the people's constituent power must be inalienable.

As long as a people exists it can always decide to give itself a new constitution CT —1; Kalyvas , 79— Schmitt recognizes that it would be implausible to assume that a written constitution represents a conscious choice of the popular sovereign down to its last detail. The revolution of the German people in that led to the creation of the Weimar constitution, for example, expressed the German people's conscious decision for a democratic, republican, and federal state, committed to the principles of the rule of law, and endowed with a parliamentary system of legislation and government CT 77—8.