“Constitutional Failure provides a useful antidote for the talk dominant today of deliberative democracy, procedures, and dialogue, and so contributes in important ways to contemporary political theory as well as to an understanding of Carl Schmitt.”—David Dyzenhaus, editor of Law as Politics: Carl Schmitt’s Critique of Liberalism
Constitutional Failure: Carl Schmitt in Weimarby Ellen Kennedy
Constitutional Failure is a major contribution to studies of the German political philosopher Carl Schmitt (1888–1985), the Weimar Republic, and the relationship of constitutionalism, political economy, and democracy. An internationally renowned scholar of Weimar legal theory, Ellen Kennedy brought Schmitt’s neglected work to the attention of English-speaking readers with her highly regarded translations of his work and studies of its place in twentieth-century political theory. In this eagerly awaited book, she tracks Schmitt’s contribution to the canon of Western political philosophy during its most difficult and dangerous moment—the time of Weimar Germany and the Third Reich—demonstrating the centrality of his thought to understandings of the modern constitutional state and its precarious economic and social foundations.
Kennedy reveals how Schmitt’s argument for a strong but neutral state supported the maximization of market freedom at the cost of the political constitution. She argues that the major fault lines of Weimar liberalism—emergency powers, the courts as “defenders of the constitution,” mass mobilization of anti-liberal politics, ethnic-identity politics, a culture of resentment and contested legitimacy—are not exceptions within the liberal-democratic orders of the West, but central to them. Contending that Schmitt’s thought remains vital today because liberal norms are inadequate to the political challenges facing constitutional systems as diverse as those of Eastern Europe and the United States, Kennedy develops a compelling, rigorous argument that unsettles many assumptions about liberalism, democracy, and dictatorship.
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Constitutional failureCarl Schmitt in Weimar
By Ellen Kennedy
Duke University Press
Chapter OneIn the Dark Years: 1933-1945
The crisis of European jurisprudence began a century ago with the triumph of positivism. -CARL SCHMITT, "Die Lage der europaischen Rechtswissenschaft"
When Carl Schmitt spoke to the faculty of law at Leipzig on December 1, 1944, barely half a year remained for Hitler's "Thousand Year Reich." In twelve years Nazi Germany had laid waste to the European continent and with it the system of nation-states that had been its political structure since 1648. At this point in "the Europe of the dictators," questions of jurisprudence might seem academic indeed. But Schmitt's lecture on "the plight of European jurisprudence" and its text were deeply embedded in Europe's contemporary crisis. Read to law faculties across occupied and fascist Europe between February 1943 and December 1944, the lecture's references to the war are oblique. Schmitt begins with an acknowledgment that the topic itself, European jurisprudence, might seem absurd -the second war of the century is evidence enough of Europe's fragmentation. Later he denies that he is addressing "the most obvious subject, the effects of the world war," but also that he will avoid "empty phrases, abstractions and merely formal argument." His topic, the history of Roman law in European jurisprudence since Friedrich Karl von Savigny, had been acontroversial subject among legal scholars after 1933 in a debate that set "Romanists" against "Germanists" along the lines of a broadly European versus a narrowly nationalist jurisprudence. The Romanists tended to be "far more international and multilingual and more deeply rooted in the world of liberal-humanist disciplines" than the Germanists. Their respective political and cultural milieus made the one less, the other more, susceptible to "the conglomeration of emotionally charged words that was made up of ethnic-national, corporatist, authoritarian and totalitarian elements and was establishing itself as the ideology of the state." Beyond that, however, basic differences in philosophy divided them. Perhaps because the Roman law was essentially a historic discipline, its practitioners were less politically oriented than the Germanists and less likely to view jurisprudence as the search for "eternal ideas" that could serve as guides to the present than were the Germanists.
Schmitt's starting point is this struggle "for and against the Roman law," but his argument moves beyond its boundaries. The Roman law is not a national question but a European one that raises a general question about the connection between law and justice, and the purpose of political rule. Its concluding pathos hints at the contemporary disjunction between them, suggesting that jurists are called to guard the arcana of law, a vocation that preserves them against "the terror of those weapons of destruction which modern science places in the hands of every ruler." The history of the text suggests more immediate questions about the relationship of law and politics.
Into the Vortex
Schmitt intended "Die Lage der europaischen Rechtswissenschaft" for a Festschrift in honor of his friend Johannes Popitz's sixtieth birthday, a relationship that reveals much about Schmitt's person and place in the political intelligentsia of Weimar and the Third Reich. The two met in 1929 when Schmitt joined the faculty of the Berlin Handelshochschule and published the interpretation of presidential power that took him from largely academic debates into practical politics. Popitz's grasp of economics and his political cunning made him an influential adviser to the government, and the connection gave Schmitt entree into the circle of conservative politicians and intellectuals around President Paul von Hindenburg.
Although there were differences between them, more united Schmitt and Popitz intellectually than divided them. Their common ground was the diagnosis of Weimar and its remedy, and that led both into active political engagement in Weimar's final crisis. From their different perspectives-Schmitt was a constitutional lawyer, Popitz an economist-they thought that parliamentary governments were unable to manage conflicting economic interests and that partisan politics were destroying confidence in the state and undermining Germany's national independence. Their preferred solution was presidential government because they thought the executive branch was more efficient than the legislative and that its corps of professional civil servants was less corruptible. Both saw the office of president as "the bearer of the principle of the unity of the Reich," and like Max Weber, they believed that it would counter the dangers of German particularism in the republican constitution. Like him, too, they had misgivings about parliamentary government; their vision of the presidency as the fount of "strong leadership" was not embedded in a balance-of-powers argument but represented an alternative to parliament and its party system.
Both Schmitt and Popitz took part in the public debate on governmental and economic problems caused by the Great Depression and were involved in the political intrigues of the German state crisis from 1930 to 1932. Popitz was a career civil servant who held positions in the Interior Ministry and the Reich Treasury during World War I and high posts in the German state afterward. From 1925 until his resignation on December 21, 1929, Popitz was state secretary in the Finance Ministry under the last parliamentary governments of the Republic. In that position, he advocated a policy of fiscal burden sharing between Reich, Lander, and local governments and is regarded as the originator of the German Finanzausgleich system of taxation and revenue sharing. An outspoken critic of German federalism, Popitz favored both administrative reforms to create a more unitary state and fiscal policies to stimulate the economy and encourage capital accumulation. When the German Reichsbank undermined a plan for tax cuts in late 1929, Popitz and his finance minister Rudolf Hilferding (Social Democratic Party or SPD) resigned; Popitz did not return to government service until after the Prussian coup of July 20, 1932. The last parliamentary government fell in March 1930. Its successor, headed by Heinrich Bruning (Center Party), governed by emergency decree until Hindenburg dismissed it in late May 1932 and called on Franz von Papen to form a government of "National Consolidation." Popitz and Schmitt were involved in advising the president's counselors behind the scenes and in the decision to remove the government of Prussia that summer. Popitz wrote to his wife regarding the Preussenschlag supporting the Reich actions that "at last something has been done that should have been done long ago," but saying, too, that he was "happy not to be directly involved in this."
Schmitt's argument for presidential dictatorship according to Article 48 of the Weimar constitution was widely known and discussed, and he became involved in the presidential cabinets of Franz von Papen (June 1 to December 3, 1932) and General Kurt von Schleicher (December 3, 1932, to January 30, 1933) through the president's chief of staff, Otto Meissner. When the deposed SPD government of Prussia sued the Reich government, Carl Schmitt defended its actions. The Staatsgerichtshof ruling on October 25 left the commissarial powers of the Reich intact in Prussia but symbolically "restored" the Prussian government. A week later Popitz, with considerable reluctance, accepted appointment as Reich minister without portfolio and commissioner for Prussian finances. He retained that post in the Schleicher cabinet, a failed attempt to form a coalition of military and industrial interests with the Social Democratic working class. As inclusion of the National Socialists began to be discussed in early January 1933, Popitz was skeptical, and he was one of the first dismissed from the cabinet on January 30. In late April, however, Popitz joined the government again as Reich minister and Prussian finance minister, positions he held until his death in 1945.
Both Popitz and Schmitt made careers in government after 1933, and their social and intellectual friendship continued throughout the Third Reich. They were neighbors in Berlin, and the families were often guests in each other's homes. Schmitt's household during the Berlin years was a salon in which everyone in the conservative-national intelligenz from Niekisch to Ernst Junger met, and where artists such as Emile Nolde and David Gillys were also frequent guests. Schmitt and Popitz were influential members of the Deutschen Gesellschaft, a political club of high-ranking civil servants and professors. Although they frequently read and commented on each other's work, Popitz never introduced Schmitt to the Mittwochsgesellschaft, the circle of Berlin civil servants and intellectuals to which Popitz and others in the elite who resisted Hitler belonged. Their shared interests in government and economic issues and Schmitt's broad knowledge of music and literature suggest that he would have been an obvious participant, and his name and work appear several times in the Mittwochsgesellschaft's discussions. Schmitt's absence implies that Popitz believed he would have been an unreliable conspirator against Hitler, and despite their friendship, Popitz never confided in Schmitt. When the coup failed, Schmitt's first reaction was fear that he would be linked to the plot through Popitz.
A diverse group that met fortnightly in the Berlin villas of its members, the society began in 1863 as the Freie Gesellschaft fur wissenschaftliche Unterhaltung. All subjects were allowed except "the political events of the day," and the major breaks in German history before the winter of 1932 to 1933 left no traces in the society's records. In the last year of the Republic, that began to change, and the protocols from November 1932 until the group's last meeting on July 26, 1944, contain several presentations on the state, law, and the constitution. Two days after his appointment to the Nazi government, Popitz made a presentation to the society entitled "Recent Developments in Germany," laying out a structural critique of the Republic and arguing that there were only two ways out of the situation, reform or revolution. Reform (by that he meant the presidential cabinets of Papen and Schleicher) had failed; only revolution remained. "The preconditions for revolution were given, because we had tried to prevent the masses gathering behind Hitler's national movement from taking part in government. It [the inclusion of the Nazis] is a revolution because it is a seizure of power in the state, and once in their hands that power has been used against those rights formerly held by individuals and for a fundamental reorganization of the state." This revolution was unique, Popitz continued, because it had been relatively bloodless and, taking an argument from Carl Schmitt, legal. "It began with the capitulation of the government and presidential power-without a 'March on Rome'-through entrusting the leader of this movement with the German Chancellorship and with the exploitation of the defeated constitution which allowed it, with its 2/3rds majority, to accomplish things that are in complete contradiction of the political idea of that [the Weimar] constitution." Popitz concluded with an argument that led many Germans into collaboration. It remains to be seen, he told his listeners that evening, whether this government will succeed in reforming those aspects of political and social life in the Republic that had "cried out for change" through building a new national authority for the state. Would Hitler proceed as the Italian fascists had? Or, Popitz asked in a tone that made his own position clear, would there be room for "personal initiative and the value of the individual which over the long term would allow the emergence of a new leadership class fully aware of its responsibilities and conscious of its ties to the people"?
There is a certain irony in the reaction of Popitz and many other Germans to Hitler's appointment that tends to be obscured by our retrospective vision. Knowing as we do the subsequent development of that regime, it seems obvious in some way that, here at the first moment, persons of goodwill and decency should have reacted to an unfolding tragedy. Instead what we have is the enactment of an old political virtue, temperance, and the counsel to "wait and see" combined with the belief that, despite the governmental instability of the previous year, the institutions of the German state would tame the radical elements in the new government. For many observers, although Hitler's appointment came as a surprise, it seemed to carry no ominous portent, and the mood in Berlin that evening was festive. "That evening I went out to dinner at the 'Kaiserhof' with [General] Seekt, [foreign minister Walter] Simons, [and state secretary in the Foreign Office Wilhelm] Solf, then to a lecture by Coudenhove on 'Germany's European Task,'" Harry Graf Kessler noted in his diary. "Berlin tonight is in a carnival mood. SA and SS troops, as well as uniformed Stahlhelm members marching through the streets, observers crowding onto the sidewalks. In and around the 'Kaiserhof' there was a real festival; uniformed SS troops standing in lines at the entry and in the hall, SA and SS men patrolling the corridors.... I rode over to the Furstenberg Beer Hall on the Potsdamer Platz. Marching columns of SA men in military formation there too. The highpoint was reached inside the beer hall." Kessler goes on to describe how the men were picked up by "two blonde tarts" at the Furstenberg: "it was an appropriate conclusion to this 'historic' day that fit in perfectly with the mood." Others, of course, did react powerfully against the appointment. Erich von Ludendorff wrote to Hindenburg, his wartime colleague, "You have delivered up our holy German fatherland to one of the greatest demagogues of all time. I solemnly prophesy that this accursed man will cast our Reich into the abyss and bring our nation to inconceivable misery. Future generations will damn you in your grave for what you have done."
Schmitt's diary for January 31, the day after Hitler's appointment, was terse and pessimistic. "Cancelled my lecture. Couldn't work. Ridiculous circumstances. Read the newspaper. Upset, fits of temper, that's how the day went." On the afternoon of the thirtieth, Schmitt was walking in the Berlin Tiergarten as the first demonstrators moved toward the Chancellery in the Wilhelmstrasse. His companion was Schleicher's press secretary, Erich Marcks, who remarked to him: "Herr Professor, that was our problem, we could not create enough enthusiasm." Both men regretted Hitler's appointment and would do "all they could to bring the National Socialist adventure to a speedy end." Events in the month between Hitler's appointment as chancellor and the burning of the Reichstag building on February 27 mixed the pattern of revolutionary breaks in political history with the language of government transition, for which Hitler's speech to the nation on January 31 set the tone. The Republic had left "an appalling legacy" of defeat and disunity, a nation undermined by enemies within and without. What was done in fourteen years (1919-1933) must be corrected in four. A pledge of specific programs to help the unemployed and the farming sectors, and "to fulfill the responsibilities of society to those who are old and sick," was combined with a new foreign policy that would restore Germany as a "free and equal nation" among others. Invoking the kaiser's speech to the Reichstag on August 4, 1914, Hitler concluded, "We do not recognize classes, but only the German people." Speaking to a group of German industrialists a few weeks later, Hitler and Goring made their intentions quite clear; the elections scheduled for March 5 would be used to consolidate the power of the NSDAP and would be, Goring told his audience, "certainly the last for the next ten years, probably the last for the next hundred years." The campaign leading up to the March elections was marked by violence, intimidation, and propaganda branding their opponents as national enemies. The SA and SS, military units of the Nazi Party, were made auxiliaries of the Prussian police, and on Goring's orders, they systematically intimidated other political parties, especially the Social Democrats and Communists. Less than a week before the elections, the Reichstag was set on fire, the pretext for a wholesale roundup of suspects. On the following day, sections of the constitution (personal liberty, free speech, press freedom, assembly and association, privacy of house and communications) were suspended by presidential decree. Local and Lander officials were ordered to carry out measures to "restore public safety and order," and the decree authorized the central Reich government to take over any subordinate governmental unit if this was not done. At the elections the Nazis failed to gain an absolute majority in the Reichstag, despite such intimidation: their vote share rose from 33.1 percent to 43.9 percent, but they still required the nationalists as coalition partners. Nevertheless they held essential institutions of the Reich and had broken the political opposition.
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Meet the Author
Ellen Kennedy is Professor of Political Science at the University of Pennsylvania. Among her books are The Bundesbank: Germany’s Central Bank in the International Monetary System; Freedom and the Open Society: Henri Bergson’s Contribution to Political Philosophy; and the English translation of Carl Schmitt’s Crisis of Parliamentary Democracy.
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