Carl Schmitt's State and Constitutional Theory: A Critical Analysis
Can a constitution commit suicide? How should a liberal democratic state respond when social movements threaten war with one another and against the state itself? How should liberal democrats respond when extremist parties are strong enough to cooperate in parliament and obstruct essential legislation? Can an illiberal antidemocratic party legitimately obtain power through elections and then kick the ladder down by legally amending democracy and liberalism out of the constitution entirely?
Beginning in 1929, theoretical questions like these suddenly became both practically and existentially relevant for Weimar Germany. The share of the vote Nazis and Communists received in elections swelled until, combined, they were the majority. Neither movement accepted the legitimacy of liberal democracy and both were explicit that their only goal in running for seats in parliament was to gain a strong enough majority to amend the Weimar Constitution out of existence. Until then, they cooperated across the aisle, so to speak, to constitute negative majorities and prevent the SPD, Zentrum, and other parties from being able to pass legislation to respond to the economic, social, and political crises Weimar faced. By 1932, the Nazis held a plurality. In January 1933, exhausted with alternatives, Hindenburg appointed Hitler Chancellor legally.
This book extrapolates Carl Schmitt’s state theory and looks at how it was conceived in response to Weimar’s legitimation crisis. I show how Schmitt looks back to the tradition of state theory to address this crisis. In particular, I show how he models his solution on Thomas Hobbes, whose Leviathan was also a response to civil war and the breakdown of political order. I argue Schmitt updates Hobbes’ state theory to respond to the unique problems of the 20th century, especially modern mass democracy. Democratically disingenuous social movements exploited the media and whipped up an emotionally charged popular base, obtaining for themselves a veneer of democratic legitimacy and the means to parliament. Once in parliament, they intentionally exacerbated Weimar’s crises and worked toward a legal revolution of the Weimar Constitution. Schmitt saw these conflicts as the 20th century equivalent of the Confessional Civil Wars and he saw himself as the 20th century Hobbes. He theorized ways to neutralize those conflicts and restore the state’s sovereign authority.
But, besides that, Schmitt thought these issues begged the basic question of constitutionalism: Can “the people” legitimately be bound to the mast? Can democracy be tyrannical? Schmitt’s peers, such as Gerhard Anschutz, Hans Kelsen, and Richard Thoma, answered in the negative and argued that there was no higher basis to deny a democratic will formed according to proper legal procedures.
Schmitt disagreed. He argued the constitution imposed hard limits on democracy. And, perhaps surprisingly, Schmitt repeatedly argued that the prior commitment of the Weimar Constitution to the "bourgeois Rechtsstaat" defined those limits. That is, Schmitt argued Weimar's constitutional commitment to liberal individual rights defined implied limits of constitutional amendment and the foundation of political legitimacy in Weimar.
Building on his answer, I argue Schmitt’s state theory anticipated "constrained" or "militant" democracy. Constrained democracy is a type of liberal democratic constitution that guards against certain forms of popular sovereignty and prevents constitutional suicide. Its institutional mechanisms include the entrenchment of core constitutional principles, such as basic rights, and political bans on certain illiberal and antidemocratic parties. Although one finds militant democracy embedded in constitutions around the world today, it has been undertheorized. Because Schmitt’s theory of constrained democracy rests on his substantive state theory, I conclude he offers us an original normative theory of constrained democracy – something invaluable for making sense of its legitimacy and its limits today.