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Ellen Kennedy - An Introduction To Carl Schmit He Dictatorship of The Reich President Accordingto Article 48 PDF
Ellen Kennedy - An Introduction To Carl Schmit He Dictatorship of The Reich President Accordingto Article 48 PDF
Ellen Kennedy - An Introduction To Carl Schmit He Dictatorship of The Reich President Accordingto Article 48 PDF
Ellen Kennedy
German governments in the Empire and the Republic also relied on enabling laws, ex-
pansive legislative delegations of authority, during periods of crisis.6 During the period of
inflation (1921–1924), four separate enabling laws were enacted by the Reichstag as gov-
ernments tried to stabilize the mark and preserve the real economy. These were of limited
duration. On October 13, 1923, as the mark became utterly worthless and as dozens of
competing currency substitutes circulated throughout Germany,7 an enabling act authorized
government to take “any measure in the financial economic and social spheres” neces-
sary to stop inflation. The goal of stabilizing Germany’s currency and preserving the real
economy was achieved only when Hjalmar Schacht was appointed Currency Commissioner
(Währungskommissar) on November 13, 1923 to oversee the new Rentenmark and its bank
of issue.8 Before that extraordinary step, other stabilization efforts failed for reasons familiar
to us in recent years as American markets collapsed and major investment banks failed: the
everything’s “value” was uncertain, and the currency (in our case, certain investment instru-
ments and market derivatives) could not perform its notational function. The Rentenmark
worked but at the cost of the political and civil law crisis of revalued debt (Aufwertung)
that led to deep resentment across classes and created a massive culture of “moral hazard.”
Savers lost the value of their savings, debtors got off scot-free.9 In the ensuing legal tur-
moil, German judges turned to equity and good faith (Treu und Glauben) rather than statute
law to sort through property and other debt associated claims in court.10 Although this pe-
riod of economic insecurity ended with monetary success and four years of stability and
prosperity followed, it deepened debate and disagreement over basic concepts in law and
jurisprudence.
Article 48 had been invoked repeatedly from the beginning of the Republic, and the great
inflation was a period of economic turmoil – the price of bread rose to 140 billion Reichsmark
on November 5 1923 – that carried over into street violence, plundering and often explicitly
anti-Semitic attacks.11 The crises that fed this disorder were the result of German fiscal
policy during the war and of the Treaty itself, which Germans blamed for all their troubles.12
These reached a peak in 1923: the French & Belgians occupied the Ruhr, and called for a
separate “Republic of the Rheine”; Bavaria attempted to secede, Hitler led an unsuccessful
coup in Munich; and there were severe disturbances in Saxony and Thüringen.13
In those circumstances, Article 48 was seen and used as one instrument in the toolbox
of executive powers including enabling acts (which required parliamentary action): against
currency speculation (October 7 1923); to control exchange rates (June 22 1923, June 29
1923) and to ban trading in currency and commodities (July 3 1923). It was held in reserve
as an alternative to the Enabling Act of October 13, 1923 should the Reichstag fail to act
(as it did).14
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286 Constellations Volume 18, Number 3, 2011
the origin of two central concepts in political thought: the state and the individual. He saw,
too, another parallel between them and those present in Jena that spring. It was in Jena that
Hegel from his window famously saw the Weltgeist ride by in the person of Napoleon, the
French invader. The men of the old and new Reich, Triepel suggests, find themselves in
similar positions, politically and intellectually. As for Hegel’s generation, the individual with
all the modern connotations of liberty and rights inherent to each man, stands in tension
with the state as the realization of Sittlichkeit: “Perhaps the task has been given to our
time of reconciling a state theory which wants to master law and the state according to the
standards of individual reason and the other, that regards the state itself is the reality of the
ethical idea and thus reason made flesh, to which the individual must freely submit and must
understand.”17
Besides such grand philosophical affinities, there were more earthly similarities between
the two generations. As Hegel finished the first volume of the Phenomenology, he would
have heard, so Triepel writes, “the thunder of cannons” from the battle of Jena; in the
Phenomenology and elsewhere, notably in “The Constitution of Germany” (1800–1802),
parallel positions are unmistakable: revolution, division and dissolution. Invasion by the
French (military and philosophical), even French occupation along the Rhine – Triepel knew
them all and they filter into the agenda of this academic conference.
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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 287
the Länder, especially Bavaria, might be considered as long as certain key provisions of the
constitution remain.22
The federal principle had been at issue throughout the crisis of early Weimar and the
dispute over local rights and central authority centered on the emergency powers contained
in Article 48.
Constitutional Dictatorship: The Schmitt- Jacobi Thesis vs. the Prevailing Opinion
The central issue of Article 48 was the indeterminacy of its grant of powers to the Reich
president in section 2: “In case public safety is seriously threatened or disturbed, the Reich
President may take the measures necessary to reestablish law and order,” a vague clause
(“Generalklausel”) leaving the specifics to presidential discretion. All agreed that this left
the law of emergency unclear. The prevailing interpretation, and the target of Schmitt’s
argument, construed the list of fundamental rights enumerated in paragraph 2 as a limitation
on the emergency power of Article 48. It contained, according to that reading, no expansive
delegation of power to the president. This meant that all other articles in the constitutional
text except 114, 115, 117, 118, 123, 124, and 153 were “dictator-proof” (diktaturfest). A
robust version of this position had been offered by Richard Grau two years earlier. Grau
supported his case with a general constitutional theory and more detailed argument. His
general theory assumed that the logic of having a constitution at all – of limitations on the
government’s freedom to act, specifically on executive prerogative – necessarily implies that
it is “inviolable.”23 A list of articles that may be suspended, secondly, must be understood
to limit emergency power. Enumerativ ergo limitativ. Further, Article 76 WRV specified that
the constitution can be changed through legislation, and the logic of that provision, Grau
argued, closes other avenues to constitutional revision, specifically dictatorial revisions.24
Finally on his reading of the constitutional debates at Weimar, members of the National
Assembly had intended such limitations. They had, in fact, taken its ultimate statutory
limitation by the Reichstag “for granted.”25 This limiting construction had two advantages:
the enumerations clause appears on that reading to constitute a logical constraint; and this
construction conforms to the expectation that in a Rechtsstaat all power – especially any
emergency powers that may be granted to an executive or, more generally to government –
must be legal. They must, that is, have the form of law.
The prevailing opinion, then, relied on two approaches: original intent and the extant
text. What did “they” intend? What do “we” understand? That was true for the alternative
position, too.
Schmitt argued at Jena against Grau’s reading of section two of Article 48, pointing to
the inadequacy of Grau’s thesis in the face of recent practice, government’s stated policy
and the debates at Weimar. Unsurprisingly Schmitt’s meta-jurisprudential perspective on
the question of dictatorship found its way into his argument. As he had done in a series of
other publications beginning with Politische Romantik (1919),26 Schmitt drew on the history
of western political thought about dictatorship, and specifically the Roman legal distinc-
tion between a “commissarial” and “sovereign” dictator. In Die Diktatur (1921),27 Schmitt
defended commissarial dictatorship as a temporary institution intended to preserve the funda-
mental constitutional order. John McCormick describes Schmitt’s position on commissarial
dictatorship in that text as “an appropriate use of functional rationality, where a rule-bound
constitutional order is presented as something worth defending and restoring.”28 It suffices
to say that these terms had not found their way into general discussions of Article 48 at this
time. There was in fact considerable resistance among leading constitutional scholars who
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288 Constellations Volume 18, Number 3, 2011
thought such distinctions an illegitimate expansion and wanted to constrain, not expand, the
reading of Article 48.
These were Schmitt’s three reasons to challenge the prevailing interpretation. Its practice in
the years from 1919–1924 meant that Article 48 was recognized as “valid law” independent
of the provision foreseen (in paragraph 5) for legislation by the Reichstag. Whatever the
normative weight of such considerations, they do not effectively constrain emergency power
and, Schmitt contended, efficient restoration of public safety and order trumps the norm
embodied in the enumerations paragraph. The practice of Article 48 in preceding years
had not in fact been limited to the enumerated articles and it had expanded dictatorial
powers beyond those specifically named in Article 48, paragraph 2. There had been general
acceptance of this practice. To claim that such actions were illegal (invalid) amounts to saying,
“the exceptions brought by the state of emergency should never, according to [the prevailing
interpretation] be exceptions from constitutional provisions unless it is a matter of those
seven fundamental rights.” The established interpretation merely ignores “encroachments
into the organizational structure of the constitution effected by every state of emergency
(Ausnahmezustand).”29
Schmitt cites the use of military states of emergency (militärische Ausnahmezustand) in
which “all instruments of power are concentrated in the hands of the Reich” in support of a
broader interpretation of Article 48.30 In the course of exercising emergency power, the central
government set aside the normal relationship of the member states (Länder) and the federal
government, removed local officials of those states, took over their police forces, intervened
expansively in the schools, and confiscated private property.31 The practice of emergency
power in these cases demonstrates a pattern of presidential dictatorship going well beyond
suspension of the enumerated seven fundamental rights. Finally the limited interpretation
of Article 48 does not take into account divisions within the Reich government concerning
its legal-constitutional meaning and scope. Beyond the general agreement that Article 48 is
valid law, the various ministries and branches of government held differing views on its use.
The enumeration in paragraph two, however logical, failed to specify exactly what can be
done to secure public order and civil peace in a concrete instance.32 Although paragraph two
explicitly authorizes the president to suspend (“ausser Kraft setzen”) the enumerated rights
in part or whole, its silence on the means by which those rights can be suspended permits
broad interpretation.
A larger theory frames Schmitt’s detailed argument at Jena, articulated three years previ-
ously in Die Diktatur and based on a reading of the law of the Roman constitution and the
political theories of Machiavelli, Junius Brutus, Hobbes and Locke. From those he derived
the technical-legal basis of dictatorship and its general theory. In Jean Bodin on sovereignty,
he found confirmation of the Roman institution of a temporary office, the commissarial
dictator. The fundamental distinction between the commissarial and sovereign dictatorship
is technically duration, but their substantial relationship to “the constitution” occupies the
more profound position. The commissar acts in support or defense of the established, the
constituted. The sovereign is its origin. In his hands are all potential forms of the real. What
exists as potentia becomes through sovereign decision, actualis. The two find themselves in
a series of dual relations: thought and act; visible and invisible; formal and real. The distinc-
tion between the sovereign and commissarial dictator is the key to Schmitt’s argument about
the powers Article 48. The Roman iustitium proclaimed in response to tumultus is never
mentioned in Schmitt’s text, because the emergency powers in Article 48 are dictatorial and
constitutional. These could never be adequate to magna trepidatio for the simple reason that
it is beyond state power, whether commissarial or normal. The notion of “exception” found
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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 289
in current political theory is tumultus and more, but it does not belong to this concept of
constitutional emergency.33
The structure of ideas on which Schmitt’s argument is based contains further implications,
not fully articulated in the text below, but merely suggested. It implies a concept of authority
above those dualities, an author who acts and thinks, a creative other whose intervention
in time remakes the formal, even destroys them. This ultimatus is the sovereign figure of
Schmitt’s political thought, the keystone of the two ideologies at stake in Die Diktatur: the
modern state and the people. These stand in absolute relation to one another, and Schmitt’s
rejection of contemporary liberalism in favor of “the people” refers to them as “vital forces.”
They are the real agents of political time, not bounded by any form. The argument of Die
Diktatur turns on the question, whether democracy can become present within the form of
sovereignty. It is a question that trumps, for Schmitt, the matter of liberal individualism and
it is explicit in his thought about the rule-of-law.
In the National Assembly Schmitt saw a “sovereign dictator” whose power was completely
unlimited by the rule of law but which should cease when its constitution came into effect.
The fact that necessary legislation (section 5) had not been passed by parliament was taken
to mean that the people’s sovereignty, in principle unlimited, remained until further legal
specification with the Reich president, as a commissarial power. But limitations, he argues,
on when and how to use those extraordinary powers do follow from the constitutional text:
(1) determination of what threatens public safety and order cannot be made independently
of the constitution; (2) Article 48 cannot be used to abolish “an organizational minimum”
(presidency, government, parliament) of the constitution; and (3) Article 48 contains tem-
porary authority; it authorizes measures (Maßnahmen) – actions or arrangements necessary
to overcome the circumstances at hand – which are not expected to persist indefinitely, and
such actions and measures should not make sovereign changes in the institutions which those
measures intend to protect.
The accompanying paper by Erwin Jacobi agreed in all significant points with Schmitt’s.
The National Assembly intended “without doubt” a broad grant of authority to the Reich
president, Jacobi wrote, that gave the executive the possibility to take, at a minimum, powers
typical during times of war. Rather than a list of legal delegations and their possible use,
the National Assembly opted for a Generalklausel that “at least until the passage of a bill
by the Reichstag further specifying such powers, was plein pouvoir.”34 No representative of
the established interpretation denied such power to the president, Jacobi continued, because
it had been “the core of what we learned about emergency law,” and it was furthermore
unthinkable that the assembled delegates at Weimar intended to preclude its use. “The
established interpretation stands in insoluble contradiction with itself” while noting that only
one scholar had ventured to deny that Article 48 transferred executive power to the office of
the president.35 The resulting institution did “breach” the constitution in a manner similar to
Bismarck’s practice in the Empire. In order to find an invalid (ungültige) use of dictatorial
power, one would have go back to the practices of the Länder.36
Jacobi’s argument went further than Schmitt’s, denying judicial review of action taken on
the grounds of Article 48 when these were declared necessary to restore public safety and
order, and excluding considerations of factual disputes about whether such disturbance had
indeed taken place review by court. Jacobi too urged early passage of additional legislation
by the Reichstag to clarify implementation of Article 48 by the president, and further the
development of federal regulation and oversight of Lander use of emergency powers.37
Jacobi’s analysis of the self-contradictions within the established interpretation of
Article 48 and Schmitt’s theory of it as a “commissarial dictatorship” provoked a heated
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debate among the participants whose temper is scarcely conveyed by the official report.
Among the participants were Stier-Somo, Piloty, Nawiasky, Thoma, Anschütz, and Jellinek –
leading representatives of the constitutional establishment and proponents of the limited
interpretation. Some of the “young Turks” in constitutional law were also present and par-
ticipated in the discussion, including Hermann Heller. Details in each paper received less
attention than the broad theory of presidential dictatorship as a commissarial institution that
had been offered by Carl Schmitt. The participants, we are told by the conference reporter,
rejected Schmitt’s view but agreed that ambiguity continued to surround Article 48 as text
and practice. There was no dispute on the terminology of dictatorship within in the con-
stitution, rather surprising to a reader today. There was general agreement that dictatorial
powers had been used frequently, but their practice had led to no clear definition of this
constitutional provision. Uncertainty remained about which actions were constitutional and
which unconstitutional and participants on both sides tended to regard its practice as legally
nonconforming. No one understood what it might mean for constitutional-state law to accept
the “suspension” of laws through executive decrees and measures (Maßnahme). But this
discord led to reiteration of the established interpretation, not revision. The enumerations
clause did limit presidential power.
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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 291
substance contained in its basic decisions for democracy (Article 1, section 2), for the
Republic and against monarchy (Article 1, section 1), federalism (Article 2), for a funda-
mentally parliamentary type of government, and for the liberal rule-of-law state as division
of powers and basic rights.40 On those foundations, then, Schmitt supported the presiden-
tial regime which effectively replaced the legislature from 1930 onward, as successive Reich
chancellors dissolved parliament and governed, during its absence, on the basis of presidential
decree which far exceed suspension of the basic rights enumerated in Article 48, section 2.
Gerhard Anschütz, an important voice in the majority of lawyers who disagreed with
Schmitt’s argument in 1924, viewed the presidential regime as a national democracy based
on “unity for the common good” – where unity was paramount. On those grounds, Peter
Caldwell has argued that Anschütz “condemned the unions and employers’ organizations that
sought to realize their special interests over the supposed general interests of the democratic
state.”41 According to that scheme, if the German people were the source of the constitution,
the Reichstag was its central institution. As sovereign, the people’s position was unlimited. In
Anschütz and Thoma’s commentary on the Weimar constitution they drew the conclusion that
nothing in the document and no aspect of the constitution was above revision or revocation.
According to the rules in Article 76, any provision could be revised if 2/3rds of the Reichstag
so voted and should the Reichsrat object, the Reich president could ask for a referendum on
the changes. “The constitution does not stand above the Reichstag,” Anschütz wrote, “but
rather at its disposal.”42 What Caldwell calls “the restraint and deference” to the legislative
body reflected in the Anschütz-Thoma commentary gave way among even staunch statutory
positivists as negative majorities in the Reichstag transformed parliamentary government.
Anschütz and Schmitt disagreed fundamentally on the sources and theory of the constitu-
tion, but agreed on the “unity” and destructive potential in the pluralism of vested economic
interests. For each, Germany after 1919 was a democracy, but they differed on which institu-
tion served as the repository of that democracy. For Anschütz it was the Reichstag. Schmitt’s
philosophy of history and political preferences, as well as the dysfunctional composition
of the German legislature, inclined him from the start toward presidentialism. Much of the
statute positivists’ resistance to Schmitt’s argument for broad executive power in 1924 had
turned on the precedence they gave to statute law over discretion, and the belief that repre-
sentative assemblies best articulated and organized popular opinion and the people’s will.
It would have been expected, therefore, that if the constitution was completely open to any
revision – in Anschütz words “at the disposal” of the Reichstag – then no executive power
could or should “defend” it. There was, on legal positivist basis, nothing real to defend.
In June 1932, Anschütz prepared a legal brief for the ministers of Finance Paul
Moldenhauer (DVP) and the Interior Joseph Wirth (Centrum) on whether Article 48 could
be used instead of Article 87 to authorize credit. The core question turned on statute vs.
prerogative, but also the creation of credit by governmental fiat. Over the previous two years,
numerous executive orders had been issued under Article 48 to fund government expenditure
when the Reichstag was not willing or able to pass a budget. Anschütz’s argument moved
“security” as a legal question from one of war powers to the economy and specifically the
president’s prerogative in budgetary matters. There, Anschütz addressed the argument of
Max Kühnemann, Vice-Chairman of the Reich Debt Administration, who contended that
Article 48 did not extend to Reich finances, specifically power over the budget and credit
issued by the Reich.43 Echoing the debate at Jena in opposition to Schmitt and Jacobi,
Kühnemann insisted that only a statute could authorize the budget and the creation of credit
through the issue of debt. Anschütz read the powers inherent in Article 48 on the grounds of
fiscal and economic security expansively. There was no contradiction between the democratic
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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 293
It is impossible to change the German Reich from a Republic into a Monarchy. The
powers of the Reich president rest on a constitutional provision. To change the con-
stitution using presidential powers, by means other than those in Article 76, would be
unconstitutional. This does not preclude measures by the Reich president that encroach on
individual constitutional provisions and thereby create exceptions, without setting aside
the constitution. Such breaches (as Erwin Jacobi calls them) do not change the constitution,
they do not suspend it, they do not remove it. They are the typical instruments of
dictatorship: through an exception to constitutional provisions, saving the constitution as a
whole.51
Der Hüter der Verfassung (1931) further expanded that theory with specific attention to
the threats pluralism and polyarchy pose to constitutional government. If the paper at Jena
contained elements of Schmitt’s later constitutional theory, it also provided a quite different
perspective on the famous first sentence of the Politische Theologie.52 In “Die Diktatur des
Reichspräsident nach Art. 48,” the perspective of emergency government is empirical. The
principle difference between normal legal practice and action during the state of emergency is
drawn not by reference to theology, but from government statements in Reichstag and in the
National Assembly. The Interior minister speaking on March 5 1924 made the point: “The
character of the state of emergency [Ausnahmezustand] lies in its limitation; it is actually
there in order to be lifted and remain as exception.53 ” The question must be, however, “who
decides what the circumstances permit?”54
For many political theorists today, that question has transposed the argument from one
within constitutional-legal bounds to something quite different. In his influential work, State
of Exception, Georgio Agamben’s key text is the Politische Theologie.55 It begins with a
paradox – “legal form of that which cannot have legal form” – but that seeming contradiction
is confounded, not resolved. The temptation to that is powerful when reading Schmitt.
Drawn to the meta-empirical much as those polar opposites, Marx and de Maistre, were in
their time, Schmitt frequently writes as the legal partisan. His text wears no jurisprudential
uniform and leads the unwary reader onto foreign legal terrain, territory where he is so at
home that the trap may be quickly and silently sprung. These are some familiar, others not.
Two dichotomies – friend/foe and norm/exception – operate now as tropes, their original
setting and ur-meaning as unfamiliar as they once were. The text below contains many which,
because they appear so embedded in Weimar, will be noticed only by a very attentive reader.
Among the most significant of these is the slippage between the sovereign dictatorship of
the National Assembly and the president and the miraculous transformation of measures into
law. On the most obvious level, Schmitt’s 1924 text is a legal argument about a constitutional
provision. The reference is concrete, the question is focused. We can see the five years
before Jena as revolution bounded on two sides by something else: the state of war and
siege in a regime based on enabling laws (Ermächtigungen), and a democratic-republican
state pocked by frequent recourse to presidential emergency powers and enabling laws.
Neither of these conformed to the normal patterns of constitutional division of powers. It
was the end, Schmitt later wrote, of doctrinal liberal constitutionalism, the beginning of
an age of “commissarial dictatorship” with military and civilian components.56 Its form is
government by decree; measures take the place of legislation and adjudication across the
board, in economy, currency, finance, civil law, labor and social law.
Those were not “normal” governments, internal or external, but it is misconceived to
understand these as regimes of “exceptionality.” The practices in each assumed their purpose
to be a return to the normal. They were each temporally bound, although both addressed
situations that, in themselves, were of unpredictable duration. In this boundary of intention
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and time, a gap opens up within the rational and fixed that can be measured only after it
is over. Politische Theologie came out of that meta-jurisprudential, yet essentially mortal,
lacuna with its critical destruction of the legal-rational and assertion of the theological-
vital. The fundamental argument between “schmittians” and liberals remains fixed on the
intellectual legitimacy of acknowledging, and thinking about that lacuna. It threatens because
“it upsets the balance around here.”57
In this text and, I would argue, Schmitt’s work until the late Republic, the conceptual
lines must be drawn more clearly between Ausnahmezustand in its original as emergency58
and “the exception.” This is important because to conflate them makes their distinction
from each other and from their ultimate referent, the normal, impossible. In the profligate
use of “exception” and “exceptionality” the danger of forgetting and not seeing is too
great. What is forgotten is precisely that experience, repressed by liberal political thought,
of violence and the normal turned upside down. In emphasizing tumultus and the Roman
iustitium as signs of “exceptionality,” Agamben rightly names that historical moment in
Germany which was bounded by war and Republic: the revolution of 1918–19. The growth
of government by decree, “the automated legislator,” and the military-economic dictatorships
are not tumultuous patterns. On the contrary, they have become the normal. If Carl Schmitt’s
emphasis on “who decides?” remains a sharp tool in uncovering the apparent and revealing
the substantial, it is worthless should it be used for the opposite – to blur and obscure. And
if we are to understand, and possibly reform, post-liberal constitutions, we are ill-advised to
merge its variants and precursors into a single, homogenous whole, “the exception.”
NOTES
Thanks to Ingeborg Villiger and Anne Norton for comments on previous drafts of this article.
1. The Weimar constitution contained a first, organizational part drafted by a committee of high
civil servants under the chairmanship of Hugo Preuß, Staatssekretär in the Interior Ministry (articles 1–108)
and a second, the statement of rights and duties (articles 109–180) drafted by the National Assembly at
Weimar. Delegates were chosen by election that gave a large majority (3/4th ) of seats to parties favoring a
parliamentary-democratic republic (SPD, DDP, Zentrum). It was signed in to law by the first Reich president,
Friedrich Ebert on August 11, 1919.
2. Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (Berlin:
1979), 63.
3. Exemplified by the relationship between Verfassungslehre and Der Begriff des Politischen.
4. Hitler’s regime can be characterized as a permanent “state of emergency” based on enabling
laws. These required a 2/3rd majority vote and were limited in time. The Gesetz zur Behebung der Not von
Volk und Reich (March 24, 1933) was a reaction to the Reichstag fire (February 27–28, 1933) passed by a
Reichstag dominated by the Nazi Party, with every other party, except for the Social Democrats, in favor.
Its formal expiration date would have been April 1, 1937, or with a change of government.
5. German law provided for the state of war, siege, and emergency. It also contained Staatsnotrecht
and Notrecht.
6. There were ten enabling laws (Ermächtigungsgesetze) between 1914 and 1945 beginning with
the Enabling Law of August 4, 1914 at the beginning of WW I (it remained in effect four years and 3
months) and finally Hitler’s Gesetz zur Behebung der Not von Volk und Reich vom 24 März 1933, (in effect
until the German defeat (12 years, 1 month). In both periods, these laws could be regarded as the actual
constitution of Germany.
7. This enabling law (Ermächtigungsgesetz vom 13. Oktober 1923) was in effect until November
2 1923. It passed the Reichstag by a vote of 316 to 24 with 7 abstaining; members of the Communist and
German National parities left the chamber in protest after a stormy session during which “the economic
collapse of Germany and the dissolution of the German Reich” was forecast and calls for a Gerneral
Strike against the clique of big capital and government then in power. Verhandlungen des Deutschen
Reichstag 390th session, Saturday October 13, 1923. The Hamburg Bank; “German dollar,” October 25,
1923. Feldman, (The Great Disorder. Politics, Economic and Society in the German Inflation, 1914–1924
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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 295
(Oxford Univeristy Press: 1997)). See also Milton Friedman’s account of similar phenomena in the United
States a few years later. Friedman & Anna Schwartz, The Great Contraction 1929–1933 (Princeton: 1965).
Local script functioned in regions of North Carolina (the “Plenty”) and the Berkshires (the Berk “Share”) in
2008–09. It may be assumed that barter also accompanies such indicators of the value lost by central bank
money.
8. The Rentenbank was “conveniently and appropriately located,” Feldman remarks, “in offices
belonging to the Reich Debt Administration and across the street from the Reich Printing Office and near
the Reichsbank” (The Great Disorder, 793).
9. Hans Ostwald, Sittengeschichte der Inflation (Berlin: Neufeld & Henius Verlag, 1931) provides a
vivid if somewhat unorthodox account of the moral effects of the inflation. Robert Gellately, The Politics of
Economic Despair (Sage Publications, 1974) covers the period up to 1914 arguing that economic hardship
more than illiberal ideology fed political resentment before the Great War.
10. Michael L. Hughes, “Private Equity, Social Inequity: German judges react to inflation, 1914–
1924,” Central European History XVI, no. 1 (1983): 76–94. A mass political movement also formed around
the issue demanding legislative action to revalue savings and debt obligations.
11. On November 5 and 6 1923 mobs roamed the Scheunenviertel in Berlin, looting and wrecking
shops and looking for Jews, especially, Feldman writes, the easily identifiable Galacian Jews (780).
12. The state borrowed extravagantly to finance the costs; the Treaty of Versailles added to debt
and dysfunction. A mere 10% of the $47 billion Germany spent on the war was raised in taxes. Money
supply increased fourfold. The architects, Liaquat Ahamed writes, were “paradoxically two of the most
competent financial officials in all Europe.” Perhaps that was neither so paradoxical, nor they so competent
in retrospect. Liaquat Ahamed, Lords of Finance. The Bankers Who Broke the World (London: 2009), 87.
13. See Donald B. Pryce, “The Reich Government versus Saxony 1923: the decision to intervene,”
Journal of Central European History 10, no. 2 (1977): 112–147. More recently, Dirk Schumann, Political
Violence in the Weimar Republic. 1918–1933. Fight for the Streets & Fear of Civil War. trans. Thomas
Dunlay (New York: Berghahn Books, 2009).
14. On October 7, 1923.
15. The Verein had been founded two years earlier by some of Germany’s most prominent professors
of law, with the initiative being taken by Heinrich Triepel. Triepel held the chair of state and international
law at Berlin where the first meeting was held in October 1922. In attendance were colleagues from Austria,
Switzerland and the Czech Republic, as well as those in the German Reich. At the organizational meeting
at Berlin, a charter was adopted and a Board of Directors appointed. There was a discussion of the position
of state law in the university curriculum, and Richard Thoma read a paper on judicial review. There were to
be annual meetings of the Verein, but internal disturbances in many parts of the country prevented a meeting
before spring 1924. M. Stolleis, Geschichte des öffentlichen Rechats in Deutschland, Vol 3, “Staats- und
Verwaltungsrechtswissenschaft in Republik und Dikatatur” (Munich: 1999).
16. “A warm welcome. . .to our Austrian colleagues who are attending for the first time. That you
and we are votaries of a unitary German science, I need not say. That our places of work are divided by a
border drawn by a jealous hand, is our anguish. . .The time will come when we are freed from the unnatural
division and when we will be concerned with a constitution for the whole of Germany, and this is not only
our hope, but our deepest conviction.” “Eröffungsansprache,” Der deutsche Föderalismus. Die Diktatur des
Reichspräsidenten. Veröffentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 1 (Berlin:
1924), 5–10.
17. Ibid, 8.
18. Anschütz (1867–1948) was one of the leading jurists of the time, author of the definitive com-
mentary on the constitution. Bilfinger (1887–1958) taught public and international law, first at Halle and
after 1933, at Tübingen and Berlin. Jacobi (1884–1965) taught state and church law at Leipzig. Schmitt
(1888–1985) taught at various universities before taking a chair at Berlin under the Nazis. All four men
took part in the case of Preußen contra Reich, at which the legality of the Reich “putsch” against Prussia
was argued inconclusively before the Staatsgerichtshof. Schmitt, Jacobi and Bilfinger defended the Reich.
Anschütz represented Prussia. Anschütz retired from the Chair at Heidelberg in 1933 in protest. Of Jewish
decent, but himself Christian, Jacobi was removed under the discriminatory Gesetz für Wiederherstellung
des Berufsbeamtentum in 1933. After the war he was Dean of the Law faculty at Leipzig and a Marxist.
Schmitt was held at Nuremberg after the war, but not charged. He never held another University position
again. See David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in
Weimar (Oxford: Oxford University Press, 1999).
19. A matter of whether the Austrian could be incorporated into a Reich that included Prussia, but
even the power politics and wars of the 1860s between the two carried the emotions conveyed by Hegel at
the dissolution of the old Empire in “The German Constitution.”
20. Anschütz, Drei Leitgedanken der Weimarer Reichsverfassung,(Tübingen: Mohr, 1923). 16.
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296 Constellations Volume 18, Number 3, 2011
21. “The present crisis between the Reich and a few individual states is not to be discussed here
but in my opinion something else is behind it besides a pro and contra federalism. These [tensions] are the
pathological effects for which the Diktat at Versailles is responsible.” Bilfinger, Der deutsche Föderalismus.
Die Diktatur des Reichspräsidenten. Veröffentlichungen der Vereinigung des Deutschen Staatsrechtslehrer,
vol. 1 (Berlin: 1924), 47.
22. These are: Reich sovereignty over the Länder; no special rights for the Länder; military and
foreign affairs remain with the Reich; no constitution-making authority for the Länder; oversight by the
Reich to remain. A “total revision of the Weimar constitution. . .is emphatically discouraged.” The reporter
summarized Anschütz’s defense of central authority in the terms of Freiherr vom Stein: “I know one
Fatherland and that is Germany,” not the particular states. Anschütz, Drei Leitgedanken der Weimarer
Reichsverfassung, 32–34.
23. The German unantastbar also carries the connotation of “taboo,” “sacrosanct” and thus points
to a certain irrational moment of power and belief. It appears prominently in the Basic Law of the Federal
Republic which declares that “human dignity is inviolable,” GG Art.1, para.1.
24. Richard Grau, Die Diktaturgewalt des Reichspräsidenten und der Landesregierungen auf Grund
des Artikels 48 der Reichsverfassung (Berlin: 1922), 53. Grau was Triepel’s student and later a lawyer in
Berlin.
25. Grau, Die Diktaturgewalt des Reichspräsidenten und der Landesregierungen auf Grund des
Artikels 48 der Reichsverfassung, 57. The declaration that a future statue would provide more substantial
regulation of emergency powers in paragraph three, on which Grau draws here, never came to pass. Practice
and usage had, by the last years of the Republic, made that provision a dead letter and resulted in the general
acceptance of far reaching dictatorial powers, limited only by the political will to use them or the political
will to demand their suspension.
26. Schmitt, Politische Romantik (Munich & Leipzig: 1919).
27. Schmitt Carl, Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum
proletarischen Klassenkampf (Munich & Leipzig: 1921).
28. John McCormick, “Dilemmas of Dictatorship,” Law as Politics, ed. David Dyzenhaus (Durham:
Duke University Press, 1998), 218.
29. Schmitt, “Die Diktatur des Reichspräsidenten nach Artikel 48 der Reichsverfassung” (1924),
66–67 and Schmitt, “The Dictatorship of the Reich president according to Art 48 of Reich constitution”, 3,
below.
30. Schmitt here quotes the Chancellor and Minister of the Interior speaking before the Reichstag on
December 4, 1923 and March 5, 1924.
31. The reference is to Thüringen; see Schmitt, “Die Diktatur des Reichpräsidenten nach Artikel 48
der Reichsverfassung”, 68 and Schmitt, “The Dictatorship of the Reich president according to Art 48 of the
Reich constitution,” 4.
32. Schmitt, “Die Diktatur des Reichspräisdenten nach Artikel 48 der Reichverfassung”, 74 and
Schmitt, “The Dictatorship of the Reich president according to Art 48 of the Reich constitution,” 6ff.
33. Georgio Agamben, State of Exception, kindle edition, trans. Kevin Attell (Chicago: University
of Chicago Press, 2005), 567 ff, Ch 3 “Iustitium.” The style of this argument leads one to think that it was
driven by the poetic affinity between solstitium, when the sun stands still, and iustitium the still-stand of the
law.
34. Jacobi, “Die Diktatur des Reichspräsidenten nach Art. 48 der Reichsverfassung,” Der deutsche
Föderalismus. Die Diktatur des Reichspräsidenten. Veröffentlichungen der Vereinigung des Deutschen
Staatsrechtslehrer, vol. 1 (Berlin: 1924), 105–136.
35. Stier-Somolo, Reichs-und Landesstaatsrecht, vol 1, 671, cited by Jacobi, Ibid, 115, fn. 1.
36. Jacobi, “Die Diktatur des Reichspräsidenten nach Art. 48 der Reichsverfassung,” Der deutsche
Föderalismus. Die Diktatur des Reichspräsidenten. Veröffentlichungen der Vereinigung des Deutschen
Staatsrechtslehrer, vol. 1 (Berlin: 1924), 121.
37. Ibid., 136.
38. Hans Mommsen, The Rise & Fall of Weimar Democracy (Chapel Hill:1996), 287ff.
39. Schmitt, “Die Diktatur des Reichspräsidenten nach Art. 48 RV”, 94–95m and Schmitt, “The
Dictatorship of the Reich president according to Art 48 of the Reich constitution”, 17.
40. Schmitt, Verfassungslehre (Munich & Leipzig: 1928), 23–24 and further in section 12, “Principles
for the liberal constitutional state,” 125 ff.
41. Peter Caldwell, Popular Sovereignty & German Constitutional Law (Durham: Duke University
Press, 1997), 66.
42. Anschütz, Verfassung des Deutschen Reiches, 401, 403; quoted at Caldwell, Popular
Sovereignty & German Constitutional Law, 69.
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