Review: Safeguarding the Constitution with and against Carl Schmitt

Author(s): Marc de Wilde

Review by: Marc de Wilde
Source: Political Theory, Vol. 34, No. 4 (Aug., 2006), pp. 510-515
Published by: Sage Publications, Inc.
Stable URL: http://www.jstor.org/stable/20452479
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 Political Theory
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against Carl Schmitt
Constitutional Failure: Carl Schmitt in Weimar, by Ellen Kennedy.
Durham, NC: Duke University Press, 2004. 256 pp. $79.95 (cloth);
$22.95 (paper).

State of Exception by Giorgio Agamben. Trans. Kevin Attell. Chi

cago: University of Chicago Press, 2005. 104 pp. $30.00 (cloth);
$12.00 (paper).

On January 31, 1933, the day after Hitler's appointment as chancellor of

the German Reich, Carl Schmitt wrote in his diary, "Cancelled my lecture.
Couldn't work. Ridiculous circumstances. Read the newspaper. Upset, fits of
temper, that's how the day went." Two years earlier Schmitt, professor of
constitutional law at the Berlin Handelshochschule, had become personally
involved in Weimar's tempestuous politics. In July 1930, the moderate right
wing cabinet of Chancellor Heinrich Bruning had lost its majority in parlia
ment. Instead of demanding Bruining's resignation, President Paul Hinden
burg resorted to Article 48 of the Weimar Constitution, declaring a state of
exception and dissolving the Reichstag. Schmitt publicly defended the presi
dent's decision. By upholding the cabinet without parliamentary support, he
suggested, the president had saved the constitution. He had prevented the
constitutional order from collapsing into the disorder of small-party inter
ests. In times of crisis, Schmitt claimed, the president was authorized to sus
pend all those formal provisions of the constitution which threatened
to become "disintegrating factors." He thus acted as a "guardian of the
constitution."
Weimar's fragile democracy had indeed entered a period of crisis. In the
parliamentary elections of September 1930, the National Socialists had
taken 18 percent of the vote, such that the anticonstitutional parties now con
trolled almost half of the seats in the Reichstag. As the remaining parties
proved unable to form a workable consensus, parliament became gridlocked.
In May 1932, President Hindenburg dismissed Bruning and appointed the
archconservative Franz von Papen head of a "government of national recon
ciliation." Schmitt became one of the president's counselors behind the
scenes. This turned out to be a decisive moment for Weimar's democracy.

510

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 de Wilde / Safeguarding the Constitution 511

Hitler had just won 37 percent in the presidential elections, narrowly beaten
by Hindenburg. Nazi militias had marched the streets of Berlin, outnumber
ing the regular German army four to one. Under growing pressure from
National Socialism, Hindenburg on December 3, 1932, forced von Papen to
resign and appointed General Kurt von Schleicher to his post. Schmitt
advised Schleicher's personal staff at the War Ministry to declare a state of
exception, temporarily suspending some of the formal provisions of the con
stitution in order to save its substantial core. Schleicher, however, failed to
convince Hindenburg and was forced to step down. On January 30, 1933,
Hindenburg appointed Hitler the new chancellor. Germany's first democracy
had ceased to exist.
How was it possible that "a constitution textually like ours in a pluralist
society like ours" could give way to totatitarianism so easily? And how could
precisely those provisions of the Weimar Constitution-in particular, Arti
cle 48-designed to safeguard the constitutional order in the end turn out to
be the very causes of its collapse? These are the questions raised by two
recently published and valuable studies of Schmitt's constitutional theory,
Ellen Kennedy's Constitutional Failure: Carl Schmitt in Weimar (Duke,
2004) and Giorgio Agamben's State of Exception (Chicago, 2005). The
answers they suggest are in fact strikingly similar: a constitution cannot be
"defended" from the sovereign body that was created in its defense. As long
as those invested with sovereign powers choose to take responsibility for the
constitution at hand, transgressing its formal provisions only in order to pre
serve its underlying aims and convictions, the state of exception might in the
end be suppressed and the rule of law might prevail. However, the constitu
tion will inevitably crumble in the face of a sovereign who doesn't even sup
port its most fundamental principles. In the latter case, the transgression of
the constitution's formal provisions threatens to result in the destruction of
the norms, and the "state of exception" is in danger of becoming the rule.
Thus the lesson of Weimar, as both authors suggest, is that creating a "guard
ian of the constitution" is always like playing with fire, exposing the
constitution to the risk of being abolished by an irresponsible sovereign.
The Weimar Republic, Kennedy argues, represented a clear case of what
Robert Dahl has called "antagonistic pluralism." Fundamentally opposed
political parties strategically used the formal and neutral procedures of the
state to advance their specific aims and interests regardless of the common
good. Some extremist parties, the nationalists (DNVP and NSDAP) and
communists (KPD), were even prepared to dismantle those procedures had
they attained state power themselves. They were willing to turn democracy
against itself. As Kennedy points out, Schmitt was one of the first theorists to
notice the vulnerability of the liberal democratic constitution in the face of

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512 Political Theory

these competing interests and loyalties. He criticized legal positivists, such

as Hans Kelsen and Hugo Preuss, who ignored the political decisions under
lying the constitution for the sake of its neutrality, thus undermining the abil
ity to counter those questioning its fundamental norms. In the end, Schmitt
argued, the positivists even jeopardized the freedom of the individual so dear
to them, since only a strong state and a defensible constitution would be able
to guarantee a sufficient "space of liberty."
Schmitt sought to overcome the crisis of the liberal democratic constitu
tion by emphasizing the political unity from which it stemmed, thus articulat
ing the state's foundational claim to loyalty. In his Verfassungslehre (1928),
he argued that a distinction was to be made between, on one hand, the rule-of
law provisions of the constitution, such as individual rights and freedoms as
well as the specific functions of state institutions, and, on the other, its politi
cal substance, that is, the fundamental decisions of the German people for
democracy, for a republic and against a monarchy, for federalism, and so on.1
In the state of exception, when the existence of constitutional order as such
was at stake, the president could suspend the rule-of-law provisions of the
constitution to save its political substance. In his earlier work, Die Diktatur
(1921), Schmitt had already made a distinction between, on one hand, a
"commissarial dictatorship" which "suspends the constitution in concreto in
order to protect its concrete existence" and, on the other, a "sovereign dicta
torship" which aims at creating a different political situation, in which it
becomes possible to impose a new constitution.2 There was always a risk,
Schmitt argued, that the legally regulated commissarial dictatorship would
transform itself into a sovereign dictatorship.
According to Kennedy, the cabinet of Bruning represented a moderate
phase of presidential government, in which Schmitt recognized a com
missarial dictatorship. The political substance of the constitution was not
affected, and its provisions were only suspended in order to create a state of
affairs "in which the law could be realized." A transitional phase began
with the appointment of von Papen, when the circle around General von
Schleicher, advised by Schmitt among others, started to suggest limited con
stitutional reforms. As Kennedy rightly observes, their intention was still
"commissarial": they believed that the existing constitution could only be
preserved if it became less liberal and thus more defensible. In mid-1932,
however, at a time of augmenting political pressure from National Socialism,
some in the entourage of von Papen and Hindenburg shifted the presidential
government toward sovereign dictatorship. The intention was no longer to
preserve the substance of the constitution-that is, parliamentary democ
racy-but to replace it through the establishment of a totalitarian regime. On
February 28, 1933, Hitler codified the new state of affairs when he pro

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 de Wilde / Safeguarding the Constitution 513

claimed the Decree for the Protection of the People and the State, which
effectively abolished Weimar's constitution, suspending its articles concern
ing individual rights and freedoms "indefinitely."
Although Schmitt probably until the very end advocated a "commissarial
solution"-as the quotation above might testify-he quickly adapted to the
new regime. In 1934 he published his notorious legal defense of the so-called
Night of the Long Knives, in which Hitler had some 200 of his political
adversaries executed. The Fuihrer, Schmitt cynically claimed, "had protected
the law."
In the conclusion to her study, Kennedy compares the political antago
nism that caused Weimar's downfall with current confrontations between
liberal democracies and Islamic fundamentalism, suggesting that now, as
then, constitutional order as such is at stake. Though Kennedy unfortunately
fails to give an explanation for this provocative and troubling claim, argu
ments in its support can be found in Agamben's study of the "state of excep
tion." After September 11, Agamben suggests, the suspension of individual
rights and freedoms has again become widely accepted in the name of
defending the substance of liberal democratic constitutions. Thus President
George W. Bush's Military Order of November 13, 2001, authorized the
indefinite detention and trial by military commissions of so-called enemy
aliens, effectively erasing their legal status and creating a "legally unnamable
and unclassifiable being." Whereas the temporary suspension of rights and
liberties could in itself be necessary and justifiable to defend the constitu
tional order, the Bush administration, Agamben claims, is in fact "attempting
to produce a situation in which the emergency becomes the rule, and the very
distinction between peace and war ... becomes impossible" (p. 22). Thus the
extralegal detention of "enemy aliens" is explicitly meant to be "indefinite,"
and, as a member of the Bush administration recently explained, the "war
against terrorism" justifying these emergency measures "could go on for
years, as did the Cold War."
The theoretical problem, Agamben argues, is that it has proven to be
impossible to define the forces determining the transition from a spatially
and temporally restricted emergency to a situation in which the state of
exception has become the rule. Constitutional theorists have always consid
ered the state of exception to be grounded in a case of de facto "necessity"
beyond the legal realm. According to Agamben, this conception is "naive,"
since the necessity, far from being objectively given, presupposes a (subjec
tive) judgment identifying certain circumstances as "necessary" in a legally
relevant sense. In truth, the state of exception is neither inside nor outside the
legal order, but rather a "zone of indifference," in which de facto relations

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514 Political Theory

pass into law and juridical norms blur with mere fact. Agamben suggests, on
one hand, that the legal order needs this zone of indifference as a means of
referring to and encompassing life itself. Thus, in the state of exception, the
sovereign normalizes life relations, violently coercing his subjects to adopt
fundamental norms, so that the law can have force and effect. On the other
hand, Agamben warns that the problem of defining the state of exception
concerns precisely this zone of indifference binding the legal order to life and
thus making its strict regulation within the scope of the law impossible. Most
importantly, the law cannot prescribe in advance which circumstances are to
be identified as the necessity prompting its suspension. Hence, no law can
preclude the possibility of the necessity being declared "indefinitely" and
thus of the exception becoming the rule.
Agamben's theory would be convincing had he argued that a "permanent
state of emergency" is a risk to which liberal democratic constitutions are
inevitably exposed if they are to be defensible. Instead, he claims that "the
voluntary creation of a permanent state of emergency" has in fact "become
one of the essential practices of contemporary states, including so-called
democratic ones" (p. 2). Thus, those detained at Guantainamo Bay and else
where are "the object of a pure de facto rule, of a detention that is indefinite
not only in a temporal sense but in its very nature as well" (pp. 3-4).
Agamben's argument becomes hyperbolic where he explicitly compares the
loss of legal status of the Guantainamo detainees with that of the Jews in the
Nazi concentration camps (p. 4). Here his critical impetus threatens to get
lost in mere polemics. Without mentioning the incommensurable level (and
nature) of violence in both cases, the Guantainamo detainees are not so much
exposed to a "pure de facto rule," but rather to a "rule of rules," that is, a strict
regime of rules beyond accountability. Decisive in their case is that they have
lost access to an impartial judge who would examine the legality of their
detention. They are thus, I would claim, subjected to law without being sub
jects of law. This suspension of the most fundamental of rights, that is, to be a
subject of law, involves a risk that, under the present circumstances, with no
imminent danger to the existence of constitutional order as such, must be
judged unacceptable. The risk is that precisely those emergency measures
designed to defend the liberal democratic constitution transform into the
very causes of its downfall.

Marc de Wilde
University of Amsterdam, the Netherlands

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 de Wilde / Safeguarding the Constitution 515

Notes
1. Carl Schmitt, Verfassungslehre (Munich: Duncker und Humblot, 1928).
2. Carl Schmitt, Die Diktatur (Berlin: Duncker und Humblot, 1994), 133-34.

Marc de Wilde is a research assistant at the Institute for German Studies in Amsterdam, the
Netherlands. He is currently completing a dissertation on political theology in the work of Walter
Benjamin and Carl Schmitt.

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