Constitutional Theory

Author: Schmitt, Carl; Seitzer, Jeffrey; Thornhill, Christopher
Publisher: Duke University Press
ISBN: 9780822340119
eISBN Pdf: 9780822390589
Place of publication: Durham , United States
Year of digital publication: 2008
Month: January
Pages: 488
DDC: 342.43
Language: English

Caption

Carl Schmitt’s magnum opus, Constitutional Theory, was originally published in 1928 and has been in print in German ever since. This volume makes Schmitt’s masterpiece of comparative constitutionalism available to English-language readers for the first time. Schmitt is considered by many to be one of the most original—and, because of his collaboration with the Nazi party, controversial—political thinkers of the twentieth century. In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe.

Constitutional Theory is a significant departure from Schmitt’s more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.

Contents
Foreword - Ellen Kennedy
Translator’s Preface
An Introduction to Carl Schmitt’s Constitutional Theory: Issues and Context Jeffrey Seitzer and Christopher Thornhill
Constitutional Theory
Schmitt’s Preface
Part I. Concept of the Constitution
- § 1. Absolute Concept of the Constitution (The Constitution as Unified Whole)
  - I. Constitution as the collective condition of concrete unity and order or as state form (“form of forms”)—or as the principle of the formation of the political unity
  - II. Constitution in the normative sense (“norm of norms”)
- § 2. Relative Concept of the Constitution (The Constitution as a Multitude of Individual Laws)
  - I. Dissolution of the constitution into constitutional laws
  - II. The written constitution
  - III. Qualified alterability as a formal characteristic of constitutional law
- § 3. The Positive Concept of the Constitution (The Constitution as the Complete Decision over the Type and Form of the Political Unity)
  - I. The constitution as the act of the constitution-making power
  - II. The constitution as political decision—Decisions of the Weimar Constitution—Practical significance of the distinction between constitution and constitutional law (constitutional amendment, inviolability of the constitution, basic rights, constitutional disputes, oath to the constitution, high treason)
  - III. The compromise character of the Weimar Constitution, genuine and apparent compromises (school and church compromise)
- § 4. Ideal Concept of the Constitution (“Constitution” in an exemplarysense, thus named because of a certain content)
  - I. Ambiguity of the ideal concept, in particular freedom
  - II. The ideal concept of the constitution of the bourgeois Rechtsstaat
  - III. Both components of the modern constitution
- § 5. The Meanings of the Term “Basic Law,” Basic Norm or Lex Fundamentalis (Summarizing Overview)
  - I. Nine meanings of the word basic law
  - II. Connections between the different meanings
  - III. In this book, constitution means constitution in the positive sense
- § 6. Origin of the Constitution
  - I. A constitution arises either through one-sided political decision of the subject of the constitution-making power or through reciprocal agreement of several such subjects
  - II. Historical overview of the origins of the modern European constitutions (1. medieval feudal state and state of estates, in particular the Magna Carta; 2. the German Reich until 1806; 3. the state of the absolute princes; 4. the Revolution of 1789; 5. the monarchical restoration 1815–1830; 6. the July Revolution 1830; 7. the constitutional monarchy in Germany; 8. North German Federation 1867 and German Reich 1871; 9. the Weimar Constitution 1919)
- § 7. The Constitution as Contract (The Genuine Constitutional Contract)
  - I. Distinction between the so-called state or social contract from theconstitutional contract
  - II. The genuine constitutional contract as federal contract. Non-genuineconstitutional contracts inside a political unity
  - III. The genuine constitutional contract as status contract (criticism ofthe principle: pacta sunt servanda)
  - IV. Constitution and international law contracts
- § 8. The Constitution-Making Power
  - I. The constitution-making power as political will
  - II. The subject of the constitution-making power (God, people or nation,king, an organized group)
  - III. Initiation of the constitution-making power, in particular the democraticpractice (national assembly, convention, plebiscite)
- § 9. Legitimacy of a Constitution
  - I. Types of constitutional legitimacy
  - II. Legitimacy of a constitution does not mean that a constitution originated according to previously valid constitutional laws
  - III. Dynastic and democratic legitimacy
- § 10. Consequences of the Theory of the Constitution-Making Power, of the People’s Constitution-Making Power in Particular
  - I. Continuous presence (permanence) of the constitution-makingpower
  - II. Continuity of the state during the elimination and statutory violationof the constitution, to the extent that only the constitution-making powerremains unchanged
  - III. The problem of the continuity in the change of the subject of theconstitution-making power (constitutional elimination), in particular thecontinuity of the German Reich in 1918/19
  - IV. Distinction of the people’s constitution-making power from everyconstituted authority, specifically that based on constitutional law
- § 11. Concepts Derived from the Concept of the Constitution (ConstitutionalChange, Statutory Violation of the Constitution, Constitutional Suspension,Constitutional Dispute, High Treason)
  - I. Overview
  - II. Changes of the constitution involving constitutional laws (revision and amendment of the constitution), boundaries of the authority for constitutional amendment, statutory violations of the constitution and doubtful acts of sovereignty, suspension of the constitution
  - III. Constitutional disputes
  - IV. The constitution as an object of attack and protection during hightreason
Part II. The Rechtsstaat Component of the Modern Constitution
- § 12. The Principles of the Bourgeois Rechtsstaat
  - I. Distinction between the Rechtsstaat and political components of the modern constitution; both principles of the bourgeois Rechtsstaat: basic rights (principle of distribution) and separation of powers (organizational principle)
  - II. The concept of the Rechtsstaat and individual distinguishing marks (legality, administrative jurisdiction, definability of all state authorizations, independence of judges, conformity to judicial forms, problem of political justice)
- § 13. The Rechtsstaat Concept of Law
  - I. Law and statute in the bourgeois Rechtsstaat
  - II. The so-called formal concept of law
  - III. The political concept of law
  - IV. The meaning of the general character of the legal norm
- § 14. The Basic Rights
  - I. Historical Overview
  - II. Historical and legal significance of the declaration of rights
  - III. Substantive distribution of the basic rights
  - IV. Institutional guarantees are distinguishable from basic rights
  - V. In the bourgeois Rechtsstaat, basic duties are nothing more than constitutional law obligations
  - VI. Division of the basic rights in regard to the protection against limitations and intrusions
- § 15. Separation (So-Called Division) of Powers
  - I. The historical origin of the separation of powers theory
  - II. Separation and balancing of powers; schema of their strict separation; schema of a few attempts at balancing
- § 16. Bourgeois Rechtsstaat and Political Form
  - I. The constitution of the modern bourgeois Rechtsstaat is always amixed constitution; state forms become forms of separated and dividedpowers (legislative, executive)
  - II. The two principles of political form (identity and representation)
  - III. Concept of representation
  - IV. The modern constitution as a linkage between and mixture of bourgeois Rechtsstaat principles with principles of political form
Part III. The Political Component of the Modern Constitution
- § 17-1. The Theory of Democracy, Fundamental Concepts
  - I. Overview of a few conceptual definitions
  - II. The concept of equality (general human equality, substantiveequality)
  - III. Definition of democracy
- § 18. The People and the Democratic Constitution
  - I. The people anterior to and superior to the constitution
  - II. The people within the constitution (elections and votes)
  - III. The people compared with the constitutional regime (public opinion)
  - IV. Overview of the meanings of the word “people” for a modern constitutional theory
- § 19. Consequences of the Political Principle of Democracy
  - I. General tendencies
  - II. The state citizen in democracy
  - III. Officials (democratic methods for the selection of officials and civilservants)
- § 20. Application of the Political Principle of Democracy to IndividualAreas of State Life
  - I. Democracy and legislation (in particular referendum and initiative)
  - II. Democracy and government (especially production of direct relations between government and people)
  - III. Democracy and relations among states under international law
  - IV. Democracy and administration
  - V. Democracy and the judiciary
- § 21. Boundaries of Democracy
  - I. Boundaries of the principle of identity
  - II. Boundaries stemming from the nature of the people
  - III. Boundaries of the practice of contemporary democracy
  - IV. Critique of the principle “majority decides”
- § 22-2. The Theory of Monarchy
  - I. Foundations of monarchy (theocratic, patriarchal, patrimonial, civilservant, and Caesarist forms)
  - II. The significance in constitutional theory terms of the different justificationsof monarchy
  - III. The position of the monarch in the modern constitution
  - IV. The state president in a republican constitution
- § 23-3. Aristocratic Elements in Modern Bourgeois-Rechtsstaat Constitutions
  - I. The aristocratic principle as a means of the separation of powers
  - II. Idea of and justification for the two-chamber system
  - III. The historical types of the two-chamber system (upper house, houseof lords, senate, house of states)
  - IV. The jurisdiction of and grants of authority to the upper house
  - V. Incompatibility of double membership
- § 24-4. The Parliamentary System
  - I. Ambiguity of the term “parliamentarianism,” especially the four subtypes (presidential, parliament, premier, and cabinet system)
  - II. The ideal foundations of the parliamentary system (historical situation of the bourgeoisie, education and property, public discussion)
  - III. Practical consequences of the fundamental idea of the parliamentary system (representation, the public, discussion)
- § 25. Historical Overview of the Development of the Parliamentary System
  - I. Most important dates of the historical development in England
  - II. The course of development in France and Belgium
  - III. The course of development in Germany
- § 26. Overview of the Possibilities for the Formation of the ParliamentarySystem
  - I. Decisive consideration: agreement between parliament and government
  - II. Means of producing the agreement
  - III. “Instances” of parliamentary responsibility (cabinet collapses)
- § 27. The Parliamentary System of the Weimar Constitution
  - I. The linkage of the four subsystems
  - II. Overview
  - III. The practice of the parliamentary systems of the Weimar Constitution. 1. The confidence of the Reichstag (Art. 54, 1 and 2); 2. “the Chancellor determines policy guidelines” (Art. 56); 3. the cabinet system; 4. the presidential system
- §28. Dissolution of Parliament
  - I. Types of dissolution (monarchical, presidential, ministerial, selfdissolution,dissolution in response to an initiative)
  - II. The President’s dissolution authority
- § 29. Fundamental Concepts of a Constitutional Theory of the Federation
  - I. Overview of the types of interstate relations and connections (international legal community, individual relations, alliance, federation)
  - II. Consequences of the conceptual definition of the federation (pacification, guarantee, intervention, execution)
  - III. The legal and political antimonies of the federation and their elimination through the requirement of homogeneity
- § 30. Consequences of the Fundamental Concepts of the Constitutional Theory of the Federation
  - I. Every federation as such has a political existence with an independent jus belli
  - II. Every federation as such is a subject in terms of international as well as public law
  - III. Every federation has a federation territory
  - IV. Federation representation, institutions and officials, federal jurisdiction
  - V. Treasonous undertakings against the federation
  - VI. Democracy and federalism (especially Art. 18)
Appendix: The Weimar Constitution
Notes
Biographical Notes
Index

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