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Carl Schmitt and Democratic Cannibalism

Interview by Richard Marshall.

Schmitt may even be a more controversial thinker than Heidegger. Not only was he, like Heidegger, a member of the Nazi Party and openly anti-Semitic, Schmitt was also a well-known public lawyer. He used that recognition to play an active role in legitimizing the early years of the Nazi regime, employing his thought in the pursuit of despicable political ends. For example, he wrote a public legal defense of Hitler’s 1934 assassination of his political rivals in the “Night of Long Knives.” He also incorporated overt anti-Semitism into his academic writings, which undoubtedly helped to normalize it.

Having ruled out democracy as a core constitutional principle, Schmitt argued that there were only two possibilities already written into the Weimar constitution: the individual civil liberties of classical liberalism or socialist entitlements to state services.’

By arguing that the basic decision of the Weimar Constitution was for liberal basic rights rather than democracy, Schmitt believed he had discovered a way to prevent extremists from gaining power and committing legal revolution, a way consistent with the existing Weimar Constitution.

Overall, Schmitt believed that democratic institutions, originally intended to liberate the people from the arbitrariness of a tyrannical monarch, now enabled the arbitrariness of a tyrannical majority as parties used them to dominate one another and to promote their idiosyncratic worldviews. This reached its extreme as the Communist and Nazi parties hoped to use liberal democratic institutions to legally found totalitarian states.

‘The main lesson I take from Schmitt’s analysis is that, although constitutions cannot legitimately commit suicide, they can lack defenses against formal legal revolution. Constitutions can, however, be designed to prevent such revolution by placing its core commitments – importantly including basic civil rights – beyond the reach of democratic legal change. ‘

Trump does illustrate some other problems Schmitt predicted and his thought can help us better understand them – as well as what would be necessary to overcome them. An example: there has been a lot of discussion recently about the range and limits of the presidential pardon. Does it include the president himself? Can it be used to obstruct justice?

Benjamin A Schupmann is joining Duke Kunshan University as an Assistant Professor in the Division of Social Sciences. His research looks at the role the state and constitution should play in politics and society today and what liberal democracy means in the 21st century. Here Here he builds on his book Carl Schmitt’s State and Constitutional Theory to discuss why Carl Schmitt  may be more controversial than Heidegger, the context out of which his thinking came, Schmitt on whether a liberal democratic state was obliged to allow voters vote liberal democracy out of existence in a kind of political cannibalism, whether Schmitt was a legal positivist or an anti-positivist, the Historical School of Jurisprudence, how the arguments between the positivists and anti-positivists played out through the Weimar Constitutional Crisis, why Schmitt’s anti-positivism is relevant, his anti-liberalism, his disdain for 20th century mass democracy, Weber, the state and constitutionalism, why we should approach Schmitt’s theoretical contribution to the political sociologically rather than normatively, whether a constitution can legitimately commit suicide and authorise tyranny, Trump and Brexit.

3:AM: What made you become a philosopher?

Benjamin A Schupmann: I came to philosophy through my experience at Boston College. As an undergraduate, I planned to major in biology. But quickly discovered that I was far more interested in engaging in extracurricular political and social movements (at the time, ending the sanctions on Iraq and opposing the WTO) and the ideas that I studied in BC’s philosophy common curriculum and in a social theory course with Eve Spengler. This combination of interests drew me to David Rasmussen, with whom I took a wide range of courses (“Philosophy of Law,” “Marx and Nietzsche,” “Honneth,” and “Rawls”). David advised my senior thesis and helped me continue studying at the graduate level.

Carl Schmitt's State and Constitutional Theory

3:AM: Carl Schmitt is controversial in the same way as Heidegger to some extent. Both were Nazis and anti-semites weren’t they?. Schmitt too has been accused of being very disorganised and unsystematic – a conceptual occasionalist!!. Why despite these factors is he important?

BS: I’m glad you asked this question. Schmitt may even be a more controversial thinker than Heidegger. Not only was he, like Heidegger, a member of the Nazi Party and openly anti-Semitic, Schmitt was also a well-known public lawyer. He used that recognition to play an active role in legitimizing the early years of the Nazi regime, employing his thought in the pursuit of despicable political ends. For example, he wrote a public legal defense of Hitler’s 1934 assassination of his political rivals in the “Night of Long Knives.” He also incorporated overt anti-Semitism into his academic writings, which undoubtedly helped to normalize it. Those who engage with Schmitt and his ideas must bear this history in mind.

Despite these deep personal flaws, Schmitt is an important constitutional and state theorist. He analyzed the problems facing Weimar Germany’s liberal democratic constitution in an original way that continues to challenge its defenders even while providing new insights into both liberalism and democracy. Schmitt was deeply skeptical about the Weimar State and the ability of its liberal democratic values to survive modern mass democracy. He believed mass democracy was inherently unstable, that the average voter was capricious, irrational, and susceptible to demagoguery. Yet his skepticism about mass democracy (and at points unbridled hostility toward it) gives him an outsider’s perspective on and critical distance from the problems of liberal democracy. Not really committed to liberal democracy or Weimar to begin with, he could look at its internal contradictions and flaws with a certain honesty. And he was also able to offer solutions to its problems that would have been unthinkable to his Weimar contemporaries.

Schmitt remains important because liberal democracies today face similar problems to those facing Weimar. His thought helps us to better understand and solve those problems. For example, Schmitt analyzed the dilemma of how committed liberal democrats should respond to a democratic majority or supermajority seeking to amend liberalism and democracy out of the constitution legally. This dilemma is latent in almost every democratic constitution. Its resolution should be important for anyone committed to upholding liberal democratic values.

Some may wonder why Schmitt would propose solutions to Weimar if he was uncommitted to its basic constitutional values. This is where the charges of opportunism and occasionalism enter into the narrative. To be sure, it is doubtful that Schmitt was really committed to Weimar. But as a conservative, he was committed to maintaining a stable public authority, whatever its basic values. The particular challenge facing states in the 20th century, he believed, were the centrifugal and antagonistic tendencies of mass democracy. In this way, Schmitt considered himself to be a sort of 20th century Hobbes.

His conservatism explains in part why he appears to be an unsystematic thinker or an outright occasionalist. In 1932, before the Nazis took power, Schmitt railed against them because they challenged the existing constitutional order (at one point, arguing the party ought to be banned from political participation). He interpreted Hitler’s 1933 appointment as Chancellor and the enabling act passed by the Reichstag as revolutionary. Unfortunately, Schmitt swiftly reconciled himself to the new constitutional order and joined the party. He did so for a variety of reasons, including because he hoped to influence the new state’s direction (conservative elites mistakenly believed they could manipulate Hitler for their own interests), he feared that he too would be assassinated (von Schleicher, with whom he worked, had been in assassinated in 1934), and because values like anti-Semitism resonated with him on some level. Then, after the war ended, he reconciled himself again to a new constitutional order. This time, the Bonn Basic Law. Although there are elements of opportunism and occasionalism here, I argue that Schmitt’s peculiar Hobbesian conservatism is an important factor in explaining what may otherwise seem to be completely unprincipled political behavior.

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[Hindenburg and Hitler]

3:AM: There seem to be tremendous links between the issues facing Schmitt and those facing us now in terms of democracy and law. His big crisis took place in the 1930’s Germany. Can you sketch for us the context for his thinking that he thought illustrated a broader dilemma for all twentieth century liberal states?

BS: Following the Great Depression, extremist parties progressively gained power in Weimar’s democratic elections. They included the NSDAP (the Nazi Party) on the extreme right and the KPD (the Communist Party) on the extreme left. Both the Nazi and Communist parties recognized that the laws governing constitutional amendment could be used to write liberalism and democracy out of the constitution entirely. And both the Nazis and the Communists were explicit that their goal in seeking office was to revolutionize Weimar’s liberal democratic constitution and to found a more authentic political community of the German people – either a National Socialist State or a Soviet Republic. This phenomenon has been called both ‘democratic suicide’ and ‘legal revolution.’

By 1932, the NSDAP and the KPD, combined, held a majority of seats in parliament. The Nazis received the most votes of any party in parliament – including, importantly, more seats than the center-left SPD (the Social Democrats). To put this situation in starker terms, more than half of the seats in Weimar’s parliament were held by representatives whose ultimate reason to be there was to overthrow parliamentary democracy. (And until then, they aimed to deliberately obstruct the legislative process in order to prevent the state from responding to its economic and social crises and, as a result, to delegitimize parliamentary democracy as an effective form of government.) Schmitt realized, if this trend continued, one of these parties might actually be able to make the constitutional changes they sought, which he thought raised the question of whether there were any limits to the legally expressed will of the people and, if so, how those limits could be justified by a nominally liberal democratic state.

Most constitutional and political theorists in Weimar had not anticipated this situation. They were not certain how to react. For decades, many had worked to democratize Germany. They had faith in the validity of the will of the people. They combined this faith in democracy with the then prevailing legal theory of statutory positivism. They believed that legal and constitutional change was in principle unlimited, as long as the democratically elected legislative branch adhered to the legal procedures in effect for enacting law. They precommitted to accepting whatever products both elections and parliamentary legislation produced, as long as the laws governing this process were adhered to. So, in other words, the prevailing opinion was that a democratic people had every right to elect whoever they desired and to alter any and in principle every article of the constitution – as long as they followed the law while doing so. The result was that the Nazis and Communists encountered few barriers in their legal pursuit of power. In particular, elite politicians and public lawyers, who one might have expected to halt the extremists’ pursuit of power, instead argued that in a democratic state there could be no such thing as a popular coup d’état or legal revolution.

Although this problem had erupted in Weimar Germany, the dilemma of legal revolution was intrinsic to democracy. Without principled limits to democratic legal and constitutional change, the only things standing in the way of legal revolution was the lack of a legally expressed democratic will. But the democratic amendment procedure of the constitution could be turned against any article in the constitution – including the amendment procedure itself. And as we’ve seen, in times of economic and social crisis, the people can and have become frustrated with the rule of law and representative democracy. Frustrated with the status quo, they become receptive to the radical solutions of authoritarians and extremists.

3:AM: So one issue this all raised was whether a liberal democratic state was obliged to allow voters vote liberal democracy out of existence in a kind of political cannibalism. How did Schmitt react to this dilemma?

BS: Schmitt thought the situation in Weimar was a disaster. And he thought that Weimar democrats’ inclusion of, from his perspective, revolutionary subversives in its legislative bodies was politically irresponsible. He reacted through his state and constitutional theory. Schmitt argued – against the prevailing juridical theory of statutory positivism – that the function of both the state and constitution was to create a stable public order and, effectively, bring individuals out of the state of nature. For this reason, neither could contain mechanisms that could revolutionize themselves. Although modern mass democracy was irreversible, Schmitt argued what it could accomplish was nevertheless limited by constitutionally determined principles. No matter how democratically popular a law, political aim, or constitutional change may be, if it was incoherent with the core commitments of the constitution, then it was unconstitutional.

Then the question becomes ‘how does one determine what the core commitments of the constitution are?’ Having ruled out democracy as a core constitutional principle, Schmitt argued that there were only two possibilities already written into the Weimar constitution: the individual civil liberties of classical liberalism or socialist entitlements to state services. The Second Principal Part of the Weimar Constitution had elements of both of these. Although he conceded there was a case to be made for the latter, the bulk of the evidence favored liberal civil liberties (this evidence included early drafts of the Weimar Constitution, speeches and arguments by Weimar’s founders, and the structure and design of the constitution itself). That is, he argued, the basic commitments of the Weimar Constitution were the liberal civil liberties laid out in the Second Principal Part of the Weimar Constitution.

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[Carl Schmitt]

3:AM: The dispute highlighted different approaches according to whether one was a positivist or a non-positivist regarding the status of law and the constitution. Can you sketch for us the difference here between positivists and non-positivists and how it linked to German Idealism?

BS: Statutory positivism became the prevailing school of jurisprudence in Germany around the mid-19th century. It was a response to, among other things, the failed Revolutions of 1848 and the Realpolitik of the German Empire. German public lawyers began to doubt any relationship between reason, right, and the direction of history. Among other things, they hoped to curtail or remove entirely discretionary elements from the law – and thereby limit how super-legal channels could be abused by those in power to make law serve their own interests. They reasoned that they could accomplish this goal by making the law scientific and purifying it of its non-legal influences (such as politics and metaphysics). Rather than determine law’s validity by its ‘goodness’ or ‘justness,’ they focused on the procedures for enacting it. Valid law, they argued, was nothing more or less than what the state legislator had formally enacted into statutes. Law was valid when it adhered to the second-order procedures in effect for enacting law. German positivists tended to align politically with the Social Democratic Party and sought to democratize Germany. They tended to identify philosophically as neo-Kantians, the then prevailing movement. Hans Kelsen was probably the most well-known positivist in Weimar.

Early 20th century anti-positivists tended to be political conservatives. They were united by concerns about the implications of statutory positivism in the context of a newly democratized Germany. One way they challenged positivism was to ask ‘if the validity of law was determined by nothing more than whether it had been enacted properly, then could this not also result in arbitrary rule – even if it was a different sort of arbitrary rule than before?’ They worried that the newly enfranchised masses would be able to enact whatever laws they wanted at all, regardless of how reasonable or unreasonable those laws may be. Accordingly, anti-positivists sought to find ways to re-enchant the law, as it were, so that the content of the law was relevant for its validity and could disqualify laws that were enacted merely formally. Anti-positivists tethered positive law to substantive values using two related arguments. They argued, first, that there was some principled essence constituting a democratic people (i.e., an essence prior to the individual wills of German voters, uniting them as a political community) and, second, that there was some quasi-natural law prior to the positive laws enacted by the state (i.e., a fundamental law that determined the validity of the legislator’s acts). In both cases, the reality of a law or a vote should be evaluated against its ideal.

3:AM: What was  the Historical School of Jurisprudence back in early nineteenth century Germany and in particular why was it against Enlightenment individualism,  the social contract tradition of Rousseau and for a kind of metaphysical idea of the Nation State?

BS: Weimar’s anti-positivist movement in some ways built on the 19th Century Historical School of Jurisprudence. The Historical School was founded by Friedrich Carl von Savigny. Savigny opposed many ideas associated with the Enlightenment, like universal law or ethics based in reason and abstract individualism. Drawing on German Idealism and Romanticism, he argued that each people (Volk) had its own particular spirit or essence (Volksgeist), its own idiosyncratic ethics. Individual members of a community were constituted by their people’s spirit and its laws. So the community was in a way prior to its members and had a claim over them. The spirit of that people also determined a superlegal system of law for that people (Volksrecht). The positive laws enacted by the state had to conform to that superlegal order. Otherwise, the dissonance between positive laws and the essence of that people would lead to social unrest and political upheaval. Savigny conceived of the underlying idea of a people as the source of its essential reality as well as a way to assess validity of laws enacted by the state. The written constitution and all other law was only valid insofar as it maintained this underlying idea.

3:AM: Was positivism a reaction against the Historical School, in particular its attitude towards the State?

BS: Early statutory positivism defined itself in part in opposition to the Historical School. The state legislator, they argued, was sole the origin of valid law. If the state legislator willed something into law using the legally defined procedure for enacting law, then that product was indeed valid law. Positivists denied there was any underlying “people,” let alone any underlying spirit or law of that people that could determine the validity of laws. Such elements were irrational and unscientific. They polluted the law, deformalizing it and allowing greater abuses of the law by those in power. Positivists also recognized that positive law could advance democracy. By restricting the validity of law to positive law, they hoped to check executive power and expand parliamentary democracy’s power – at least legally.

3:AM: How did the arguments between the positivists and anti-positivists play out through the Weimar Constitutional crisis that saw Hitler’s democratically elected dictatorship begin?

BS: The theoretical disagreement between positivists and anti-positivists took on practical significance as both the Nazi and Communist Parties began to present a credible threat to the survival of the Weimar Republic. And it played out in a peculiar way. Positivists doubled down on their commitment to democracy. They insisted that popular sovereignty determined whichever laws were valid. Full stop. Richard Thoma, a well-known public lawyer in Weimar, argued that a democratic people had the right to decide to abrogate the basic pillars of its constitution; this was the essence of democracy. He argued further that it would be a mistake to conceive of this subversion as a coup d’état or revolution. It was nothing more than a democratic people exercising their sovereign prerogative. Other well-known positivists like Anschütz and Kelsen similarly affirmed the latitude of democracy’s legislative powers. They argued that Article 76, the article of the Weimar Constitution governing constitutional amendment, was unambiguous: the people could amend any or all of the Constitution as long as they did so according to the legal procedures in effect for doing so. Of course, they had no desire to see the people exercise their legislative power in this way. They nevertheless recognized the people’s right to do so. They argued that, to assert any political power prior to or above the people, which could decide to invalidate their legal acts, would be inconsistent with the essence and value of democracy. It would be a return to authoritarianism. Because the Weimar Republic was constituted as a democracy, there could be no constitutional argument for such a higher power.

Anti-positivists were alarmed by the in principle unlimited legislative range of its democracy. Because natural law was believed to be bankrupted, they looked for other constitutional tools to rein in popular sovereignty. They argued the basic rights of the Weimar Constitution, which they argued expressed the principled unity of the German people, established limits to the scope of democratic legislation. That is, they argued that the German people decided to constitute the Weimar Republic first as a liberal state governed by the rule of law – rather than as a democratic state governed by the rule of the people.

The Oxford Handbook of Carl Schmitt

3:AM: Was Schmitt an anti-positivist? How did this play out in the disputes regarding the overthrow of liberal democracy? Did he hold statutory positivists to blame for the dissolving of democratic liberalism and the rise of tyranny?

BS: Schmitt was an anti-positivist and his legal thought overlaps with other Weimar anti-positivists. He argued that the sovereign decision to constitute the Weimar Republic as a liberal constitutional state (“bourgeois Rechtsstaat”) meant the state’s constitutional foundations could not be legally altered by any constituted power within Weimar. To Schmitt, this meant that the liberal basic rights outlined in the Second Principle Part of the Weimar Constitution trumped the democratic procedures expressed in the First Principle Part, including the amendment procedure of Article 76. These rights were the civil liberties of private persons like freedoms of expression and property. They defined the absolute limits of both positive law and democratic self-determination. Under no circumstances could they be amended or abrogated.

Schmitt also argued that this basic decision determined the enemies of the state and constitution. If a political party’s platform somehow included as its goal the abrogation of those basic rights, then it could be disqualified from political participation. That is, that party could be banned.

There is much more to his argument. But the absolute entrenchment of the constitution’s core commitments and party bans are the two most significant takeaways. By arguing that the basic decision of the Weimar Constitution was for liberal basic rights rather than democracy, Schmitt believed he had discovered a way to prevent extremists from gaining power and committing legal revolution, a way consistent with the existing Weimar Constitution.

As the Nazis and Communists gained seats in parliament, Schmitt was frustrated by positivist jurists’ unyielding commitment to democratically decided positive law. He criticized them for how their theoretical commitments resulted practically in something like political quietism. And, in doing so, he seems to interpret them as one-sided adherents to Weber’s ethics of conviction, as politically irresponsible.

3:AM: Was he against liberalism?

BS: Schmitt was unquestionably against some aspects of liberalism. For example, he derided what he characterized as liberalism’s tendency toward endless discussion, discussion that fails to produce any decision or action. He would have agreed with Robert Frost that “a liberal is a man too broadminded to take his own side in a quarrel.” Liberal toleration, he thought, could end up working against itself and made it difficult for liberals to recognize that there were in fact real enemies of liberalism committed to its annihilation – like Nazis. Their inability to recognize these enemies created situations where they condoned actions that were in effect subversive, and substantively illiberal and antidemocratic.

At the same time, he argued repeatedly that liberal civil liberties were the foundation of the Weimar Constitution and must be protected against democratic subversion. As I noted already, his motivation may be suspect. Nevertheless, the argument he made has value in itself. Committed liberal democrats can use it because they need not adopt the same skeptical or even disingenuous commitment to them as Schmitt did.

Because Schmitt argues against “liberalism” in his writings, it’s easy to conclude he is simply illiberal. But, as you can see, the fault lines in the Weimar debates between “liberals” and “illiberals” do not really map onto what we understand by these concepts today. So it can be misleading to describe Schmitt or anyone else from that time as simply liberal or illiberal (or democratic or antidemocratic for that matter). It is more productive to focus on what he argued for or against specifically.

3:AM: He was anti-will of the people type democracy wasn’t he because he thought the tyranny of the people was just as possible as any other. Is that right, and is there a theory of democracy in his works?

BS: That’s correct. A consistent thread throughout his writings is his disdain for 20th century “mass” democracy. He thought that the prevailing opinion in Germany about democracy was deeply uncritical. He argued that an unprincipled and unconstrained democratic will could be just as tyrannical – and destabilizing – as any other unprincipled and unconstrained will. For Schmitt, an essential feature of legislation is whether it was arbitrary or rational. An accidental feature was whether that will was produced monarchically or democratically. With the advent of party politics and mass democracy, he felt there were good reasons to believe unconstrained democracy would increasingly produce irrational and vacillating laws.

Schmitt has been depicted as a theorist of pure will. This portrayal is misleading. Although he argued the creation ex nihilo of a new constitutional order (for example, the founding of the United States of America, the Weimar Republic, or the Soviet Union) was a moment of pure will, such moments were extremely rare. Once a constitutional order was established, the core commitments of that constitution legally superceded the aims of any constituted power operating within it. A valid legislative will could only build upon that core constitutional framework. It could not amend or abrogate it. Importantly, he distinguishes between the essential and inviolable core of the constitution and the rest of the constitution. For example, although liberal basic rights might be the core commitments of a constitution, that constitution could also include democratic procedures and social democratic entitlements. Laws that might be part of the constitution but were not entrenched in the same way as its core commitments. Having clearly articulated core constitutional commitments prevented constitutional crises arising out of conflicts and gaps in the written constitution.

There are seeds for alternative theories of democracy in Schmitt’s thought. For example, Andreas Kalyvas turns Schmitt against himself by arguing that, from Schmitt’s theory of a preconstitutional sovereign will that founds a new public order, we can justify the right of a democratic people to act outside and alongside the normal institutionalized politics of government – for example, through democratic acts of civil disobedience and protest. I don’t think this is what Schmitt intended. But Schmitt’s thought contains elements of a theory of radical democracy.

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3:AM: He saw the positivist orientation to be rooted in a kind of  Weberian  rationalisation and disenchantment didn’t he, and that democracy had become justified for its own sake rather than being rooted in substantive right and wrong. How does Schmitt understand the effects of this Weberian state of affairs, and how did he propose to solve the ensuing problems in his theories of state and constitutionalism?

BS: Schmitt argued that many of the institutions we associate with liberal democratic states (such as  discourse among representatives about which laws to adopt and why, the democratic vote, rights guaranteeing individuals’ abilities to express themselves and their autonomy) were created to ensure that better laws would be enacted. Laws would better reflect the common welfare and the public interest. Schmitt interprets liberal discursive democracy through the thought of Guizot or Mill: better laws result from public exposure to alternatives and agonistic competition through public reasoning. Positive law was an integral part of this because it prevented any proposals or laws from being disqualified a priori, so alternative and unconventional ideas would have an equal chance to prevail. Rational-critical public debate would sort out the better ideas and generate a rational consensus about the substantively validity of laws they would then formally enact.

As states extended the franchise to the “masses,” Schmitt believed these institutions ceased to perform this function. Parties prevented rational deliberation from occurring. Among other things, representatives dogmatically adhered to their platforms, public debate was staged and no longer dialogical, quid pro quo bargaining about laws replaced rational consensus, and finally parties stoked irrationalism, dogmatism, and polarizing rhetoric in their bases in the hope of gaining enough representatives in parliament to formally ram their platforms through the legislative process.

Overall, Schmitt believed that democratic institutions, originally intended to liberate the people from the arbitrariness of a tyrannical monarch, now enabled the arbitrariness of a tyrannical majority as parties used them to dominate one another and to promote their idiosyncratic worldviews. This reached its extreme as the Communist and Nazi parties hoped to use liberal democratic institutions to legally found totalitarian states. Under the changed circumstances of mass democracy, positive law had become an extremely effective means for a democratic majority to impose its substantively arbitrary will, coated with veneer of rational-legal legitimacy, across the entire state. From these changes, Schmitt concluded that democracy had become rationalized. As it was, it could no longer be justified for promoting better laws and freeing civil society from arbitrary power. Instead, he believed, democracy was thought to be valid only because citizens had the right to enact whatever laws they wanted. Because of this rationalization, democracy had become the very arbitrary power that it was designed to check. And it substantively amounted to a loss of freedom and meaning.

Schmitt’s solution to this problem was an early expression of what is today often called “militant democracy.” I think militant democracy is a misleading name, however. “Constrained democracy” is more accurate. This constitutional form uses mechanisms that prevent certain democratic expressions from subverting the constitution. These mechanisms include supermajority limits on amendment or even eternity clauses that prevent legal change to essential articles of the constitution, a clear constitutional decision and a hierarchical organization of articles in the constitution to reflect that decision, constraints on when a ‘vote of no confidence’ can be held, and – controversially – party bans. Interestingly, although Schmitt’s ideas were never adopted in Weimar, many found expression in the current German constitution.

Schmitt believed these measures could be justified in terms of liberal democratic values. As I mentioned already, Schmitt argued democracy by itself could produce legislation arbitrarily. And it could be politically destabilizing. For this reason, democracy could not serve as the basic commitment of the constitution. But, perhaps surprisingly, he did argue that the basic liberties of classical liberalism, which aims to create an apolitical sphere of individual autonomy, could be that basic commitment. By conceiving of liberal basic rights as the basic commitment of the Weimar Constitution, its legal revolution could be prevented. The space open to democratic legal change was still large – but these basic principles were absolutely out of bounds.

Returning to your earlier question about Schmitt’s relationship to liberalism, although Schmitt unambiguously rejected an apolitical and indecisive liberalism, I believe that Schmitt advocated a political liberalism (in his sense of the concept of the political). Political liberalism, in this sense, committed to itself by refusing to tolerate the subversion of liberal basic rights.

3:AM: You argue that we should approach Schmitt’s theoretical contribution to the political sociologically rather than normatively. Why so, and how would you summarise his contribution here?

BS: Schmitt is well known for his polemical language and, in some cases, its disturbing implications, such as the friend/enemy distinction and the exception. What can make his thought disturbing is the normative interpretation of these ideas (political enmity should be cultivated, legal exceptions should be sought out and exploited). To do so, I believe, trivializes Schmitt’s thought. He does not argue cultivating enmity is virtuous or that legal exceptionalism is the foundation of a better legal order. Instead, he is describing what he believes are natural qualities of political communities.

Let’s look at Enmity. At their highest levels, Schmitt argued, public orders make principled commitments that are legally binding across a territory. Counter-movements, opposed to those commitments, would of course oppose the public orders as well. In Schmitt’s time, some public lawyers believed that the combination of liberal democracy and positive law was an apolitical or value-neutral form of public order. They believed that principled political conflicts, conflicts that could escalate into open violence and warfare, could be sublimated into legal conflicts. Schmitt argued that enmity and political opposition could not be overcome in this way. Groups naturally oppose themselves to one another’s goals for public order. Sometimes, these oppositions become violent. Even liberal democracy had enemies who would do whatever was possible to subvert it. So, he argued, it was naïve to believe that the political could somehow be sublimated or overcome and to build a political system based on that belief.

Now to legal exceptionalism. In Schmitt’s time, some public lawyers believed that law could be theorized as a gapless (exceptionless) system, that all correct judicial decisions were contained within the constitution. In other words, that there was never any genuine legal indeterminacy (to be sure, these thinkers were not naïve and they did recognize that legal power could be abused). Schmitt argued that no matter how well articulated the positive legal system was, there would be gaps. Positive law would not be able to guide legal decision-making always. But, Schmitt believed, the underlying normative commitments of a constitution could provide additional guidance in legal interpretation. An example of this, Schmitt believed, was the question of constitutionality in the Weimar crisis of January 1933. The president had sworn an oath to defend the constitution. Did that mean appointing Hitler Chancellor? Hitler was the head of the largest democratically elected party and formally had a right to that position. Or did it mean denying him that position? Hitler aimed to revolutionize Weimar. In this sense, granting Hitler control over Weimar’s most powerful executive and legislative tools was inconsistent with preserving the constitution. The answer to this dilemma depended on whether one subscribed to positivist or anti-positivist juridical theory. For Schmitt, the Weimar Constitution’s prior commitment to liberal basic rights were sufficient grounds to deny to Hitler any claim to the Chancellorship. The constitution’s underlying normative commitment to liberalism trumped any formal democratic entitlement to rule.

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3:AM: And how would you summarise the main lessons to take away from Schmitt’s analysis of the existential problems facing twentieth and twenty-first century liberal democratic states, in particular the questions about whether a constitution can legitimately commit suicide and authorise tyranny?

BS: The main lesson I take from Schmitt’s analysis is that, although constitutions cannot legitimately commit suicide, they can lack defenses against formal legal revolution. Constitutions can, however, be designed to prevent such revolution by placing its core commitments – importantly including basic civil rights – beyond the reach of democratic legal change. Whatever Schmitt’s motivation may have been, he provides committed liberal democrats today with a framework for a normative theory of constrained democracy. This theory is important for two reasons. Constrained democracy has been undertheorized. Yet many post-World War II constitutions contain elements of constrained democracy, such as in Germany, Italy, and Israel. Without this theory, it is difficult to distinguish constrained democracy from an illegitimate limitation on a democratic legislation or action. Second, this theory explains why states should incorporate mechanisms of constrained democracy into their constitutions. Again, the problems facing the Weimar State are problems intrinsic to liberal democracy. Whenever a democratic majority or supermajority can abrogate articles essential for liberalism and democracy from the constitution, it raises the dilemma of what constitutionality consists in.

3:AM: Trump seems to be hovering on the brink of challenging the rule of law in the USA. He’s democratically elected. Do you think he is going to enact constitutional suicide? And was Brexit voting another example of constitutional suicide? Are we entering a Weimar like crisis where complacency about liberal democracy from supporters and tyrannical forces opposed to liberal democracy are genuine threats and does Schmitt show us how defenders of liberal democracies should go about that business?

BS: I certainly hope Trump does not bring about a constitutional crisis! At the moment, it seems unlikely that an illiberal, anti-democratic majority would be able to legally revolutionize the U.S. Constitution in the way Schmitt is worried about. Trump does illustrate some other problems Schmitt predicted and his thought can help us better understand them – as well as what would be necessary to overcome them. An example: there has been a lot of discussion recently about the range and limits of the presidential pardon. Does it include the president himself? Can it be used to obstruct justice? Formally, as discussed by Charlie Savage in The New York Times, “the only limitation explicitly stated in the Constitution is a ban on using a pardon to stop an impeachment proceeding in Congress, and the only obvious implicit limitation is that he cannot pardon offenses under state law.” The rest is legally undetermined. There appears to be a gap at the highest level of U.S. law, at a point where politics and constitutional law blur together. Substantively, most lawyers argue that Trump should not use a pardon in this way. But formally, there doesn’t seem to be anything to prevent him from doing so. Moreover, as Richard Primus writes at Politico, “as a practical matter, it’s not a panel of legal experts that will decide this issue… it probably won’t be a court, either. Instead, the answer will be fought out at the highest levels of American politics. And in real life, if the president signed a document with the words ‘I pardon myself’—which he certainly could—it’s impossible to know what would happen next.” By deciding on this issue when others are reluctant to do so (and I have little doubt Trump will try if it becomes necessary to do so), Trump may demonstrate de facto authority to decide – which can become de jure authority to decide. If the pardon were exercised in this way, dispute over its validity could itself politicize and cascade into other until now civil disagreements related to Trump’s presidency. At their worst, Schmitt argues, such politicized disputes can disintegrate the state and create a Hobbesian state of nature.

Moreover, Schmitt argued that to allow an enemy of liberal democracy to assume “the political premium of the legal possession of power” at the pinnacle of public order is foolish. Political leaders have argued that “the peaceful transfer of power is the cornerstone of democracy.” For Schmitt, this cornerstone presupposes that power transitions only to those leaders actually committed to upholding the state’s fundamental values. The peaceful transition of power says nothing about what occurs between transitions of power. If anything can happen between these power transitions, then what does it matter how power transitions? The cornerstone of public order must structure and limit how those in power wield it while they are in power. To be sure, power transitions are important. But other values have far greater significance. It’s also worth noting that, time and again, Trump has demonstrated through speech and action that he is what Schmitt identifies as an Enemy of liberal democracy. Schmitt would argue that denying him public office would have been consistent with the preservation and defense of the public order of the U.S. State and Constitution. Barring that, Schmitt’s thought tells committed liberal democrats they must decide on fundamental questions, such as the presidential pardon. To leave the issue undecided, when someone opposed to liberal democratic values can act into that void (and in doing de facto decide), is politically irresponsible.

The decision to leave the EU has been a disappointing moment for democratic decision-making for many. But it seems like the Constitution of the United Kingdom (I use the term “constitution” loosely here) will continue to uphold the commitments that are constitutive of the European Union – among them liberal basic freedoms and democracy. Brexit will undoubtedly impact the constitution of the European Union, however. But there is disagreement about the nature of the European Union (is it a sovereign state or a confederation or a treaty alliance), which determines how we should conceive of it as a constitution. In turn, these conclusions shape how and whether we should understand a phenomenon like Brexit as democratic suicide or something else.

Schmitt’s state and constitutional theory speaks more directly to the constitutional crises in other European States, such as in Hungary and Poland. Hungary is unfortunately a perfect example of democratic suicide, as Schmitt theorized it. A political party and movement, Fidesz, sought office in order to create what its leader calls an “illiberal democracy” – something that he claims reflects the authentic will of the Hungarian people and is independent of the checks and balances of traditional constitutionalism. Having obtained a supermajority to enact constitutional change, Fidesz has succeeded in doing just that. Among other things, since gaining its supermajority, Fidesz has undermined checks on parliamentary power and the executive branch (including judicial independence), placed restriction on news and media, and threatened or clamped down on segments of civil society critical of Fidesz and its policies. Yet these policies are popular in Hungary. If we understand democracy as something like the peaceful transfer of power and the legislative branch enacting laws that both reflect the will of the people and adhere to the procedures in effect for making law (including constitutional law), it is difficult to see Fidesz as having done anything politically or legally wrong – however morally abominable this situation may be. Schmitt’s thought provides tools to show that Fidesz actions are both politically and legally illegitimate. It also provides mechanisms that can be installed in future constitutions to help prevent democratic suicide from occurring.

3:AM: And for the readers here at 3:AM, are there five books that you could recommend that will take us further into your philosophical world?

BS: Absolutely.

Constitutional Theory

For those interested in Schmitt, his Constitutional Theory is great introduction to his thought and an important contribution to state and constitution theory.

Between the Norm and the Exception

William E. Scheuerman’s Between the Norm and the Exception: The Frankfurt School and the Rule of Law was what originally put Schmitt on my radar. Scheuerman shows how the Frankfurt School’s legal theorists, Neumann and Kirchheimer, responded to Schmitt while strengthening the rule of law and advancing social democracy.

Foundations of Public Law

Martin Loughlin’s Foundations of Public Law traces how public law evolved through canonical figures in the history of legal and political philosophy. He argues for an interpretation of public law as constitutive principles of right that are foundational for government (and are prior to it).

A Theory of Militant Democracy

Alexander Kirshner’s A Theory of Militant Democracy: The Ethics of Combatting Political Extremism is an essential work for articulating when and why this constitutional form might be legitimate for democratic reasons. It’s the first systematic theory of militant democracy and it helped me to better articulate Schmitt’s constitutional thought in today’s circumstances.

How Will Capitalism End?: Essays on a Failing System (Paperback): Wolfgang Streeck

Wolfgang Streeck’s How Will Capitalism End? Essays on a Failing System shows how free market capitalism and democracy are largely incompatible and societies are becoming increasingly unable to balance the two – one consequence of which is society’s violent and indiscriminate reaction to neo-liberalism in the form of extremist xenophobic populism. It’s a compelling argument for the revival of social democracy.

ABOUT THE INTERVIEWER

Richard Marshall is still biding his time.

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End Times Series: the first 302

First published in 3:AM Magazine: Saturday, June 16th, 2018.