Carl Schmitt's State and Constitutional Theory

Abstract

This book analyzes Carl Schmitt’s state and constitutional theory and shows how he conceived it in response to the Weimar crisis. Schmitt modeled his theory on past state theory, particularly Hobbes’ Leviathan. Schmitt sought to address the unique problems posed by mass democracy. Extremists recognized a path to legal revolution lay in the constitution’s combination of democratic procedures, total neutrality toward political goals, and positive law. To prevent the subversion of the state and civil war, Schmitt theorized ways to depoliticize conflicts and restore the state’s authority. He argued the constitution imposed absolute limits on democratic will. And he insisted those limits were determined by the liberal democratic constitution’s prior commitment to basic rights. Schmitt’s state and constitutional theory remains important today because the problems he identifies within liberal democratic states have not gone away. Schmitt’s thought anticipated “constrained” or “militant” democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Although today’s political challenges are not identical to those Weimar faced, the threat of constitutional democracy committing suicide has not gone away. Liberal democrats can learn from Schmitt’s analysis and theory to address today’s challenges.