Emergency Government Within the Bounds of the Constitution: An Introduction to Carl Schmitt, “The Dictatorship of the Reich president according to Article 48 R.V.”

Emergency Government Within the Boundsof the Constitution: An Introduction to Carl Schmitt,“The Dictatorship of the Reich president according

to Article 48 R.V.”

Ellen Kennedy

Article 48 of the Weimar Constitution occupies an important place in the history ofideas about constitutionalism, the rule of law and emergency government. Germany’sfirst republican constitution belonged to the set of “liberal-democratic constitutions” thatreplaced monarchies across Europe after the Great War.1 What kings and heredity had beenfor centuries gave way to the principle of democratic sovereignty as self-evident, a beliefCarl Schmitt theorized as “political theology”: what God had been to the world, the Kinghad been to the state, and now the people became as the present immanence of meaning.2

In this thought – “radical conceptualization” – Schmitt followed the example of Rousseauand others, and the tenor of his political theory never loses a certain metaphysical inflection,even when he writes about legal questions. There are always places of quicksand, wherethe positive suddenly gives way to the indeterminate. The reader will notice these in the texttranslated into English here for the first time. The product of revolution and the focus ofcontention, how could those moments of indecision be absent from it? In every constitution,the moments of form and dissolution remain as moments of the constituted and the political.3

The emergency powers contained in the Weimar constitution represent that problematic.

The Text in Context: 1

Early Weimar: Inflation, Disorder and Article 48

Successive regimes in Germany from 1914 to 1945 relied on extraordinary measures insecurity and economic emergencies.4 The Weimar constitution specifically provided forpresidential emergency power. Emphasis on the use of military and police forces in thearticle, and the history of civil disorder in 1918–1924 underline the article’s security aspect.In instances where a member state cannot enforce federal law or fulfill its constitutionalduty to the federation, the Reich president could force it to do so “with the help of armedforces” (section 1); when “public safety and order are significantly disturbed or threatened”the president could “take all necessary measures” including the use of armed forces, and thepresident could also “suspend” (ausser Kraft setzen) seven fundamental rights enumerated inthe constitution (section 2). These dictatorial powers were limited by the requirement that thepresident notify the Reichstag and that, upon its demand, rescind such measures and actions(section 3). Governments of the member states were also authorized to take comparablesteps with the limitation that the president or Reichstag could demand that they be rescinded(section 4). The text foresaw that these quite general grants of authority in Article 48 agreedat the National Assembly in Weimar would eventually be further defined in law (section 5).

As elsewhere in Europe, Germany recognized the legal institutions of martial law andthe states of siege and emergency that developed in the course of the 19th century.5

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Emergency Government Within the Bounds of the Constitution: Ellen Kennedy 285

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 ofinflation (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 limitedduration. On October 13, 1923, as the mark became utterly worthless and as dozens ofcompeting currency substitutes circulated throughout Germany,7 an enabling act authorizedgovernment 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 realeconomy was achieved only when Hjalmar Schacht was appointed Currency Commissioner(Wahrungskommissar) on November 13, 1923 to oversee the new Rentenmark and its bankof issue.8 Before that extraordinary step, other stabilization efforts failed for reasons familiarto us in recent years as American markets collapsed and major investment banks failed: theeverything’s “value” was uncertain, and the currency (in our case, certain investment instru-ments and market derivatives) could not perform its notational function. The Rentenmarkworked 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 statutelaw 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 andprosperity followed, it deepened debate and disagreement over basic concepts in law andjurisprudence.

Article 48 had been invoked repeatedly from the beginning of the Republic, and the greatinflation was a period of economic turmoil – the price of bread rose to 140 billion Reichsmarkon November 5 1923 – that carried over into street violence, plundering and often explicitlyanti-Semitic attacks.11 The crises that fed this disorder were the result of German fiscalpolicy 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 aseparate “Republic of the Rheine”; Bavaria attempted to secede, Hitler led an unsuccessfulcoup in Munich; and there were severe disturbances in Saxony and Thuringen.13

In those circumstances, Article 48 was seen and used as one instrument in the toolboxof executive powers including enabling acts (which required parliamentary action): againstcurrency speculation (October 7 1923); to control exchange rates (June 22 1923, June 291923) and to ban trading in currency and commodities (July 3 1923). It was held in reserveas an alternative to the Enabling Act of October 13, 1923 should the Reichstag fail to act(as it did).14

The Academic Lawyers

All this posed immediate questions of theory and practice for constitutional-state lawyerswhen the Verein der Deutschen Staatsrechtslehrer (Association of German State Lawyers)met at Jena in April 1924.15 It was intended from the beginning to be an association not merelyof academics and lawyers in Germany proper, but of those in the German-speaking areasof Europe, and it echoed the nationalist tenor of the post-war years. Indeed, at the first fullsession in 1924, Heinrich Triepel vigorously condemned the French occupation of the Ruhrand warmly welcomed participants from beyond Germany’s national borders.16 He also drewa long line of legal thought from the men in attendance to the beginning of modern Germanjurisprudence in the work of Hegel and Fichte. In their respective philosophies, Triepel saw

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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 thatHegel from his window famously saw the Weltgeist ride by in the person of Napoleon, theFrench invader. The men of the old and new Reich, Triepel suggests, find themselves insimilar positions, politically and intellectually. As for Hegel’s generation, the individual withall the modern connotations of liberty and rights inherent to each man, stands in tensionwith the state as the realization of Sittlichkeit: “Perhaps the task has been given to ourtime of reconciling a state theory which wants to master law and the state according to thestandards of individual reason and the other, that regards the state itself is the reality of theethical idea and thus reason made flesh, to which the individual must freely submit and mustunderstand.”17

Besides such grand philosophical affinities, there were more earthly similarities betweenthe two generations. As Hegel finished the first volume of the Phenomenology, he wouldhave heard, so Triepel writes, “the thunder of cannons” from the battle of Jena; in thePhenomenology and elsewhere, notably in “The Constitution of Germany” (1800–1802),parallel positions are unmistakable: revolution, division and dissolution. Invasion by theFrench (military and philosophical), even French occupation along the Rhine – Triepel knewthem all and they filter into the agenda of this academic conference.

Constitutional Federalism: Anschutz & Bilfinger

The topics chosen for 1924 were intimately related in German constitutional law: twopapers on federalism the first day, and two the second on Article 48. Gerhard Anschutzand Karl Bilfinger18 spoke about the concept of federalism in German law past and present,considering its future in light of particularistic tensions in Bavaria, the Rhineland, and Prussia.For both, the tense relationship between Reich and Land governments during 1923 appeareddangerous and threatened the unity achieved by Bismarck in 1871. The latter constitutionwas based on Prussia’s hegemonic position within the federation, in effect a unity through theparticular power and status of one member. Federalism in Weimar, both acknowledged andpresented a different picture, one that pushed a familiar 19th century question of state theoryto the fore: a Staatenbund or a Bundesstaat? As that had been the core issue of Americanconstitutionalism before southern secession and northern victory in the Civil War effecteda “federal state,” so too contemporary Germans struggled, and failed, to resolve the “smallGermany” vs. “greater Germany” question.19 Both papers recognize the profound changein the relationship of Lander to Reich under the 1919 constitution compared with that of1871 and Anschutz clearly sets out the differences. If Prussia was the hegemon of the oldReich, that constitution nevertheless allowed the member states significant autonomy underthe federal principle, more, in fact, than under the Weimar constitution. But as the later yearsof the 1871 constitution show, a “political dynamic” began to shift the relationship betweencenter and components, in a pattern familiar under Weimar.20 Anschutz demonstrates a keensense that to look back and imagine it the more perfect arrangement would be both pointlessand inaccurate. His is not a reactionary position, but a practical and jurisprudentially sharpconsideration of the federal element in each. In Bilfinger’s paper, the political resentmentsof the times are more obvious. While their approach to the question of federalism wasdifferent in style (Bilfinger’s clear resentment of Versailles21) and in detail, but both agreeon the primacy of a unitary state in significant spheres, especially in regard to foreign andmilitary matters. Anschutz here, as elsewhere, voices a powerful national defense of thecentral authority in the Reich, but concedes that revisions permitting greater autonomy for



the Lander, especially Bavaria, might be considered as long as certain key provisions of theconstitution remain.22

The federal principle had been at issue throughout the crisis of early Weimar and thedispute over local rights and central authority centered on the emergency powers containedin 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 Reichpresident in section 2: “In case public safety is seriously threatened or disturbed, the ReichPresident may take the measures necessary to reestablish law and order,” a vague clause(“Generalklausel”) leaving the specifics to presidential discretion. All agreed that this leftthe law of emergency unclear. The prevailing interpretation, and the target of Schmitt’sargument, construed the list of fundamental rights enumerated in paragraph 2 as a limitationon the emergency power of Article 48. It contained, according to that reading, no expansivedelegation of power to the president. This meant that all other articles in the constitutionaltext except 114, 115, 117, 118, 123, 124, and 153 were “dictator-proof” (diktaturfest). Arobust version of this position had been offered by Richard Grau two years earlier. Grausupported his case with a general constitutional theory and more detailed argument. Hisgeneral theory assumed that the logic of having a constitution at all – of limitations on thegovernment’s freedom to act, specifically on executive prerogative – necessarily implies thatit is “inviolable.”23 A list of articles that may be suspended, secondly, must be understoodto limit emergency power. Enumerativ ergo limitativ. Further, Article 76 WRV specified thatthe constitution can be changed through legislation, and the logic of that provision, Grauargued, closes other avenues to constitutional revision, specifically dictatorial revisions.24

Finally on his reading of the constitutional debates at Weimar, members of the NationalAssembly had intended such limitations. They had, in fact, taken its ultimate statutorylimitation 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 thisconstruction conforms to the expectation that in a Rechtsstaat all power – especially anyemergency 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 extanttext. What did “they” intend? What do “we” understand? That was true for the alternativeposition, too.

Schmitt argued at Jena against Grau’s reading of section two of Article 48, pointing tothe inadequacy of Grau’s thesis in the face of recent practice, government’s stated policyand the debates at Weimar. Unsurprisingly Schmitt’s meta-jurisprudential perspective onthe question of dictatorship found its way into his argument. As he had done in a series ofother publications beginning with Politische Romantik (1919),26 Schmitt drew on the historyof western political thought about dictatorship, and specifically the Roman legal distinc-tion between a “commissarial” and “sovereign” dictator. In Die Diktatur (1921),27 Schmittdefended commissarial dictatorship as a temporary institution intended to preserve the funda-mental constitutional order. John McCormick describes Schmitt’s position on commissarialdictatorship in that text as “an appropriate use of functional rationality, where a rule-boundconstitutional order is presented as something worth defending and restoring.”28 It sufficesto say that these terms had not found their way into general discussions of Article 48 at thistime. There was in fact considerable resistance among leading constitutional scholars who



thought such distinctions an illegitimate expansion and wanted to constrain, not expand, thereading of Article 48.

These were Schmitt’s three reasons to challenge the prevailing interpretation. Its practice inthe years from 1919–1924 meant that Article 48 was recognized as “valid law” independentof the provision foreseen (in paragraph 5) for legislation by the Reichstag. Whatever thenormative weight of such considerations, they do not effectively constrain emergency powerand, Schmitt contended, efficient restoration of public safety and order trumps the normembodied in the enumerations paragraph. The practice of Article 48 in preceding yearshad not in fact been limited to the enumerated articles and it had expanded dictatorialpowers beyond those specifically named in Article 48, paragraph 2. There had been generalacceptance 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 prevailinginterpretation] be exceptions from constitutional provisions unless it is a matter of thoseseven fundamental rights.” The established interpretation merely ignores “encroachmentsinto the organizational structure of the constitution effected by every state of emergency(Ausnahmezustand).”29

Schmitt cites the use of military states of emergency (militarische Ausnahmezustand) inwhich “all instruments of power are concentrated in the hands of the Reich” in support of abroader interpretation of Article 48.30 In the course of exercising emergency power, the centralgovernment set aside the normal relationship of the member states (Lander) and the federalgovernment, removed local officials of those states, took over their police forces, intervenedexpansively in the schools, and confiscated private property.31 The practice of emergencypower in these cases demonstrates a pattern of presidential dictatorship going well beyondsuspension of the enumerated seven fundamental rights. Finally the limited interpretationof Article 48 does not take into account divisions within the Reich government concerningits legal-constitutional meaning and scope. Beyond the general agreement that Article 48 isvalid 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 bedone to secure public order and civil peace in a concrete instance.32 Although paragraph twoexplicitly authorizes the president to suspend (“ausser Kraft setzen”) the enumerated rightsin part or whole, its silence on the means by which those rights can be suspended permitsbroad 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 thepolitical theories of Machiavelli, Junius Brutus, Hobbes and Locke. From those he derivedthe 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 commissarialdictator. The fundamental distinction between the commissarial and sovereign dictatorshipis technically duration, but their substantial relationship to “the constitution” occupies themore profound position. The commissar acts in support or defense of the established, theconstituted. The sovereign is its origin. In his hands are all potential forms of the real. Whatexists as potentia becomes through sovereign decision, actualis. The two find themselves ina 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 aboutthe powers Article 48. The Roman iustitium proclaimed in response to tumultus is nevermentioned in Schmitt’s text, because the emergency powers in Article 48 are dictatorial andconstitutional. These could never be adequate to magna trepidatio for the simple reason thatit is beyond state power, whether commissarial or normal. The notion of “exception” found



in current political theory is tumultus and more, but it does not belong to this concept ofconstitutional 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 authorityabove those dualities, an author who acts and thinks, a creative other whose interventionin time remakes the formal, even destroys them. This ultimatus is the sovereign figure ofSchmitt’s political thought, the keystone of the two ideologies at stake in Die Diktatur: themodern state and the people. These stand in absolute relation to one another, and Schmitt’srejection 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 DieDiktatur turns on the question, whether democracy can become present within the form ofsovereignty. It is a question that trumps, for Schmitt, the matter of liberal individualism andit is explicit in his thought about the rule-of-law.

In the National Assembly Schmitt saw a “sovereign dictator” whose power was completelyunlimited 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 takento mean that the people’s sovereignty, in principle unlimited, remained until further legalspecification 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 independentlyof 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 necessaryto overcome the circumstances at hand – which are not expected to persist indefinitely, andsuch actions and measures should not make sovereign changes in the institutions which thosemeasures 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 Reichpresident, Jacobi wrote, that gave the executive the possibility to take, at a minimum, powerstypical 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 billby the Reichstag further specifying such powers, was plein pouvoir.”34 No representative ofthe established interpretation denied such power to the president, Jacobi continued, becauseit had been “the core of what we learned about emergency law,” and it was furthermoreunthinkable that the assembled delegates at Weimar intended to preclude its use. “Theestablished interpretation stands in insoluble contradiction with itself” while noting that onlyone scholar had ventured to deny that Article 48 transferred executive power to the office ofthe president.35 The resulting institution did “breach” the constitution in a manner similar toBismarck’s practice in the Empire. In order to find an invalid (ungultige) use of dictatorialpower, one would have go back to the practices of the Lander.36

Jacobi’s argument went further than Schmitt’s, denying judicial review of action taken onthe grounds of Article 48 when these were declared necessary to restore public safety andorder, and excluding considerations of factual disputes about whether such disturbance hadindeed taken place review by court. Jacobi too urged early passage of additional legislationby the Reichstag to clarify implementation of Article 48 by the president, and further thedevelopment of federal regulation and oversight of Lander use of emergency powers.37

Jacobi’s analysis of the self-contradictions within the established interpretation ofArticle 48 and Schmitt’s theory of it as a “commissarial dictatorship” provoked a heated



debate among the participants whose temper is scarcely conveyed by the official report.Among the participants were Stier-Somo, Piloty, Nawiasky, Thoma, Anschutz, and Jellinek –leading representatives of the constitutional establishment and proponents of the limitedinterpretation. 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 lessattention than the broad theory of presidential dictatorship as a commissarial institution thathad 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 textand 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 dictatorialpowers had been used frequently, but their practice had led to no clear definition of thisconstitutional provision. Uncertainty remained about which actions were constitutional andwhich unconstitutional and participants on both sides tended to regard its practice as legallynonconforming. No one understood what it might mean for constitutional-state law to acceptthe “suspension” of laws through executive decrees and measures (Maßnahme). But thisdiscord led to reiteration of the established interpretation, not revision. The enumerationsclause did limit presidential power.

The Text in Context: 2

Article 48 at Weimar’s End

Many factors led to “presidential dictatorship” after 1930. Anti-democratic political move-ments, party fragmentation, the erosion of the parliamentary system, a “legitimacy deficit” –any or perhaps all of these might have been mastered were it not for the financial and eco-nomic disaster that befell Germany and the world in 1929. Scarce credit and unemploymenthardened the class conflicts of the Republic and increased the political stakes after the GreatCoalition collapsed. Its demise in March 1930 was a symptom of deepening political con-flicts over social programs, taxes and funding. The proximate fall of the Muller cabinet wascaused by disagreement among the parties in government over how to fund the workers’unemployment fund, but behind the scenes maneuvering focused on the use of Article 48and “the collapse of the Muller cabinet had been very carefully scripted.”38 According tothat narrative, reactionary interests wanted its end for their economic-financial reasons andalso to enable the shift to a purely presidential government. Heinrich Bruning (Centrum) fol-lowed that course after becoming Chancellor, and when Paul Moldenhauer (DVP) replacedRudolf Hiferding (SPD) the fiscal course was set against the broad policy Hilferding called“economic democracy.” From Bruning on, government by parliamentary majority becameimpossible and he relied on presidential power and the “toleration” of that policy by theSPD. In the paper at Jena, division of powers appear as a core constitutional component, aninviolable principle that could not be changed through Article 48, while recognizing that “thepolitical power of the Reich president could become very great, in the political possibilitiesof Article 48 are combined with other constitutional provisions. As soon as the Reichstagis dissolved according to Article 25, that is the case in a manner certainly very unusual forthe president of a republican state.”39 In the Verfassungslehre (1928), Weimar’s constitutionis “positive,” a comprehensive decision about “the nature and form of political unity” fromwhich practical limitations on the inherent constitutional powers might be drawn. Its originin force (verfassungsgebenden Gewalt) encompasses more than the laws that make it up andadd to or amend it. What is inviolable are not laws per se, not law as form, but law as the



substance contained in its basic decisions for democracy (Article 1, section 2), for theRepublic 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 divisionof 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 Reichchancellors dissolved parliament and governed, during its absence, on the basis of presidentialdecree which far exceed suspension of the basic rights enumerated in Article 48, section 2.

Gerhard Anschutz, an important voice in the majority of lawyers who disagreed withSchmitt’s argument in 1924, viewed the presidential regime as a national democracy basedon “unity for the common good” – where unity was paramount. On those grounds, PeterCaldwell has argued that Anschutz “condemned the unions and employers’ organizations thatsought to realize their special interests over the supposed general interests of the democraticstate.”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. InAnschutz and Thoma’s commentary on the Weimar constitution they drew the conclusion thatnothing 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 Reichstagso voted and should the Reichsrat object, the Reich president could ask for a referendum onthe changes. “The constitution does not stand above the Reichstag,” Anschutz wrote, “butrather at its disposal.”42 What Caldwell calls “the restraint and deference” to the legislativebody reflected in the Anschutz-Thoma commentary gave way among even staunch statutorypositivists as negative majorities in the Reichstag transformed parliamentary government.

Anschutz 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 economicinterests. For each, Germany after 1919 was a democracy, but they differed on which institu-tion served as the repository of that democracy. For Anschutz it was the Reichstag. Schmitt’sphilosophy of history and political preferences, as well as the dysfunctional compositionof the German legislature, inclined him from the start toward presidentialism. Much of thestatute positivists’ resistance to Schmitt’s argument for broad executive power in 1924 hadturned 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 anyrevision – in Anschutz words “at the disposal” of the Reichstag – then no executive powercould or should “defend” it. There was, on legal positivist basis, nothing real to defend.

In June 1932, Anschutz prepared a legal brief for the ministers of Finance PaulMoldenhauer (DVP) and the Interior Joseph Wirth (Centrum) on whether Article 48 couldbe 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 expenditurewhen the Reichstag was not willing or able to pass a budget. Anschutz’s argument moved“security” as a legal question from one of war powers to the economy and specifically thepresident’s prerogative in budgetary matters. There, Anschutz addressed the argument ofMax Kuhnemann, Vice-Chairman of the Reich Debt Administration, who contended thatArticle 48 did not extend to Reich finances, specifically power over the budget and creditissued by the Reich.43 Echoing the debate at Jena in opposition to Schmitt and Jacobi,Kuhnemann insisted that only a statute could authorize the budget and the creation of creditthrough the issue of debt. Anschutz read the powers inherent in Article 48 on the grounds offiscal and economic security expansively. There was no contradiction between the democratic



basis of the constitution acknowledged and institutionalized by the National Assembly atWeimar, and the necessity of the moment.44 That opinion was echoed elsewhere by RichardThoma who asserted that “in times of emergency. . .such decrees are necessary for the exis-tence of the state.”45 Ironically, given their methodological opposition in past years, Anschutzconcluded his brief in support of by-passing the Reichstag in budgetary and fiscal matterswith a long citation from Carl Schmitt’s Der Huter der Verfassung, saying “[this] dictatorshipis not a sovereign but a constitutionally regulated and limited power that is [nonetheless]definitely and reliably guaranteed against the predominance of the Reichstag.”46 At any timethe Reichstag could suspend the authority of Article 48 by a vote. That it does not do so,Anschutz concluded in citing Schmitt, underscores its incapacity to act. In that case, “ithas no right to demand that all other responsible offices of government render themselvesincapable.”47

The “internal consolidation” of the presidential system between 1930–32 meant that “therewas increased willingness to use emergency degrees in areas hitherto considered exempt fromemergency legislation. . .Whereas emergency decrees were originally limited to a specificperiod of time, this restriction was discarded along with the principle that the budgetarypowers of the Reichstag was inviolable.”48 Hans Mommsen is correct to conclude that “thedictatorial authority of the Reich president was now seen as an independent legislative right,”which met little resistance.

A year earlier, Schmitt reviewed and summarized the German practice of governmentby emergency decree for state law. With a glance at the old concepts of siege and martiallaw, he noted their inadequacy to the contemporary realities in which military threats werenot immediate; rather, it was economic, fiscal and financial crisis that opened the way tocommissarial dictatorship in Germany under circumstances in which the normal lawmakerwas rendered incapable. One may question, still, the extent to which the very existence ofsuch provision in the Weimar constitution was a wise and foresighted provision (as MaxWeber and Hugo Preuß thought) or a dangerous temptation. A more imperative questionwas put in 1931: “the specific method with which a regime conducts itself [in the exception]reveals its constitutional organization. . .Institutionalization is one way to evade the terribleproblems of the state of exception. There is another, different from the legal, namely toexclude it. A definite time or sphere of action can be specified in order to free it up for theunrestrained action of a commissar. In a certain sense, that is the general sense of beyondthe line. The Statue of Liberty will be for a time covered up. When the drapery falls, theNormal steps forward – practically speaking, through a declaration of indemnity – with allits guaranteed rights.”49

Emergency and Exception in Political Theory Today

Schmitt’s argument at Jena was copious, and drew on unconventional sources for legalscholars that situated the law and constitution within the frame of political institutions. “Itmight be politically possible,” Schmitt argued, “to overturn the Weimar constitution throughArticle 48, as the position of the state president in France was used during 1851 to bring abouta coup d’etat against another constitution.”50 In a distinction that would be drawn out morecarefully in Der Begriff des Politischen and the Verfassungslehre, such changes belong to apolitical moment that, by definition, is tamed in a constitution. When this moment emergesit marks, depending on its severity, the end of an existing constitution. From that, Schmittdeveloped a theory of constitutional defense as the purpose and end of dictatorial power:



It is impossible to change the German Reich from a Republic into a Monarchy. Thepowers 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 beunconstitutional. This does not preclude measures by the Reich president that encroach onindividual constitutional provisions and thereby create exceptions, without setting asidethe 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 ofdictatorship: through an exception to constitutional provisions, saving the constitution as awhole.51

Der Huter der Verfassung (1931) further expanded that theory with specific attention tothe threats pluralism and polyarchy pose to constitutional government. If the paper at Jenacontained elements of Schmitt’s later constitutional theory, it also provided a quite differentperspective on the famous first sentence of the Politische Theologie.52 In “Die Diktatur desReichsprasident nach Art. 48,” the perspective of emergency government is empirical. Theprinciple difference between normal legal practice and action during the state of emergency isdrawn not by reference to theology, but from government statements in Reichstag and in theNational Assembly. The Interior minister speaking on March 5 1924 made the point: “Thecharacter of the state of emergency [Ausnahmezustand] lies in its limitation; it is actuallythere in order to be lifted and remain as exception.53” The question must be, however, “whodecides what the circumstances permit?”54

For many political theorists today, that question has transposed the argument from onewithin constitutional-legal bounds to something quite different. In his influential work, Stateof Exception, Georgio Agamben’s key text is the Politische Theologie.55 It begins with aparadox – “legal form of that which cannot have legal form” – but that seeming contradictionis 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 intheir time, Schmitt frequently writes as the legal partisan. His text wears no jurisprudentialuniform and leads the unwary reader onto foreign legal terrain, territory where he is so athome 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 originalsetting 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 ofthe National Assembly and the president and the miraculous transformation of measures intolaw. On the most obvious level, Schmitt’s 1924 text is a legal argument about a constitutionalprovision. The reference is concrete, the question is focused. We can see the five yearsbefore Jena as revolution bounded on two sides by something else: the state of war andsiege in a regime based on enabling laws (Ermachtigungen), and a democratic-republicanstate pocked by frequent recourse to presidential emergency powers and enabling laws.Neither of these conformed to the normal patterns of constitutional division of powers. Itwas the end, Schmitt later wrote, of doctrinal liberal constitutionalism, the beginning ofan age of “commissarial dictatorship” with military and civilian components.56 Its form isgovernment by decree; measures take the place of legislation and adjudication across theboard, in economy, currency, finance, civil law, labor and social law.

Those were not “normal” governments, internal or external, but it is misconceived tounderstand these as regimes of “exceptionality.” The practices in each assumed their purposeto be a return to the normal. They were each temporally bound, although both addressedsituations that, in themselves, were of unpredictable duration. In this boundary of intention



and time, a gap opens up within the rational and fixed that can be measured only after itis 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 theintellectual 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 conceptuallines must be drawn more clearly between Ausnahmezustand in its original as emergency58

and “the exception.” This is important because to conflate them makes their distinctionfrom each other and from their ultimate referent, the normal, impossible. In the profligateuse of “exception” and “exceptionality” the danger of forgetting and not seeing is toogreat. 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 Romaniustitium as signs of “exceptionality,” Agamben rightly names that historical moment inGermany which was bounded by war and Republic: the revolution of 1918–19. The growthof government by decree, “the automated legislator,” and the military-economic dictatorshipsare not tumultuous patterns. On the contrary, they have become the normal. If Carl Schmitt’semphasis on “who decides?” remains a sharp tool in uncovering the apparent and revealingthe substantial, it is worthless should it be used for the opposite – to blur and obscure. Andif we are to understand, and possibly reform, post-liberal constitutions, we are ill-advised tomerge 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, Staatssekretar in the Interior Ministry (articles 1–108)and a second, the statement of rights and duties (articles 109–180) drafted by the National Assembly atWeimar. Delegates were chosen by election that gave a large majority (3/4th) of seats to parties favoring aparliamentary-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 Souveranitat (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 vonVolk und Reich (March 24, 1933) was a reaction to the Reichstag fire (February 27–28, 1933) passed by aReichstag 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 Staatsnotrechtand Notrecht.

6. There were ten enabling laws (Ermachtigungsgesetze) between 1914 and 1945 beginning withthe Enabling Law of August 4, 1914 at the beginning of WW I (it remained in effect four years and 3months) and finally Hitler’s Gesetz zur Behebung der Not von Volk und Reich vom 24 Marz 1933, (in effectuntil the German defeat (12 years, 1 month). In both periods, these laws could be regarded as the actualconstitution of Germany.

7. This enabling law (Ermachtigungsgesetz vom 13. Oktober 1923) was in effect until November2 1923. It passed the Reichstag by a vote of 316 to 24 with 7 abstaining; members of the Communist andGerman National parities left the chamber in protest after a stormy session during which “the economiccollapse of Germany and the dissolution of the German Reich” was forecast and calls for a GerneralStrike against the clique of big capital and government then in power. Verhandlungen des DeutschenReichstag 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



(Oxford Univeristy Press: 1997)). See also Milton Friedman’s account of similar phenomena in the UnitedStates 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”) in2008–09. It may be assumed that barter also accompanies such indicators of the value lost by central bankmoney.

8. The Rentenbank was “conveniently and appropriately located,” Feldman remarks, “in officesbelonging to the Reich Debt Administration and across the street from the Reich Printing Office and nearthe Reichsbank” (The Great Disorder, 793).

9. Hans Ostwald, Sittengeschichte der Inflation (Berlin: Neufeld & Henius Verlag, 1931) provides avivid if somewhat unorthodox account of the moral effects of the inflation. Robert Gellately, The Politics ofEconomic Despair (Sage Publications, 1974) covers the period up to 1914 arguing that economic hardshipmore 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 aroundthe 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 wreckingshops 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 debtand dysfunction. A mere 10% of the $47 billion Germany spent on the war was raised in taxes. Moneysupply increased fourfold. The architects, Liaquat Ahamed writes, were “paradoxically two of the mostcompetent financial officials in all Europe.” Perhaps that was neither so paradoxical, nor they so competentin 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, PoliticalViolence in the Weimar Republic. 1918–1933. Fight for the Streets & Fear of Civil War. trans. ThomasDunlay (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 internationallaw 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 meetingat Berlin, a charter was adopted and a Board of Directors appointed. There was a discussion of the positionof state law in the university curriculum, and Richard Thoma read a paper on judicial review. There were tobe annual meetings of the Verein, but internal disturbances in many parts of the country prevented a meetingbefore spring 1924. M. Stolleis, Geschichte des offentlichen Rechats in Deutschland, Vol 3, “Staats- undVerwaltungsrechtswissenschaft in Republik und Dikatatur” (Munich: 1999).

16. “A warm welcome. . .to our Austrian colleagues who are attending for the first time. That youand we are votaries of a unitary German science, I need not say. That our places of work are divided by aborder drawn by a jealous hand, is our anguish. . .The time will come when we are freed from the unnaturaldivision and when we will be concerned with a constitution for the whole of Germany, and this is not onlyour hope, but our deepest conviction.” “Eroffungsansprache,” Der deutsche Foderalismus. Die Diktatur desReichsprasidenten. Veroffentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 1 (Berlin:1924), 5–10.

17. Ibid, 8.18. Anschutz (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 andafter 1933, at Tubingen 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 mentook part in the case of Preußen contra Reich, at which the legality of the Reich “putsch” against Prussiawas argued inconclusively before the Staatsgerichtshof. Schmitt, Jacobi and Bilfinger defended the Reich.Anschutz represented Prussia. Anschutz retired from the Chair at Heidelberg in 1933 in protest. Of Jewishdecent, but himself Christian, Jacobi was removed under the discriminatory Gesetz fur Wiederherstellungdes 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 positionagain. See David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller inWeimar (Oxford: Oxford University Press, 1999).

19. A matter of whether the Austrian could be incorporated into a Reich that included Prussia, buteven the power politics and wars of the 1860s between the two carried the emotions conveyed by Hegel atthe dissolution of the old Empire in “The German Constitution.”

20. Anschutz, Drei Leitgedanken der Weimarer Reichsverfassung,(Tubingen: Mohr, 1923). 16.



21. “The present crisis between the Reich and a few individual states is not to be discussed herebut in my opinion something else is behind it besides a pro and contra federalism. These [tensions] are thepathological effects for which the Diktat at Versailles is responsible.” Bilfinger, Der deutsche Foderalismus.Die Diktatur des Reichsprasidenten. Veroffentlichungen der Vereinigung des Deutschen Staatsrechtslehrer,vol. 1 (Berlin: 1924), 47.

22. These are: Reich sovereignty over the Lander; no special rights for the Lander; military andforeign affairs remain with the Reich; no constitution-making authority for the Lander; oversight by theReich to remain. A “total revision of the Weimar constitution. . .is emphatically discouraged.” The reportersummarized Anschutz’s defense of central authority in the terms of Freiherr vom Stein: “I know oneFatherland and that is Germany,” not the particular states. Anschutz, Drei Leitgedanken der WeimarerReichsverfassung, 32–34.

23. The German unantastbar also carries the connotation of “taboo,” “sacrosanct” and thus pointsto a certain irrational moment of power and belief. It appears prominently in the Basic Law of the FederalRepublic which declares that “human dignity is inviolable,” GG Art.1, para.1.

24. Richard Grau, Die Diktaturgewalt des Reichsprasidenten und der Landesregierungen auf Grunddes Artikels 48 der Reichsverfassung (Berlin: 1922), 53. Grau was Triepel’s student and later a lawyer inBerlin.

25. Grau, Die Diktaturgewalt des Reichsprasidenten und der Landesregierungen auf Grund desArtikels 48 der Reichsverfassung, 57. The declaration that a future statue would provide more substantialregulation of emergency powers in paragraph three, on which Grau draws here, never came to pass. Practiceand usage had, by the last years of the Republic, made that provision a dead letter and resulted in the generalacceptance of far reaching dictatorial powers, limited only by the political will to use them or the politicalwill to demand their suspension.

26. Schmitt, Politische Romantik (Munich & Leipzig: 1919).27. Schmitt Carl, Die Diktatur. Von den Anfangen des modernen Souveranitatsgedankens 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 Reichsprasidenten 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 onDecember 4, 1923 and March 5, 1924.

31. The reference is to Thuringen; see Schmitt, “Die Diktatur des Reichprasidenten nach Artikel 48der Reichsverfassung”, 68 and Schmitt, “The Dictatorship of the Reich president according to Art 48 of theReich constitution,” 4.

32. Schmitt, “Die Diktatur des Reichspraisdenten nach Artikel 48 der Reichverfassung”, 74 andSchmitt, “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: Universityof Chicago Press, 2005), 567 ff, Ch 3 “Iustitium.” The style of this argument leads one to think that it wasdriven by the poetic affinity between solstitium, when the sun stands still, and iustitium the still-stand of thelaw.

34. Jacobi, “Die Diktatur des Reichsprasidenten nach Art. 48 der Reichsverfassung,” Der deutscheFoderalismus. Die Diktatur des Reichsprasidenten. Veroffentlichungen der Vereinigung des DeutschenStaatsrechtslehrer, 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 Reichsprasidenten nach Art. 48 der Reichsverfassung,” Der deutsche

Foderalismus. Die Diktatur des Reichsprasidenten. Veroffentlichungen der Vereinigung des DeutschenStaatsrechtslehrer, 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 Reichsprasidenten 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. Anschutz, Verfassung des Deutschen Reiches, 401, 403; quoted at Caldwell, Popular

Sovereignty & German Constitutional Law, 69.



43. “Kuhnemann, “Konnen Reichsetat und Reichskredite dikatorisch geregelt warden?”Reichsverwaltungsblatt (September 19, 1931).

44. “Only in case of extraordinary demand, and normally only for the purpose of paying for advertise-ment, may funds be acquired by the means of credits. Such acquisition, as well as reliability at the Reich’sexpense, may only be undertaken if based on a Reich law.” Anschutz and Walter Jellinek, Reichskredit undDIktatur. Zwei Gutachten (Tubingen: 1932), 10ff. Anschutz (like Schmitt) defends presidentialism on theground that the Reich president is a democratically elected official. His signature give formal authority forgovernment decrees in the financial and economic sphere.

45. Thoma, Zeitschrift fur offentlichen Rechts (11) 17 (1931). The grounds of this position hadbeen stated by Anschutz some years earlier during the first constitutional crisis when he declared threeprinciples to be the “leading ideas” of the Weimar constitution: (1) the Reich; (2) the unitary state; (3) ademocratic-republican state form. Anschutz, Drei Leitgedanken der Weimarer Reichsverfassung.

46. Anschutz and Jellinek, Reichskredit und DIktatur. Zwei Gutachten 22.47. Schmitt, Der Huter der Verfassung, 131 quoted by Anschutz, Verfassung des Deutschen

Reiches, 22.48. Mommsen, Weimar Democracy, 362.49. Schmitt, “Die staatsrechtliche Bedeutung der Notverordnung” (1931), Verfassungsrechtliche

Aufsatze (Berlin: 1973), 260.50. Schmitt, “Die Diktatur des Reichsprasidenten nach Art. 48 RV,” 91 and below.51. Ibid., 91.52. “Souveran ist, wer uber den Ausnahmezustand entscheidet.”53. Schmitt, “Die Diktatur des Reichsprasidenten nach Artikel 48 R.V.,” 101 and Schmitt, “The

Dictatorship of the Reich president according to Art 48 of the Reich constitution,” 21.54. Ibid, 101.55. Agamben, State of Exception.56. Schmitt, “Uberblick uber die neueste Entwicklung des Problemsdes gesetzgeberischen

Ermachtigungen,” Z. f. aus. Off. R. u. VR, 6, 1936, 252ff. On the war period, see Schmitt, “Die Einwirkungdes Kriegszustand auf das ordentlichen straffprozessuale Verfahren,” “Diktatur und Berlagerungszustand.Eine staatsrechtliche Studie,” Z.d. ges. Straftrechtswissenschaft vol 38 (1916), 738–789; “Das Gesetz uberden Belagerungszustand in der Rechtsprechung,” Preußisches Verwaltung-Blatt, 37, no. 20 (February 12,1916), 262, 310–312. He was assigned to the office of the military commission at Munich during this time,administering the state of siege.

57. Flannery O’Connor, “A Good Man is Hard to Find.”58. And the cognates in law of emergency discussed here: the state of war, the state of siege and the

“necessity” in extremis (Staatsnotstand, Notstand).

Ellen Kennedy is Professor of Political Science at The University of Pennsylvania. She isthe author of Constitutional Failure: Carl Schmitt in Weimar (Duke, 2004).


Documents

Emergency Government Within the Bounds of the Constitution: An Introduction to Carl Schmitt, “The Dictatorship of the Reich president according to Article 48 R.V.”