Juan-José López Burniol, 14 September 2024
Image: Emilia Gutiérrez
Most of Carl Schmitt’s works, preferably those he wrote during and about the Weimar Republic (1919-1933), far from being obsolete, facilitate the understanding of the dilemmas of constitutionalism today. For this reason, they have been the subject of extensive reception since the 1960s, especially in the United States. Among the studies on his work, the one by Ellen Kennedy (Carl Schmitt in the Weimar Republic: The Bankruptcy of a Constitution), the translation of which has an excellent preface by Eloy García, stands out.
This reception is part of the concern to confront the challenge posed today by populist forces which, from within the system, deny the legitimacy of a political model based on the neutrality of the state, respect for fundamental rights, the alternation of political forces and the free formation of ideological and social pluralism. Kennedy sees in Schmitt’s work the chronicle of the failure of a Republic incapable of using the mechanisms of ordinary legality to curb the disintegrating extremism stemming from a populism disloyal to the Constitution. This is the case, in Spain, of all the populist parties (right-wing, left-wing and separatist) with respect to the ‘78 regime.
Faced with this defencelessness, Schmitt went beyond a strict legal interpretation of the Constitution, and denounced the fact that parliamentary governments are incapable of preventing party politics from destroying confidence in the state. And the solution he proposed was a presidential government with extraordinary powers, believing that a decisive executive would be more effective than the legislative branch.
To defend this thesis, Schmitt’s first criticism was of 19th century doctrinal liberalism, which ignored the material in favour of the formal; and he also criticised the fact that liberal equality is a formal equality of rights, not a material equality of resources. Thus, in the face of this perversion, Schmitt argued that the sovereign people (people = substantial and homogeneous political unit = state) is ‘outside and above all constitutional norms’, that is, it is not bound by law; which led him to give greater weight to a form of direct participation – the acclamation of public opinion – which avoids the institutional conflicts of modern constitutions.
Today, populisms are once again perverting representative democracy; bad!
Schmitt’s conclusion is tremendous: ‘As a consequence of the organisation of parties as permanent institutions of electoral contest, “representation” ends up losing all substantive significance’, so that public assemblies, demonstrations and other spontaneous expressions of political positions are forms of democracy above the constitution, which operate by investing a leader with exceptional powers, to counteract the action of populisms that oppose the state, for only a strong state guarantees freedom.
The final crisis of the Weimar Republic was parliamentary and led to the collapse of the state. Parliament had become the ring of unrepresentative parties, whose task was not the pursuit of the common good but the conquest of power and the defence of interest groups. Parliament had ceased to embody political unity and had become the sinecure of party parishioners.
The die was cast: Article 48.2 of the Constitution, which regulated emergency powers, allowed the president to adopt ‘the necessary measures’ to restore ‘public order and security’ when they had been ‘seriously disturbed’, to mobilise the army and to temporarily suspend certain individual rights. That was the beginning. Some time later, on the morning of 30 January 1933, the President of the Republic, Marshal Paul von Hindenburg, swore Adolf Hitler in as Chancellor of Germany.
Carl Schmitt was right in his diagnosis, but wrong in his treatment. Today, populism is once again perverting representative democracy. Bad!
https://www.lavanguardia.com/opinion/20240914/9938029/retorno-carl-schmitt.html
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