The constitutional situation today is primarily characterized by the fact that numerous institutions and regulations from the 19th century have remained unchanged, despite the fact that circumstances today differ entirely from those of the past. The German constitutions of the 19th century belong to an era whose fundamental structure was captured by the great German political theorists of that time in a clear and tractable basic formula: the distinction between state and society. It is a separate question—one that is not relevant here—how the state and society were evaluated, whether one was subordinated to the other or not, whether and how one depended on the other, and so forth. None of these factors does away with the distinction itself. It should also be noted that “society” was essentially a polemical term. It served as a counter-concept to the concrete monarchical, military, and bureaucratic state then in existence; everything that did not belong to this state was simply referred to as society. At that historical juncture, the state was clearly distinguishable from society. It was strong enough to assert itself independently against other social forces and thus to shape various groupings according to its own logic. In this way, the many differences within “state-free” society—whether confessional, cultural, or economic—were relativized by the state itself, or, in some cases, by their shared opposition to it. As a result, society was unified under a single concept despite its heterogeneity. On the other hand, however, the state maintained a broad stance of neutrality and non-interventionism with regard to religion and the economy, and mostly respected the autonomy of these spheres of life and activity; it was therefore not absolute in this sense, nor so strong that it rendered everything not pertaining to the state insignificant. This created the conditions for a balance and a dualism; in particular, it became conceivable to imagine a state free of religion and ideology—even completely agnostic—as well as to construct an economy independent of the state and, conversely, a state independent of the economy. However, the state remained the decisive point of reference, since it stood clearly before everyone’s eyes as something concrete and distinct. Even today, the ambiguous term “society,” insofar as it concerns us here, is primarily used to denote something that is not the state—and at times also something that is not the church.1 All the important institutions and norms of public law that developed in Germany over the course of the 19th century—which comprise a large part of our public law—are based on this distinction between society and the state. That the German constitutional monarchy, with its juxtapositions of prince and people, crown and chamber, government and popular representation, was generally conceived as “dualistic” is merely an expression of the broader, fundamental dualism between state and society. The popular forms of representation—the parliament, the legislative body—was conceived as the stage upon which society would appear and confront the state. Here, society was meant to integrate itself into the state (or the state into society).2
This dualistic fundamental structure is expressed in all important conceptual formations. The constitution is understood as a contract between the prince and the people. The essential content of a state law is found in the fact that it “interferes with the freedom and property of the citizens.” Unlike an administrative order, which is addressed only to authorities and civil servants, legal decrees apply to all citizens. Budgetary law is based on the understanding that a budget agreement is regularly concluded between the two partners, and even in the last edition of the Meyer-Anschütz textbook (1919), budgetary law is referred to as a “budget agreement.” When a so-called formal law is required for an administrative act such as calculating the state budget, this formalization reveals nothing other than the politicization of the concept: the political power of parliament is great enough, on the one hand, to enforce that a regulation is recognized as a law only if parliament has participated in its drafting, and at the same time to establish a formal concept of law—one that abstracts from the substantive content of the process. This formalization thus merely expresses the political success of popular representation over the government, of society over the monarchical civil service state. Self-government [Selbstverwaltung], too, in all its institutions, presupposes the distinction between state and society; self-government is a part of society that stands opposed to the state and its bureaucracy. Its concepts and institutions were developed and formulated in the 19th century on the basis of this fundamental premise.
Such a “dualistic” state is a balance between two different types of state: it is at once a governing state [Regierungsstaat] and a legislative state [Gesetzgebungsstaat]. The more parliament, as the legislative body, proves itself superior to the government—that is, the more the society proves superior to the state of that time—the more the state evolves into a legislative state. All states can be classified according to the sphere of state activity in which they locate the center [Zentrum] of their operations. Thus, there are judicial states—or more precisely, jurisdictional states—alongside states that are primarily governmental and executive in nature, and finally, legislative states. The medieval state, as well as Anglo-Saxon political thought to a considerable extent even today, assumes that the core of state power [Staatsgewalt] lies in the judiciary. In such frameworks, state power is equated with jurisdiction, a view still reflected in the language of the Codex Juris Canonici (e.g., canons 196, 218). However, it should be noted that the paradigmatic characterization [maßgebende Umschreibung] of the Roman Catholic Church and its highest offices is expressed not in the image of a judge, but rather in that of a shepherd tending his flock. The absolute state, which began to take shape in the 16th century, emerged precisely from the collapse and dissolution of the medieval, pluralistic legal order of feudal estates [feudal-ständischen Rechtsstaats] and its system of jurisdiction, and came to rest on the pillars of the military and the civil service. It is thus essentially a state of the executive and of government. Its rationale—the ratio status, often misunderstood as raison d’état—does not lie in substantive norms, but rather in the effectivity with which it creates a situation in which norms can be valid in the first place, by putting an end to the causes of all disorder and civil war: the struggle over what is normatively right. This state “establishes public order and security.” Only once this had been accomplished can the legislative state of the bourgeois constitutional rule of law hold. In the so-called state of exception, the core [Zentrum] of the state is laid bare. The judicial state makes use of martial law (more precisely: drumhead jurisdiction), that is, a form of summary justice; the executive state relies above all on the transfer of executive power—if necessary, accompanied by the suspension of fundamental rights; and the legislative state resorts to emergency and exceptional decrees, that is, a form of summary legislative procedure.3
When classifying and typologizing forms of the state in this way, it must always be borne in mind that there can be no such thing as a purely legislative state, just as there can be no purely jurisdictional state, nor a state that is nothing but government and administration. In this sense, every state is a combination and mixture of these forms—a status mixtus. Yet with this caveat, it is still possible to arrive at a useful characterization of states based on the central sphere of their activity. It is therefore justified—and especially illuminating in relation to the question of the guardian of the constitution—to characterize the civil legal and constitutional state [bürgerlichen Rechts- und Verfassungsstaat], as it developed in the 19th century, as a legislative state. As Richard Thoma aptly remarked, among the “species-defining tendencies of the modern state” is the decision “to leave matters whose rationality and justice can always be disputed to the legislator, and to remove them from the purview of the judge.”4 A jurisdictional state remains possible as long as substantively defined norms can be presupposed—without deliberate, codified enactment by an organized central power—and are universally recognized without contest. By contrast, in a legislative state there can be no constitution in the older sense. This is the ultimate reason why, in such a state, the judiciary does not independently decide contested constitutional and legislative questions. In this context, a statement by Bluntschli deserves to be quoted at length, for in its factual clarity and the wisdom of its concrete historical understanding, it must be regarded as a classic passage in the political theory of the 19th century. Bluntschli acknowledges that the constitution naturally also applies to legislation, and that the legislature by no means has the right to do what is expressly forbidden to it. He appreciates the reasons for and advantages of the American practice of judicial review. He then continues:
But when one considers that the legislator is generally convinced of the constitutionality of the law and wills it, and that nevertheless differing opinions on this matter can very easily arise, so that if its pronouncement becomes the subject of dispute, the court may perhaps have a different view from that of the legislator; if one considers that in such a case the higher authority of the legislator must yield, not in principle but in effect, to the lesser authority of the courts, and that the representative of the entire nation must, in conflict with a single organ of the state, give way to it; if one reflects on the disruption and division thus introduced into the unified course of state life, and recalls that, given their current character, the courts are primarily called upon to determine norms and relations pertaining to private law and are above all inclined to emphasize formal-logical aspects, whereas here it is often the most important constitutional interests and the general welfare that are at stake, which it is the task of the legislature to recognize and promote: then one will nevertheless give preference to the European system, even though it does not protect against all evils and also bears its share of the imperfections of human affairs. There are generally no external remedies even against unjust judgments of the highest courts. But the legislative body carries within its very composition the most important guarantees that it will not exercise its powers in an unconstitutional spirit.5
The final sentence is decisive. It shows that, in 19th-century thought, parliament, by its very nature and essence, carried within itself the true guarantee of the constitution. This was part of the prevailing belief in parliament and served as the precondition for the legislative body being regarded as the bearer of the state and for the state itself being understood as a legislative state.
However, this position of the legislative body [gesetzgebenden Körperschaft] was only possible under specific circumstances. It was always assumed that parliament—the legislative assembly—as the representative of the people or of society (both of which could still be identified with each other as long as they stood in opposition to the government and the state) faced a strong, independent monarchical bureaucratic state as its partner in the constitutional pact. Parliament, insofar as it represented the people, thereby became the true guardian and guarantor of the constitution, precisely because the other party to the pact—the government—had entered into the pact only reluctantly. The government, therefore, was regarded with suspicion; it incurred expenditures and demanded taxes; it was viewed as spendthrift, while the parliament was seen as thrifty and reluctant to spend—an attitude that by and large could and indeed did prevail. The tendency of liberal thought in the 19th century was to restrict the state to the greatest extent possible—to prevent it above all from intervening in or interfering with the economy, and more generally to neutralize it vis-à-vis society and its conflicting interests. The aim was to enable society and the economy to make the necessary decisions within their own domains, guided by their immanent principles. In the free play of opinions, driven by open competition for influence, political parties would emerge whose debates and contests of ideas would generate public opinion, thereby determining the content of the state’s will. Likewise, in the free play of social and economic forces, freedom of contract and economic liberty would prevail—conditions thought to ensure the highest economic prosperity, since the automatic mechanism of the free economy and free market was believed to regulate itself according to economic laws: through supply and demand, the exchange of services, price formation, and income distribution within the national economy. The fundamental civil rights and liberties—in particular personal freedom, freedom of expression, freedom of contract, economic freedom, freedom of trade, and private property, i.e. the very benchmarks of the practice of the US Supreme Court discussed above—presupposed such a fundamentally non-interventionist, essentially neutral state, which would intervene only to restore disrupted conditions of free competition.
This state, fundamentally neutral toward society and the economy in the liberal, non-interventionist sense, remains the precondition for constitutions even when exceptions are made for social and cultural policy. But it changed fundamentally—and to the very extent that the dualistic construction of state and society, government and people, lost its tension and the legislative state reached completion. Now the state has become the “self-organization of society.” This, as noted above, abolishes the distinction between state and society, government and people, which had always been taken for granted. As a result, all the concepts and institutions built on this assumption—law, budget, self-government—pose new problems. At the same time, however, something even broader and deeper occurs. Once society organizes itself into the state, and thus state and society become fundamentally identical, all social and economic problems immediately become state problems, and it is no longer possible to distinguish between political matters of the state and non-political matters of society. All the familiar oppositions that until now have depended on the assumption of a neutral state—which arise from the distinction between state and society and are merely applications or restatements of that distinction—fall away. Antithetical divisions such as state and economy, state and culture, state and education, as well as politics and economy, politics and schools, politics and religion, state and law, politics and law, only make sense so long as they refer to distinct, concretely separated realms. Once these realms collapse, such oppositions lose their meaning and become obsolete. Society, having become the state, turns into an economic state, a cultural state, a welfare state, a subsistence state [Versorgungsstaat]. The state, having become the self-organization of society—and therefore inseparable from it—now encompasses all that is social, that is, everything concerning human coexistence. Within such a state, there is no longer any domain toward which the state could maintain unconditional neutrality in the sense of non-intervention. The parties in which various social interests and tendencies organize themselves are the very society that has become a party state. And because there are parties determined by economic, religious, and cultural lines, it is no longer possible for the state to remain neutral with respect to economic, religious, or cultural matters. In the state that has become the self-organization of society, there is nothing that is not at least potentially political, there is no outside to the state’s domain. Just as the concept of a state’s “potential armament,” invented by French jurists and soldiers, embraces everything—not only the military in the narrow technical sense, but also the industrial and economic preparation for war, even the intellectual and moral formation and training of citizens—so too this new state extends to all spheres. Ernst Jünger introduced a pithy formula for this remarkable process: total mobilization. Regardless of the precise content or validity that these formulas of potential armament or total mobilization may have in detail, one must take seriously the profound insight they contain. For they express something comprehensive and point to a sweeping transformation: society, by organizing itself within the state, is moving from the neutral state of the liberal 19th century toward a potentially total state. This dramatic shift can be understood as part of a dialectical development proceeding through three stages: from the absolute state of the 17th and 18th centuries to the neutral state of the liberal 19th century, to the total state in which state and society are identical.
The change is most noticeable in the economic sphere. Here, it can be taken as a recognized and undisputed fact that public finances have expanded to such an extent—both in relation to their pre-war dimensions and in comparison to today’s free and private, i.e. non-public, economy—that there has been not only a quantitative increase but also a qualitative transformation, a “structural change,” affecting all areas of public life, not merely those directly tied to finance and economics. Whether the figures used to indicate this change—such as the frequently cited calculation for 1928, according to which 53% of German national income was controlled by the public sector6—are statistically accurate does not need to be determined here, because the overall phenomenon is indisputable and uncontested. In a speech on fiscal equalization,7 Prof. J. Popitz, an expert of the highest authority on the subject, argued that for the distribution of the greater part of German national income, the self-regulating mechanism of the free economy and free market has indeed been eliminated and replaced by “the decisive influence of a fundamentally non-economic will, namely the will of the state.” Another expert of the highest rank, State Commissioner for State Savings [Reichssparkommissar] Moritz Saemisch, stated that it is public finance that most decisively shapes Germany’s political situation.8 From an economic perspective, it seems to me that an extremely apt formulation has been found to characterize the contrast between the previous system and the current one: the transition from a share system (in which the state was entitled only to a portion of national income, a kind of dividend on the net profit) to a control system, in which the state—due to the intensive interconnections between public finance and the national economy and the sharp increase in both state needs and state revenues—acts as a participant and redistributor of national income, as producer, consumer, and employer, thereby decisively influencing the economy. This formula, proposed by Fritz Karl Mann in an interesting and significant treatise entitled Die Staatswirtschaft unserer Zeit (The State Economy of Our Time, Jena 1930), is here also used purely as a formula, without any further economic critique. What is decisive for considerations of state and constitutional theory is that today the relationship between the state and the economy is the true subject of domestic political problems, and that the traditional formulas of the earlier state—built on the separation of state and society—serve only to obscure this state of affairs.
In every modern state, the relationship of the state to the economy constitutes the real subject of immediate domestic political issues. These questions can no longer be answered by the old liberal principle of unconditional non-interference and absolute non-intervention. With few exceptions, this is now widely acknowledged. In today’s state—and all the more so, the more it is a modern industrial state—economic issues form the principal content of domestic political challenges, and both domestic and foreign policy are to a great extent economic policy, not merely in the form of customs and trade policy or social policy.
When a law is passed “against the abuse of economic power” (as in the German Cartel Ordinance of November 2, 1923), this very formulation signals that the concept and existence of “economic power” are officially recognized by the state and enshrined in law. The modern state possesses extensive labor law, systems of collective bargaining, and state arbitration of wage disputes—all of which enable it to exercise decisive influence over wages. It grants massive subsidies to various branches of the economy; it is a welfare state and a Fürsorgestaat—and consequently, also a state of heavy taxation and levies. In Germany, this is compounded by the fact that it is also a Reparationsstaat, obligated to raise billions in tribute for foreign powers.
In such circumstances, the demand for non-intervention becomes utopian—indeed, self-contradictory. For non-intervention would mean leaving the field open to the various power groups engaged in social and economic conflicts, which today are by no means settled through purely economic means. In such a situation, non-intervention amounts to intervention on behalf of those who are stronger and more ruthless. Thus once again, the simple truth becomes clear in Talleyrand’s seemingly paradoxical statement on foreign policy: non-intervention is a difficult concept—it means roughly the same as intervention.
The shift to the economic state represents the most striking transformation in comparison to 19th-century conceptions of the state. This shift can also be observed in other areas, though it is generally perceived as less pressing today due to the overwhelming dominance of economic difficulties and problems. It is not surprising that resistance to such an expansion of the state initially took the form of resistance to precisely that kind of state activity which, at such a moment, defined the nature of the state—namely, resistance to the legislative state. Hence the first calls were for safeguards against the legislature. This likely also explains the initial vague attempts at remedy, which clung to the judiciary in the hope of creating a counterweight to the increasingly powerful and expansive legislature. These efforts necessarily ended in empty formalities, as they did not arise from a concrete understanding of the overall constitutional situation, but merely from a reactive impulse. Their fundamental error lay in the fact that they could oppose the power of the modern legislature only with a judiciary that was either substantively bound by specific norms issued by that very legislature, or that could counter it only with vague and contested principles—principles by which no authority superior to the legislature could be established. The shift to the economic and welfare state certainly marked a critical moment for the traditional legislative state, but it neither required nor was able, on its own, to endow the judiciary with new strength or political energy. In a situation so transformed, and in light of such an expansion of the state’s tasks and problems, it may be that the government could provide a remedy—but certainly not the judiciary. Today, in most states on the European continent, the judiciary probably lacks the substantive norms that would enable it to master this wholly new situation on its own.
Parliament—the legislative body, the bearer and center of the legislative state—became, at the very moment when its victory seemed complete, a contradictory entity: it denied both its own premises and the very conditions of its triumph. Its previous position and predominance, its expansive push against the executive, and its self-understanding as the representative of the people—all of this presupposed a distinction between state and society, which, after parliament’s victory, no longer existed in this form. Its unity, even its self-identity, had until then been defined by its domestic political adversary, the former monarchical military and bureaucratic state. Once that adversary disappeared, parliament, so to speak, collapsed inward. The state is now said to be the self-organization of society—but the question remains how a self-organizing society achieves unity, and whether unity can in fact emerge as the result of “self-organization.”
The difference between a parliamentary party state with free—that is to say, not rigidly organized—parties and a pluralistic party state with firmly organized structures as the bearers of state decision-making can be greater than the difference between a monarchy and a republic or any other form of government. The solid social ties that today support the pluralistic state turn parliament—where their representatives appear in the form of factions—into merely a reflection of the pluralistic division of the state itself. In such a situation, where could unity possibly arise—unity in which these rigid party and interest-group bonds would be sublated and merged? There is no longer any genuine discussion; indeed, my mere reference to this ideal principle of parliamentarism prompted R. Thoma to describe it as based on a “completely rotten” foundation. Some so-called “cross-connections” that cut across the political parties (agricultural interests, workers’ interests, civil servants, and in some cases also the interests of women) may produce a majority in certain matters; however, since pluralism concerns not only parliamentary parties and factions, and since such cross-connections themselves can be factors of pluralistic segmentation, they complicate but do not abolish or eliminate this condition; rather, they tend to confirm and reinforce it. The famous solidarité parlementaire—the shared, self-interested private interests of parliamentary deputies, especially of professional politicians, which extend beyond party lines—can indeed be an effective motive and a useful unifying factor, but understandably, in a situation as difficult as that of present-day Germany, with its deeply entrenched organizational structures, they are no longer sufficient. Thus parliament is transformed from a stage for unifying, free deliberation by free representatives of the people, from a transformer of partisan interests into a supra-partisan will, into a stage for the pluralistic division of organized social powers. The result is that either its inherent pluralism renders it incapable of forming a majority and thus of action, or else the prevailing majority uses all legal instruments as tools and safeguards of its power, exploits its time in office to the fullest extent, and above all seeks to restrict the strongest and most dangerous opponents’ chances of doing the same. It would perhaps be naive to explain this solely by human malice or even by some special form of wickedness unique to our time. German state and constitutional history knows a troubling number of analogous processes in earlier centuries, occurring with disturbing regularity. The measures emperors and princes took to secure their power during the decline of the old Holy Roman Empire of the German Nation find numerous parallels today.
In this respect too, the change from 19th-century conditions is fundamental. Here as well, it is obscured by the veil of unchanged words and formulas, by old patterns of thought and speech, and by a formalism that serves these residual elements. But we must not be deceived: the impact—both on attitudes toward the state and constitution and directly on the state and constitution themselves—is extraordinarily significant. It lies above all in the fact that, to the extent the state is transformed into a pluralistic entity, loyalty to the state and its constitution is replaced by loyalty to the social organization, to the structure that sustains state pluralism—especially since, as mentioned earlier, the social complex often tends toward becoming total, that is, toward binding the citizens it encompasses entirely to itself, both economically and ideologically. This ultimately gives rise to a pluralism of moral commitments and obligations—a “plurality of loyalties”—which increasingly stabilizes the pluralistic division of the state and ever more seriously undermines the formation of political unity. One logical consequence is that a civil service genuinely committed to the state becomes impossible, since such a civil service presupposes a state that remains distinct from the organized social complexes. Moreover, a pluralism of concepts of legality emerges, which erodes respect for the constitution and transforms the ground on which the constitution rests into uncertain, contested terrain—whereas it is the aim of every constitution to articulate political decisions that leave no doubt as to what constitutes the shared foundation of state unity established by the constitution. The group or coalition in power calls the strategic use of every legal avenue and the consolidation of its political dominance—through the deployment of all state and constitutional powers in legislation, administration, personnel policy, disciplinary law, and self-government—legality, and does so with the best of conscience. It follows, then, that any serious criticism or threat to its position appears to it as illegality, as subversion, and as a violation of the spirit of the constitution; while any counter-organization affected by such forms of governance appeals to the principle that the violation of constitutionally guaranteed equal opportunity represents the gravest breach of the spirit and foundations of a democratic constitution—thus returning the charge of illegality and unconstitutionality, likewise with the best of conscience. Between these two mutually reinforcing negations—which, in a condition of state pluralism, function almost automatically—the constitution itself is ground down.
This examination of the concrete constitutional situation aims to bring into clear view a reality that many people, for a variety of reasons and under various pretexts, would rather avoid, but whose clear recognition is nonetheless indispensable for any constitutional analysis concerned with the preservation and safeguarding of the existing Reich constitution. It is by no means sufficient merely to speak in general terms of a “crisis” or to dismiss the foregoing considerations by consigning them to “crisis literature.” If the state today is to be a legislative state, if in addition there is such an expansion of the spheres of state life and state activity that one can already speak of a turn toward a total state, if at the same time, however, the legislative body becomes the stage and center of the pluralistic fragmentation of state unity into a majority of firmly organized social complexes, then it is of little help to invoke the “sovereignty of parliament” using formulas and counter-formulas coined for the constitutional monarchy of the 19th century in order to answer the most difficult question of contemporary constitutional law.
Translated by Hunter Bolin