This thoughtful and well-researched study provides a scholarly approach to the problem of a “guardian of the constitution,” a problem that becomes relevant in periods of political restoration—first, in modern constitutional history, in England after Cromwell’s death, and later in Germany with the Weimar Constitution. At every turn, the work grounds its argument in the specific constitutional situation. Schmitt first refutes the view—applied to both the present-day German state and the United States—that the judiciary should serve as the guardian of the constitution. He then undertakes a penetrating analysis of what he identifies as three state-dissolving tendencies that emerge from the current constitutional condition: “pluralism,” “polycracy,” and “federalism.” On this basis, he poses the question of why a special “guardian of the constitution” is needed in today’s German “democratic constitutional state,” rather than relying on parliament itself, as was taken for granted in the “legislative state” of the nineteenth century, where it was assumed that parliament “by its nature and essence contained within itself the true guarantee of the constitution.” (The Guardian of the Constitution) According to Schmitt, this “parliamentary” view stands or falls with the liberal-bourgeois opposition between society and state. It has now been definitively superseded—on the one hand, by the “development of parliament into the arena of a pluralistic system,” and on the other, by the victorious “turn from a neutral, non-interventionist state to an economic and total state,” which has asserted itself over all counteracting and inhibiting tendencies. As a result of these two tendencies—which, according to Schmitt, ultimately derive from economic developments—the state is now faced with an alternative: either to abandon entirely the unity and wholeness that, in his view, constitutes its essence, and transform itself into a “pluralistic system,” a mere “contract of social power-complexes,” with all the consequences that this entails; or else “to attempt to bring about the necessary decision from the strength of the unity of the whole.” Schmitt, drawing on the model proposed by Benjamin Constant, presents as the most viable path forward the further development of a plebiscitary pouvoir neutre—a neutral power outlined in the Weimar Constitution and shaped over the past decade by constitutional custom—in the institutional form of a Reich President elected “by the whole of the German people.”

The strength of the theory outlined by Schmitt lies in its critical analysis of the formerly dominant bourgeois-liberal conception of the state—namely, the illusion that a neutral state, one abstaining from intervention in economic and social affairs, could be superimposed upon the actual pluralism of economic and social interests. Schmitt convincingly describes the dialectical development through which this liberal state and its parliament were transformed: from an arena of unifying, free negotiation among free representatives of the people, converting partisan interests into a non-partisan general will, into a stage for the pluralistic division of organized social powers—a “stock exchange where the various pieces of social power are traded.” In this pluralistic dissolution as envisioned by Schmitt, what is revealed is not only the illusory and self-contradictory nature of the earlier parliamentary-liberal form of the state, but a much deeper conflict that lies at the heart of the bourgeois state as such, grounded in its current economic foundations: the contradiction between the developing productive forces and the fixed relations of production, and the resulting opposition and struggle between social classes. And it is precisely this contradiction that is not overcome but instead reactivated—indeed, in an intensified form—within the fascist “total state,” whose final emergence Schmitt now awaits with the same uncritical hope once invested by the liberal bourgeoisie in their “constitutional state,” as if it, too, might resolve the fundamental problem of the state. It is no coincidence that the real history of the legal problem of the “guardian of the constitution” begins with those Lacedaemonian ephors whose task, according to the account by Busolt-Swoboda quoted by Schmitt, consisted “above all in securing the existing order against a rebellion of the oppressed Helots.”

Zeitschrift für Sozialforschung 1 (1-2):204-205 (1932) Translated by Hunter Bolin