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.

Ellen Kennedy
Article 48 of the Weimar Constitution occupies an important place in the history of ideas about constitutionalism, the rule of law and emergency government. Germanys first republican constitution belonged to the set of liberal-democratic constitutions that replaced monarchies across Europe after the Great War.1 What kings and heredity had been for centuries gave way to the principle of democratic sovereignty as self-evident, a belief Carl Schmitt theorized as political theology: what God had been to the world, the King had 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 Rousseau and 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, where the positive suddenly gives way to the indeterminate. The reader will notice these in the text translated into English here for the first time. The product of revolution and the focus of contention, 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 in security and economic emergencies.4 The Weimar constitution specifically provided for presidential emergency power. Emphasis on the use of military and police forces in the article, and the history of civil disorder in 19181924 underline the articles security aspect. In instances where a member state cannot enforce federal law or fulfill its constitutional duty to the federation, the Reich president could force it to do so with the help of armed forces (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 the president could also suspend (ausser Kraft setzen) seven fundamental rights enumerated in the constitution (section 2). These dictatorial powers were limited by the requirement that the president 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 comparable steps 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 agreed at 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 and the 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, expansive legislative delegations of authority, during periods of crisis.6 During the period of inflation (19211924), four separate enabling laws were enacted by the Reichstag as governments tried to stabilize the mark and preserve the real economy. These were of limited duration. On October 13, 1923, as the mark became utterly worthless and as dozens of competing currency substitutes circulated throughout Germany,7 an enabling act authorized government to take any measure in the financial economic and social spheres necessary to stop inflation. The goal of stabilizing Germanys currency and preserving the real economy was achieved only when Hjalmar Schacht was appointed Currency Commissioner (W ahrungskommissar) on November 13, 1923 to oversee the new Rentenmark and its bank of issue.8 Before that extraordinary step, other stabilization efforts failed for reasons familiar to us in recent years as American markets collapsed and major investment banks failed: the everythings value was uncertain, and the currency (in our case, certain investment instruments and market derivatives) could not perform its notational function. The Rentenmark worked 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 turmoil, German judges turned to equity and good faith (Treu und Glauben) rather than statute law to sort through property and other debt associated claims in court.10 Although this period of economic insecurity ended with monetary success and four years of stability and prosperity followed, it deepened debate and disagreement over basic concepts in law and jurisprudence. Article 48 had been invoked repeatedly from the beginning of the Republic, and the great inflation was a period of economic turmoil the price of bread rose to 140 billion Reichsmark on November 5 1923 that carried over into street violence, plundering and often explicitly anti-Semitic attacks.11 The crises that fed this disorder were the result of German fiscal policy 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 a separate Republic of the Rheine; Bavaria attempted to secede, Hitler led an unsuccessful coup in Munich; and there were severe disturbances in Saxony and Th uringen.13 In those circumstances, Article 48 was seen and used as one instrument in the toolbox of executive powers including enabling acts (which required parliamentary action): against currency speculation (October 7 1923); to control exchange rates (June 22 1923, June 29 1923) and to ban trading in currency and commodities (July 3 1923). It was held in reserve as 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 lawyers when 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 merely of academics and lawyers in Germany proper, but of those in the German-speaking areas of Europe, and it echoed the nationalist tenor of the post-war years. Indeed, at the first full session in 1924, Heinrich Triepel vigorously condemned the French occupation of the Ruhr and warmly welcomed participants from beyond Germanys national borders.16 He also drew a long line of legal thought from the men in attendance to the beginning of modern German jurisprudence 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 that Hegel from his window famously saw the Weltgeist ride by in the person of Napoleon, the French invader. The men of the old and new Reich, Triepel suggests, find themselves in similar positions, politically and intellectually. As for Hegels generation, the individual with all the modern connotations of liberty and rights inherent to each man, stands in tension with the state as the realization of Sittlichkeit: Perhaps the task has been given to our time of reconciling a state theory which wants to master law and the state according to the standards of individual reason and the other, that regards the state itself is the reality of the ethical idea and thus reason made flesh, to which the individual must freely submit and must understand.17 Besides such grand philosophical affinities, there were more earthly similarities between the two generations. As Hegel finished the first volume of the Phenomenology, he would have heard, so Triepel writes, the thunder of cannons from the battle of Jena; in the Phenomenology and elsewhere, notably in The Constitution of Germany (18001802), parallel positions are unmistakable: revolution, division and dissolution. Invasion by the French (military and philosophical), even French occupation along the Rhine Triepel knew them all and they filter into the agenda of this academic conference.
Constitutional Federalism: Ansch utz & Bilfinger

The topics chosen for 1924 were intimately related in German constitutional law: two papers on federalism the first day, and two the second on Article 48. Gerhard Ansch utz and 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 appeared dangerous and threatened the unity achieved by Bismarck in 1871. The latter constitution was based on Prussias hegemonic position within the federation, in effect a unity through the particular power and status of one member. Federalism in Weimar, both acknowledged and presented a different picture, one that pushed a familiar 19th century question of state theory to the fore: a Staatenbund or a Bundesstaat? As that had been the core issue of American constitutionalism before southern secession and northern victory in the Civil War effected a federal state, so too contemporary Germans struggled, and failed, to resolve the small Germany vs. greater Germany question.19 Both papers recognize the profound change in the relationship of L ander to Reich under the 1919 constitution compared with that of 1871 and Ansch utz clearly sets out the differences. If Prussia was the hegemon of the old Reich, that constitution nevertheless allowed the member states significant autonomy under the federal principle, more, in fact, than under the Weimar constitution. But as the later years of the 1871 constitution show, a political dynamic began to shift the relationship between center and components, in a pattern familiar under Weimar.20 Ansch utz demonstrates a keen sense that to look back and imagine it the more perfect arrangement would be both pointless and inaccurate. His is not a reactionary position, but a practical and jurisprudentially sharp consideration of the federal element in each. In Bilfingers paper, the political resentments of the times are more obvious. While their approach to the question of federalism was different in style (Bilfingers clear resentment of Versailles21 ) and in detail, but both agree on the primacy of a unitary state in significant spheres, especially in regard to foreign and military matters. Ansch utz here, as elsewhere, voices a powerful national defense of the central authority in the Reich, but concedes that revisions permitting greater autonomy for
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the L ander, especially Bavaria, might be considered as long as certain key provisions of the constitution remain.22 The federal principle had been at issue throughout the crisis of early Weimar and the dispute over local rights and central authority centered on the emergency powers contained in 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 Reich president in section 2: In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, a vague clause (Generalklausel) leaving the specifics to presidential discretion. All agreed that this left the law of emergency unclear. The prevailing interpretation, and the target of Schmitts argument, construed the list of fundamental rights enumerated in paragraph 2 as a limitation on the emergency power of Article 48. It contained, according to that reading, no expansive delegation of power to the president. This meant that all other articles in the constitutional text except 114, 115, 117, 118, 123, 124, and 153 were dictator-proof (diktaturfest). A robust version of this position had been offered by Richard Grau two years earlier. Grau supported his case with a general constitutional theory and more detailed argument. His general theory assumed that the logic of having a constitution at all of limitations on the governments freedom to act, specifically on executive prerogative necessarily implies that it is inviolable.23 A list of articles that may be suspended, secondly, must be understood to limit emergency power. Enumerativ ergo limitativ. Further, Article 76 WRV specified that the constitution can be changed through legislation, and the logic of that provision, Grau argued, closes other avenues to constitutional revision, specifically dictatorial revisions.24 Finally on his reading of the constitutional debates at Weimar, members of the National Assembly had intended such limitations. They had, in fact, taken its ultimate statutory limitation 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 this construction conforms to the expectation that in a Rechtsstaat all power especially any emergency 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 extant text. What did they intend? What do we understand? That was true for the alternative position, too. Schmitt argued at Jena against Graus reading of section two of Article 48, pointing to the inadequacy of Graus thesis in the face of recent practice, governments stated policy and the debates at Weimar. Unsurprisingly Schmitts meta-jurisprudential perspective on the question of dictatorship found its way into his argument. As he had done in a series of other publications beginning with Politische Romantik (1919),26 Schmitt drew on the history of western political thought about dictatorship, and specifically the Roman legal distinction between a commissarial and sovereign dictator. In Die Diktatur (1921),27 Schmitt defended commissarial dictatorship as a temporary institution intended to preserve the fundamental constitutional order. John McCormick describes Schmitts position on commissarial dictatorship in that text as an appropriate use of functional rationality, where a rule-bound constitutional order is presented as something worth defending and restoring.28 It suffices to say that these terms had not found their way into general discussions of Article 48 at this time. There was in fact considerable resistance among leading constitutional scholars who
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thought such distinctions an illegitimate expansion and wanted to constrain, not expand, the reading of Article 48. These were Schmitts three reasons to challenge the prevailing interpretation. Its practice in the years from 19191924 meant that Article 48 was recognized as valid law independent of the provision foreseen (in paragraph 5) for legislation by the Reichstag. Whatever the normative weight of such considerations, they do not effectively constrain emergency power and, Schmitt contended, efficient restoration of public safety and order trumps the norm embodied in the enumerations paragraph. The practice of Article 48 in preceding years had not in fact been limited to the enumerated articles and it had expanded dictatorial powers beyond those specifically named in Article 48, paragraph 2. There had been general acceptance 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 prevailing interpretation] be exceptions from constitutional provisions unless it is a matter of those seven fundamental rights. The established interpretation merely ignores encroachments into the organizational structure of the constitution effected by every state of emergency (Ausnahmezustand).29 Schmitt cites the use of military states of emergency (milit arische Ausnahmezustand) in which all instruments of power are concentrated in the hands of the Reich in support of a broader interpretation of Article 48.30 In the course of exercising emergency power, the central government set aside the normal relationship of the member states (L ander) and the federal government, removed local officials of those states, took over their police forces, intervened expansively in the schools, and confiscated private property.31 The practice of emergency power in these cases demonstrates a pattern of presidential dictatorship going well beyond suspension of the enumerated seven fundamental rights. Finally the limited interpretation of Article 48 does not take into account divisions within the Reich government concerning its legal-constitutional meaning and scope. Beyond the general agreement that Article 48 is valid 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 be done to secure public order and civil peace in a concrete instance.32 Although paragraph two explicitly authorizes the president to suspend (ausser Kraft setzen) the enumerated rights in part or whole, its silence on the means by which those rights can be suspended permits broad interpretation. A larger theory frames Schmitts detailed argument at Jena, articulated three years previously in Die Diktatur and based on a reading of the law of the Roman constitution and the political theories of Machiavelli, Junius Brutus, Hobbes and Locke. From those he derived the 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 commissarial dictator. The fundamental distinction between the commissarial and sovereign dictatorship is technically duration, but their substantial relationship to the constitution occupies the more profound position. The commissar acts in support or defense of the established, the constituted. The sovereign is its origin. In his hands are all potential forms of the real. What exists as potentia becomes through sovereign decision, actualis. The two find themselves in a series of dual relations: thought and act; visible and invisible; formal and real. The distinction between the sovereign and commissarial dictator is the key to Schmitts argument about the powers Article 48. The Roman iustitium proclaimed in response to tumultus is never mentioned in Schmitts text, because the emergency powers in Article 48 are dictatorial and constitutional. These could never be adequate to magna trepidatio for the simple reason that it is beyond state power, whether commissarial or normal. The notion of exception found
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in current political theory is tumultus and more, but it does not belong to this concept of constitutional emergency.33 The structure of ideas on which Schmitts argument is based contains further implications, not fully articulated in the text below, but merely suggested. It implies a concept of authority above those dualities, an author who acts and thinks, a creative other whose intervention in time remakes the formal, even destroys them. This ultimatus is the sovereign figure of Schmitts political thought, the keystone of the two ideologies at stake in Die Diktatur: the modern state and the people. These stand in absolute relation to one another, and Schmitts rejection 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 Die Diktatur turns on the question, whether democracy can become present within the form of sovereignty. It is a question that trumps, for Schmitt, the matter of liberal individualism and it is explicit in his thought about the rule-of-law. In the National Assembly Schmitt saw a sovereign dictator whose power was completely unlimited 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 taken to mean that the peoples sovereignty, in principle unlimited, remained until further legal specification 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 independently of the constitution; (2) Article 48 cannot be used to abolish an organizational minimum (presidency, government, parliament) of the constitution; and (3) Article 48 contains temporary authority; it authorizes measures (Manahmen) actions or arrangements necessary to overcome the circumstances at hand which are not expected to persist indefinitely, and such actions and measures should not make sovereign changes in the institutions which those measures intend to protect. The accompanying paper by Erwin Jacobi agreed in all significant points with Schmitts. The National Assembly intended without doubt a broad grant of authority to the Reich president, Jacobi wrote, that gave the executive the possibility to take, at a minimum, powers typical 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 bill by the Reichstag further specifying such powers, was plein pouvoir.34 No representative of the established interpretation denied such power to the president, Jacobi continued, because it had been the core of what we learned about emergency law, and it was furthermore unthinkable that the assembled delegates at Weimar intended to preclude its use. The established interpretation stands in insoluble contradiction with itself while noting that only one scholar had ventured to deny that Article 48 transferred executive power to the office of the president.35 The resulting institution did breach the constitution in a manner similar to Bismarcks practice in the Empire. In order to find an invalid (ung ultige) use of dictatorial 36 power, one would have go back to the practices of the L ander. Jacobis argument went further than Schmitts, denying judicial review of action taken on the grounds of Article 48 when these were declared necessary to restore public safety and order, and excluding considerations of factual disputes about whether such disturbance had indeed taken place review by court. Jacobi too urged early passage of additional legislation by the Reichstag to clarify implementation of Article 48 by the president, and further the development of federal regulation and oversight of Lander use of emergency powers.37 Jacobis analysis of the self-contradictions within the established interpretation of Article 48 and Schmitts theory of it as a commissarial dictatorship provoked a heated
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debate among the participants whose temper is scarcely conveyed by the official report. Among the participants were Stier-Somo, Piloty, Nawiasky, Thoma, Ansch utz, and Jellinek leading representatives of the constitutional establishment and proponents of the limited interpretation. Some of the young Turks in constitutional law were also present and participated in the discussion, including Hermann Heller. Details in each paper received less attention than the broad theory of presidential dictatorship as a commissarial institution that had been offered by Carl Schmitt. The participants, we are told by the conference reporter, rejected Schmitts view but agreed that ambiguity continued to surround Article 48 as text and practice. There was no dispute on the terminology of dictatorship within in the constitution, rather surprising to a reader today. There was general agreement that dictatorial powers had been used frequently, but their practice had led to no clear definition of this constitutional provision. Uncertainty remained about which actions were constitutional and which unconstitutional and participants on both sides tended to regard its practice as legally nonconforming. No one understood what it might mean for constitutional-state law to accept the suspension of laws through executive decrees and measures (Manahme). But this discord led to reiteration of the established interpretation, not revision. The enumerations clause did limit presidential power.

The Text in Context: 2

Article 48 at Weimars End

Many factors led to presidential dictatorship after 1930. Anti-democratic political movements, 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 economic disaster that befell Germany and the world in 1929. Scarce credit and unemployment hardened the class conflicts of the Republic and increased the political stakes after the Great Coalition collapsed. Its demise in March 1930 was a symptom of deepening political conflicts over social programs, taxes and funding. The proximate fall of the M uller cabinet was caused 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 48 and the collapse of the M uller cabinet had been very carefully scripted.38 According to that narrative, reactionary interests wanted its end for their economic-financial reasons and also to enable the shift to a purely presidential government. Heinrich Br uning (Centrum) followed that course after becoming Chancellor, and when Paul Moldenhauer (DVP) replaced Rudolf Hiferding (SPD) the fiscal course was set against the broad policy Hilferding called economic democracy. From Br uning on, government by parliamentary majority became impossible and he relied on presidential power and the toleration of that policy by the SPD. In the paper at Jena, division of powers appear as a core constitutional component, an inviolable principle that could not be changed through Article 48, while recognizing that the political power of the Reich president could become very great, in the political possibilities of Article 48 are combined with other constitutional provisions. As soon as the Reichstag is dissolved according to Article 25, that is the case in a manner certainly very unusual for the president of a republican state.39 In the Verfassungslehre (1928), Weimars constitution is positive, a comprehensive decision about the nature and form of political unity from which practical limitations on the inherent constitutional powers might be drawn. Its origin in force (verfassungsgebenden Gewalt) encompasses more than the laws that make it up and add to or amend it. What is inviolable are not laws per se, not law as form, but law as the
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substance contained in its basic decisions for democracy (Article 1, section 2), for the Republic and against monarchy (Article 1, section 1), federalism (Article 2), for a fundamentally parliamentary type of government, and for the liberal rule-of-law state as division of powers and basic rights.40 On those foundations, then, Schmitt supported the presidential regime which effectively replaced the legislature from 1930 onward, as successive Reich chancellors dissolved parliament and governed, during its absence, on the basis of presidential decree which far exceed suspension of the basic rights enumerated in Article 48, section 2. Gerhard Ansch utz, an important voice in the majority of lawyers who disagreed with Schmitts argument in 1924, viewed the presidential regime as a national democracy based on unity for the common good where unity was paramount. On those grounds, Peter Caldwell has argued that Ansch utz condemned the unions and employers organizations that sought to realize their special interests over the supposed general interests of the democratic state.41 According to that scheme, if the German people were the source of the constitution, the Reichstag was its central institution. As sovereign, the peoples position was unlimited. In Ansch utz and Thomas commentary on the Weimar constitution they drew the conclusion that nothing 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 Reichstag so voted and should the Reichsrat object, the Reich president could ask for a referendum on the changes. The constitution does not stand above the Reichstag, Ansch utz wrote, but rather at its disposal.42 What Caldwell calls the restraint and deference to the legislative body reflected in the Ansch utz-Thoma commentary gave way among even staunch statutory positivists as negative majorities in the Reichstag transformed parliamentary government. Ansch utz and Schmitt disagreed fundamentally on the sources and theory of the constitution, but agreed on the unity and destructive potential in the pluralism of vested economic interests. For each, Germany after 1919 was a democracy, but they differed on which institution served as the repository of that democracy. For Ansch utz it was the Reichstag. Schmitts philosophy of history and political preferences, as well as the dysfunctional composition of the German legislature, inclined him from the start toward presidentialism. Much of the statute positivists resistance to Schmitts argument for broad executive power in 1924 had turned on the precedence they gave to statute law over discretion, and the belief that representative assemblies best articulated and organized popular opinion and the peoples will. It would have been expected, therefore, that if the constitution was completely open to any revision in Ansch utz words at the disposal of the Reichstag then no executive power could or should defend it. There was, on legal positivist basis, nothing real to defend. In June 1932, Ansch utz prepared a legal brief for the ministers of Finance Paul Moldenhauer (DVP) and the Interior Joseph Wirth (Centrum) on whether Article 48 could be 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 expenditure when the Reichstag was not willing or able to pass a budget. Ansch utzs argument moved security as a legal question from one of war powers to the economy and specifically the presidents prerogative in budgetary matters. There, Ansch utz addressed the argument of Max K uhnemann, Vice-Chairman of the Reich Debt Administration, who contended that Article 48 did not extend to Reich finances, specifically power over the budget and credit issued by the Reich.43 Echoing the debate at Jena in opposition to Schmitt and Jacobi, K uhnemann insisted that only a statute could authorize the budget and the creation of credit through the issue of debt. Ansch utz read the powers inherent in Article 48 on the grounds of fiscal and economic security expansively. There was no contradiction between the democratic
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basis of the constitution acknowledged and institutionalized by the National Assembly at Weimar, and the necessity of the moment.44 That opinion was echoed elsewhere by Richard Thoma who asserted that in times of emergency. . .such decrees are necessary for the existence of the state.45 Ironically, given their methodological opposition in past years, Ansch utz concluded his brief in support of by-passing the Reichstag in budgetary and fiscal matters with a long citation from Carl Schmitts Der H uter der Verfassung, saying [this] dictatorship is 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 time the Reichstag could suspend the authority of Article 48 by a vote. That it does not do so, Ansch utz concluded in citing Schmitt, underscores its incapacity to act. In that case, it has no right to demand that all other responsible offices of government render themselves incapable.47 The internal consolidation of the presidential system between 193032 meant that there was increased willingness to use emergency degrees in areas hitherto considered exempt from emergency legislation. . .Whereas emergency decrees were originally limited to a specific period of time, this restriction was discarded along with the principle that the budgetary powers of the Reichstag was inviolable.48 Hans Mommsen is correct to conclude that the dictatorial 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 government by emergency decree for state law. With a glance at the old concepts of siege and martial law, he noted their inadequacy to the contemporary realities in which military threats were not immediate; rather, it was economic, fiscal and financial crisis that opened the way to commissarial dictatorship in Germany under circumstances in which the normal lawmaker was rendered incapable. One may question, still, the extent to which the very existence of such provision in the Weimar constitution was a wise and foresighted provision (as Max Weber and Hugo Preu thought) or a dangerous temptation. A more imperative question was 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 terrible problems of the state of exception. There is another, different from the legal, namely to exclude it. A definite time or sphere of action can be specified in order to free it up for the unrestrained action of a commissar. In a certain sense, that is the general sense of beyond the line. The Statue of Liberty will be for a time covered up. When the drapery falls, the Normal steps forward practically speaking, through a declaration of indemnity with all its guaranteed rights.49

Emergency and Exception in Political Theory Today

Schmitts argument at Jena was copious, and drew on unconventional sources for legal scholars that situated the law and constitution within the frame of political institutions. It might be politically possible, Schmitt argued, to overturn the Weimar constitution through Article 48, as the position of the state president in France was used during 1851 to bring about a coup detat against another constitution.50 In a distinction that would be drawn out more carefully in Der Begriff des Politischen and the Verfassungslehre, such changes belong to a political moment that, by definition, is tamed in a constitution. When this moment emerges it marks, depending on its severity, the end of an existing constitution. From that, Schmitt developed a theory of constitutional defense as the purpose and end of dictatorial power:
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It is impossible to change the German Reich from a Republic into a Monarchy. The powers of the Reich president rest on a constitutional provision. To change the constitution using presidential powers, by means other than those in Article 76, would be unconstitutional. This does not preclude measures by the Reich president that encroach on individual constitutional provisions and thereby create exceptions, without setting aside the 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 of dictatorship: through an exception to constitutional provisions, saving the constitution as a whole.51

Der H uter der Verfassung (1931) further expanded that theory with specific attention to the threats pluralism and polyarchy pose to constitutional government. If the paper at Jena contained elements of Schmitts later constitutional theory, it also provided a quite different perspective on the famous first sentence of the Politische Theologie.52 In Die Diktatur des Reichspr asident nach Art. 48, the perspective of emergency government is empirical. The principle difference between normal legal practice and action during the state of emergency is drawn not by reference to theology, but from government statements in Reichstag and in the National Assembly. The Interior minister speaking on March 5 1924 made the point: The character of the state of emergency [Ausnahmezustand] lies in its limitation; it is actually there in order to be lifted and remain as exception.53 The question must be, however, who decides what the circumstances permit?54 For many political theorists today, that question has transposed the argument from one within constitutional-legal bounds to something quite different. In his influential work, State of Exception, Georgio Agambens key text is the Politische Theologie.55 It begins with a paradox legal form of that which cannot have legal form but that seeming contradiction is 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 in their time, Schmitt frequently writes as the legal partisan. His text wears no jurisprudential uniform and leads the unwary reader onto foreign legal terrain, territory where he is so at home 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 original setting 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 of the National Assembly and the president and the miraculous transformation of measures into law. On the most obvious level, Schmitts 1924 text is a legal argument about a constitutional provision. The reference is concrete, the question is focused. We can see the five years before Jena as revolution bounded on two sides by something else: the state of war and siege in a regime based on enabling laws (Erm achtigungen), and a democratic-republican state pocked by frequent recourse to presidential emergency powers and enabling laws. Neither of these conformed to the normal patterns of constitutional division of powers. It was the end, Schmitt later wrote, of doctrinal liberal constitutionalism, the beginning of an age of commissarial dictatorship with military and civilian components.56 Its form is government by decree; measures take the place of legislation and adjudication across the board, in economy, currency, finance, civil law, labor and social law. Those were not normal governments, internal or external, but it is misconceived to understand these as regimes of exceptionality. The practices in each assumed their purpose to be a return to the normal. They were each temporally bound, although both addressed situations that, in themselves, were of unpredictable duration. In this boundary of intention
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and time, a gap opens up within the rational and fixed that can be measured only after it is 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 theologicalvital. The fundamental argument between schmittians and liberals remains fixed on the intellectual 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, Schmitts work until the late Republic, the conceptual lines must be drawn more clearly between Ausnahmezustand in its original as emergency58 and the exception. This is important because to conflate them makes their distinction from each other and from their ultimate referent, the normal, impossible. In the profligate use of exception and exceptionality the danger of forgetting and not seeing is too great. 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 Roman iustitium as signs of exceptionality, Agamben rightly names that historical moment in Germany which was bounded by war and Republic: the revolution of 191819. The growth of government by decree, the automated legislator, and the military-economic dictatorships are not tumultuous patterns. On the contrary, they have become the normal. If Carl Schmitts emphasis on who decides? remains a sharp tool in uncovering the apparent and revealing the substantial, it is worthless should it be used for the opposite to blur and obscure. And if we are to understand, and possibly reform, post-liberal constitutions, we are ill-advised to merge 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 Preu, Staatssekret ar in the Interior Ministry (articles 1108) and a second, the statement of rights and duties (articles 109180) drafted by the National Assembly at Weimar. Delegates were chosen by election that gave a large majority (3/4th ) of seats to parties favoring a parliamentary-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 Souver anit at (Berlin: 1979), 63. 3. Exemplified by the relationship between Verfassungslehre and Der Begriff des Politischen. 4. Hitlers 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 von Volk und Reich (March 24, 1933) was a reaction to the Reichstag fire (February 2728, 1933) passed by a Reichstag 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 Staatsnotrecht and Notrecht. 6. There were ten enabling laws (Erm achtigungsgesetze) between 1914 and 1945 beginning with the Enabling Law of August 4, 1914 at the beginning of WW I (it remained in effect four years and 3 months) and finally Hitlers Gesetz zur Behebung der Not von Volk und Reich vom 24 M arz 1933, (in effect until the German defeat (12 years, 1 month). In both periods, these laws could be regarded as the actual constitution of Germany. 7. This enabling law (Erm achtigungsgesetz vom 13. Oktober 1923) was in effect until November 2 1923. It passed the Reichstag by a vote of 316 to 24 with 7 abstaining; members of the Communist and German National parities left the chamber in protest after a stormy session during which the economic collapse of Germany and the dissolution of the German Reich was forecast and calls for a Gerneral Strike against the clique of big capital and government then in power. Verhandlungen des Deutschen Reichstag 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, 19141924

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(Oxford Univeristy Press: 1997)). See also Milton Friedmans account of similar phenomena in the United States a few years later. Friedman & Anna Schwartz, The Great Contraction 19291933 (Princeton: 1965). Local script functioned in regions of North Carolina (the Plenty) and the Berkshires (the Berk Share) in 200809. It may be assumed that barter also accompanies such indicators of the value lost by central bank money. 8. The Rentenbank was conveniently and appropriately located, Feldman remarks, in offices belonging to the Reich Debt Administration and across the street from the Reich Printing Office and near the Reichsbank (The Great Disorder, 793). 9. Hans Ostwald, Sittengeschichte der Inflation (Berlin: Neufeld & Henius Verlag, 1931) provides a vivid if somewhat unorthodox account of the moral effects of the inflation. Robert Gellately, The Politics of Economic Despair (Sage Publications, 1974) covers the period up to 1914 arguing that economic hardship more 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): 7694. A mass political movement also formed around the 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 wrecking shops 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 debt and dysfunction. A mere 10% of the $47 billion Germany spent on the war was raised in taxes. Money supply increased fourfold. The architects, Liaquat Ahamed writes, were paradoxically two of the most competent financial officials in all Europe. Perhaps that was neither so paradoxical, nor they so competent in 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): 112147. More recently, Dirk Schumann, Political Violence in the Weimar Republic. 19181933. Fight for the Streets & Fear of Civil War. trans. Thomas Dunlay (New York: Berghahn Books, 2009). 14. On October 7, 1923. 15. The Verein had been founded two years earlier by some of Germanys most prominent professors of law, with the initiative being taken by Heinrich Triepel. Triepel held the chair of state and international law 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 meeting at Berlin, a charter was adopted and a Board of Directors appointed. There was a discussion of the position of state law in the university curriculum, and Richard Thoma read a paper on judicial review. There were to be annual meetings of the Verein, but internal disturbances in many parts of the country prevented a meeting ffentlichen Rechats in Deutschland, Vol 3, Staats- und before spring 1924. M. Stolleis, Geschichte des o Verwaltungsrechtswissenschaft in Republik und Dikatatur (Munich: 1999). 16. A warm welcome. . .to our Austrian colleagues who are attending for the first time. That you and we are votaries of a unitary German science, I need not say. That our places of work are divided by a border drawn by a jealous hand, is our anguish. . .The time will come when we are freed from the unnatural division and when we will be concerned with a constitution for the whole of Germany, and this is not only our hope, but our deepest conviction. Er offungsansprache, Der deutsche F oderalismus. Die Diktatur des Reichspr asidenten. Ver offentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 1 (Berlin: 1924), 510. 17. Ibid, 8. 18. Ansch utz (18671948) was one of the leading jurists of the time, author of the definitive commentary on the constitution. Bilfinger (18871958) taught public and international law, first at Halle and after 1933, at T ubingen and Berlin. Jacobi (18841965) taught state and church law at Leipzig. Schmitt (18881985) taught at various universities before taking a chair at Berlin under the Nazis. All four men took part in the case of Preuen contra Reich, at which the legality of the Reich putsch against Prussia was argued inconclusively before the Staatsgerichtshof. Schmitt, Jacobi and Bilfinger defended the Reich. Ansch utz represented Prussia. Ansch utz retired from the Chair at Heidelberg in 1933 in protest. Of Jewish decent, but himself Christian, Jacobi was removed under the discriminatory Gesetz f ur Wiederherstellung des 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 position again. See David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1999). 19. A matter of whether the Austrian could be incorporated into a Reich that included Prussia, but even the power politics and wars of the 1860s between the two carried the emotions conveyed by Hegel at the dissolution of the old Empire in The German Constitution. ubingen: Mohr, 1923). 16. 20. Ansch utz, Drei Leitgedanken der Weimarer Reichsverfassung,(T

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21. The present crisis between the Reich and a few individual states is not to be discussed here but in my opinion something else is behind it besides a pro and contra federalism. These [tensions] are the pathological effects for which the Diktat at Versailles is responsible. Bilfinger, Der deutsche F oderalismus. Die Diktatur des Reichspr asidenten. Ver offentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 1 (Berlin: 1924), 47. 22. These are: Reich sovereignty over the L ander; no special rights for the L ander; military and foreign affairs remain with the Reich; no constitution-making authority for the L ander; oversight by the Reich to remain. A total revision of the Weimar constitution. . .is emphatically discouraged. The reporter summarized Ansch utzs defense of central authority in the terms of Freiherr vom Stein: I know one Fatherland and that is Germany, not the particular states. Ansch utz, Drei Leitgedanken der Weimarer Reichsverfassung, 3234. 23. The German unantastbar also carries the connotation of taboo, sacrosanct and thus points to a certain irrational moment of power and belief. It appears prominently in the Basic Law of the Federal Republic which declares that human dignity is inviolable, GG Art.1, para.1. 24. Richard Grau, Die Diktaturgewalt des Reichspr asidenten und der Landesregierungen auf Grund des Artikels 48 der Reichsverfassung (Berlin: 1922), 53. Grau was Triepels student and later a lawyer in Berlin. 25. Grau, Die Diktaturgewalt des Reichspr asidenten und der Landesregierungen auf Grund des Artikels 48 der Reichsverfassung, 57. The declaration that a future statue would provide more substantial regulation of emergency powers in paragraph three, on which Grau draws here, never came to pass. Practice and usage had, by the last years of the Republic, made that provision a dead letter and resulted in the general acceptance of far reaching dictatorial powers, limited only by the political will to use them or the political will to demand their suspension. 26. Schmitt, Politische Romantik (Munich & Leipzig: 1919). 27. Schmitt Carl, Die Diktatur. Von den Anf angen des modernen Souver anit atsgedankens 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 Reichspr asidenten nach Artikel 48 der Reichsverfassung (1924), 6667 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 on December 4, 1923 and March 5, 1924. 31. The reference is to Th uringen; see Schmitt, Die Diktatur des Reichpr asidenten nach Artikel 48 der Reichsverfassung, 68 and Schmitt, The Dictatorship of the Reich president according to Art 48 of the Reich constitution, 4. 32. Schmitt, Die Diktatur des Reichspr aisdenten nach Artikel 48 der Reichverfassung, 74 and Schmitt, 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: University of Chicago Press, 2005), 567 ff, Ch 3 Iustitium. The style of this argument leads one to think that it was driven by the poetic affinity between solstitium, when the sun stands still, and iustitium the still-stand of the law. 34. Jacobi, Die Diktatur des Reichspr asidenten nach Art. 48 der Reichsverfassung, Der deutsche F oderalismus. Die Diktatur des Reichspr asidenten. Ver offentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 1 (Berlin: 1924), 105136. 35. Stier-Somolo, Reichs-und Landesstaatsrecht, vol 1, 671, cited by Jacobi, Ibid, 115, fn. 1. 36. Jacobi, Die Diktatur des Reichspr asidenten nach Art. 48 der Reichsverfassung, Der deutsche F oderalismus. Die Diktatur des Reichspr asidenten. Ver offentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, 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 Reichspr asidenten nach Art. 48 RV, 9495m and Schmitt, The Dictatorship of the Reich president according to Art 48 of the Reich constitution, 17. 40. Schmitt, Verfassungslehre (Munich & Leipzig: 1928), 2324 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. Ansch utz, Verfassung des Deutschen Reiches, 401, 403; quoted at Caldwell, Popular Sovereignty & German Constitutional Law, 69.

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43. K uhnemann, K onnen 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 advertisement, may funds be acquired by the means of credits. Such acquisition, as well as reliability at the Reichs expense, may only be undertaken if based on a Reich law. Ansch utz and Walter Jellinek, Reichskredit und DIktatur. Zwei Gutachten (T ubingen: 1932), 10ff. Ansch utz (like Schmitt) defends presidentialism on the ground that the Reich president is a democratically elected official. His signature give formal authority for government decrees in the financial and economic sphere. ffentlichen Rechts (11) 17 (1931). The grounds of this position had 45. Thoma, Zeitschrift f ur o been stated by Ansch utz some years earlier during the first constitutional crisis when he declared three principles to be the leading ideas of the Weimar constitution: (1) the Reich; (2) the unitary state; (3) a democratic-republican state form. Ansch utz, Drei Leitgedanken der Weimarer Reichsverfassung. 46. Ansch utz and Jellinek, Reichskredit und DIktatur. Zwei Gutachten 22. 47. Schmitt, Der H uter der Verfassung, 131 quoted by Ansch utz, Verfassung des Deutschen Reiches, 22. 48. Mommsen, Weimar Democracy, 362. 49. Schmitt, Die staatsrechtliche Bedeutung der Notverordnung (1931), Verfassungsrechtliche Aufs atze (Berlin: 1973), 260. 50. Schmitt, Die Diktatur des Reichspr asidenten nach Art. 48 RV, 91 and below. 51. Ibid., 91. ber den Ausnahmezustand entscheidet. 52. Souver an ist, wer u 53. Schmitt, Die Diktatur des Reichspr asidenten 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. ber die neueste Entwicklung des Problemsdes gesetzgeberischen 56. Schmitt, Uberblick u R. u. VR, 6, 1936, 252ff. On the war period, see Schmitt, Die Einwirkung Erm achtigungen, Z. f. aus. Off. des Kriegszustand auf das ordentlichen straffprozessuale Verfahren, Diktatur und Berlagerungszustand. ber Eine staatsrechtliche Studie, Z.d. ges. Straftrechtswissenschaft vol 38 (1916), 738789; Das Gesetz u den Belagerungszustand in der Rechtsprechung, Preuisches Verwaltung-Blatt, 37, no. 20 (February 12, 1916), 262, 310312. He was assigned to the office of the military commission at Munich during this time, administering the state of siege. 57. Flannery OConnor, 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 is the author of Constitutional Failure: Carl Schmitt in Weimar (Duke, 2004).

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