Guarding the Guardians


Review of The Guardians of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, translated and edited by Lars Vinx

Cambridge, UK: Cambridge University Press, 2015

The President and other American officials routinely take an oath to preserve, protect, and defend the Constitution. And although it is doubtful whether taking that oath has much (or any) effect on the actions of the officials who take it, the oath is a good reminder of the fact that constitutions are not self-enforcing. Constitutions themselves are mere words, written on mere paper, and can only achieve their purposes, whatever those purposes might be, with the supportive and enforcing efforts of actual human beings.

But which human beings, and which human institutions? That is the question that divides many constitutional cultures. Should constitutions be enforced by courts, assuming (often a big assumption) that courts can enforce their edicts through the use of armies, marshals, sheriffs, and the cooperation of other governmental officials? Or should constitutions be enforced through the internalization of constitutional norms by the officials who are to be constrained by the constitution? This latter is the approach in countries with no single document codified as the written constitution – the United Kingdom, New Zealand, and Israel, most prominently – or with a written constitution but nothing resembling judicial review, as in Switzerland and the Netherlands. In such countries the principal method of enforcement of a constitution is the hope – sometimes but not always realized – that officials will feel an obligation to follow the constitution, their own personal, political, or policy views notwithstanding. And if and when officials fail to live up to this obligation, there is the further hope that the electorate will act as a constitutional enforcer, refusing to elect or re-elect those officials who do not by their behavior show sufficient respect for the constitution.

These days relatively few countries place such faith in either officials or the electorate, and that is not surprising. Insofar as a constitution imposes second -order constraints – institutional, structural, and long-term – on even wise and popular first-order substantive policy preferences, it is psychologically and politically unlikely that such second order constraints on even good ideas can be effectively enforced. And thus in most countries now some form of judicial intervention and judicial enforcement is thought necessary in order to enforce constitutional norms against the short-term policy and political preferences of even the most conscientious of officials.

It is all too common for American constitutionalists to suppose that these issues have been debated most extensively in the United States, where the virtues and vices of judicial constitutional enforcement have been discussed as far back as the Federalist Papers and shortly thereafter in the context of John Marshall’s establishment of the power of judicial review in Marbury v. Madison (1803). Such a view of American centrality in discussions of judicial constitutional enforcement may, however, be excessively provincial. These debates have often occurred outside of the United States, and they have been taking place for a long time. And it is hard to find a debate about enforcing a constitution that is as deep and thoughtful as the one that took place in Germany in the late 1920s and early 1930s between Hans Kelsen and Carl Schmitt. In this fine and important book, Lars Vinx, a young German legal philosopher who now holds positions in Turkey and Finland, has provided for English speakers a fluent and fluid translation of this debate, preceded by his own thoughtfully detailed history of this debate and the political and historical context in which it arose.

The participants in this debate are as interesting as the issue they debated. Hans Kelsen remains, by some margin, the most important legal theorist of the twentieth century, at least outside of the Anglo-American universe. Within that universe, the title belongs to H.L.A. Hart (especially The Concept of Law, 1961), but in the rest of the world it is Kelsen’s understanding of law as a hierarchical normative system built upon a presupposed basic norm (Grundnorm) that dominates the academic literature, and Kelsen’s Pure Theory of Law (1934, in German, with a 1967 translation by Max Knight) remains a central text in the often rarified world of legal philosophy.

Although Kelsen was already by the 1930s a highly influential legal philosopher, he was also, as an Austrian lawyer, constitutional designer, and constitutional court judge as well as academic, the creator of a mode of constitutional adjudication that has become widely influential: a constitutional court apart from the “ordinary” courts, with exclusive authority to determine constitutional questions, and with the power to determine those questions in the abstract rather than in the context of a particular dispute between particular parties. It is the form of judicial review practiced in contemporary Germany and South Africa, and many other countries have adopted some variation on the Kelsenian approach to constitutional adjudication and enforcement.

Kelsen’s adversary in this debate, Carl Schmitt, was also a prominent lawyer and academic. As a lawyer and public official, he remains most notorious for the various positions he held in and after 1933 in the Nazi regime, but prior to 1933 he was an influential and respected academic whose contributions to legal and political theory remain important. Throughout his career he was also a lawyer and at times a public official, and it was as a lawyer that he represented the German central government in the dispute with the state of Prussia that punctuated his debate with Kelsen about the nature of a constitution and about the individuals and institutions who might best enforce it.

The dispute (1-6) that marked the capstone of the debate arose from the 1932 attempt by the German national government to remove the government of the state of Prussia, ostensibly in order to deal with civil unrest in Prussia coming from clashes among the police, the communists, and the Nazis but probably also intended to displace the social democrats who governed Prussia and replace them with conservatives more to the liking of the national government, its President, Paul von Hindenburg, and its Chancellor, Franz von Papen. The national government (the Reich) claimed that its actions were authorized by the emergency and public security provisions of article 48 of the Weimar Constitution, and the dispute wound up before the Staatsgerichthof, a special court that sat occasionally for the purpose of resolving constitutional questions between the national government and the states (the Länder). That court, in an attempted compromise, ruled that the national takeover of the Prussian government was a justified short-term emergency provision under the public security provisions of Article 48, but that the national government did not have the power permanently to displace the governments of the states.

The decision of the Staatsgerichthof pleased neither Schmitt, who believed that guardianship of the constitution rested exclusively with the executive (the President), nor Kelsen, who by then was living and teaching in Germany and who maintained that a proper and permanent constitutional court should be the principal enforcer of the constitution. But although the events in Prussia provided the occasion for both Schmitt and Kelsen to debate the question of constitutional enforcement and “guardianship,” their debates about how a constitution should be enforced in fact dated back at least to 1929, and Vinx has provided an enduring contribution to constitutional understanding by offering his superb translation of the full controversy from Kelsen’s original 1929 article about constitutional adjudication (22-78) to Schmitt’s extensive 1931 argument against courts as constitutional guardians (79-173) to Kelsen’s 1931 review of Schmitt’s book to Schmitt’s final argument in the Prussia case in 1932 to Kelsen’s critical commentary on the judgment in that case, published partly as response to the court decision but mostly as a response to Schmitt.

Kelsen’s constitutional stance was the natural corollary to his theory of law itself. For Kelsen, all legal (and constitutional) norms were authorizations to officials to take official action, and it is key to the Kelsenian picture that no legal decision is completely determined by the law. The law, to use a metaphor from Kelsen’s other writings, was like a frame without a picture. It formally authorized official action and set substantive (material) boundaries on that action, but did not specify what officials were to do within those boundaries. Official action within the legal frame was not itself a legal matter, but the law established what officials could or could not do with their legally granted -- but not themselves legally determined -- powers.

Because Kelsen thus believed that all decisions of courts and judges contained a non-legal (and thus political, in the broad sense of that term) component, he did not believe that the pervasively political nature of constitutional decision-making was different in kind from what judges routinely did. If all judicial decisions were at least partly political, then the political dimensions of constitutional adjudication posed no obstacle to judicial involvement. For Kelsen, the legislative creation of statutes within constitutional boundaries was fundamentally similar to the judicial application of law within statutory boundaries.

Schmitt demurred. For him the very essence of constitutional decision-making was political, and thus the enforcement of a constitution was appropriately left to political bodies. Schmitt, as with most lawyers in civil law countries (at least then), saw ordinary law as largely formal and specific. Ordinary law often, he believed, dictated clear answers, and even when it did not its indeterminacies could usually be resolved by expert opinion. Very little of ordinary law was subject to unresolvable disagreement.

But constitutional law, Schmitt argued, was different. It was more often vague, more often explicitly political in its object, and for both reasons far more often subject to reasonable normative disagreement. For a court to resolve such issues, he believed, was for a court to abandon its distinctly judicial role and to begin to act much more like a legislature. But even a legislature could not be trusted to “guard” the underlying small “c” constitution upon which an entire state, including the parliament and including the large “C” written constitution, rested. This, Schmitt famously argued, was a job for a strong executive, and thus for Schmitt the President was the guardian of the constitution, just as for Kelsen the proper guardian of the constitution was a constitutional court not unlike the one that he and his colleagues had created in and for Austria in 1920.

As should be apparent, the Kelsen-Schmitt debate was not only about law, but also about broader issues of governmental organization, with Schmitt’s preference for a strong executive in tension with Kelsen’s more majoritarian and democratic leanings. But Kelsen’s preference for a more majoritarian government and more judicialized constitutional enforcement leaves open the question of just how the constitutional court’s judgments are to be enforced. Coming from a country where pedestrians, then and now, stand obediently at “Don’t Walk” signs even when there are neither cars nor police officers in sight, Kelsen, perhaps too easily for modern American tastes, assumed that constitutional court decisions would essentially be self-enforcing by virtue of a national predisposition to obey the law and obey a judicial ruling. Where such predispositions are weaker, creating a constitutional court to interpret the constitution is only the first step. When it comes to enforcing that court’s judgments, the question turns even more political, and it is here that Schmitt’s advocacy of a strong executive as guardian of the constitution begins to appear even more attractive. Even in the United States, for example, it is important not to forget that it was President Eisenhower who sent troops to Little Rock in 1958 to enforce Supreme Court decisions (especially Brown v. Board of Education, 1954) he believed were either premature or mistaken, and that it is rare for either presidents or legislators to suffer very many negative political consequences for acting unconstitutionally in the service of first-order substantive goals of which their constituents approve. Neither the spirit, the language, nor the authoritative interpretations of the First Amendment will lead very many political figures to oppose efforts to prohibit flag-burning, for example, and it is a mistake to ignore the way in which constitutional guardianship involves a complex coordination of legal and political forces. As a result, ignoring the role of non-judicial political figures (and the incentives to which they respond) in the ultimate enforcement of a constitution remains a fundamental error.

The debate between Kelsen and Schmitt is far richer and more timely than the foregoing brief overview can suggest. Vinx has provided a great service in executing a fluent and accessible translation, in writing an illuminating and erudite introduction, and in making the constitutional writings of Kelsen and Schmitt available to a wider audience than was previously the case. And Vinx has provided an additional service in reminding us that many of the important figures in the history of legal theory were also on the front lines of salient legal disputes offering arguments that put their theoretical positions in very concrete contexts. It would be unfortunate if the value of an academic enterprise were measured by its practical application, but it is nevertheless worthwhile remembering, as the debate between Kelsen and Schmitt demonstrates, that the connections among legal theory, constitutional theory, and front-page political decisions can sometimes be closer than is often supposed.

Posted on 2 March 2016

FREDERICK SCHAUER is David and Mary Harrison Distinguished Professor of Law at the University of Virginia and was previously Frank Stanton Professor of the First Amendment at Harvard University. His most recent book, The Force of Law, (Harvard University Press, 2015), was reviewed in The New Rambler on October 14, 2015.