In the years between 1930 and 1933, Carl Schmitt’s legal writings expressed concern with two primary issues. The first of these dealt with legal matters pertaining to constitutional questions raised by the presidential government Schleicher had formulated. The latter focused on the question of constitutional issues raised by the existence of anti-constitutional parties functioning within the context of the constitutional system.
Schmitt’s subsequent reputation as a conservative revolutionary has been enhanced by his personal friendship or association with prominent radical nationalists like Ernst Jünger and the “National Bolshevist” Ernst Niekisch, as well as the publication of Schmitt’s articles in journals associated with the conservative revolutionary movement during the late Weimar period. However, Schmitt himself was never any kind of revolutionary. Indeed, he spoke out against changes in the constitution of Weimar during its final years, believing that tampering with the constitution during a time of crisis would undermine the legitimacy of the entire system and invite opportunistic exploitation of the constitutional processes by radicals. His continued defense of the presidential powers granted by Article 48 was always intended as an effort to preserve the existing constitutional order.
The 1930 election produced major victories for the extremist parties. The communists increased their representation in the Reichstag from 54 to 77 seats, and the Nazis from 12 to 107 seats. The left-of-center Social Democrats (SPD) retained 143 seats, meaning that avowedly revolutionary parties were now the second and third largest parties in terms of parliamentary representation. The extremist parties never took their parliamentary roles seriously, but instead engaged in endless obstructionist tactics designed to de-legitimize the republic itself with hopes of seizing power once it finally collapsed. Meanwhile, violent street fighting between Nazi and communist paramilitary groups emerged as the numbers of unemployed Germans soared well into the millions.
In the April 1932 presidential election, Hitler stood against Hindenburg, and while Hindenburg was the winner, Hitler received an impressive thirty-seven percent of the vote. Meanwhile, the Nazis had become the dominant party in several regional governments, and their private army, the SA, had grown to the point where it was four times larger than the German army itself.
Schmitt published Legality and Legitimacy in 1932 in response to the rise of the extremist parties. This work dealt with matters of constitutional interpretation, specifically the means by which the constitutional order itself might be overthrown through the abuse of ordinary legal and constitutional processes. Schmitt argued that political constitutions represent specific sets of political values. These might include republicanism, provisions for an electoral process, church/state separation, property rights, freedom of the press, and so forth. Schmitt warned against interpreting the constitution in ways that allowed laws to be passed through formalistic means whose essence contradicted the wider set of values represented by the constitution.
Most important, Schmitt opposed methods of constitutional interpretation that would serve to create the political conditions under which the constitution itself could be overthrown. The core issue raised by Schmitt was the question of whether or not anti-constitutional parties such as the NSDAP or KPD should have what he called the “equal chance” to assume power legally. If such a party were to be allowed to gain control of the apparatus of the state itself, it could then use its position to destroy the constitutional order.
Schmitt argued that a political constitution should be interpreted according to its internal essence rather than strict formalistic adherence to its technical provisions, and applied according to the conditions imposed by the “concrete situation” at hand. On July 19, 1932, Schmitt published an editorial in a conservative journal concerning the election that was to be held on July 31. The editorial read in part:
Whoever provides the National Socialists with the majority on July 31, acts foolishly. … He gives this still immature ideological and political movement the possibility to change the constitution, to establish a state church, to dissolve the labor unions, etc. He surrenders Germany completely to this group….It would be extremely dangerous … because 51% gives the NSDAP a “political premium of incalculable significance.”
The subsequent election was an extremely successful one for the NSDAP, as they gained 37.8 percent of the seats in the parliament, while the KPD achieved 14.6 percent. The effect of the election results was that the anti-constitutional parties were in control of a majority of the Reichstag seats.
On the advice of General Schleicher, President Hindenburg had replaced Bruning as chancellor with Franz von Papen on May 30. Papen subsequently took an action that would lead to Schmitt’s participation in a dramatic trial of genuine historic significance before the supreme court of Germany.
Invoking Article 48, the Papen government suspended the state government of Prussia and placed the state under martial law. The justification for this was the Prussian regional government’s inability to maintain order in the face of civil unrest. Prussia was the largest of the German states, containing two-thirds of Germany’s land mass and three-fifths of its population. Though the state government had been controlled by the Social Democrats, the Nazis had made significant gains in the April 1932 election. Along the way, the Social Democrats had made considerable effort to block the rise of the Nazis with legal restrictions on their activities and various parliamentary maneuvers. There was also much violent conflict in Prussia between the Nazis and the Communists.
Papen, himself an anti-Nazi rightist, regarded the imposition of martial law as having the multiple purposes of breaking the power of the Social Democrats in Prussia, controlling the Communists, placating the Nazis by removing their Social Democratic rivals, and simultaneously preventing the Nazis from becoming embedded in regional institutions, particularly Prussia’s huge police force.
The Prussian state government appealed Papen’s decision to the supreme court and a trial was held in October of 1932. Schmitt was among three jurists who defended the Papen government’s policy before the court. Schmitt’s arguments reflected the method of constitutional interpretation he had been developing since the time martial law had been imposed during the Great War by the Wilhelmine government. Schmitt likewise applied the approach to political theory he had presented in his previous writings to the situation in Prussia. He argued that the Prussian state government had failed in its foremost constitutional duty to preserve public order. He further argued that because Papen had acted under the authority of President Hindenburg, Papen’s actions had been legitimate under Article 48.
Schmitt regarded the conflict in Prussia as a conflict between rival political parties. The Social Democrats who controlled the state government were attempting to repress the Nazis by imposing legal restrictions on them. However, the Social Democrats had also been impotent in their efforts to control violence by the Nazis and the communists. Schmitt rejected the argument that the Social Democrats were constitutionally legitimate in their legal efforts against the Nazis, as this simply amounted to one political party attempting to repress another. While the “equal chance” may be constitutionally denied to an anti-constitutional party, such a decision must be made by a neutral force, such as the president.
As a crucial part of his argument, Schmitt insisted that the office of the President was sovereign over the political parties and was responsible for preserving the constitution, public order, and the security of the state itself. Schmitt argued that with the Prussian state’s failure to maintain basic order, the situation in Prussia had essentially become a civil war between the political parties. Therefore, imposition of martial law by the chancellor, as an agent of the president, was necessary for the restoration of order.
Schmitt further argued that it was the president rather than the court that possessed the ultimate authority and responsibility for upholding the constitution, as the court possessed no means of politically enforcing its decisions. Ultimately, the court decided that while it rather than the president held responsibility for legal defense of the constitution, the situation in Prussia was severe enough to justify the appointment of a commissarial government by Papen, though Papen had not been justified in outright suspension of the Prussian state government. Essentially, the Papen government had won, as martial law remained in Prussia, and the state government continued to exist in name only.
During the winter months of 1932-33, Germany entered into an increasingly perilous situation. Papen, who had pushed for altering the constitution along fairly strident reactionary conservative lines, proved to be an extraordinarily unpopular chancellor and was replaced by Schleicher on December 3, 1932. But by this time, Papen had achieved the confidence of President von Hindenburg, if not that of the German public, while Hindenburg’s faith in Schleicher had diminished considerably. Papen began talks with Hitler, and the possibility emerged that Hitler might ascend to the chancellorship.
Joseph Bendersky summarized the events that followed:
By late January, when it appeared that either Papen or Hitler might become chancellor, Schleicher concluded that exceptional measures were required as a last resort. He requested that the president declare a state of emergency, ban the Nazi and Communist parties, and dissolve the Reichstag until stability could be restored. During the interim Schleicher would govern by emergency decrees. …
This was preferable to the potentially calamitous return of Papen, with his dangerous reform plans and unpopularity. It would also preclude the possibility that as chancellor Hitler would eventually usurp all power and completely destroy the constitution, even the nature of the German state, in favor of the proclaimed Third Reich. Had Hindenburg complied with Schleicher’s request, the president would have denied the equal chance to an anti-constitutional party and thus, in Schmitt’s estimate, truly acted as the defender of the constitution. … Having lost faith in Schleicher, fearing civil war, and trying to avoid violating his oath to uphold the constitution, Hindenburg refused. At this point, Schleicher was the only leader in a position to prevent the Nazi acquisition of power, if the president had only granted him the authorization. Consequently, Hitler acquired power not through the use of Article 48, but because it was not used against him.
[emphasis added]
The Schleicher plan had the full support of Schmitt, and was based in part on Schmitt’s view that “a constitutional system could not remain neutral towards its own basic principles, nor provide the legal means for its own destruction.” Yet the liberal, Catholic, and socialist press received word of the plan and mercilessly attacked Schleicher’s plan specifically and Schmitt’s ideas generally as creating the foundation for a presidential dictatorship, while remaining myopically oblivious to the immediate danger posed by Nazi and Communist control over the Reichstag and the possibility of Hitler’s achievement of executive power.
On January 30, 1933, Hitler became chancellor. That evening, Schmitt received the conservative revolutionary Wilhelm Stapel as a guest in his home while the Nazis staged a torchlight parade in Berlin’s Brandenburg Gate in celebration of Hitler’s appointment. Schmitt and Stapel discussed their alarm at the prospect of an imminent Nazi dictatorship and Schmitt felt the Weimar Republic had essentially committed suicide. If President von Hindenburg had heeded the advice of Schleicher and Schmitt, the Hitler regime would likely have never come into existence.
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