By Ellen Kennedy
Kennedy finds how Schmitt’s argument for a powerful yet impartial kingdom supported the maximization of marketplace freedom on the expense of the political structure. She argues that the key fault traces of Weimar liberalism—emergency powers, the courts as “defenders of the constitution,” mass mobilization of anti-liberal politics, ethnic-identity politics, a tradition of resentment and contested legitimacy—are no longer exceptions in the liberal-democratic orders of the West, yet crucial to them. Contending that Schmitt’s notion is still important this day simply because liberal norms are insufficient to the political demanding situations dealing with constitutional platforms as varied as these of japanese Europe and the USA, Kennedy develops a compelling, rigorous argument that unsettles many assumptions approximately liberalism, democracy, and dictatorship.
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Extra resources for Constitutional Failure: Carl Schmitt in Weimar
Although Schmitt was drawn to Hobbes’s theory for its account of the origin of political obligation, Bodin was the more important theorist of the state for his work, and the articles on Reich and Großraum during the war return to arguments in Politische Theologie (1921). The strength of Bodin’s ‘‘legal-decisionist’’ theory lay in the construction of a legal logic of the state and his acute grasp of Europe’s sectarian fragmentation. After the concept of Christendom as a supernational order with its central religious authority in Rome had been exhausted in religious war, Bodin’s sociological theory of sovereignty as an empirically recognizable institution severed the knot of theological dispute over secular authority.
By May 1933, Schmitt thought of the Third Reich as a new state, and his work in the ﬁrst year of Hitler’s regime locates it as a revolutionary break with its predecessor. The end of the Republic came much as Schmitt had predicted the previous summer in Legalität und Legitimität (1932). ’’∂∑ It was the dead end of a long debate between legal positivists such as Gerhard Anschütz and Richard Thoma and antipositivists such as Schmitt, Erich Kaufmann, and Rudolf Smend about constitutional protection.
Upon his release, the chief American prosecutor, Robert Kempner, advised Schmitt to leave Berlin—by then an outpost in the Cold War surrounded by Russian troops— and he returned to his family home in Plettenberg (Sauerland), where his sister still lived. ∞≤π He later compared the incarceration at Nuremberg with other times in his life when he felt threatened—the communist revolution in Munich, the murder of conservatives during the Rhöm purge, the sd attack on him in 1936, the arrest and execution of Popitz.