The Economic Sources of Dictatorship in Weimar Germany
Ellen Kennedy
The University of Pennsylvania
“The Weimar Moment: Liberalims, Political Theology & Law”
Institute for Legal Studies
The University of Wisconsin, Madison
October 24-26 2008
DRAFT
PLEASE DO NOT CIRCULATE OR CITE WITHOUT PERMISSION
1
The constitutionality of executive prerogative is a subject of intense debate among
American scholars today. Questions familiar from the political-legal literature of the
Weimar Republic came to the fore as a result the 9/11 attacks and the Bush
administration’s response to them, and an unprecedented number of constitutional
scholars have begun to consider the “emergency” capacities of the U.S. constitution.1 As
practices of surveillance, “extraordinary rendition”, the use of torture and indefinite
confinement, practices in violation of fundamental rights and guarantees that are long and
well established in common law and statute proliferated, Sanford Levinson described this
regime as one in which legal norms have been suspended.2 Our discussion before now
has focused on security and war powers. But as for Germany in the 1920s so now for us
Ackerman, “The Emergency Constitution” Yale L.R. (113:1029-91); Scheppele, “Law in time of
Emergency: state of exception & the temptations of 9/11” UPenn J.I.L (6:1001-83); Scheppele, “North
American Emergencies” I.J.C.L (4[2]:213-242); Tribe & Gudridge, “The Anti-Emergency Constitution”
Yale L.R. (113:1801-70); Gross, “Law in Time of Crisis: Emergency Powers in Theory and Practice” (---);
Gross & Ni Alolain, “Executive Emergency Powers and Constitutional Necessity” (LAPA “Executive
Power”, Princeton U, 2007) Tushnet, “Emergencies and the idea of constitutionalism, Tushnet (ed), The
Constitution in Wartime.
2
After reviewing Madison and Hamilton on peace and war, Sanford Levinson found in Carl Schmitt a
more appropriate analysis: “Now consider the following maxim: ‘There exists no norm that is applicable to
chaos.’ (…) Schmitt contended that legal norms were only applicable in stable and peaceful situations –
and not in times of war, when the state confronted ‘a mortal enemy, with the threat of violent death at the
hands of a hostile group.’ It follows that conventional legal norms are no longer applicable in a state of
emergency, when war and chaos pose a standing threat to public safety. To adopt the language of American
constitutional law, every norm is subject to limitation when a compelling interest is successfully asserted,
and it is hard to think of a more compelling interest than the prevention of violent death at the hands of a
hostile group.” Levinson, “Torture in Iraq and the rule of law in America” Daedalus (summer 2004) 5-9.
This quote at 7.
1
2
economic and financial crisis belongs to critical phases in the constitutional life, and to
what our conveners call the “Weimar moment”. Inflation and depression mark its history
and its political and legal theory. If, as Jacobsen and Schlink argue Weimar’s was a
“jurisprudence of crisis”, it was an economic and financial crisis as well as a security
crisis. A more complex set of material threats to the Republic’s survival than is often
assumed shaped its “constitutional dictatorship” throughout the 1920s. The expansion of
presidential government in response to the dissolution of the parliamentary system
through 1929-30, diplomatic stalemate, domestic political gridlock, economic crisis,
deficits, and unemployment paved the way to presidential dictatorship.3
With the onset of inflation in 1922, economic emergency, this paper argues,
became as important to the theory of dictatorship as threats to public order and civil
peace. Economic, as much and in some respects more than, security concerns shifted
legal opinion away from a limited reading of Article 48 to an expansive interpretation of
it. What was a minority view among constitutional scholars in the early ‘20s became by
1930 the established opinion.
Early Weimar: inflation, disorder and Article 48
Successive regimes in Germany from 1914 to 1945 relied on extraordinary
measures in security and economic emergencies. 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 between 1918-1924 underline the
3
Mommsen, Weimar Democracy.
3
article’s 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” (paragraph 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 (paragraph 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 (paragraph 3).
Governments of the member states were also authorized to take comparable steps with
the limitation that the president or Reichstag could demand them be rescinded (paragraph
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 (paragraph
5).
As elsewhere Europe, Germany recognized the legal institutions of martial law
and the states of siege and emergency that had developed over the 19th century.
Governments in the Empire and the Republic also relied on enabling laws, expansive
legislative delegations of authority, during periods of crisis. 4 During the inflation period
(1921-1924) 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
4
There were ten enabling laws (Ermächtigungsgesetz) between 1914 and 1945 beginning with the
Enabling Law of August 4 1914 at the beginning of WW I which remained in effect four years and 3
months, and finally Hitler’s Gesetz zur Behebung der Not von Volk und Reich vom 24. März 1933, which
ceased only with German defeat (12 years, 1 month). In both periods these laws could be regarded as the
actual constitution of German.
4
competing currency substitutes circulated throughout Germany5, an enabling act
authorized government to take “any measure in the financial economic and social
spheres” necessary to stop inflation. The goal of stabilizing Germany currency and
preserving the real economy was achieved only when Hjalmar Schacht was appointed
Currency Commissioner (Währungskommissar) on November 13 1923 to oversee the
new Rentenmark and its bank of issue6. Before that extraordinary step, other stabilization
efforts failed for reasons familiar to us in recent weeks as American markets collapsed
and major investment banks failed: the “value” of nothing was certain, 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) which led to deep resentment among across classes
and created a massive culture of “moral hazard”. Savers lost the value of their savings,
debtors got off scot free. 7 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.8 Although this period of economic insecurity ended
with monetary success and four years of stability and prosperity followed, debate and
disagreement over basic concepts in law and jurisprudence deepened.
The Hamburg Bank; “German dollar”, October 25 1923. Feldman, (787 ff).
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.” (793).
7
Hans Ostwald, Sittengeschichte der Inflation (1931) provides a vivid if somewhat unorthodox account of
the moral effects of the inflation. Robert Gel lately, The Politics of Economic Despair (1974) covers the
period up to 1914 arguing that economic hardship more than illiberal ideology fed political resentment
before the Great War.
8
Hughes, “Private Equity, Social Inequity: German judges react to inflation, 1914-1924”, Central
European History (XVI/1) 1983, 76-94. A mass political movement also formed around the issue
demanding legislative action to revalue savings and debt obligations.
5
6
5
The extent to which “the great disorder”9 of the ‘20s found its way into
constitutional law was apparent when the association of German professors of state law
met at Jena in spring 1924. Its chairman, Heinrich Triepel, commented that “articles of
the constitution were being chased around like a spooked horse at a fun fair.” 10 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
Reichsmarks on November 5 1923 -- that carried over into street violence, plundering
and often explicitly anti-Semitic attacks.11 In those circumstances, Article 48 was seen as
and used one in a toolbox of executive powers in addition to 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).12
All this posed immediate constitutional questions about its interpretation in theory
and practice for constitutional-state lawyers. Two papers on “The Dictatorship of the
Reich President according to Article 48” were presented to them at Jena. The principal
speaker was Carl Schmitt with another paper on the topic by Erwin Jacobi.13 The
established interpretation of Article 48 understood the list of fundamental rights
9
Feldman, The Great Disorder: Politics, Economics and Society in the German Inflation 1914-1924
(Oxford: 1993)
10
“Eröffnungsansprache”, Verhandlungen der Tagung der deutschen Staatsrechtslehrer zu Jena am 14. und
15. April 1924 (10).
11
On November 5 & 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
On October 7 1923
13
Schmitt, “Die Diktatur des Reichspräsidenten nach Art. 48 der Reichsverfassung” Die Diktatur des
Reichspräsidenten nach Art. 48 der Reichsverfassung, Verhandlungen (63-103); Jacobi, “Die Diktatur des
Reichspräsidenten nach Art. 48 der Reichsverfassung” Verhandlungen (105-136)
6
enumerated in paragraph 2 as a limitation on presidential emergency power. It contained,
according to that reading, no expansive delegation of power to the president. This meant
that all other articles except 114, 115, 117, 118, 123, 124,153 were “dictator-proof”
(diktaturfest). A robust version of this position had been offered by Richard Grau in a
book published two years earlier. Grau supported his case with a general constitutional
theory and more detailed argument. In the first, the logic of having a constitution at all –
of limitations on the government’s freedom to act, specifically on executive prerogative –
necessarily implies that it is “inviolable”.14 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.15 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 “for granted”.16 A
limited 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 German unantastbar carries the connotation of “taboo”, “sacrosanct” as well 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.
15
Grau, Die Diktaturgewalt des Reichspräsidenten und der Landesregierungen auf Grund des Artikels 48
der Reichsverfassung (1922), 53. Grau was Triepel's student and later a lawyer in Berlin.
16
Grau, 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 be the political will to use them or the political will to demand
their suspension.
14
7
Schmitt argued at Jena against that reading of paragraph two, and thus against a
limited interpretation of Article 48, on the grounds of recent practice; government’s
stated policy; and the debates at Weimar. Unsurprisingly Schmitt’s 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 Romatik (1918), 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), Schmitt defended commissarial dictatorship as a temporary institution
intended to preserve the fundamental constitutional order. John McCormick describes
Schmitt’s position 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”.17 I shall return to this dimension of the paper below.
For now 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 to them
among leading constitutional scholars who thought such distinctions an illegitimate
expansion and wanted to constrain, not expand, the reading of Article 48.
Schmitt found three reasons to doubt the adequacy of established interpretation.
Its practice in the years from 1919-1924 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
17
McCormick, “Dilemmas of Dictatorship”, Dyzenhaus (ed.) Law as Politics (1998) 218.
8
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 which the state of
exception brings with itself, should never be exceptions from constitutional provisions
unless they are [exceptions from] those seven fundamental rights.” The established
interpretation merely ignores “interventions in the organizational structure of the
constitution that come with every exceptional circumstance (Ausnahmezustand)” .18
Schmitt cites the use of military states of exception (militärische
Ausnahmezustand) in which “all instruments of power are concentrated in the hands of
the Reich” to support a broader interpretation of Article 48. 19 In the course of exercising
emergency power the central government simply set aside the normal relationship of the
member states (Länder) and the federal government, removed local officials of those
states, took over their police forces, intervened expansively in the schools, and carried out
confiscation of private property. 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 with the Reich government concerning its legalconstitutional 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, fails to specify exactly what can be
Schmitt, “Die Diktatur des Reichspräsidenten nach Artikel 48 der Reichsverfassung” (1924), 66-67
Schmitt here quotes the Chancellor and Minister of the Interior speaking before the Reichstag on
December 4 1923 and March 5 1924.
18
19
9
done to secure public order and civil peace (the stated purpose of dictatorial power) in a
concrete instance.20 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.
As a consequence, Schmitt argued, and until further specification by the
Reichstag, the president may “take any measure necessary for the restoration of public
safety and order”, presidential prerogative is limited neither by the enumeration clause
nor by “any other article in the constitution.”21 The enumeration clause granted
additional power (to suspend the specified rights) beyond the extensive grant contained
by paragraph 1. 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 (paragraph 4) had not
been passed by parliament confirms that the delegation of power to the president was in
principle unlimited. Only the following considerations constrain the decision about
when and how to use those extraordinary and exceptional powers:
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
20
21
Schmitt, 74.
103
10
3. the authority it contains is temporary; it authorizes measures (Maßnahmen) -actions or arrangements necessary to overcome the circumstances at hand -- and
those measures are not expected to persist indefinitely.
Schmitt’s argument at Jena drew on a larger reading of European political history to set
the law and constitution within the frame of political institutions. “It might be politically
possible”, Schmitt argued, “to use Article 48 to destroy the Weimar constitution, as in
France in 1851 the position of the French president was exploited and by coup d’etat a
new constitution was introduced.” 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 the political
moment emerges it marks, depending on its severity, the end of an existing constitution.
From that Schmitt developed a theory of constitutional defense which is the purpose and
end of dictatorial power. “It is not possible constitutionally, using Article 48, to
transform the German Reich from a republic to a monarchy. […] To break though
(durchbrechen) the constitution is not to change it, to suspend it, to remove it. Those are
the typical instruments of dictatorship: preservation of the constitution as a whole is the
purpose of an exception to its provisions.” 22
Der Hüter der Verfassung further
expanded that theory with specific attention to the threats inherent in pluralism and
polyarchy to constitutional government. If the paper at Jena contained the core of
Schmitt’s later constitutional theory, it also provided a quite different perspective on the
famous first sentence of the Politische Theologie. In “Die Diktatur des Reichspräsident
nach Art. 48” the perspective of “exception” is practical politics. The principle
22
91
11
difference between normal legal practice and actions in an exception is drawn, not by
reference to theology, but from government statements in Reichstag. Schmitt quotes the
Interior minister speaking on March 5 1924 to make this point: “’Obviously the exception
in conformity to its name remains an exception and ceases as soon as the circumstances
permit.’” The question, Schmitt comments further which brings the argument of
Politische Theologie immediately to mind is “who decides what the circumstances
permit.” 23
The accompanying paper by Erwin Jacobi agreed in all significant points with
Schmitt’s. The National Assembly intended “without doubt” a broad grant of authority
to the Reich president, Jacobi wrote, that gave the executive the possibility at least of all
those powers typical of Empire during the war. Rather than a list of legal delegation and
their possible use, the National Assembly opted for a Generalklausel that “at least until
the passage of bill by the Reichstag further specifying such powers, was plein
pouvoir.”24 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 the
law of exception” and unthinkable that at Weimar the assembled delegates intended to
preclude their use. “The established interpretation is here 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.25 The resulting institution did “break
through” the constitution in a manner similar to Bismarck’s practice in the Empire. In
23
101
Jacobi, 115
25
Stier-Somolo, cited at 115 fn. 1
24
12
order to find an impermissible use (ungültige) of dictatorial power, one would have go
back to the practices of the Lander.26
Jacobi’s argument in general agreed with Schmitt’s but went further by denying
judicial review of action taken on the grounds of Article 48 when these were declared
necessary to restore public safety and order, nor could the question of whether such
disturbance did indeed taken place be brought to a court for review.
Jacobi concluded
by urging the early passage of additional legislation by the Reichstag to clarify the whole
complex of legal questions regarding the implementation of Article 48 by the president
and further the development of federal regulation and oversight of Lander use of
emergency powers.27
Jacobi’s analysis of the self-contradictions within the established interpretation of
Article 48 and Schmitt’s theory of it as a “commissarial dictatorship” provoked what
must have been a heated debate among the participants whose temper is scarcely
conveyed by the official report. Among the participants were Stier-Somo, Piloty,
Nawiasky, Thoma, Anschütz, 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 Triepel
and 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, while rejecting
Schmitt’s view agreed on some of the problems that continued to surround Article 48 as
26
27
Jacobi, 121
Jacobi, 136
13
text and practice to the end of the Republic. Dictatorial powers had been used
frequently, but their practice had led to no clear definition. Uncertainty remained about
which actions were constitutional and which unconstitutional but participants tended to
regard its practice as legally nonconforming – it should not persist until the Reichstag
passed a bill. No one understood what it might mean for constitutional-state law to
accept the “suspension” of laws through executive decrees and measures (Maßnahme).
That discord did not lead to revision of the established interpretation, but to its reiteration.
The enumerations clause did limit presidential power.
Article 48 at Weimar’s end
The discussion of Article 48 at Jena divided participants along the two leading
strands in contemporary jurisprudence, statute positivism and a political theory of law
and constitution.28 Lacking statutory definition of the powers available in Article 48, the
majority of state-lawyers sought definition in the enumerations clause, even when its
practice and thus the existing institution evidenced much wider use. Those who shared
Schmitt’s critique of that approach – but not necessarily his political preferences –
sought, like him, to widen the sources of constitutional law by taking into account many
aspects which were by doctrine excluded at the time. Most of these would, today, be
considered normal reference points in American constitutional interpretation, and they
were then too. Schmitt’s radical conceptualization of the constitution, however, was
remarkable in Weimar’s context because it deliberately incorporated political history and
political thought, and because it raised first order questions about matters which in
28
I have explored this at length. Kennedy, Constitutional Failure (2004) esp. ch 3, “Norm and Exception”.
14
positivist terms were presuppositions. 29 It also offered a political science of law and
constitutions that could be used on the political left and right. 30
Many factors lead 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 of
that year was a symptom of deepening political conflicts over social programs, taxes and
funding. The proximate fall of the Müller 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 Han Mommsen writes “the
collapse of the Müller cabinet had been very carefully scripted”.31 According to that
narrative, reactionary interested wanted its end for their economic-financial reasons and
also to enable the shift to a purely presidential government. Heinrich Brüning (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 Brüning on, government by
parliamentary majority became impossible and he relied on presidential power and the
“toleration” of that policy by the SPD.32 Government continued only on that basis and
29
Dyzenhaus on Rawls etc.
That was already clear after the publication of BP & VL. Kirchheimer and Neumann were the most
prominent on the left; on the right associates of President Hindenburg, notably Otto Meissner.
31
Mommsen, The Rise & Fall of Weimar Democracy (1996) 287ff.
32
Abraham, 47. More generally see Mommsen, Weimar Democracy.
30
15
the practice of presidential authority went far beyond a limited interpretation of Article
48.
Gerhard Anschütz, the leading proponent of statutory positivism and author of an
authoritative commentary on the Weimar constitution, viewed it as a national democracy
based on “unity for the common good” -- where unity was paramount. On those grounds,
Peter Caldwell has argued, Anschütz “condemned the unions and employers’
organizations that sought to realize their special interests over the supposed general
interests of the democratic state.” 33 According to that scheme, if the German people
were the source of the constitution, the Reichstag was its central institution. As
sovereign, the people’s position was unlimited. In Anschütz and Thoma’s commentary
on the Weimar constitution they drew the conclusion that nothing in the document, 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”, Anschütz wrote, “but rather at its
disposal”.34 What Caldwell calls “the restraint and deference” to the legislative body
reflected in the Anschütz-Thoma commentary gave way among even staunch statutory
positivists as negative majorities in the Reichstag transformed parliamentary government.
Anschütz and Schmitt disagreed fundamentally on the sources and theory of the
constitution, but agreed on “unity” and the destructive potential in the pluralism of vested
economic interests. Both lawyers agreed that Germany after 1919 was a democracy, but
33
34
Caldwell, Popular Sovereignty & German Constitutional Law (1997) 66.
Anschütz, Verfassung des Deutschen Reiches (14th ed) 401, 403. Quoted at Caldwell, 69.
16
they differed on which institution served as the repository of that democracy. For
Schmitt it was the president, for Anschütz, it was the Reichstag. Much of the statute
positivists resistance to Schmitt’s argument for broad executive power in 1924 turned on
the precedence given statutes over discretion, and the belief that representative
assemblies best articulated and organized popular opinion and the people’s will. It would
have been expected, therefore, that if the constitution was completely open to any
revision, in Anschütz words “at the disposal” of the Reichstag, then no executive power
could or should “defend” it – there was on the legal positivist basis, nothing real to
defend.
In June 1932 Anschütz’ 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. Over the previous two years, numerous executive orders had been issued
using the authority of Article 48 in order to fund government expenditure when the
Reichstag was not willing or able to pass a budget. Anschütz’ argument moved
“security” as a legal question from one of war powers to the economy and specifically the
president’s prerogative in budgetary matters. Anschütz text addressed an argument by
Max Kühnemann, 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.35 Echoing the debate at Jena in opposition to Schmitt and Jacobi,
Kühnemann insisted that only a statute could authorize the budget and the creation of
credit through the issue of debt. Anschütz offered an expansive reading of Article 48 on
Kühnemann, “Koennen Reichsetat und Reichskredite dikatorisch geregelt warden? Reichsverwaltunsblatt
(September 19 1931)
35
17
the grounds of fiscal and economic security. There was no contradiction between the
democratic basis of the constitution acknowledged and institutionalized by the National
Assembly at Weimar, and the necessity of the moment. 36 The expansive reading by
Anschütz and elsewhere by Richard Thoma37 asserted that “in times of emergency, […]
such decrees are necessary for the existence of the state”.38 Ironically given their
methodological opposition in past years, Anschütz concluded his brief in support of bypassing the Reichstag in budgetary and fiscal matters with a long citation from Carl
Schmitt’s Der Hüter der Verfassung, saying “[this] dictatorship is not a sovereign but a
constitutionally regulated and limited power that is [nonetheless –EK] definitely and
reliably guaranteed against the predominance of the Reichstag.”39 At any time the
Reichstag could suspend the authority of Article 48 by a vote. That it does not do so,
Anschütz 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”.40
The “internal consolidation” of the presidential system between 1930-32 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
36
Anschütz, Reichskredite und Diktatur (1932) 10ff. Here the Reich president appears as a democratically
elected official whose signature gave formal authority for government decrees in the financial and
economic sphere.
37
Thoma, Ztschr.f.ö.R.(11) 17 (1931)
38
The broad basis for this position had been stated by Anschütz 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. Anschütz, Drei Leitgedanken
der Weimarer Reichsverfassung (1923)
39
Anschütz, 22.
40
Schmitt, HdV 131 quoted by Anschütz, 22.
18
the principle that the budgetary powers of the Reichstag was inviolable.”41 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 Pruss thought), or a dangerous
temptation. In the context of American debates on similar matters the question is
somewhat beside the point. The more imperative question was put in 1957: “the specific
method with which a regime conducts itself [in the exception--EK] 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 declaration of indemnity –
with all its guaranteed rights.”42 What we must taken into account, from our perspective,
41
Mommsen, Weimar Democracy 362.
Schmitt, “Die staatsrechtliche Bedeutung der Notverordnung) 1931 in Verfassungsrechtliche Aufsätze
260-260 (1973)
42
19
however is the possibility that actors in such circumstances may ultimately and even
deliberately move the line between norm and exception, leaving little sense of the living
thing that is liberty and constitutional government.
20