Carl Schmitt and the problem of constitutional guardianship

Abstract

Carl Schmitt's constitutional theory argues for strong counter-majoritarian constraints on the powers of legislative majorities. This chapter explores Schmitt's own conception of constitutional guardianship fails to follow through on this apparent commitment to the protection of rights, which exposes his critique of the legislative state to a charge of hypocrisy. The idea of constitutional guardianship can be understood in two different ways: as the protection of the rights enshrined in a written constitution or as the protection of a form of social and political ordering. This chapter explores whether Schmitt succeeded to develop a form of strong constitutionalism based on popular sovereignty. It gives the enticing prospect of a middle path between juristocracy and parliamentary sovereignty. Liberal rights are portrayed as an essential part of the specific form of social and political ordering liberal democracy that was chosen by the German people when it gave itself the Weimar Constitution.