Amerika

The relation between Carl Schmitt and federalism immediately poses a problem. Except for a section on federalism in Verfassungslehre, (2) and his remarks in Der Huter der Verfassung, (3) references to federalism in Schmitt’s works are few and far between. Since he obviously considered federalism an important constitutional problem, it is puzzling that he did not say more about it. When he discusses the state, i.e., “political unity” par excellence, he does not inquire about its internal organization–in particular, how power is articulated internally. Since the state is the ultimate representative of the jus publicum Europaeum, Schmitt emphasizes its ability to guarantee internal peace without dealing with the mechanisms needed for the task. But is federalism a version of the classical state, and did Schmitt conceive of other political forms that would transcend it?

In current constitutional literature, federalism refers to a particular form of the territorial articulation of power. According to Schmitt, control of a territory by the state may occur in two ways: either with a territorial articulation of power among the parts dependent on the whole–the center–which monopolizes control; or with one where everything, including the center, depend on the parts, and central control is distributed between the whole and the parts. The first is a unitary, while the second is a federal model. Thus, Argentina is a federal state formed by provincial member states. The confederation results in a territorial articulation of power where a number of states agree to delegate certain jurisdictions to a common suprastate organization.

Schmitt was educated in a legal and political environment infused with “federal” and “confederal” ideas, as they were shaped in Lothringen and the Holy Roman Empire, where villages, cities, and communes, each with their own means and objectives, developed without being threatened by their relation to wider groups, kingdoms or empires. This is how the idea of unity (4) as “harmonious agreement” arose in medieval thought. When Napoleon overthrew the ancient German empire, he understood that the various German principalities could not survive in isolation–and in order to organize Mittleuropa he created under his protectorate the Conferedation of the Rhine (1806-1813), excluding Prussia. With the fall of Napoleon, the Germanic Confederation was established, integrating 38 sovereign states including an empire (Austria) and five kingdoms (Prussia, Bavaria, Wurtemberg, Saxony, and Hannover). The second German Reich was organized in 1871 as a federal state formed by 25 member states under Prussian hegemony. The federal council was presided over by the King of Prussia, who held the title of Emperor of Germany, and designated the Reich’s Chancellor. In 1919, the Weimar Republic was federal, parliamentary, and democratic, although the individual states retained limited prerogatives. Whatever the limitations of these confederations and federations, at the beginning of the 20th century German jurists could not avoid confronting federalism. (5)

Schmitt’s Verfassungslehre is his only work dealing with conventional and classical juridical theory. In it, he challenged many of his colleagues, and took positions contrary to established opinion. Schmitt who, when all is said and done, was more of a jurist–more a Kronjurist–of the Weimar Republic than of the Third Reich, where he ended up as an outsider, composed this study a critique of the liberal state, which the Weimar constitution claimed to reflect most adequately. Paradoxically, he became one of the sharpest specialist of those aspects of the liberal state (Rechtstaat) generally overlooked by mainstream analysts. (6)

Except for Max von Seydel, whom Schmitt followed, the hitherto dominant political theory counterposed the concept of Statenbund–as in the 1815 confederation–to that of federal state (Bundesstaat)–as in the Second Reich of 1871. According to Schmitt, there were no differences between them: “a federation is a permanent union based on a voluntary agreement concerning the political self-preservation of all member states. It changes the political status of every member of the federation in view of the common purpose.” (7) The federation establishes a new juridical and political status for each member. The federal pact is one among states which tends to become permanent (every confederation is conceived of as “eternal,” i.e., in terms of the seemingly relative permanence of every political form). According to Schmitt, every federation rests on three antinomies or contradictions: 1) the right to self-preservation as opposed to the jus belli; 2) the right to self-determination in opposition to interventions; and 3) the simultaneous existence, on the one hand, of a common federation, and, on the other, of the member states.

The dual character of its political existence is the essence of the federation. This coexistence of a general and a particular political unity generates a difficult equilibrium. Above all, it generates the problem of sovereignty: which is sovereign, the federated states or the federation as a whole? For Schmitt, the question of sovereignty was the question of decision (“Sovereign is he who decides on the state of exemption,” in this case, who decides on the question of political existence). If the decision were deferred to a juridical tribunal, it would immediately become sovereign–an existential political power. According to Schmitt, the question could not be decided by deploying the theory current at the time and prevalent among German constitutionalists, based on the distinction between confederation and federation, since in a crisis of political existence the confederation dissolves and the federation turns into a unitary state.

In this context, Schmitt, appeals to John Calhoun’s ideas, which proved useful to the Southern confederates. (8) Calhoun challenged the notion that, when the 1787 Constitution took effect, the federal states renounced their sovereignty–state’s rights–which predated the federation and were in principle unlimited, except for those jurisdictions expressly delegated to the federation, as listed in the Constitution. Calhoun maintained that this delegation of powers did not transfer sovereignty to the federation and did not imply a renunciation of sovereignty. The federal states retained the right of nullification for laws and federal acts, and, when their security and existence were compromised, they had a right to secede (which led to the Civil War of 1861-65). Thereafter, having been defeated on the battlefield, this position concerning nullification and secession became equivalent to rebellion. The Supreme Court was now the judge in the last instance concerning questions pertaining to the federated states. Yet, according to Schmitt, Calhoun’s argument was not thereby refuted. What had happened was that the character of the Constitution had changed and the federation had ceased to exist, i.e., it had been replaced by the administrative and legislative autonomy of the federal states: a pseudo-federation.

Schmitt later discussed the antinomies which tend to weaken a federation. Federation presupposes the homogeneity of all its members. For Montesquieu, this homogeneity consisted in the fact that the federated states were republican, i.e., they had the same political organization. This homogeneity could also be based on nationality, religion, civilization, etc. Schmitt seems to privilege national homogeneity, i.e., the homogeneity of the people’s origin. Therefore, the first antinomy–the right to self-defense and the renunciation of the jus belli–is weakened, because the homogeneity with the other federal states excludes hostility among them. The second antinomy–autonomy and intervention–is also weakened, because the will to self-determination is posited vis-a-vis external interference, which cannot obtain among federal states. So is the third antinomy–existential dualism between the sovereign federation and sovereign member states–because homogeneity rules out decisive existential conflicts. In the case of decisions affecting political existence, (9) e.g., concerning either foreign policy or internal security, they will have to be made either by the federation or the member state. Within such homogeneity, a decisive conflict between the federation and the member states is impossible. Otherwise, the federal pact becomes a “a futile and deceptive enterprise.” (10)

The Spanish translator of Schmitt’s Verfassungslehre, Francisco Ayala, claims that Schmitt “manages to guarantee that federations as well as member states appear at once to be united and sovereign.” (11) Yet, for Schmitt, tension between the federation and the member states is inherent in every federal organization. Once an exceptional situation arises, it has to be resolved by the sovereign decision of either the federation or the member states. The antinomies at the core of this tension may become weakened, while the homogeneity which led to the original pact, and changed the status of the member states, remains. Because that homogeneity is acknowledged by these member states, the moment one of them feels a threat to its existence, either the original pact is displaced by a state, “one and indivisible,” or it will be destroyed by the exercise of the rights of nullification and secession. In the first instance, when confronted with an exceptional situation, the federation will inevitably exercise its sovereignty and actually evolve into a centralized state; in the second instance, the sovereign act comes from one or more member states, and it destroys the federation. In this case, the state of exception gives rise to the sovereign act, and the one which decides–be it the federation or the member states–creates another juridical order. (12) In any case, the circumstances indicated by Schmitt do not constitute a special weakness of the federation with respect to other forms of territorial articulation of power. One needs only to look at the Spanish or Italian decentralized type of unitary state (the “regional state” or the “autonomous state”), or the United Kingdom to notice the same existential tension between the central state and the particular communities Schmitt identified as the antinomic core or center of the federation’s conflict. Even in France, a republic which is one and indivisible par excellence, there is the unmanageable case of Corsica. At one time, half-jokingly and half-seriously, ex-Prime Minister Raymond Barre proposed to return it to Genoa.

Schmitt first presents his readers with major difficulties and tensions that, in his judgment, appear in every federation. Later, he seems to dismiss them with reference to homogeneity, especially the homogeneity of origin–in the national homogeneity of a people. But then he poses a new difficulty in which homogeneity threatens to destroy the federation, i.e., a surviving antinomy between democracy to federalism. The more democracy, the less the proper sphere of the federated states. Both democracy and federalism rest on the presupposition of homogeneity. Schmitt separates democracy and the bourgeois liberal state: the former is a political form that corresponds to the identity principle between the rulers and the ruled, those who command and those who obey. For this reason, the development of democracy within the federation–the national homogenous unity of the people–transcends the political borders of the member states and tends to suppress the balance between the federation and the politically independent member states, in favor of unity.

According to Schmitt, this is conducive to “a federal state without a federal foundation,” (13) such as the Weimar Republic or the US. In both, the Constitution takes elements from a previous federal organization and claims to retain them, but the democratic dimension of the constitutive power of the people marginalizes the federation. A complex system of power distinctions and decentralizations comes about, yet the federal base is missing: there is political unity (the political unity of a people in a state), but not the plurality of political unities required by a properly understood federation. As Schmitt points out, there is no mention of Bavarians, Prussians or Swabians in the Weimar Constitution: only Germans. Yet, the contradiction between democracy and federalism, whereby the former undermines the latter, does not seem to have affected Switzerland.

In Der Huter der Verfassung, Schmitt designates the president as the guardian of the constitution, i.e., as a neutral power above the fray. Neither a juridical tribunal nor a constitutional court could fulfill that role, because the sovereign decision would thereby transform them respectively into a supreme court or a constitutional council–into sovereign “negative legislators” (Kelsen’s expression). Schmitt discusses in detail the real dangers connected with defending the constitution. On the one hand, there were totalitarian parties with completely hostile worldviews or ideologies (National Socialism and communism), attempting to rob the state of its proper political prerogative, i.e., the drawing of the line between friends and enemies. Besides these totalitarian parties, there were also parliamentary coalitions tending to fragment political unity, which accentuates pluralistic tendencies. Schmitt adds that the “policratism” of the public sectors of the economy (the postal service, the railroads, the Reichsbank, etc.) that function independently of each other were also contributing to the dissolution of the Weimar Republic. On the other hand, given the nature of the Weimar Republic, both a parliamentary and a federal entity, the antinomy between federalism and democracy resurfaced. Schmitt does not hide the fact that the federal side of the Weimar Republic seemed to be destabilizing the state as well as the role of the president as the guardian of the constitution. He claimed that federal arrangements could also support pluralism, but that such a “reconciliation” of parliamentarism and federalism could only be achieved “through a reciprocal loosening of the uniformity and stability of state unity.” (14) In a state which is both federal and parliamentary, federalism may be justified either on the basis of authentic territorial decentralization against pluralistic powers entrenched in the government and the economy, or as “a counterweight to the prevailing pluralistic power complexes and the methods of their party politics.” (15)

This point is relevant today, when a system of territorial articulation of power has become a function of the party system. When, as is the case of Argentina, centralized national parties control representation through closed lists, thus reducing democracy to a self-referential exercise, the diversity of the federated communities tends to disappear. As a reaction to this state of affairs, local particularistic parties come into being, as has happened in Spain, Italy, Scotland, etc. This explains why Schmitt’s discussion of the Swiss case in Verfaussunglehre, whereby the most violent antinomy obtains between the federation and a democracy monopolized by national and centralized parties, is no longer relevant.

Although Schmitt theorized the decline of the nation-state, he was unable to go beyond its political horizon. (16) As Ayala points out, he does not leave space for a type of political coexistence different from the national (centralized) state. (17) Gary Ulmen synthetizes the question as follows: Schmitt basically considered federalism to be a phase in the passage between the plural and partial world of the nation-states and the contemporary world tending toward a homogenizing unity. Schmitt indicates a few fundamental antinomies in federalism: presupposing that a federation is a contract of status. (18) Schmitt sees in federalism some basic antinomies: the presupposition that a federation is a contract between more or less similar entities to guarantee protection, management, and integration implies a permanent tension between the autonomy of member states and federal integration. In time, the greatest force of the federation relative to the member states will produce a growing centralization, while the heterogeneity of the different units (e.g., as in the US) clashes with the democratic principle of a sovereign people, i.e., it transcends the differences between the member states and tends toward homogeneity. At this point, the contradiction seems unsolvable: without homogeneity, the democratic federation cannot function, but if homogeneity is achieved a unitary state comes into being. It is a process of gradual reductio ad unum.

In Schmitt, there is a permanent tension between his respect for the jus publicum Europaeum, i.e., international law, and his perception of the decline of the state: “Until recently, the European part of humanity lived in an epoch whose juridical concepts were completely characterized by the state and presupposed the state as the model of political unity. The epoch of the state is now coming to an end. Nothing more need be said. Together with the state, the whole superstructure of state-related concepts that established a Eurocentric science of constitutional and international law lasting 400 years is ending. The state as the model of political unity, the state as the bearer of the most astounding of all monopolies, namely the monopoly of political decision, this magnificent edifice of European form and occidental rationalism, is being dethroned. But its concepts are being retained and are even now becoming classical. Clearly, for most the word classical today sounds ambiguous and ambivalent, if not to say: ironic.” (19) Despite Schmitt’s clear position, there is a nostalgic tone in relation to the epoch which is ending, and a ominous forecast with respect to the one that is beginning. There is some hesitation to think beyond the state. Schmitt is clear, precise, and definitive in relation to the end of the state and the jus publicum Europaeum. He uses Proudhon’s phrase, “whoever says `humanity’ means to deceive,” and warns about the intensification of enmity in absolute positions hidden beneath the pretense of humanitarian intervention. At the same time, he is unable to prefigure a new juridical order that could approximate what existed with the jus publicum Europaeum. The political unity of the state was necessary for the global juridical order, while now humanity is heading toward a global political unity where the civilizing dimension of the political would not be able to achieve what the state attained earlier: internal peace and the elimination of internal enmity, i.e., the civilizing dimension of the political would be lost. Schmitt, however, was never interested in how internal peace was articulated internally. Unitas seduces him, but he is not attracted to universitas within which differences are articulated. Thus, he leaves that medieval thought which culminated with D ante and, later, reappeared with Althusius, as fundamental to the federal notion. Medieval legal experts spoke of local universitates ordered from the domus, the vicus, the civitas, the provincia, the regnum, the imperium. Schmitt may have seen in that trend the manifestation of the political romanticism he criticized earlier. Thus, Adam Mailer’s formulas concerning an “organic” and stratified concept of the state as a community superior to all other communities was continued by Gierke’s work and taken up by one of Schmitt’s contemporaries, Othmar Spann. On several occasions, Schmitt criticized organic theories that saw the state as a community among others, influencing the sovereign’s summa potestas. (20) Thus, he cites Gierke’s political theology in the search for the ultimate unity of the “cosmos” and of a system which Schmitt considers “superstition and reminiscent of medieval scholasticism,” but does not mention state sovereignty. (21) In his book on Hobbes’ Leviathan, Schmitt indicates that when the state confronted this medieval pluralism, the mechanisms for overcoming the anarchy of the Church’s right of resistance led to civil war. (22)

As is well known, in the 1940s Schmitt began to speak of empires and Grossraume as political forms complementing or even replacing the state. In other words, he saw the possibility of a new jus publicum with less political bodies than in the previous one: “a balance of several Grossraume create among themselves a new law of peoples at a new level and with new dimensions, yet endowed with certain analogies to the law of the European peoples of the 18th and 19th centuries, which was also based on a power equilibrium that sustained its structure.” (23) He did not specify how these Grossraume would be organized internally, but he did claim that they should maintain an internal homogeneity and that some larger member state would exercise a hegemonic role, such as the US did in relation to the rest of the Americas after the Monroe Doctrine established limits and banned foreign intervention.

Schmitt saw Grossraume as providing a possible new katechon, i.e., a restrainer of chaos. This concept appears several times in Schmitt’s mature work. In biblical terms, the katechon was to restrain any manifestation of the Antichrist, understood as global sovereignty, i.e. a uniform, unified world corresponding to industrial-technical thought. In every age, the katechon is established and maintains the nomos until it disappears with it. As a construction of European rationalism, these states are the authors of their own internal peace. For Schmitt, the katechon was the European system of states fighting among themselves in a regulated manner. He saw no virtue in federations, since they are provisional, i.e., temporary contracts subject to destabilization. Yet, despite his distrust of federal forms, he provided considerable juridical and political insights.

Schmitt saw himself as the intellectual katechon with respect to global sovereignty and the political unity of the world. He warned about the rift between statehood and federation, and admitted that the nomos of the earth was disappearing. He was not able to foresee the possibility of a new pluralistic nomos in which conflicts would be kept in check. But today, a federalism of the Lothingian Germanic variety (as elaborated by Proudhon) is reappearing as a comprehensive vision of the world to replace the federal state of the Hamiltonian variety, which he considered an equivocal juridical pastiche. (24) Reminiscent of the e pluribus unum of the North American federation, its formula might be: ex uno plures. The Schmittian katechon is gone. A global sovereignty is possible. But until recently, it was thought that sovereignty resided impersonally and ubiquitously in the global mechanisms, supports, and the self-sufficient programs of communicational, computational, and financial networks of modern technology. (25) Since there is no visible Leviathan, it was assumed that it was dead or asleep. After September 11, 2001, the Leviathan should manifest itself again to safeguard the globe against the threat of global and “privatized” terrorism.

These are times of Dantesque raging storms, and Schmitt’s reflections provide some insights. As Holderlin used to say, in danger one may also find salvation. Schmitt added that, at the edge of the abyss, in an exceptional situation, “the mind opens up to the arcane.”

 

Notes:

(1.) Translated from Spanish by Victoria Talavera.

(2.) Carl Schmitt, Verfassungslehre (1928), 5th ed. (Berlin: Dumcker & Humblot, 1970); all quotations are from “The Constitutional Theory of Federation,” tr. by G. L. Ulmen, in Telos 91 (Spring 1992), pp. 26-56.

(3.) Carl Schmitt, Der Huter der Verfassung (1931), 2nd ed. (Berlin: Duncker & Humblot, 1969).

(4.) See Otto von Gierke, Political Theories of the Middle Ages, tr. by Frederic W. Maitland (Bristol: Thoemmes Press, 1996).

(5.) As its name indicates, the Federal Republic of Germany was configured in 1949 with a federal system, whereas the Democratic Republic of Germany was founded as a unitary system: a “Socialist state of the German nation.” Under the Third Reich, the Enabling Act of March 24, 1933, which abolished the Weimar Constitution, granted legislative power to the Reich Government, i.e., to the Fuhrer, who appointed the governor in each and every district. The organization of the Reich was assimilated into the uniform and centralized organization of the Nazi Party. Today, Germany is a federal state.

(6.) Schmitt, Der Huter der Verfassung, op cit., p. 14.

(7.) Schmitt, “The Constitutional Theory of Federation,” op. cit., p. 30.

(8.) Schmitt frequently favored the cause of the vanquished: victrix causa diis placuit, sed victa Catoni–the victor’s cause pleases the gods, but that of the vanquished pleases Cato and Schmitt.

(9.) James Madison proposed a distributive sovereignty, whereby the member states retain a portion, an inviolable residue of power, and the federation only exercises delegated powers. This is possible, because the people organized as a citizenry, rather than as a mass, express their sovereign will partially, i.e., in several representations: as individuals, as members of a member state, and as members of the federation. See The Federalist, ed. with an introduction and notes by Jacob E. Cooke (Middletown, CT.: Wesleyan University Press, 1961). For Schmitt, this division of sovereignty, this type of finium regundorum between the federation and the member states, is inconceivable. In the exceptional situation, whoever decides–the federation or the member states–becomes fully sovereign.

(10.) Schmitt, “The Constitutional Theory of Federation,” op. cit. p. 40.

(11.) Cf. Carl Schmitt, Teoria de la Constitucion, tr. with an introduction by Francisco Ayala (Madrid: Alianza editorial, 1982).

(12.) On the difficulties of translating Ausnahmezustand,” see the translator’s note of Jean-Louis Schlegel in Theologic Politique, 1922,1969 (Paris: Gallimard, 1988), p. 15. On the concept of sovereignty in Schmitt, see my prologue to Teologia Politica (Buenos Aires: Editorial Struhart y Cia, 1998) 2nd ed.

(13.) Schmitt, “The Constitutional Theory of Federation,” op. cit., p. 55.

(14.) Schmitt, Der Huter der Verfassung, op. cit., p. 95.

(15.) Ibid., pp. 95-96.

(16.) See Jose Caamano Martinez: El Pensamiento Juridico Politico de Carl Schmitt, with a prologue by Luis Legaz y Lacambra (Santiago de Compostela: Editorial Porto y Cia, 1950), p. 159.

(17.) Ayala, in Schmitt, Teoria de la Constitucion, op. cit., p. 17.

(18.) G.L. Ulmen, “Schmitt and Federalism: Introduction to `The Constitutional Theory of Federation’,” in Telos 91 (Spring, 1992), pp. 16-25.

(19.) Carl Schmitt, Der Begriff des Politischen: Text yon 1932 mit einem Vorwort und drei Corollarien (Berlin: Duncker & Humblot, 1963), p. 10.

(20.) One of these occasions was a conference in 1930 in honor of Hugo Preuss, who had been Gierke’s student. See George Schwab, Carl Schmitt, La sfida dell’eccezione, introduction by Franco Ferrarotti, tr. by Nicola Porto (Laterza: Bari, 1986), p. 92.

(21.) Schmitt, The Concept of the Political, op. cit., pp. 24-25.

(22.) See Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol (1938), tr. by George Schwab and Erna Hilfstein (Westport, CT: Greenwood Press, 1996), pp. 71-72. Schmitt’s attack, however, was directed especially at Harold Laski’s and G.D.H. Cole’s theory of pluralism, that between 1914 and 1925 had generated, from positions close to English Socialism and the Fabians, the decentralization and distribution of state power. Schmitt, The Concept of the Political, op. cit., pp. 40-41. Schmitt’s polemical notes are from 1927, when Laski had already abandoned pluralism. But the theory was useful to him for reassessing his argument concerning the superiority of the state.

(23.) Carl Schmitt, La Unidad del Mundo (Madrid: Ateneo, 1951), p. 24.

(24.) See Luis Maria Bandieri, “El Federalismo Argentino en Novecientos o de Como Perdimos el Siglo,” paper read at the “IV Congreso National de Ciencia Politica,” UCA–SAAP, Buenos Aires, November 17-20, 1999.

(25.) See Luis Maria Bandieri, [??]Soberania Global vs. Soberania Nacional? (Hacia una Micropolitica Federativa), paper read at the Primera dornadas Nacionales de Derecho Natural, San Luis, Argentina, held June 14-16 2001.

[Telos, Winter 2002 p48(11]

Tags: Luis-Maria-Bandieri