restricted access Introduction: Constitutional Crisis: The German and the American Experience

From: Weimar

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introduction Constitutional Crisis The German and the American Experience Arthur J. Jacobson and Bernhard Schlink German legal theory in the Weimar period focused on what in Germany is known as the “law of the state” [Staatsrecht]. Though Weimar had a rich private law culture, the distinctive contribution of its legal theorists was to the law of the state. For the law of the state was in crisis in Weimar. It was in crisis because the state was in crisis for all but a brief period from the inception of the Weimar Republic in 1919 until its demise in 1933. That a crisis of the state should result in a crisis of the law framing and founding it is not self-evident; certainly the American experience is to the contrary. Crises of the American state have never led political elites to question the legitimacy of constitutional government.1 Even the extraordinary struggles leading up to the Civil War did not cast doubt on the legitimacy of constitutional government itself. They were the ordinary, even if ultimately violent, struggles of constitutional interpretation, rather than a sustained search for a fundamentally different principle of political organization. Even secession was justified on the basis of fidelity to the constitutional document. The American Revolution established beyond practical challenge that government is conceivable only as constitutional government, “one whose powers have been adapted to the interests of its people and to the maintenance of individual liberty.”2 The American state is the creature of a constitution framed by the people through its representatives. It is inconceivable upon any other basis. The constitution precedes the state, logically and temporally. This is the traditional American understanding of the nature and source of the state’s law and power. The German state, by contrast, precedes the constitution. It does so historically —the state as object of the monarch’s will and power was there before any constitution could frame or found it—and the course of history has guided legal thinking. Until the Federal Republic [Bundesrepublik] 1 the constitution was understood not as founding and framing the state, but rather as shaping and limiting the inherently unlimited powers of an already existing political organization. The constitution derived its legitimacy from the state, not the state from the constitution. This understanding has shifted only in the Federal Republic, under the Basic Law of 1949 [Grundgesetz]. Only under the Basic Law has the term “law of the state,” as the name for a field of law, legal learning, and teaching, gradually been replaced by the term “constitutional law” [Verfassungsrecht]. Nevertheless, the systematic textbooks on constitutional law from which students learn are still presented under the title “Law of the State,” and the Association of Professors of Constitutional Law still bears the name “Association of German Teachers of the Law of the State” [Vereinigung der Deutschen Staatsrechtslehrer]. Moreover, the choice between calling the law governing the state Staatsrecht (the word the political right tends to prefer) and Verfassungsrecht (the left) still has powerful resonance in German politics. Germany has still not definitively and unambiguously —without residue from the past—foreclosed the possibility of a law of the state animated by other than constitutional principles. In Germany, as a result, a crisis of the state can produce discourses to challenge and compete with constitutional discourse. Certainly it did when a German state founded on strictly constitutional principles was young, in the Weimar Republic. In the United States, it is precisely the most divisive political questions—the ones the political system cannot answer in strictly political terms through political mechanisms—that are framed as constitutional questions. Political crisis only strengthens constitutionalism. It has never put the idea of a constitution itself in jeopardy. Political crisis in Weimar, in contrast , was hardly constitution-affirming. But by threatening constitutionalism , political crisis made those Weimar theorists who defended it pursue a profound inquiry into the preconditions of constitutional government. The work of the Weimar theorists had passionate urgency for another reason as well. German legal scholarship [Rechtswissenschaft] attempts to be at once theoretical and practical, to craft doctrine [Dogmatik] to reflect the stateoflegaltheoryandatthesametimeguidelegalpractice—beitthepractice of courts, attorneys, administrators, or legislators. In the United States, judicial or doctrinal practice and the elaboration of theories in a field of law are more or less independent from each other. American judges just muddle through by a mix, characteristic of common law jurisdictions, of pragmatic reasoning, policy argument, sound common sense, and the mastery of an aesthetic...