Constitutional Theory

Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Crisis of Parliamentary Democracy, Political Romanticism, The Concept of the Political, Political Theology, and Legality and Legitimacy, which is also published by Duke University Press.Jeffrey Seitzer teaches at Roosevelt University. He is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy and the editor and translator of Carl Schmitt’s Legality and Legitimacy.Ellen Kennedy is Professor of Political Science at the University of Pennsylvania. She is the author of Constitutional Failure: Carl Schmitt in Weimar, also published by Duke University Press.Christopher Thornhill is Professor of Politics at the University of Glasgow. He is the author of German Political Philosophy: The Metaphysics of Law.

• Foreword / Ellen Kennedy xvTranslator's Preface xviiAn Introduction to Carl Schmitt's Constitutional Theory: Issues and Context / Jeffrey Seitzer and Christopher Thornhill 1Constitutional Theory Schmitt's Preface 53Part I. Concept of the Constitution 571. Absolute Concept of the Constitution (The Constitution as United Whole) 592. Relative Concept of the Constitution (The Constitution as a Multitude of Individual Laws) 673. The Positive Concept of the Constitution (The Constitution as the Complete Decision over the Type and Form of the Political Unity) 754. Ideal Concept of the Constitution ("Constitution" in an exemplary sense, thus named because of a certain content) 895. The Meanings of the Term "Basic Law," Basic Norm or Lex Fundamentalis *(Summarizing Overview) 946. Origin of the Constitution 977. The Constitution as Contract (the Genuine Constitutional Contract) 1128. The Constitution-Making Power 1259. Legitimacy of a Constitution 13610. Consequences of the Theory of the Constitution-Making Power of the People's Constitution-Making Power in Particular 14011. Concepts Derived from the Concept of the Constitution (Constitutional Change, Statutory Violation of the Constitution, Constitutional Suspension, Constitutional Dispute, High Treason) 147Part II. The Rechtsstaat Component of the Modern Constitution 16712. The Principles of the Bourgeois Rechtsstaat 16913. The Rechtsstaat Concept of Law 18114. The Basic Rights 19715. Separation (So-Called Division) of Powers 22016. Bourgeois Rechtsstaat and Political Form 235Part III. The Political Component of the Modern Constitution 25317-1. The Theory of Democracy, Fundamental concepts 25518. The People and the Democratic Constitution 26819. Consequences of the Political Principle of Democracy 28020. Application of the Political Principle of Democracy to Individual Areas of State Life 28621. Boundaries of Democracy 30222-2. The Theory of Monarchy 30823-3. Aristocratic Elements in Modern Bourgeois Rechtsstaat Constitutions 31824-4. The Parliamentary System 32825. Historical Overview of the Development of the Parliamentary System 34326. Overview of the Possibilities for the Formation of the Parliamentary System 35927. The Parliamentary System of the Weimar Constitution 36228. Dissolution of Parliament 373Part IV. Constitutional Theory of the Federation 37929. Fundamental Concepts of a constitutional Theory of the Federation 38130. Consequences of the Fundamental Concepts of the Constitutional Theory of the Federation 396Appendix: The Weimar Constitution 409Notes 441Biographical Notes 464Index 465

“Constitutional Theory represents an unparalleled milestone in Schmitt translations. Indispensable to scholars in political and legal theory, it will undoubtedly occupy a pivotal place in debates over Schmitt. In itself, the Seitzer-Thornhill introduction constitutes one of the most authoritative and intellectually sophisticated contributions to this field in decades.”-Joseph W. Bendersky, author of Carl Schmitt: Theorist for the Reich “What Heidegger’s Being and Time is to European philosophy, Constitutional Theory is to European political philosophy. It is astounding that one of the most important works of twentieth-century political theory has remained untranslated until now. But this edition makes the wait worthwhile.”- John P. McCormick, University of Chicago