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]
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 state of legal theory and at the same time guide legal practice—be it the practice 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 of rules. Very few believe that direct reference to theory commends the soundness of decision.[3] As a result, lawyers and judges make almost no demands on legal theorists, and legal theorists—especially American legal realists and their successors in Critical Legal Studies—have responded in kind, attacking the very possibility of coherent doctrinal decision making. German judges cannot ignore theory. They make demands on
Of course, legal scholarship on the German model can have a more theoretical or a more practical bent, and legal philosophy, history, doctrine, and practice are not the same. Doctrine, to be sure, is always there as a switch yard guiding theoretical, philosophical, and historical legal knowledge into practical advice, putting practical problems into theoretical perspective; and scholarship concerning state law [Staatsrechtswissenschaft] is, in principle, as doctrinal as legal scholarship in general. Nevertheless, because state law scholarship developed in the late nineteenth and early twentieth centuries when there were no courts and no court practice dealing with state law, its theoretical side was stronger than those of other fields of law. This justifies translating Staatsrechtwissenschaft briefly as “theory of the law of the state” or “state law theory,” when Wissenschaft ordinarily refers more broadly to a knowledge of practice as well as to theoretical knowledge.
Two events in this century have left a decisive mark on the theory of the law of the state in Germany: the “struggle over methods and aims” [Methodenund Richtungsstreit] during the Weimar period, and the introduction of farreaching judicial control by the Federal Constitutional Court [Bundesverfassungsgericht] in the Federal Republic. The decisive significance of the second event is obvious: The theory of the law of the state plays theoretical and practical orientations, methods, and themes in different keys, when faced (or not) with a constitutional court and court practice. The significance of the struggle over methods and aims is not as obvious. Some of its problems and consequences have indeed been settled by the establishment of a constitutional jurisdiction. But because it was caused by a crisis of the state and developed into a jurisprudence of crisis, whenever the state and the law of the state are threatened or even touched by crisis, interest in the Weimar struggle reemerges.
Weimar is the only period in German history before the Federal Republic, apart from a few months in 1848, when theorizing about the law of the state took place in a democratic political context. Thus the Weimar debates about the law of the state play a role today in Germany reminiscent of the role of The Federalist in the United States: They are an essential source for thinking about the foundation of a German democratic state and, like the The Federalist, have universal significance as well.
I
When a theory struggles for new methods, then the old ones have become fragile. When it strives to determine anew the direction it ought to follow,
The struggle over methods and aims in the Weimar Republic was conducted in the consciousness, and under the rubric, of crisis. Along with Kaufmann, Schmitt, Smend, and Heller, state law theorists who had turned against the theoretical tradition handed down from the Empire spoke of crisis. However, even those who continued the imperial tradition and maintained a dominant position in the spectrum of theoretical opinion were conscious that the situation was one of change and rupture. Their consciousness assumed less a fighting, than a resigned expression. Anschütz, the most prominent traditionalist, saw old views returning in the new currents—views he had considered, until then, outstripped and vanquished. “All at once, I must consider myself now very old-fashioned, where I had earlier intended to represent progress. The world is changing.”[4]
That the crisis in state law theory was connected with changes in state and society brought about by the First World War was generally known. Yet, views on how this connection should be understood differed. Only seldom were the real factors underlying the changes studied—the social condition and economic and political opportunities of the bourgeoisie, working class, and aristocracy before, during, and after the world war; the respective power and roles of the military; and the bureaucracy. Nor was the significance of these factors for the situation of the state, its constitution and theory, realistically [wirklichkeitswissenschaftlich] analyzed. An idealist viewpoint spread, in which the experience of ideals and values was more important than reality. “The experiences that our nation [Volk], and we along with it, have had in war, in collapse, in revolution, and under the Versailles Treaty, domestically and in foreign policy, have shaken us violently awake and led to immense self-reflection. These experiences have forced us to subject our thinking on law and the state to fresh examination.”[5] These words of Kaufmann's demonstrate in two ways the connection between transformations in state and society and the crisis of state law theory: The transformations themselves are less interesting than the experiences they occasioned, and more interesting than the experiences is the process of self-reflection and reexamination in the theory of the law of the state that the experiences awakened.
But the law of the state is too political for political changes to claim recognition in theory only if comprehended and analyzed correctly. The realist or idealist, normative and positivist, or anti-normative and anti-positivist theoretical tendencies of state law theory were themselves reactions to and recognitions of the political changes—various attempts to grasp and master them. State law theory in the Empire had already been geared to this political situation—to the specific, precarious balance of power that the bourgeoisie, the monarch, and the aristocracy had found in the Empire. After the collapse of this balance of power, a new constellation of power had to
The Empire's balance of power and its condensation at the time in state law theory—the starting point for the Weimar struggle over methods and aims—were the result of the defeat of the bourgeois revolution of 1848–49 and the military successes of the Prussian monarchy in 1866 and 1870–71. After that, the German bourgeoisie could no longer hope for quick achievement of its demands through its own strength. The monarchy was responsible for fulfilling its demand for unity with the creation of the German Empire and its demand for democracy with the institution of the Reichstag as the Empire's parliament. But the demands were indeed only half fulfilled, or even deflected and reversed. According to the constitution, the unity of the German Reich was derived not from the unity of the people, but from a league [Bund] of monarchs, and the Reichstag not only was faced with a government dependent on the monarch, a monarchic administration, and a monarchic military but also had to share lawmaking with the monarchic Bundesrat, a council of delegates from the mostly monarchic German states. True, laws could not be made without the Reichstag and contrary to its wishes. True, the second half of the Empire saw tendencies toward parliamentarization that increasingly led to the chancellor's de facto dependency on the Reichstag. Overall, however, the Reichstag's potential for action and influence, its responsibility and readiness to take responsibility, remained small. Furthermore, the bourgeoisie was less and less ready to act as an opposition during the second half of the Empire for fear of an increasingly strong working class, organized in the Social Democratic movement. In the mid-nineteenth century, the bourgeoisie had united all progressive and revolutionary energies. By the end of the century, it had to count on becoming the victim of revolutionary change instead of being its bearer.
In the Empire, state law theory was a bourgeois theory, a theory of bourgeois jurists mirroring the situation of the bourgeoisie and its transformations. In the contest between Paul Laband—who limited state law theory
Critique was, for one thing, anti-normative and anti-formalist. In the Empire, positivist theory had been attuned to the constitutional balance, without reflecting its attunement. It acted as though the concepts and constructions it developed, with which it interpreted and deployed positive law, had
Critique during the Weimar Republic was, for another thing, anti-liberal and anti-individualist. For the positivist theory of the law of the state, the freedom of the individual had been not a political freedom of participation, but an apolitical freedom, not a freedom in the state, but from the state. What, critique again reproached, could this individualism and liberalism contribute to mastering the upheavals that were taking place? Was not responsibility for the state more necessary now than freedom from it, adaptation to the community more important than the preservation of individualist distance? Liberal ideas seemed to have value only for a social class that was
not itself in possession of state power, but that aspires to protect itself with the help of liberal institutions against the state and its bearers of domination. Consequently, while these ideas were necessary for the German bourgeoisie during the Empire, they lost all meaning for its champions the moment the bourgeoisie itself seized state power. In this new situation, liberal ideas and arrangements even threatened to become a weapon against the bourgeoisie—a weapon in the hands of the proletariat, which could protect itself against abuse of power with the help of liberal precautions and achieve participation in ruling with the help of the parliamentary system.[8]
This quotation is from an analysis of the crisis of state law theory written in 1931, at the height of the crisis of the Weimar Republic. The analysis saw the political system as already failed, its social and economic foundations as already destroyed. It saw “political society transformed … in a battle of social opponents for state power” and state law theory ensnared in that battle. In fact, state law theory at the end of the Weimar Republic was as much a theory in crisis as it was at the beginning. The short history of the Weimar Republic[9] is above all a history of its crises, and the short history of the doctrinal and theoretical elaboration of the law of the state in the Weimar Republic is no less so.
Certainly one must not neglect or fail to mention that changes in the doctrinal and theoretical elaboration of the law of the state were also encouraged by changes in the law of the state and constitutional law. Even without its crises, the Weimar Republic presented state law theory with
II
The Weimar Constitution was the result of the German defeat in the First World War. Defeat had spelled the end of the institution of the Kaiser and single-state dynasties and brought about a revolution in which a parliamentary and democratic future was by no means self-evident; on the contrary, elements on the left strove for a soviet republic on the model of Soviet Russia. In this situation, the Council of People's Delegates [Rat der Volksbeauftragten] under Friedrich Ebert, formed on 9 November 1918 in Berlin by representatives of the German Social Democratic Party [Sozialdemokratische Partei Deutschlands, SPD] and the Independent German Social Democratic Party [Unabhängige Sozialdemokratische Partei Deutschlands, USPD] that had split off from it, decided in favor of the rapid convocation of a constituent National Assembly.[10] This was elected in January 1919 and, because of the uncertain situation in Berlin, met in Weimar in February 1919. Meanwhile, important precedents for the future system had already been established. Constitution-making by a National Assembly meant rejection of the revolutionary establishment of a soviet republic. The provisional loyalty of troops returning from the front, which Ebert had assured in an agreement with General Groener in November 1918, meant the exclusion of a conservative or reactionary revolution. Trade unions and employers had concluded a sort of truce in the Stinnes-Legin Pact of November 1918, in
Elections to the National Assembly brought a clear majority for the “Weimar Coalition” of the SPD, the Catholic Center Party [Zentrum], and the German Democratic Party [Deutsche Demokratische Partei, DDP], which also formed the first federal government. In February 1919, the National Assembly chose Ebert as president for a transitional period. In June 1919, it voted, of necessity, for the Versailles Treaty; the debates on ratifying the treaty were a major burden on constitutional deliberations and led ministers belonging to the DDP, who refused to be a part of ratification, to leave the government. But the votes of the SPD and Center assured the Constitution a sufficient majority. It was signed by the president on 11 August 1919 and proclaimed on 14 August. The National Assembly had deliberated on the basis of a draft constitution discussed with the governments of the individual states [Länder] of the new republic and prepared in the Reich Office of Internal Affairs [Reichsamt des Inneren] under the direction of Hugo Preuss.[11]
In contrast to the Constitution of the Empire of 1871, which in its preamble had derived its legitimacy from the monarchs and governments of the individual states, the Weimar Constitution referred to the German people in its totality. In Article 1, it declared the German Reich a republic in which all state power emanated from the people. Nevertheless, the relation between the Reich and individual states retained central significance, just as in the constitution of the Empire. Like the Empire, the Weimar Republic was a federal state. There was no fundamental reworking of federalism, as Preuss had wanted. In particular, there would be no breakup of Prussia, which, despite the loss of Memel and the provinces of Posen and West Prussia as a result of the Versailles Treaty, still comprised three-fifths of the territory and population of the Reich. Coordination between Prussia and the Reich, achieved under the Kaiser by the personal union of Prussian king and German Kaiser, and also regularly of the Prussian minister-president and the Reich chancellor, would become a handicap for the Weimar Republic under democratic conditions, in which different parliamentary majorities could emerge in Prussia and the Reich.[12]
In most areas, the Weimar Constitution gave the Reich at least concurrent legislative authority, meaning that the Länder could enact laws only until the Reich itself took legislative action. The Reich obtained comprehensive authority to impose taxes and other levies; this led the constitution's regulation of finance in a unitary direction. In contrast to the constitution of the Empire, under which the Reich was dependent on contributions from the Länder, the Länder were now, conversely, dependent
If a state failed to fulfill its constitutional and statutory obligations, the president had at his disposal an enforcement power in Article 48 (1), which included the use of armed force. Ebert used this power in the early 1920s against the governments created in Thuringia and Saxony by the SPD and the German Communist Party [Kommunistischen Partei Deutschlands, KPD]. In 1932, in the “coup against Prussia” [Preußenschlag], the government of Franz von Papen under President Hindenburg based its dismissal of the Social Democratic government of Otto Braun in Prussia on this provision.
The Länder were represented in the Reich by the Reichsrat. As in the imperial Bundesrat, its members were emissaries of the Land governments, bound to obey their instructions. The number of votes cast by each Land was guided by population without corresponding exactly to it; Prussian ascendancy was prevented by the requirement that no Land have more than two-fifths of the votes in the Reichsrat. In contrast to the imperial Bundesrat, the Reichsrat possessed only a suspensive veto over statutes enacted by the Reichstag; here, too, the republic took a unitary track. The Reichsrat could, however, still participate in the issuance of general administrative regulations. The power of the Reich to issue these regulations was important, because the Reich had as a rule no administration of its own but depended on Länder administrations to carry out its laws.
The central organ of the Reich was the Reichstag. It was directly elected on the basis of general suffrage, which included women, and according to the principle of proportional voting. In accordance with the principles of the parliamentary system, the chancellor and ministers of the Reich required the confidence of the Reichstag (Article 54). The president was also directly elected by the people, to a term of seven years. According to the idea of the authors of the Constitution, the president ought to play an active political role, to be a counterweight to the Reichstag and to guarantee continuity in the face of its changing majorities. He was supreme commander of the military, appointed Reich officials and officers, and under Article 48 (2), the infamous “dictatorship article,” had the authority to take appropriate measures—including use of the military and suspension of basic rights—in the event of an important disturbance of public security and order.
The power of the president to appoint and dismiss the chancellor and ministers (Article 53) was in a certain tension with the fact that the chancellor and ministers required the confidence of the Reichstag to hold office. As a rule, the government had to have the confidence of both the president and the Reichstag, which it had in the 1920s, despite all the government crises. When, toward the end of the Weimar Republic, accord between the president and the Reichstag could no longer be reached, the result was a series
The National Assembly debated most heatedly the second major part of the Constitution, titled “Basic Rights and Duties of the Germans.” It included the classical freedoms such as freedom of speech and conscience and freedom of association and assembly, the classical property guaranty, as well as a wealth of basic social rights, such as the right of every German to earn a living through work. Myriad compromises found their way into the basic-rights section of the Constitution. Thus the traditional close relationship between church and state was loosened but not severed; the church retained its status as a corporate body constituted by public law and its right to collect taxes. The National Assembly similarly opted for “communal schools,” that is, schools in which students of various denominations learned together; however, religiously affiliated denominational schools by and large remained the norm. With its many compromises, the section of the Constitution devoted to basic rights and duties itself reflected the many conflicts troubling the republic. Its interpretation was one of the fields upon which the struggle over methods and aims was conducted. The question whether and to what extent the basic rights, especially the principle of equality, ought to bind the legislature was especially in contention.
The fact that the short history of the Weimar Republic was above all a history of its crises was not primarily the fault of the Constitution.[13] The republic had to deal with the consequences of the war: transforming a wartime into a peacetime economy, demobilizing millions of soldiers, stopping the
The reason that this situation (which would have been a burden on any political system) made unrealizable demands on the political system of the Weimar Republic lay above all in the party structure inherited from the Empire. No Reichstag in the Weimar Republic saw a regular end to its term; all were dissolved prematurely because of government crises. This was not primarily the responsibility of the electoral system. It is true that the system of proportional voting introduced in 1919 favored a splintering of parties. However, majority voting with runoffs, which was practiced in the Empire, had not led to a less splintered party landscape. More crucial was the character of the parties themselves. With the founding of the republic, many new parties had been formed in addition to the SPD and Center, both of which continued. However, all were successors to parties that had already existed under the Kaiser. The USPD and KPD had split from the left wing of the SPD; the national-conservatives of the bourgeois camp had formed into the German National People's Party [Deutsche Nationale Volkspartei, DNVP], the rightwing liberals into Gustav Stresemann's German People's Party [Deutsche Volkspartei, DVP], and the left-liberals into the DDP. As already in the Empire, the Center and SPD, and to a smaller extent the bourgeois parties, had their roots in tightly bound social milieus that were separate from each other. The parties were communities of conviction and struggle; represented regional, social, and religious interests; and were scarcely capable of pragmatic give-and-take, compromise, and coalition.[14] Accustomed to the constitutional opposition in the Empire between parliament and government and to irresponsible opposition rather than to the assumption of responsibility for government, they found it hard to form governments and often faced their own ministers with mistrust, forcing them to vote against government proposals in the Reichstag. This legacy of the Empire was one of the many “historical handicaps on German parliamentarism.”[15]
By the Reichstag elections of July 1920, the parties of the Weimar coalition had lost their majority. The DDP in particular, but also the SPD and Center, lost a considerable number of votes. The winners of the election were the parties that had rejected the Weimar Constitution and the Versailles Treaty: the DNVP, DVP, and USPD. So the Weimar Republic soon sought refuge in the president. Ebert himself used the emergency powers under Article 48 (2) in many ways.[16] States of emergency were decreed and the
Following the “year of crisis 1923,” in which the Reich ended the fight for the Ruhr; survived the conflicts with Saxony, Thuringia, and Bavaria; and stopped the inflation, a short period of relative stability ensued. Stresemann succeeded, as foreign minister, in leading the Reich out of its isolation in foreign affairs and in improving its economic position. The Dawes Plan of 1924 placed reparations on a more realistic footing and made possible an influx of credit from abroad. However, this also made Germany heavily dependent on the economic condition of the creditor nations, as the Great Depression would prove. The fact that inflation had destroyed the economic existence of broad sectors of the German middle class and had deeply shaken them remained a severe burden on the Weimar Republic even during the period of stability. Identification with the political system of the Weimar Republic continued to diminish, and this accelerated the demise of the liberal parties, the DDP and DVP.[17] The difficulty of forming governments also persisted in the period of stability.[18] The election of Hindenburg—the general field marshal and now elderly hero of the First World War—as president following Ebert's death in 1925 demonstrated a deep yearning for the lost stability of the prewar period.
The Great Depression ended the years of stabilization.[19] There were already 3.5 million unemployed at the beginning of 1930. In March 1930, the grand coalition of the SPD, DDP, Center, DVP, and Bavarian People's Party that had been governing since 1928 broke apart. The SPD and the DVP, which was beholden to big business, could not agree on economic and social measures for overcoming the crisis. Thus the parties gave up control. The governments that followed were formed by the president as “president's cabinets” without consulting the parties or assuring parliamentary support. Under the government of Heinrich Brüning, a member of Parliament from the Center, the ministries were still filled with members of Parliament, afterwards only with experts without party affiliation. Lacking parliamentary backing, the governments were entirely dependent on the president, who gave them the opportunity, through Article 48 (2), of putting their economic and social programs into practice. To be sure, the Reichstag could demand that these measures be lifted, but the president
The conservative circles around the president, who was reelected in April 1932, called for a more clearly right-wing course. In May 1932, Hindenburg dismissed Brüning and appointed Franz von Papen as chancellor. His cabinet had no chance of getting the Reichstag's tolerance. Once again, the Reichstag was dissolved. Further, on 20 July 1932, in the “coup against Prussia,” the Social Democraticled Prussian government, the last weak bastion of forces faithful to the Republic,[20] was removed on the basis of Article 48. The Reichstag elections of July 1932 represented the final breakthrough of the NSDAP, which became the strongest party with 37.7 percent of the votes and held, along with the KPD, over half of the Reichstag seats. The newly elected Reichstag held a vote of no confidence in Papen in September 1932. Another dissolution of the Reichstag led to renewed voting in November 1932, in which the NSDAP, while receiving only 33.1 percent of the vote—thus losing votes—retained its position as the strongest party. The Papen cabinet was finished, to be replaced by the government of General Kurt von Schleicher of the Reichswehr Ministry. Through a social program, Schleicher hoped to bypass the party system and to find extraparty support from the military and the unions. But this proved an illusion. Hindenburg was unprepared to dissolve Parliament again, perhaps accompanied by an unconstitutional postponement of elections and the establishment of a dictatorship backed by the president and by prohibition of the NSDAP and the KPD. His adviser, Papen, suggested a different solution. Hitler would become chancellor but would be so “hemmed in” [eingerahmt] by Papen himself and ministers from the DNVP that the NSDAP would be unable to pursue any extremist policies. On 30 January 1933, Hindenburg appointed Hitler the last chancellor of the Weimar Republic. Papen's cabal proved to be a fatal error in judgment. The last president's cabinet of the Weimar Republic was rapidly transformed into a National Socialist dictatorship.
III
The answers suggested in the theory of the law of the state to the crises of the Weimar Republic and at the same time to its own crisis were manifold. Politically, they can be arrayed in a spectrum from left to right, from the Social Democrat Hermann Heller to the future National Socialist Carl Schmitt. Methodologically, they can be arrayed in a spectrum that reached from Gerhard Anschütz's positivism to Rudolf Smend's idealist, and Heller's realist, anti-positivism. However, it is also possible to distinguish between positions more focused on organization and procedure and those more concerned with substance; here Hans Kelsen, Smend, and Heller are related and, on the other side, Erich Kaufmann and Schmitt. Distinguished according to the nationalism of their positions, Anschütz, Kaufmann, and Schmitt join ranks on one side and, on the other again, Kelsen, Smend, and Heller. The differences overlap. Thus prominent positivists such as Kelsen, Anschütz, and Richard Thoma were among the defenders of the Weimar Republic; but among positivist-influenced practitioners in the judiciary and the administration, there were enough who executed the laws of the Weimar Republic with political reservations and those of the Third Reich with concurrence. In addition, the anti-positivists Hugo Preuss and Heller were also among the advocates of the Weimar Republic. Methodologically, the idealist and realist dispositions of Smend and Heller are farther apart than the similarity of their rejection of Kelsen's positivism would suggest. In the conflict over the constitutionality of the “coup against Prussia” before the Staatsgerichtshof, Anschütz and Heller were on Prussia's side, while Schmitt was on the side of the Reich. There is no simple pattern into which the discussions of state law theory can be fit.
Grasping the chronological progression of the discussion is an obvious way of proceeding. Thus the first edition of Kelsen's On the Essence and Value of Democracy was published in 1920, and Anschütz's lecture, Three Guiding Principles of the Weimar Constitution, delivered in 1922, was published in the “year of crisis 1923.” Preuss's The Significance of the Democratic Republic for the Idea of Justice, Schmitt's The Status Quo and the Peace and The Rule of Law, Triepel's Law of the State and Politics, Smend's Constitution and Constitutional Law, Heller's Political Democracy and Social Homogeneity, and Kelsen's Legal Formalism and the Pure Theory of Law were all published during the period of relative stability between 1924 and 1928. Thoma's The Reich as a Democracy, Schmitt's State Ethics and the Pluralist State, and Kaufmann's On the Problem of the People's Will all appeared in the final, crisis-laden years of the Weimar Republic. Heller's manuscripts on the theory of the state, written in these years, were published even later. But this chronological classification contributes little toward grasping the discussion of state law theory substantively.
Our collection opens with Kelsen, not because the first edition of his work On the Essence and Value of Democracy was published before all the other pieces, but because he links the Empire with Weimar in a particular way. Unlike Preuss, Triepel, Kaufmann, Smend, or Schmitt, who had already turned away from state law positivism in the Empire, Kelsen took it to an extreme. The positivism of Laband and Georg Jellinek in the Empire, as well as that of Anschütz and Thoma in Weimar, meant abstinence in regard to the inclusion of political and philosophical arguments in legal doctrine and restraint in the use of historical and sociological arguments. Even though the positivists mentioned above were familiar with the state as the object not only of state law theory but also of the social and historical sciences and moral and political philosophy, and even though (as the pieces by Anschütz and Thoma demonstrate) they also repeatedly treated the state from a historical or sociological, political or philosophical point of view, they tried to keep these various ways of viewing and treating apart, leaving legal doctrine free of the other arguments. They did not succeed consistently, however, and Kelsen's theory was that they had to fail. In Kelsen's view, their approach, which allowed for other ways of viewing and treating the state apart from the legal and thus aimed to view the state from several cognitive perspectives, ignored the fact that the state, as one cognitive object, could be viewed from only one cognitive perspective. The state could be recognized only from a standpoint committed to the “ought” category, not from one committed to causality as an “is” category, since the unity of the state was a unity of the state's legal order, a unity of “ought.” Kelsen considered unity to be a hierarchical order [Stufenbau] of empowering and empowered law creation [Rechtsetzung], which legal doctrine could capture correctly only by precisely determining the will of the various law creators [Rechtsetzer] at the various steps of the hierarchy. Laband did in fact go far beyond this with his doctrinal concepts and constructs; his system of state law integrated the norms of positive law and at the same time reshaped these norms according to the needs of the system.
Even though Kelsen was opposed by the other participants in the Weimar debate and rejected by them, it was not possible for them to carry on without encountering his work. The concept of viewing and treating the state simultaneously in various ways, developed particularly by Jellinek in his distinction between the theory of the state as a legal and as a social entity—the “theory of the state's two-sidedness” [Zwei-Seiten Lehre]—had no further advocates in the Weimar debate. By taking the positivism of the Empire to its extreme, Kelsen also forced those who rejected positivism and urged going beyond it to an extreme. They all believed in a one-sided state and in a onesided way of viewing and treating it—albeit in a form very different from Kelsen's. Even positivists such as Anschütz and Thoma no longer supported the positivism of the Empire, which Kelsen had shattered. Their positivism was no longer a legal positivism [Rechtspositivismus], but a statutory positivism [Gesetzespositivismus]. Statutory positivism as practiced by Anschütz and Thoma no longer put the needs of the system before the actual norms of positive law, as Laband's legal positivism had done, but made interpretation of these norms its focus. However, unlike the statutory positivist Kelsen, Anschütz and Thoma made free use of historical and political arguments in interpretation.
The contributions continued with Preuss, because, as father of the Weimar Constitution, he represented the beginnings of the Weimar Republic. He, too, linked the Empire with Weimar, and the constitution he drafted, with its neglect of parties, its distrust of the Reichstag, and its elevation of the president to an Ersatzkaiser, remained committed to the Empire. Given his position as critic and outsider to the imperial theory of the law of the state, one might have expected otherwise of him. But because this expectation was disappointed, because even a critic and outsider—not a professor in the dependent position of the public servant, but a financially independent member of the upper class; not a conservative German nationalist, but a left-wing Jewish liberal; not a mere theorist, but an active practitioner of municipal and Reich politics—could not completely free himself from the legal structures and experiences of the Empire. One gains a sense of the horizon within which the Weimar debate took place and within which it must be seen. Weimar democracy was not developed through exchange with the French, English, or American democratic traditions, but with an eye to its own past.
Anschütz and Thoma are linked methodologically as positivists, politically as republicans and democrats, and, through scholarly cooperation, as colleagues on the Heidelberg faculty and joint publishers of the Handbook of the German Law of the State [Handbuch des deutschen Staatsrechts]. Even if the
These were represented by Triepel and Kaufmann. Both had turned away from positivism, both sought new methodological paths, and both ended up focusing on justice and on a legislature bound and controlled by justice. Neither was sympathetic to the Weimar Republic, yet their critique and skepticism were more constructive than destructive. Kaufmann is in every respect the more philosophical and programmatic; his rejection of positivism was accompanied by a settlement of accounts with neo-Kantianism; he understood and presented his methodological ideas as a contribution to the development of an idealist methodology [geisteswissenschaftliche Methode] for state law theory; and his reference to justice developed into a natural law theory of institutions. Triepel was theoretically more modest; methodologically, he worked with the understanding that the interests reflected in norms are at least as important as what the norms express, and justice for him did not involve a theory of institutions but was the notion of doing the right thing in the right way, taken for granted by conservatives.
For Smend, Heller, and Schmitt, nothing was taken for granted. This is the link among them, for all their variety of methodological approaches, substantive results, and political positions. If positivism is accompanied, in a broad sense, by a certain trust in the world's positivity, its givenness, and reliability, and legal positivism by a corresponding trust in the givenness and reliability of law, then the true anti-positivists of the Weimar debate were Smend, Heller, and Schmitt. Integration, the key concept in Smend's theory of the state and constitution, is not a given, not something created in and of itself or signed and sealed by a social contract or constituted by a constitution once and for all; it is a process, constantly renewed, to be newly formed and experienced. The state “is there only in this process of constant renewal.” It can therefore also succeed or fail, depending on whether the process—which Smend sought to grasp and describe in its various cultural and attitudinal, political and legal aspects—succeeds or fails. For Heller, too, state unity is something that must be established and maintained and that can fail. But where Smend relies on culture, values, and meaning, and their common spiritual experience to establish and maintain unity, Heller recognizes the importance of economic and social conditions, state organization and state procedure. Propagating a realist approach against Smend's idealist one, Heller confronts the state as a unity of culture, values, and
Schmitt does not see state unity as a given, either. However, he counts on decision making, the decision between friend and enemy, not on process—be it the process of experiencing culture, values, and meaning or that of state organizations and procedures. For Schmitt, the concept of the state presupposes the concept of the political; the criterion of the political is distinguishing friend from enemy; a nation is a state if it can distinguish between friend and enemy and thus decide on the type and form of its political existence. If it is not capable of doing this, it can survive neither in domestic nor in foreign policy, in neither civil nor external war. This position—which Schmitt developed in an essay (translated and published elsewhere and not included here) titled The Concept of the Political [Der Begriff des Politischen]—is called “decisionism.” In the Third Reich, however, he abandoned decisionism and propagated a concrete theory of order and structure that was rooted in the decision of 1933—the Nazi's accession to power—and drew ordering and structuring consequences from it. Schmitt thereby classified his decisionism as part of the crisis of bourgeois society and state that he saw in the Weimar Republic but no longer in the Third Reich. Smend, too, developed his theory of integration as a theory of the “healthy sense of the life of the constitution,” against the “chaos of the sickly constitutional state of the 1920s.” It was Schmitt, however, who supplied a theory that not only emerged from the crisis but was coined expressly for it.
IV
Like philosophy, the theory of the law of the state is “its time, embodied in thought”; it remains in its time and cannot go beyond it. But like philosophy, the theory of the law of the state sometimes succeeds in leaving an insight of lasting validity. The prerequisite for this is that the times bring forth with particular intensity a recurring social theme and problem.
The crisis of the Weimar Republic had this particular intensity in three ways. First, it had both a foreign and a domestic policy dimension, bringing together the effects of defeat in an external war and the threat of civil war.
The Weimar Republic and its crisis lasted just long enough to be embodied in thought. Had the crisis slid into civil war in its early years or led to genuine, long-term stability, it would not have become a theme in and problem for state law theory nor would have remained so for long. If the “battle of social opponents for state power” does not last, state law theory cannot become enmeshed in it. A struggle over methods and aims requires a certain amount of time.
As varied as the distinctions are with which the positions in the Weimar debate can be captured and classified, one that is especially fruitful is a division based on the responses their authors found to the challenge of crisis. The positivists attempted to assert the state and constitutional order as a framework and guideline for the “battle of social opponents for state power.” Some, particularly many positivist judges and administrators, did so as “republicans of convenience” [Vernunftrepublikaner], while in their hearts preserving monarchic tendencies and distancing themselves from the republican state; others did so by being apolitical and disinterested; still others who cared about the Weimar Republic—Anschütz and Thoma—did so with growing despair; and Kelsen remained true to the banner of individualism, liberalism, and parliamentarism, in sometimes stoic contempt for the actual “battle of social opponents,” even while the ship was sinking. In contrast, among the new currents there were, on the one hand, various attempts to overcome the “battle of social opponents” by reclaiming unity. Kaufmann postulated unity as a national community of essence [Wesensgemeinschaft]; Smend saw it as the task and result of a spiritual integration process, mediated by shared experiences of culture, value, and meaning; and Heller, as the result of social homogeneity and organizational and institutional efforts. Schmitt, on the other hand, offered a vision that counted not on unity but on rupture. In this view, because not all can be linked in unity—because friend-enemy decisions and distinctions must be made both in foreign and domestic policy—it is only through these decisions and distinctions that unity can be achieved, a unity that shuts out the other and thus brings together those who are alike. This is a call to the bourgeoisie not to go down in defeat as a “chattering class” bickering in Parliament but to find the strength for distinction and decision. The appeal for decision could be directed as much to the left as to the bourgeois right, and
V
Like Weimar, the American state was in crisis from its inception,[22] and at varying levels of intensity almost continuously during the first ninety years of its existence. Unlike Weimar, however, crises of the American state served only to strengthen, not to challenge, fidelity to constitutional government. This was as true at the founding as in the aftermath of the Civil War. It was true as well in the crisis of the American state at the time of Weimar. Each crisis had its own specific causes and legal and political solutions. Each forced legal theorists to elaborate a new and different dimension of constitutional government. The challenge to the American state at the time of Weimar was curiously like the challenge to Weimar, and responses to the challenge in both states implicated legal theory. Nevertheless, differences in history, in political and legal culture, caused different expressions of incapacity in each state and propelled legal theory along very different tracks.
The first crisis of the American state, in the 1780s, focused on the question of unity. It was impelled primarily by social and economic causes, and its resolution required a new conception of sovereignty, alien to eighteenth-century political theory. The second crisis, which came to a head in the Civil War, was impelled by the conflict over slavery. It focused on two issues that resolution of the first crisis had left open: the nature of citizenship in a federal union and the right of states to secede unilaterally from the Union. Resolution of the second crisis created a new conception of citizenship, engraved in the Fourteenth Amendment. The third crisis, which lasted from the Progressive Era through the New Deal, challenged the capacity of government to act “in the interests of its people” while preserving the “maintenance of individual liberty.” Resolution of the third crisis led to a transformation of the jurisprudence in which constitutional interpretation—indeed all legal interpretation—would be conducted.
The crisis of the American state at the founding took the form of a series of questions. What is union? Why must we have it? What political form should it take?[23] These questions were, at first, forced on revolutionary America by military necessity, and the answers at first—the behavior of the Continental Congress as sovereign in all but name[24]—were driven by this necessity. But military necessity would not last forever, and planning the frame of a postwar regime required allocating sovereignty between the central government and the governments of the thirteen former colonies, as well as defining the form each sovereign would take.
Defining the form of sovereignty for the colonies was largely accomplished during 1776. By resolution of 15 May (six weeks before the Declaration of Independence) Congress called on the colonies to suppress the Crown's authority and to exercise “all the powers of government … under the authority of the people of the colonies.” The delegates of “the United States in Congress assembled” were clear from the start that all government in the United States—however it might work out in detail, whatever principles might animate it—would be under “the authority of the people.” It would be constitutional government. By the end of 1776, eight colonies had adopted new constitutions (the two corporate colonies, Rhode Island and Connecticut, were already republics); only Georgia, New York, and Vermont (the latter was not recognized by other states until the 1780s) delayed until 1777.[25]
Congress accomplished an allocation of sovereignty in the Articles of Confederation, which it proposed for ratification by the now-constitutional governments of the states in 1778. Nothing was clearer in political theory at the time than that sovereignty could not be shared, that it had to be put either in a central government (in which case the states would be reduced to provinces) or in the states themselves (in which case the central government could at most be a confederation). Article II of the Articles of Confederation provides that “[e]ach State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.” Though embracing limitations on the states' “power, jurisdiction, and right,” the formulation is clear that their “sovereignty, freedom, and independence” remain unlimited. Since the limitations imposed by the Articles of Confederation were indeed significant,[26] one might consider Article II's insistence that sovereignty was in the states a mere fiction, a way of accommodating a distribution of sovereignty between the central government and the states without compromising eighteenth-century political theory. Yet, despite the existence of substantial nationalist sentiment in the early 1780s,[27] the Confederation did lack crucial attributes of sovereignty as it was understood in the eighteenth century,[28] and it would be a mistake to underestimate the extent to which the notion of a unitary sovereign both expressed political valences and oriented them towards the states. The assembled Congress of the United States was, after all, an emergency committee of states united on the single project of winning independence from the Crown. When war ceased in 1781, so did the effective operation of Congress, and the general understanding that sovereignty reposed in the states had increasing practical effect.[29]“What is truly remarkable about the Confederation,” writes Gordon Wood, “is the degree of union that was achieved.”[30] But this union, as it turned out, was only a paper union, and by the middle eighties politicians and theorists had to return to the fundamental questions.
The turn in sentiment was remarkable. A scant six years after Congress first met under the Articles of Confederation, in 1781, the Philadelphia Convention began a process of overturning the Confederation's allocation of sovereignty not, as it turned out, in favor of a total reallocation of sovereignty from the states to the central government, but of a wholly new concept of sovereignty—a federal concept, dividing sovereignty between the states and the central government.[31] The argument for union was pragmatic. Revolutionaries who as representatives of popular sovereignty had assembled in committees and conventions to oppose the legislative tyranny of Parliament assembled once more against what they perceived to be the legislative tyrannies of the states.[32] Splitting sovereignty between the states and a central government would dampen the ability of faction to capture state government for the purpose of self-aggrandizing legislation.[33] The argument for union was also enhanced by an air of crisis that gripped the country starting around 1784. Historians have argued bitterly over the reality of the crisis,[34] but recent evidence suggests that the years 1784 through 1790 witnessed “in depth and duration … the most serious economic setback suffered by Americans since the earliest days of colonial settlement.”[35] Contributing to the depression were many factors—instability of the currency, overextension of credit, loss of British subsidies, British trade prohibitions introduced by the North-Fox ministry in 1782, among others. Some factors had dangerous implications for social order: Toward the end of 1783 the Continental Army demobilized, sending into civilian life tens of thousands of soldiers, most of whom were poor, if not when they entered the Army, then after years of receiving little or no pay from Congress. Between 80,000 and 100,000 Loyalists, among the most educated and productive in a colonial society of 2.6 million in 1775, left during and at the end of the Revolution. Depression caused and coincided with a dramatic commodity deflation that hampered the ability of debtors to pay off debts and taxpayers to pay taxes.[36] Shays' Rebellion in Western Massachusetts between September 1786 and February 1787 was only the most pointed in an outbreak of back-country resistance to debt and tax collection.[37] It was proof to the nationalists, if any was needed, of the urgency of the convention they were to join in Philadelphia on 14 May 1787.[38]
But the efficient lineage of the Philadelphia Convention was neither social unrest nor economic depression, rather a series of conventions of various states to work out problems in common, ranging from regulating the economy to settling boundary disputes.[39] It was the opaque status of these conventions under the Articles and resulting ambiguities in the process of ratification of the Constitution that set the stage for the second crisis of American constitutional government in the events leading up to the Civil War.
The conventions started during the period of the Continental Congress
However difficult and indirect the process by which the United States got its Constitution, the political class in the United States responded to the exigencies of the moment, in rebellion and war during the 1770s and in the economic, social, and especially moral crisis of the 1780s. The response of the 1770s, bound as it was by the theory of unitary sovereignty, was inadequate for tolerating the coexistence of a deeply entrenched state establishment with a continent-wide economy and the political vision of those who had fought against England as a nation and won. Only the theory of dual sovereignty developed in the late eighties was up to the task.
The second crisis of the American state—over the nature of citizenship in a federal union and the right of states to unilateral secession—began
Only two questions could not be answered within the order set by the Framers. First, can a state unilaterally secede from the union, or must secession, to be effective, be accompanied by the concurrence of other states in some constitutionally sanctioned procedure? Second, to which branch of the dual sovereign, the states or the federal government, do citizens owe their primary loyalty? And from this last question flows a series of others: Which branch of the dual sovereign has final say over citizenship? Are there two forms of citizenship, state and federal, or only one? If only one, which? If not just one, is it possible to be a citizen of a state but not of the United States? A citizen of the United States but not the citizen of a state?
These questions had been elided in the founding.[54] Unlike the Articles of Confederation, the Constitution makes no mention of sovereignty. Unlike
Citizenship and secession were one question really: the source of the authority of the Constitution itself. For if the Constitution obtains its authority from the states, then the states are the branch of the dual sovereign to which citizens owe undivided loyalty. Their loyalty to the federal government is derivative from the states' decision to ratify the Constitution. No event of national citizenship severed or compromised the bond of loyalty between states and citizens. No new spring of citizenship drowned out the old. Moreover, as there would be no national citizenship binding the citizens of a state directly to the union over the heads of state government, a state could reverse its decision to join the union without the consent or participation of other states. If, on the other hand, the Constitution gets its authority from the people assembled in convention—whether the people as a whole in Philadelphia or the people of each state in conventions called by state legislatures to ratify the work of Philadelphia—then citizens owe their primary loyalty to the federal government, and not to the states. Then the people assembled in convention for the purpose of creating the new national government replace the states as the source of citizenship and the goal towards which its affections bend. Then secession requires an expression of assent by the citizens of the nation as a whole.
The Constitution is plain enough that the source of its authority is the people assembled in convention. It is “WE the People of the United States” that ordains and establishes the Constitution. It is “the Conventions of nine States” that ratifies it, not state legislatures. Nevertheless, the silence of the Constitution on sovereignty, the nature of citizenship in a dual sovereignty, and secession provided sufficient ambiguity to permit those who were so inclined to argue that the source of the Constitution's authority was the states. This ambiguity was expressed as well in the process of ratification. The formulation in Congress's resolution to the states, transmitting the Constitution “to the several Legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof,” finessed the question.[55] When the citizen's loyalty would be put to the test—a conflict squarely posing the issue of citizenship, a state claiming the power of unilateral secession—the question could be finessed no more.
Precisely these events occurred in the Supreme Court's 1857 decision in Dred Scott v. Sandford[56] and in its aftermath leading up to the “secession winter” of 1860–61. Although the immediate issues it addressed were narrower,
In his opinion for the Court,[57] Chief Justice Roger Taney conceives of state and federal citizenship as coordinate. Each branch retains the power, fettered by the Constitution only, to choose its citizens, to specify their rights and obligations.[58] The states get this power directly as sovereigns antedating the formation of the federal government. The only constraint is that whatever they decide about citizenship and citizens has effect only within their borders. But, says Taney, states can make anyone a citizen of the state, even aliens. Presumably (though Taney is silent on the subject) they can even make “negro slaves” or their descendants citizens, even when, as the Court holds, the Constitution forbids including them as citizens of the United States. The federal government, by contrast, gets this power only indirectly, by implication, since nowhere does the Constitution (as it stood in 1791) define or discuss citizenship of the United States, only the power of Congress to make a uniform rule of naturalization.
Taney's model of coordinate citizenship as he developed it in Dred Scott probably goes as far as it is possible to go within the constitutional order set by the Framers in answering the questions of citizenship in a dual sovereign, and Taney's model does answer most of the questions. It says that each branch of the dual sovereign makes citizens, that each makes them independently of the other, and that it is possible to be a citizen of one branch only. But the model says nothing about primary loyalty, and without a position on primary loyalty a position on secession is impossible. The Framers had met every challenge to dual sovereignty posed by eighteenth-century political theory but this, and Taney, sticking close to their structure, failed as well.
Nor did the immediate issues in Dred Scott push Taney beyond the Framers' structure, assuming he would have been willing or able to go: Did the Constitution mean to include “negro slaves” or their descendants as citizens of the United States? Did the Constitution permit the Missouri Compromise of 1820, which forbade slavery north of the latitude 36? 30? north in the Louisiana Territory? Either the Framers intended to include “negro slaves” and their descendants as citizens of the United States or they did not. Either they contemplated congressional control over the citizenship of states that would be formed out of the territories or they did not. Taney answered both questions in the negative. Though controversial, his answers were plausible within the doctrine of coordinate citizenship, which was a plausible model of the state of the Framers' understanding of citizenship.
Taney and a majority of justices on the Court believed that resolution of these issues—especially the constitutionality of congressional control over
The Constitution had run out. The constitutional order of the Framers failed to contain the furor over slavery. “The nation's weakness in the secession winter,” note Harold Hyman and William Wiecek, “and lawyers' inability to direct events into pacific channels, had caused a depression of spirit among leading spokesmen of the profession.”[61] The secession winter witnessed the gravest crisis in American constitutional government. It was the moment when even supporters of the Constitution lost “constitutional faith,”[62] the moment when the American republic came closest to Weimar.
Far from disproving the thesis that crisis has always strengthened American constitutionalism, the Civil War is its most compelling example. War brought not further disillusion, but reconstruction of a belief in constitutional government. The reason ironically lay in the war itself: the Constitution responded to the demands war made on it with a flowering of methods yet with little damage to the fundamental structure.[63] The American habit of vigorous and widespread public engagement in constitutional discourse fully recovered by 1862, and law rapidly resumed the position of respect it had enjoyed in the first half-century of the Republic.[64]
Events readily disposed of the holdings in Dred Scott. In June 1862 Congress prohibited slavery in the territories, and by December 1865 twentyseven states (including eleven reconstructed states of thirteen seceding) had ratified the Thirteenth Amendment, abolishing the condition that had provided the basis in Dred Scott for excluding “negro slaves” and their descendants from national citizenship.[65] Events also effectively answered the broader questions that were perplexing the Republic about dual sovereignty. The surrender at Appomattox established that states do not have the power of unilateral secession and that citizens owe primary loyalty to the nation. But the conclusion of war and the ratification of the Thirteenth Amendment left Taney's doctrine of coordinate citizenship substantially intact, since the doctrine had said nothing about primary loyalty in the first place. Despite the opinion of some that Appomattox and Gettysburg killed off both slavery and state sovereignty,[66] reality was far more complex and difficult.
Making “negro slaves” into citizens of the nation had no obvious or immediate impact on their status as citizens of states.[67] Emancipation by itself failed to guarantee former slaves the freedoms enjoyed by other citizens. Even if the Thirteenth Amendment could be construed to require states to make emancipated slaves citizens, there was substantial disagreement whether it would require states to make them equal citizens. There was substantial agreement that the enforcement clause of the Thirteenth Amendment allowed Congress to ensure that whatever inequalities did exist not re-create the incidents of slavery—that was how the enforcement clause had been sold to Southern Democrats who were considering the Thirteenth Amendment for ratification[68]—but little agreement about which disabilities, beyond a core, could be considered incidents of slavery. And the “Black Codes” of 1865 did visit a host of disabilities upon emancipated slaves. On 19 April 1866, over President Andrew Johnson's veto, Congress enacted the first of several Civil Rights Acts, removing some of these disabilities through the enforcement power of the Thirteenth Amendment.[69] However, even supporters of the substance of the legislation, like Representative John Bingham, believed that Congress lacked the power to reach as deeply as it had into the police power of the states to determine the powers and disabilities of their citizens.[70] As a result, on 30 April the Joint Committee on Reconstruction proposed what in 1868 became the Fourteenth Amendment.
The Fourteenth Amendment put an end to the possibility that emancipated slaves could be citizens of the nation but not of a state, or citizens of a state burdened by unequal disabilities. The amendment accomplished this revolution in two momentous steps: It first overturned Taney's doctrine of coordinate citizenship, replacing it with a doctrine of unified citizenship instead. The first clause of Section 1 creates a national citizenship open to “[a]ll persons born or naturalized in the United States” and makes them “citizens … of the State wherein they reside.” Taken with the surrender at Appomattox, the amendment effectively resolves the dilemma that dual sovereignty presented to the eighteenth-century conception of citizenship. Henceforth all citizens of the nation were to be citizens of states, and citizens of states, citizens of the nation. The Fourteenth Amendment clarifies what the Thirteenth left obscure: Emancipated slaves, by virtue of their citizenship in the nation, are “citizens … of the State wherein they reside.” By itself, however, unified citizenship could not stop states from using state citizenship as an instrument for creating two classes of citizens. After all, the Fourteenth Amendment does not abolish state citizenship;[71] it simply unifies the criteria of membership, and, without more, states could have claimed that the power to create unequal classes of citizens remained undisturbed. Hence the second step, which follows immediately upon the first in the text
Just as resolution of the first crisis of American constitutional governance in the 1780s required transformation in the understanding of sovereignty, resolution of the crisis of the 1860s invoked a new conception of citizenship. The unified citizen of the Fourteenth Amendment has a relationship to the sovereign different from that of any citizen before. Citizenship had always meant the right to participate in the political community or membership in the collectivity constituting the sovereign. The unified citizen, in contrast, has rights against the political community, or the right to be free from disabilities that the collectivity constituting the sovereign might otherwise impose. The Fourteenth Amendment dissociates citizenship from sovereignty altogether. It resolves the dilemma of citizenship in a dual sovereign this way: It sets citizenship as a limitation on sovereignty—a principle of antisovereignty, an independent, competing source of powers and disabilities. Far from conceding that eighteenth-century political theory had been right all along—that dual sovereignty is impossible—unified citizenship takes the revolution in political thinking one step further, revising the very place of sovereignty in constitutional governance.
The Fourteenth Amendment also harbored an important ambiguity, and this ambiguity could not be wholly resolved within the new constitutional order set by its drafters. The question was whether the Equal Protection Clause applies only to emancipated slaves as a class or, more broadly, to other classes. If more broadly, then states are prohibited from dividing citizens into classes, not just from making one of them slaves. Then the prohibited class divisions and prohibited reasons for making the divisions would presumably be determined by the same dynamic approach the Fourteenth Amendment uses to track incidents of slavery. If, however, the Equal Protection Clause applies only to emancipated slaves, then states may do whatever their exercise of the police power leads them to do, so long as they do not re-create the incidents of slavery, dynamically construed. And there are a host of intermediate positions, almost all taken by one court or another,
The Supreme Court's initial resolution of this ambiguity, in the Slaughter-House Cases of 1873, was that the Equal Protection Clause applies only to the privileges of “negroes as a class,” not to classes of citizens in general.[73] But this resolution was inherently unstable. The decision was by the slimmest of majorities. Three justices (of nine) joined Justice Stephen Field in dissent, urging the broadest possible interpretation of the ban on unequal burdening. “What [Article IV, Section 2 of the Constitution] did for the protection of the citizens of one state against hostile and discriminating legislation of other states,” wrote Justice Field, “the 14th Amendment does for the protection of every citizen of the United States against hostile and discriminating legislation, against him in favor of others whether they reside in the same or in different states.”[74] Further, the Thirteenth Amendment does not restrict the prohibition against slavery to one class of citizens, to “negroes as a class.” Any class can claim its benefit. Coupling the Fourteenth Amendment's dynamic approach to defining the protections accorded by the Thirteenth Amendment with the Thirteenth's capacious identification of the beneficiaries of those protections was all but inevitable. Finally, the Fourteenth Amendment also forbids states from depriving any person of life, liberty, or property without due process of law. And the Due Process Clause clearly applies to all persons, as individuals, not simply to unduly burdened classes or only to “negroes as a class.” The dynamic approach that the Fourteenth Amendment applies to tracking the incidents of slavery could be applied to due process and equal protection as well.
The instability inherent in the resolution in the Slaughter-House Cases at first affected both due process and equal protection. Thirteen years after that decision, in 1886,[75] the Supreme Court extended equal protection to alien “subjects of the Emperor of China” who were arbitrarily denied permits to operate laundries in San Francisco: “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. … These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. …”[76] But beyond implicit rejection of the narrow position in the Slaughter-House Cases, the Supreme Court offered no guidance as to which classes and what reasons would invalidate state provisions, and Plessy v. Ferguson[77] in 1896 put an end to further attempts to broaden equal protection for at least a generation.[78] The real energy in
It was a train of developments in due process and the political consequences of these developments that eventually led, in the 1930s, to a third crisis in constitutional governance, resolution of which would end in a reworking of the entire jurisprudential framework of constitutional governance. In 1877, four years after the decision in the Slaughter-House Cases, the Supreme Court in Munn v. Illinois upheld the power of Illinois to fix by law the maximum charges for the storage of grain in certain warehouses against a challenge that statutes regulating the use of private property necessarily deprive an owner of his property without due process.[79] Over dissents by Justices Field and William Strong, the Court held that states have the power to regulate property “affected with a public interest,” thus cabining the police power of states within strict, yet reasonably capacious limits. But due process, dynamically construed, was to have other incidents that would further restrict the states' police power. In 1890 the Court condemned a Minnesota statute making rates established by a railroad commission final and conclusive as a taking of the railroads' property without due process.[80] The reasonableness of the rates, said the Court, was a question for judicial determination, requiring due process of law. In 1894 the Court struck down a statute that prohibited any person from effecting insurance on property in the state with companies not admitted to do business there, on the ground that the right of citizens to earn a livelihood by any lawful calling is a “liberty” protected by due process.[81] Yet, by far the most important assertion of due process limits on the states' exercise of their police power was Lochner v. New York[82] in 1905. It was Lochner, like Dred Scott before it, that through a chain of events would transform the ambiguities of the Fourteenth Amendment into a crisis of constitutional governance. Unlike Dred Scott, however, the political conditions precipitating the crisis took a quarter-century to develop.
Over dissents by Justices Oliver Wendell Holmes and John Marshall Harlan (who were joined by Justices Edward White and William Day), Lochner held unconstitutional a New York statute of the Progressive Era (1897) making it unlawful for bakers or confectioners to require or permit employees to work more than sixty hours per week or ten hours per day, on the ground that the statute deprives both employers and employees of a “liberty” to contract protected by due process. The Court rejected as unreasonable a legislative finding that the statute was necessary to protect the health of individuals who are following the trade of a baker, hence within the state's police power. Lochner thus heralded an era in which the Court was prepared to review legislative judgments about the propriety of a state's exercise of the police power, thus drawing lines about the police power far tighter than any before.[83]
The usual story in American constitutional history is that Lochner effectively disabled the states and the federal government from responding to the regulatory demands of a growing industrial economy. However, the aftermath of Lochner reveals considerable flexibility on the part of the Court towards the states' regulatory efforts. Thus, in Muller v. Oregon,[84] three years after Lochner, the Court rejected a due process challenge to an Oregon statute forbidding the employment of women “in any mechanical establishment, or factory, or laundry” for more than ten hours per day. Louis Brandeis's famous “factual” brief persuaded the Court that there was a compelling legislative basis for the restriction, unlike the restriction in Lochner. In 1917, in Bunting v. Oregon,[85] the Court even seemed to overrule Lochner sub silentio, holding that the Court would accept the judgment of a state legislature and supreme court that a statute forbidding the employment of any person in any mill, factory, or manufacturing establishment more than ten hours per day and providing payment for overtime at a higher rate was necessary for the preservation of the health of employees in these industries. The Court also decided cases against the regulatory power of the states. Two years before Bunting, for example, the Court struck down a Kansas statute making it a misdemeanor for employers to require employees to execute a “yellow-dog contract”—a promise not to join a union—on Lochner grounds.[86] In the two decades after Lochner, the Court showed a willingness to regulate the states' exercise of the police power on a case-by-case basis. It was not prepared to narrow the police power to activities, such as common carriage and government contracting, that are clearly in the public realm.
Nevertheless, in 1923, the Court began interpreting the police power more restrictively. In Adkins v. Children's Hospital,[87] the Court held that a law empowering a commission to fix minimum wages for women and children in the District of Columbia violates Fifth Amendment due process. The Court distinguished Muller v. Oregon as approving a statute regulating the hours of women, not their wage. Adkins accompanied a parallel retreat from the formula of Munn v. Illinois. Prior to Adkins the Court had sustained price regulation in fire insurance[88] and rental housing[89] on the ground that those activities are “affected with a public interest.” In Wolff v. Industrial Court[90] in 1923, and in a series of decisions running through the early 1930s,[91] the Court uniformly held, when the issue arose, that activities regulated by the states were not “affected with a public interest.”
The image of a Court implacably opposed to an expansive police power is thus accurate only for the period after 1923, not 1905, when Lochner was decided. Yet when the Great Depression struck, the extreme version of Lochner was ascendant, sharply constraining the regulatory powers of both the states and the federal government. The powers of the federal government were constrained as well by a contemporary understanding, rooted
The ascendancy of the extreme version of Lochner was to be brief, ending three years after the Great Depression began and two years after the Roosevelt administration took office.[93] In an exceptional moment in American legal history, the groundwork for change was prepared by legal theorists who wanted states and the federal government to regulate economic activity more aggressively. These theorists—the American legal realists—began to undermine the jurisprudential framework on which Lochner and Munn depended immediately after Lochner, and certainly well before the Great Depression made political pressure against Lochner irresistible. Lochner's jurisprudential framework had two principle elements; each had to be dealt with.
First, Lochner required that legal rules sustaining private economic activity have a source other than political fiat. Otherwise all matters would be “affected with a public interest” and subject to regulation, free of due process. If private law cannot trace its source to something other than ordinary politics, then the state that gave rules in the first place can alter them or take them away. Then immutable private law rules cease to function as a bulwark against regulatory incursion. So, the early realists set about attacking formalist or naturalist derivations of private law, all to prove that politics and only politics had a hand in creating it. The rather neutral-sounding rule requiring consideration in contracts was no different in this estimation than the quite specific Louisiana law at issue in the Slaughter-House Cases, granting a twenty-five-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company “to maintain slaughterhouses, landings for cattle and stockyards.” Both are naked political regulation of private economic activity. The rule of consideration is no more immune from political process than the Crescent City Live-Stock Landing and Slaughter-House Company.
Second, Lochner required the enforcement of legal rules to be transparent. If not, then judges could smuggle their own politics into decisions, and the vulnerability of private law to politics would shift from the legislative to the judicial arena, and, once again, states could exercise their police power unfettered by due process. Again, realists set to work challenging the capacity of judges (or anyone else) to follow rules unembarrassed by politics
The fruit of their labors, once depression hit, was a theoretical apparatus that could accommodate the regulatory demands—moral, political, and economic—triggered by the Great Depression against the objection of due process. The third crisis in American constitutional governance was resolved by a transformation of the jurisprudence in which constitutional interpretation—indeed all legal interpretation—would be conducted. Unlike the first two, the third crisis resulted in no new amendments to the Constitution. It developed no new structure or concept of constitutional governance. It did, however, more profoundly than they, affect the shape of the union and the texture of law in general.
The Court hinted at change in Home Building and Loan Association v. Blaisdell,[94] decided in January 1934. Blaisdell upheld a Minnesota law declaring a limited moratorium on mortgage payments against a challenge that the law violated Article 1, section 10 of the Constitution, impairing the obligation of contract. The Court justified the law as an appropriate “exercise of the reserved power of the state to protect the vital interests of the community,”[95] triggered by economic emergency. Chief Justice Charles Evans Hughes wrote:[96]
[T]here has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. … Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.
The Chief Justice added a brief but portentous statement: “What has been said on that point [the contract clause] is also applicable to the contention
In Nebbia, the Court upheld against due process challenge a law empowering New York's Milk Control Board “to fix minimum and maximum … retail prices to be charged by … stores to consumers for consumption off the premises where sold.” The Court accepted the New York legislature's justification of the law as a health measure (producers failing to receive a reasonable return relax their vigilance against contamination) and as a scheme to ensure the prosperity of a “paramount industry of the state.”[99] But the Court was not returning to a more relaxed version of Lochner, or to Munn v. Illinois. Justice Owen Roberts announced a radical departure in the Court's due process jurisprudence:[100]
The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects State action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.
No longer must the state or federal government show that the matter regulated is “affected with a public interest.” No longer need they persuade the Court that the regulation is a bona fide exercise of the police power. All due process requires is that the regulation be for the “public welfare” however the states or federal government choose to define it, that the regulation not be “unreasonable, arbitrary, or capricious,” and that the means selected “have a real and substantial relation to the object sought to be attained.” Not only was the extreme version of Lochner dead but also the flexible version, and even the capacious formula of Munn v. Illinois.
After Nebbia, the due process rights of the unified citizen of the Fourteenth Amendment would never again be an obstacle to the states or the federal government enacting laws in the interests of the people.[101] The Roosevelt administration and Congress were free to craft whatever schemes they saw fit, consistent with other provisions of the Constitution, so long as they were for the public welfare and consistent with the “real and substantial relation” test of Nebbia.
Historians have debated whether Nebbia was the turning point in the Court's stance towards the New Deal or whether the real change occurred three years later, in West Coast Hotel Co. v. Parrish.[102] After all, Parrish overruled Adkins, and the Court was far friendlier to New Deal programs after Parrish than it had been between Nebbia and Parrish. Parrish was handed down on 29 March 1937, just seven weeks after the Roosevelt administration unveiled its Court-packing plan on 5 February. The thought, which has achieved the
What is at stake is the character of the Court as a legal or as a political institution. If the Court responds to short-term political pressures, then it is a political institution like any other, having no greater claim to make legal decisions than Congress or the Executive, and certainly less when the judgments of the Court conflict with the desires of the democratic branches of government. The Court can legitimately make undemocratic decisions only if constitutional law is an autonomous discipline with its own practices and logic. If Blaisdell and Nebbia are the key decisions, then the source of the Court's constitutional revolution was not political pressure but the autonomous discipline of law. If Parrish is key, then the case can be made that the Court is a political institution responding to ordinary political pressures and illegitimately resisted the democratic will of the state legislatures and Congress during the First New Deal.
To hold that Blaisdell and Nebbia are key and that the Court transformed the meaning of unified citizenship under the Fifth and Fourteenth Amendments as a consequence of autonomous legal development is not to say that the Court was immune to politics of any sort whatsoever; it is to say only that the Court was not responding to ordinary political pressure. The Court was responding to politics of a very different sort—the politics of lawyers using the practices and logic of law to shape legal development.
Although Nebbia deprived due process of its role constraining exercise of the police power, due process was to play a significant role in the era following the Second World War. The spirit of Lochner has haunted American constitutional jurisprudence, in other guises, to this day.[104] The most significant role of due process in the post-Lochner era has been to constrain the government, not in pursuit of the public welfare, but in the methods by which that pursuit is carried on. Due process changed from a limitation on programs to a limitation on the implementation of programs. Unified citizenship was no longer a bar to government action, but a source of rights, both procedural and substantive, to ensure the fairness and integrity of government action. The story of the subjection of the operations of an expanded government to due process takes us into contemporary times.
VI
The American state thus faced the same challenge as Weimar in roughly the same era: Would constitutional government have the capacity to marshal its powers in the “interests of its people”? But Weimar faced this challenge without a constitutional history in which development followed repeatedly upon crisis. It never answered the constitutional questions of union. These
The question then in the United States was not, as it was in Weimar, whether a democratic government whose legitimacy sprang not from a preconceived monarchic notion of the state's rights and duties but solely from the free expression of differing and conflicting interests would be able to make hard decisions. After all, social and economic regulation in the United States before the New Deal was sufficiently sparse compared with the scheme laid down in Bismarck's Germany that American executives and legislatures had never been put to the hard tests of political accommodation that hobbled Weimar—along with defeat, occupation, and reparations. Also, prosperity and a patriotic war had shoved issues of social regulation from the spotlight during much of the period between Lochner and the Great Depression.[105] Rather, the question put to the American states by Lochner was whether, in the name of individual liberty, the judicial branch of government could stop executives and legislatures from implementing regulatory decisions they were otherwise perfectly capable of making.
As comparison with the American case makes clear, the reaction of legal theory in Weimar to the incapacity of the state to meet the regulatory demands made on it by economic crisis and social conflict was by no means the only possible reaction. Where the constitution precedes the state, as it did in the United States, the challenge to the state's capacity to meet these demands takes a different form than where the state precedes the constitution. The challenge to the regulatory capacity of the United States flowed from the Constitution itself, requiring reconciliation of the state's regulatory capacity with rights granted by the Constitution to individuals. The challenge to the Weimar state focused instead on the capacity of constitutional government to make politically necessary decisions. When crisis takes this specific form, then the answers provided by the Weimar theorists exhaust the ways in legal theory of meeting crises of the state and its constitution.
One can attempt to force the battle accompanying the crisis into the frame and, under the rules, of the given constitutional and legal order. One can try to hold together the fragile or even crumbling unity culturally and spiritually or organizationally and institutionally, and to strengthen the state against the battle as a Smendesque unity of integration or as a Helleresque unity of action and decision. Here it is of secondary importance whether this is done by preserving, changing, or even violating the existing constitutional and legal order. Finally, one can take up the battle, make a
There are no other answers, and they can hardly all be right at the same time. So the Weimar struggle over methods and aims persists in the ongoing quest for the right answer.