A Theory of Constitutional Stratification

2.1 Why Carl Schmitt?

Constitutional unamendability is a contentious issue. Arguing for it is even more so. Richard Albert likens unamendability clauses to ‘throwing away the key to unlock the handcuffs that constitutions attach to the wrists of citizens’.^[1236] Clearly, a pro­ponent of unamendability needs to address how this ‘throwing away’ can be jus­tified, or convincingly demonstrate how the keys are to be fetched.

Carl Schmitt’s constitutional theory provides a powerful set of tools for those seeking a theory of limitations on constitutional amendments. His theory eventually suggests that the very concept of constitution intrinsically includes limitations to its amendment by the institutions it creates and authorises. Therefore, regardless of whether there are explicit substantive or procedural limitations on amending a constitution, there are always certain implicit limits to constitutional amendment. This conclusion is based on his positive concept of constitution, a constitution as a fundamental political decision, and his concept of constituent power, the political subject of this political decision. Schmitt criticises the normativist idea that the constitution is ‘nothing but a statute that is more difficult to amend’.^[1237] For him, the constitution is rather an existentialist statement of a political unity. Therefore, it is necessary in a democratic society to hold this constituent decision above ordinary politics and protect it against contingent democratic, especially parliamentary, majorities. Today, in practice, this protection is generally provided by judicial bodies which uphold constitutional fundamentals over constitutional amendments. However, while Schmitt was a proponent of substantive limits on constitutional change, he was a strong critic of constitutional adjudication in general, and thus was not sympathetic to the idea that constitutional judiciary should be the guardian of the constitution.

2.2 The Positive Concept of Constitution

Carl Schmitt’s understanding of the concept of constitution is contrary to that of a normativist account. According to Hans Kelsen, who was Schmitt’s normativist adversary, the normative legal order cannot be based upon something outside of itself. For him, norms can only be derived from norms.^[1238] This means that their validity can only be based upon some other (hierarchically superior) norms, and that no political or moral values can be the reason for their validity. A norm is only valid if it can be traced back to the presupposed Grundnorm, which is the logical presupposition that the first constitution is valid, and validity has nothing to do with the content of the norms.^[1239] Schmitt, however, opposes the closed normative order and bases the entire legal order on a political decision that is taken outside the sphere of legality. As Lindahl notes, for Schmitt, ‘a political concept of constitution precedes its legal notion, both chronologically and conceptually: prior to “having” a legal constitution, a state is a constitution, a status: the “concrete aggregate state of political unity and social order”. This existential status, not a basic norm, grounds the validity of a constitution.’^[1240]

In Constitutional Theory, rejecting the relative and ideal concepts of constitu­tion, Carl Schmitt adopts what he calls the positive concept of the constitution before looking into various problems of constitutional theory.^[1241]

The understanding that the constitution is a set of individual laws, without any substantive distinction among its contents, which is the normativist account of constitution, is what Schmitt calls the relative concept of constitution.^[1242] For Schmitt, the fact that constitutions include fundamental provisions such as the first paragraph of Article 1 of the Weimar Constitution reading ‘The German Reich is a republic’, and at the same time materially rather trivial provisions like Article 129 stating ‘civil servants are secure in their personal effects’ shows that the normativist approach relegates genuinely fundamental provisions to the level of constitutional law detail.^[1243] This relativisation of the constitution, therefore, results in ‘the losing of the concept of the constitution in the concept of individual constitutional law’.^[1244] Schmitt, thus, rejects the relative concept of constitution that reduces the consti­tution to a collection of written laws contained in a constitutional text, as it fails to distinguish between the fundamental and the trivial.

Schmitt also opposes what he calls the ideal concept of constitution, which is a constitution with a particular desired content, as there will always be disagreement as to the ideal form of the constitution depending on the opinions of different parties.^[1246] Schmitt says that ‘there are just as many possible concepts of constitution as there are political principles and convictions’ and concepts like freedom, justice, public order and security can be defined differently according to what ideal is adopted.^[1247] He acknowledges that the dominant understanding in his day had been the liberal ideal of constitution that stipulates a written constitution that creates a system of guarantees of bourgeois freedom and the separation of powers, yet he rejects that this (or any other ideal of the constitution) can explain the ‘entire state constitution’, as it falls short to address the political component of the constitution, which contains ‘the positive decision over the form of political existence’.^[1248]

Eventually, according to Schmitt, ‘a concept of the constitution is only possible when one distinguishes constitution and constitutional law’.^[1249] Under this distinc­tion, the constitution originates from the act of constituent power, in which it is established by a political will, whereas ‘constitutional laws are valid... on the basis of the constitution and presuppose a constitution’.^[1250] What follows ultimately from this distinction is that the authorities and procedures that make and change the constitution and constitutional laws are substantially different, and there is a clear hierarchy between the two, the former establishing the authority of the latter.

Distinguishing the constitution and constitutional laws are significant in the sense that it requires a stratified understanding of constitutional norms—usually within the same document that is containing the constitutional provisions, i.e. the text of the constitution—in which some of these norms are hierarchically superior to others, and consequently more difficult to change. Schmitt deals with the problem of constitutional change by making a distinction between the constitution-making power and the authority to amend (revise) constitutional laws. For him, ‘the constitution-making power is the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence’,^[1253] whereas the authority for constitutional amendments can be exercised only if ‘the identity and continuity of the constitution as an entirety is preserved’.^[1254] Following Sieyes’ distinction of constituent and constituted powers,^[1255] he regards the constitution-making authority as the constituent power and the amending authority as a constituted power. This distinction is of vital importance when identifying the limits of constitutional change by constituted authorities (constitutional revision).

Schmitt mentions five types of constitutional change: (i) constitutional annihi­lation, which is the abolition of the existing constitution and the underlying constitution-making power; (ii) constitutional elimination, which is the abolition of the existing constitution but retaining the underlying constitution-making power; (iii) constitutional revision, denoting a change in the text of the previously valid (individual) constitutional laws; (iv) statutory constitutional violation, which is the infringement of constitutional provisions without effecting their validity; (v) con­stitutional suspension, the temporary setting aside of single or multiple constitu­tional provisions.^[1256] He subsequently draws the boundaries of the authority for constitutional amendments as relating only to constitutional revisions (iii) and rules out the other four, as their exercise requires a different kind of authority (not a constitutional, i.e. constituted one).^[1257] Therefore, the constitution can only be amended by making revisions to constitutional laws in a way that respects the core of the constitution, i.e. the positive constitution.

What does this theory tell us about the constitutionality of constitutional amendments? Can it be argued, under this understanding of the constitution, that matters dealing with the essential characteristics of a polity in the text of the constitution, or a preamble explaining the motivation of the constitution-making power, make up the positive constitution, regardless of their level of entrenchment within the text of the constitution, or even within the legal system as a whole? Is it possible to extract the positive constitution from the text of the constitution? If there are relatively more strongly entrenched constitutional provisions in the text of the constitution, e.g. unamendable clauses, are these the definitive tools in making sense of the positive constitution? It is possible to find direct answers in Schmitt’s writings to some of these questions.

Schmitt clearly regards preambles of constitutions as part of the positive con­stitution. He criticises the pre-war approach in Germany that regarded the preamble ‘mere proclamations’, ‘mere statements’ or ‘commonplaces’.^[1258] For him, elements of the preamble were among what constituted the substance of the Weimar con­stitution. Consequently, it was superior to the trivial constitutional laws.

For Schmitt, in terms of identifying its character, it seems that the existence of a prohibition of a particular constitutional change in the form of an explicit consti­tutional provision is unimportant, as he holds that such prohibitions are ‘only a matter of confirmation of the distinction of constitutional revision and the elimi­nation of the constitution’.^[1259] It is evident from this that the positive constitution is not necessarily limited to the text of the constitution. Therefore, it is more of a substantive account than a formally definitive one as to what makes up the positive constitution and what remains merely as constitutional laws. In other words, the constitution as the political decision does not necessarily consist solely of the unamendable provisions. Nonetheless, the confirmation by the constitution-making power shows that unamendable provisions are at least part of the positive constitution.

2.3 The Guardian of the Constitution

The substantive constitutional core that the democratic decisionist account of the concept of constitution establishes brings about another important question. If there is a constituent decision that limits people’s authority to revise their constitution, by what means are these limits to be observed and can there be a constitutional watchdog that oversees the sustainment of this fundamental decision? Especially as the recent trend shows that courts’ involvement in the constitutional review of constitutional amendments is increasing, the question of ‘who ought to be the guardian of the constitution’ needs to be addressed. Looking at this question allows us to identify the actors involved in the tension between the constituent decision and the will of the constituted. Just as Kelsen’s and Schmitt’s conceptions of the constitution are in conflict, their ideas and exchange on how the constitution is to be protected (or upheld) point to contrasting institutional settings, and help us understand what they regard as worthy of protection in a constitution.

I should, however, note that the question of how the constitution should be protected and whether courts have democratic credentials to exercise (or assume) such guardianship role is one of the central questions of constitutional theory and is far from confined to the Kelsen-Schmitt debate. Contemporary positions range from arguing that constitutional review lacks democratic legitimacy^[1260] to providing robust democratic justifications^[1261] of constitutional review. However, my focus on the Kelsen-Schmitt debate is due to the TCC’s assumption of the guardianship of the constitution through a Schmittian decisionist interpretation of the constitutional fundamentals.

In the absence of a constitutional court during the Weimar era, Kelsen advocated centralised constitutional adjudication and argued that the constitution needed to be guarded by a constitutional court.^[1262] He emphasised the importance of ‘the legality of laws’ and contended that constitutionality was the means to achieve this.^[1263] His argument is based on the theory of the hierarchy of norms, which stipulates that the law consists of norms at hierarchical levels, norms at each level deriving their validity from the next superior level of norms. In every step, though decreasing in scope as norms are substantively more specific in the inferior sets of the hierarchy, there is discretion involved in any norm-making. The constitution, sitting at the top of the domestic legal hierarchy, binds the legislator, but still gives it a relatively wide discretion to create laws. To make sure legislation is made in accordance with the higher level norm that is the constitution, and just as any other discretionary legal norm-making is subject to judicial review, Kelsen argued that legislation should also be subject to judicial review in the form of constitutional adjudication. This is what, for Kelsen, guaranteed the constitutionality of laws.^[1264]

Kelsen also argued that constitutional review of legislation was particularly significant in democratic polities. He saw the essence of democracy ‘in the con­tinuing compromise between the different parts of the people that are represented in parliament by the majority and the minority’, and contended that constitutionality ensured this state of affairs.^[1265] As constitutional adjudication is the instrument that guarantees constitutionality, it is an important element of democratic republics in pursuit of the effective protection of minorities against the potential oppression of the majority rule.^[1266]

One might be inclined to think that Schmitt’s positive concept of constitution and his definition of constituent power also would require a system of judicial review in order to protect, not the minorities, but the constituent power’s fundamental political decision against the acts of constituted powers. In this way, such ajudicial body would adopt the constituent choice as the reference norm for constitutionality and review the compatibility of the acts of the legislature, including constitutional revisions, vis-a-vis this set of core commitments. However, Schmitt forcefully opposes constitutional adjudication. In his attack on constitutional adjudication in Der Huter der Verfassung, he states that while the call for a constitutional court as the guardian of the constitution is a call for a neutral guardian, this is in fact impossible. The constitutional court would be yet another political actor as ‘no amount of judicial procedure could veil the fact that such a... constitutional court would be a highly political authority, endowed with a competence of constitutional legislation’.^[1267] Furthermore, Schmitt contends that constitutional adjudication, when directed against a parliament and not a monarch— as was the case at the turn of the century—would fail to meet the requirements of the democratic principle. Raising the democratic objection, he insists that it would not be legitimate to ‘transfer such powers to an aristocracy of the robe’.^[1268] Schmitt further defines adjudication as merely ‘the decision of a “case” on the “basis of a statute”’,^[1269] and warns that formalism regarding any decision of the judiciary would eventually result in the judiciary’s decisions becoming norms and making the constitution.^[1270] Granting a constitutional court the authoritative interpretation of the positive con­stitution would mean hijacking the constituent power of the people. Therefore, for him, it is not democratically legitimate for the judges to exercise such power. In other words, Schmitt’s account of democratic decisionism^[1271] requires limits to constitutional change while at the same time dismissing the idea of judicial mechanisms creating and overseeing these limits.

For Schmitt, it is solely for the people as the holder of the constituent power to interpret the constitution and resolve constitutional conflicts: ‘Every genuine consti­tutional conflict, which involves the foundations of the comprehensive political decision itself, can, consequently, only be decided through the will of the constitution-making power itself.’^[1272] This means that even the people, when not acting as the constituent power, cannot alter the fundamental political decisions or make different ones.

Who, then, should oversee the positive constitution, which needs to be protected against contingent parliamentary majorities?^[1273] This question is crucial, as for Schmitt, deciding in case of disagreement is definitive as to the exercise of sovereignty.^[1274] Therefore, the question of the preservation and fulfilment of the positive constitution is as significant as the distinction of constitution and consti­tutional laws. As noted earlier, the widespread practice is the courts’ creation, identification and upholding of the fundamental constitutional values.^[1275]

Schmitt, however, famously advocated the popularly elected head of the exec­utive to be the guardian of the constitution. Note here that what Schmitt envisages the guardian of the constitution protecting is not the rights entrenched in the con­stitution or the rule of law principle as would be the case with liberal constitu- tionalists.^[1276] Building upon his positive concept of constitution, he seeks a guardian to protect the concrete order and the political unity of the whole people, and in the case of the Weimar constitution, the whole German people.

It is important to remember that Schmitt is a staunch critic of parliamentarianism and parliamentary pluralism as he found these destructive to the state.^{[1277] [1278] His point being the realisation of the will of the people in a democracy yet acknowledging that representation is inevitable in the twentieth century polities, Schmitt argues that the parliament is destined to either}

“become [...] incapable of reaching a majority and of acting due to its immanent pluralism” or “the momentary majority employs all legal possibilities as instruments and means of the protection of its own hold on power, that it abuses the time during which it possesses the power in the state in all directions, and, above all, that it attempts to restrict as far as possible the [principle of equal] chance of its most powerful and dangerous opponent to do 48

the same”.

He further criticises the identification of democracy with liberalism and parlia- mentarianism, and argues that the institution of parliament is no more democratic than a dictatorship in the name of the people. In The Crisis of Parliamentary Democracy, he attacks the notion that ‘the ratio of the parliament rests [...] in a process of confrontation of differences and opinions, from which the real political will results’.^[1279] He does not see why ratio (or reason) is to be found in parlia­mentarians and concludes that the idea of truth inherent in this conception corre­sponds merely to the ‘function of the eternal competition of opinions’.^[1280] He contends that ‘discussion’ cannot be the foundation of democracy.^[1281] He believes that parliaments do not have the capacity to resolve political conflicts as, instead of deciding, they discuss. Considering this ‘empty and trivial formality’^[1282] inherent in parliamentarianism, which is not fit to sustain political unity, and the need for the protection of the actually democratic foundational will, Schmitt puts forward a constitutional guardian. The guardian of the constitution, for him, therefore, is essentially meant to protect the people’s constituent choice against contingent parliamentary majorities.

In his study of the Weimar constitution, Schmitt states that the nature of the powers granted to the President^[1283] creates a neutral authority that is in immediate connection with the whole of the state, and equipped with effective competences for the active protection of the constitution.^[1284] Neutrality of this post is critical in the sense that it preserves the continuity of the state against the war of interests in the parliament and institutional divisions within the state. What is crucial here for the guardian of the constitution is that it has ‘the opportunity to connect itself imme­diately to the unified will of the German people and to act as the guardian and preserver of the constitutional unity and wholeness of the German people’.^[1285] Schmitt’s solution to the problem of overseeing the positive constitution, thus, in Andrew Arato’s words, is that ‘only a power like the president of the republic, armed with an extraordinary jurisdiction like that of Article 48 [regulating emer­gency powers of the president] could stop a formally legal revolution against the constitution. Such a revolution would not be stopped by declaring amendments unconstitutional but by eliminating the political force that is willing and capable of enacting it.’^[1286] It is, therefore, a political force that would neutralise the threat of unconstitutional amendments to the positive constitution, not a judicial one. Yet, it must be kept in mind that this oversight concerns a potential ‘formally legal rev­olution’ and not changes occurring extra-constitutionally. To refer back to Schmitt’s five-fold categorisation of constitutional changes, the guardian of the constitution thus protects the constitution against constitutional revisions that in fact amount to constitutional annihilation, constitutional elimination, statutory consti­tutional violation or constitutional suspension. These four types of change hap­pening without the guise of formally proper constitutional revision are outside the scope of the guardianship of the constitution.

Although Schmitt portrayed such a guardian of the constitution, he did not place it above the constitution, nor did he consider it the sovereign.^[1287] The presidency as the guardian of the constitution, for Schmitt, is a constituted office, bound by constitutional limits as to the goals it can legitimately pursue.^[1288] Also, the fact that the president’s dictatorial powers as stipulated by Article 48 of the Weimar Constitution can only be exercised as long as the Weimar Constitution is still in force means that this specific authority is dependent on the sovereignty of the constitution. Consequently, while Schmitt thinks the president is equipped with such extensive extraordinary powers, he remains coherent by not placing the president above the constitution and not deeming it the sovereign dictator. He endows these upon the people as the constituent power.

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