GERMAN LAW JOURNAL
[Vol. 07 No. 04
“motorized legislator” and an increasingly powerful executive branch, flexibly responding to whatever the crisis of the moment happens to be, was in full swing. Governments had already enacted competition laws prohibiting cartels and trusts, laws limiting freedom of contract to legislatively determine minimum wages and maximum hours, and more generally legislatively shape the employer-employee relationship. More radical proposals concerning the transformation of the economy were on the table politically. All this occurs in the context of a severe economic crisis and heated ideological disagreement about the basic terms of social cooperation.
Second, like in most parliamentary democracies in the first half of the 20th century, the Weimar Constitution did not contain any judicially enforceable constitutional rights. The Constitution, for all practical purposes, established only the procedure that determines what is to count as judicially enforceable law. The long list of substantive constitutional rights that adorned the Weimar Constitution were not judicially enforceable. Courts were regarded as unsuitable institutions to make the political judgments necessary to give meaning to the abstract principles it contained (in the debates on the drafting of the Weimar Constitution the United States’ experience with the Supreme Court was cited as a reason not have constitutional rights judicially enforced, given that Court’s hostile attitude towards economic and social reforms in the late 19th and early 20th century.
Third, the Constitution and the parliamentary process itself was not protected by either an aura of reverence and legitimacy or unamendable provisions guaranteeing its basic democratic structure. Instead, Schmitt observes that the Weimar Constitution was widely thought of as a value-neutral technical procedural device. Its legitimacy was believed to lie in the very fact that it established a legal order and provided for legal procedures, not in the fact that it established a specific kind of order – a parliamentary democracy. By the early 1930s an increasing number of groups did not regard the parliamentary system as the institutional embodiment of a shared ideal of procedural fairness, but merely as a modus vivendi: Something to accept for so long as they lack the political clout to replace it with something more favorable, some form of nationalistically inspired monarchical or authoritarian government, perhaps, or a fascist or communist dictatorship. Since 1930, the parties in support of the Weimar Constitution (derided as “Systemparteien”
“parties of the system”) no longer held a parliamentary majority.
Not surprisingly the leading jurists writing during this time, Schmitt and Kelsen among them, in one way or another insisted that, to paraphrase Clausewitz, law is the continuation of politics with other means. Schmitt develops a constitutional