GERMAN LAW JOURNAL
[Vol. 07 No. 04
But in the second half of the 20th century the vast majority of countries that have gone through the experience of either national-socialist, fascist-authoritarian, communist, or simply racist rule, and made the transition to a reasonably inclusive liberal constitutional democracy, have made a different institutional choice: To establish a constitutional court and constitutionalize rights that generally authorize those whose non-trivial interests are affected by the actions of public authorities to challenge them in court. The court would then assess whether, under the circumstances, the acts of public authorities, even of elected legislatures, can reasonably be justified. Of course the primary task of delimitating the respective spheres of liberty is left to the legislatures. Legislatures remain the authors of the laws in liberal constitutional democracies. But courts have assumed an important editorial function67 as veto players. Courts, as guardians and subsidiary enforcers of human and constitutional rights, serve as institutions that provide a forum in which legislatures can be held accountable at the behest of affected individuals claiming that their legitimate interests have not been taken seriously. The point of human and constitutional rights is to focus and structure the court’s assessment of whether the actions of public institutions are reasonable under the circumstances. The language of rights has provided the authorization for courts to play a role in protecting the legitimate interests of individuals, thereby helping to hold public institutions to standards of good government in liberal constitutional democracies worldwide.
There are good reasons to mistrust Schmitt’s vocabulary and the not so subtle normative biases it reflects. After all, Schmitt’s concept of the “total state” was unable to distinguish the Weimar Republic from the National Socialist state.68 The idea of a total constitution is similiarly unhelpful. The constitutional practice described here does not undermine the distinction between a private and a public sphere, but simply introduces constitutional courts as actors that have a subsidiary role to play in determining where the respective lines between the public and the private are to be drawn. Nor is it appropriate to denigrate the practice described here as an undemocratic juristocracy, merely because constitutional courts assume a subsidiary role of editors of the laws. Of course much more would need to be said both to gain a deeper understanding of the moral significance of having courts play
PHILLIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT 230 (1997).
When Schmitt first wrote “total state” he meant to criticize the absorption and capture of the state by the pluralistic forces of civil society. When the vocabulary of the total state was affirmatively embraced by anti-liberals who advocated a totalitarian state, Schmitt distinguished between the total state out of weakness (Weimar) and the authentic total state out of strength, which he would later associate with the National Socialist movement. See C. Schmitt, Weiterentwicklung des totalen Staates in Deutschland, EUROPÄISCHE REVUE 65 (1933) and C. SCHMITT, Totaler Feind, totaler Krieg, totaler Staate, in POSITIONEN UND BEGRIFFE IM KAMPF UM WEIMAR 268 (3d ed. 1994). 68