CARL Schmitt began his treatise Constitutional Theory by noting that although each entity has a constitution, no constitutional theory can be derived from this fact. A proper grasp of the subject requires the meaning of the term “constitution” to be restricted to that of the constitution of the state. Our accounts of constitution and constitutionalism have proceeded on this assumption, but the nature of the state has been taken for granted. We must now examine the nature of the association which the constitution purports to constitute.
For a deeper understanding of constitutionalism, it is not enough to assume that the state is the supreme authority, holding the means of coercion and the allegiance of its subjects. If the constitution is intended to impose a sense of right ordering over the exercise of public power, we cannot avoid examining the distinctive way in which the state itself organizes public power. This aspect is often overlooked in discussions of constitutionalism, not least because, owing to the unusual circumstances leading to the formation of the United States—the regime in which constitutionalism is most firmly inscribed—the Constitution was commonly assumed to have determined the character of its political association we now call the state. But the US experience is thoroughly atypical. To examine this issue more rigorously, European debates must be considered.
The abstraction we call “the state” is the product of what Hobbes called “Powers Invisible,” by which humans “stand in awe of their own imaginations.”1 The state creates a world of meaning comprising a regime of rights, duties, powers, and liabilities. In common with the many institutions that shape modern life—the family, the church, the school, our system of monetary exchange, and even our common language—we learn to organize our thoughts and actions with reference to them. And because they are such basic parts of the regular furniture of social life, we commonly act without being conscious of their founding assumptions.
Conjured into existence through these assumed meanings, the state possesses the capacity to exert a powerful performative influence on the lives of its subjects, not least through powers of coercion that range from the imposition of tax liabilities to imprisonment for criminal behavior. Yet the state should not be equated with its coercive powers, these being mere effects of its existence. And it is this melding of idea and impact that led Georg Jellinek to conclude that the state has two essential aspects: the normative (Recht: right) and the material (Macht: power). In combination, these two aspects establish what Jellinek called “the normative power of [political] reality.”2
The state is the notion that must be presupposed to envision a modern political reality. It enables us both to make sense of a political world created through a collective act of imagination and to express this materially as an institutional configuration that organizes a territorially defined mode of association. This conjunction yields “the constitution of the state.” As a constituted order, the state has three main elements: territory, the state as an independent and bounded land area; people, the state as an aggregation of members of the association—subjects / citizens—within that territory; and ruling authority, the state as the institutional apparatus of rule that secures its powers to govern the subjects of that territory.
The first element asserts that the state exists by acquiring control over a defined portion of the earth’s area (Staatsgebiet). The entire land area of today’s world is divided up between two hundred or so states, each of which claims an exclusive governmental jurisdiction within a defined area. Without this territorial jurisdiction, there is no state; sovereign authority is territorially bounded. Tracing the historical evolution of state formation, Schmitt argues that the process began with a land grab: “Not only logically, but also historically, land-appropriation precedes the order that follows from it.” After this, the land was divided into parcels of property, providing the foundation for productive activity. His point is that in its original meaning nomos signified the constitution of “the original spatial order,” and this is “the source of all further concrete order and all further law.”3
Territory, then, is an essential aspect of the state. But does it follow that the state’s territorial boundaries are inviolable? This claim was explicitly advanced in the constitutions of postrevolutionary France. The Constitution of 1791 asserted that “the kingdom is one and indivisible,” a claim strengthened in 1792 by a unanimous vote of the National Convention declaring that “whoever should propose or attempt to break the unity of the French republic … should be punished by death.”4 Such expressions fix the territory with an almost sacred character. But although this tells us something about the idea of the state in the French political imagination, it cannot be held up as a general principle of statehood for the simple reason that, as historical experience shows, state territories have been endlessly formed and reformed by processes of annexation, secession, and disintegration.5
The second element of state theory concerns subjects of the state (Staatsvolk). As an institution that organizes relations between people, the state does not exist unless there are people within that territory. Just as we assume that the state is a bounded territory, we also imagine the state as an expression of the political unity of its people. In this respect, the state is “the people.” But the set of relations formed by the people is complicated. In one sense, “the people” is the ultimate source of authority in the state, a principle most clearly visible whenever a constitution is drafted. When its preamble proclaims that “We the People … do ordain and establish this Constitution,” it refers to the people as the state. This is complicated for two main reasons. The first is that the authors of the constitution are also those over whom authority is to be exercised and who are bound in ties of allegiance to the state. This is the paradox of the founding, and it is not overcome by appealing to some general principle of “collective self-government.” The second is that the claim is largely symbolic; when this was proclaimed in 1787, for example, there was no suggestion that all the inhabitants of the North American colonies formed part of “the people.”
One way to finesse such difficulties has been to distinguish between “the people” as an ideal expression of collective political unity and “the nation” as the actual group bound by common ties of race, language, customs, or history. This brings Jellinek’s two aspects of the state into closer alignment. Viewed as a normative construct, the idea of the state as the people is the source of constitutional authority. But as a political reality, whatever authority that constitution acquires depends on the way in which common sentiment can be distilled from the social practices of ordinary life. Constitutional authority is formally asserted in the name of “the people,” but it is actually derived from the way that common language, shared customs, similarities of racial or religious identities, and collective historical consciousness bind the population of a defined territory in political unity.
Many studies have explained the ways in which these bonds are forged and reinforced. Scholars have suggested that a population conceives of itself as a nation by establishing “a large-scale solidarity, constituted by the feeling of the sacrifices that one has made in the past and of those that one is prepared to make in the future”; that is, they become part of an “imagined community.” Such studies show that there is no naturalistic principle determining the territorial boundaries of states. Nations are made by political will. Or, as Ernest Gellner expressed it: “It is nationalism which engenders nations, and not the other way round.”6 On the principle that the idea creates the political reality, it might be said that the state makes the people.
The third element is the state as an expression of the institutions that make authoritative decisions. This is the state as the government, the set of institutions established by the constitution and through which the will of the state is formulated and executed. The office of government is, in this sense, the machinery of the state. Its officers, those who assume legislative, executive, or judicial tasks, exercise sovereign powers as agents of the state.
This office of government must be distinguished from any particular administration. Although the personnel of government regularly changes, whether through the election of a new administration or appointment of new officials, the office persists. But as the US Supreme Court emphasized in Poindexter v. Greenhow (1885), the distinction between the government of a state and the state must also be observed. The Court emphasized that, although often treated synonymously in common speech, “the state itself is an ideal person, intangible, invisible, immutable” and must be distinguished from the government, which is only its agent.7 That ruling reinforced a decision the Court had earlier handed down in Texas v. White (1868), in which the acts of secession of southern states that led to the Civil War in 1861 were held to be unlawful acts of usurping governments of the states and not acts of the states themselves. The Union of the States, Chase C.J. explained, was not an artificial contrivance: “It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations.”8
In the late nineteenth century, German jurists sought to redefine this idea of the state by claiming that the state, understood as the union of the elements of territory, people, and ruling authority, possessed a special type of corporate personality.9 This effectively equated the concept of the state with the third element, that of Staatsgewalt. Drawing a distinction between “state” and “society,” they conceived the state as the institutional apparatus that regulates social forces and maintains political unity from social diversity.10 This positivist conception of the state as a legal person, a peculiarity of German state development, has been adopted by many jurists and political scientists, often with unfortunate consequences.
Whenever the idea of the state is reduced to any one of its three elements, it is impoverished. The state is not just a synonym for the office of government—it is an abstraction that remains distinct from both government and governed. As an abstract entity encompassing territory, ruling power, and people, the state expresses the autonomy of the political worldview. It opens up a distinctive way of viewing the world, one comprising citizens and subjects who are impressed with rights and duties and who adopt a particular manner of acting, reasoning, and calculating. That is, the state gives us access to a political world of institutions and practices formed as an autonomous set of politicolegal relations. The contours of this scheme—the ways in which the state is constituted—are continually contested, but there cannot sensibly be an ongoing argument about meaning and significance without first positing the idea of the state.
Sovereignty is a correlative expression of the state. The state and sovereignty are codependent: state as intelligible scheme and sovereignty its authority. And just as there is about the state, so too is there confusion about the meaning of sovereignty. This results from a failure to differentiate between the concrete and the abstract, or between sovereign and sovereignty. Just as the meaning of state—from the Latin status, expressing a condition of stability—has evolved, so too has the concept of sovereignty.
The term “sovereign” was coined to denote the office of a ruler. A sovereign ruler was not legally obligated to any other power. The ruler’s “sovereignty” indicated the absolute character of the legal relationship between ruler and subject. This is a modern innovation: while medieval jurists had a clear sense of hierarchy, they lacked the abstraction that Jean Bodin was to call sovereignty.
In using this terminology, early modern jurists recognized that, whatever deference was paid to the king’s majesty, the ruler was not exercising personal power but occupying a representative office. The implications of this only emerged gradually. First, the monarchical image of the sovereign ruler was idealized. It was accepted that “the king can do no wrong,” but an idealization of the office of the king led to its institutionalization. If the king could do no wrong, errors must be attributable to “evil counsellors.” The king might be beyond reproach, but his advisers must be rendered accountable. The next step was to acknowledge that “the king’s will” was an institutional will: the king spoke authoritatively through his council. In this way, the sovereign came to be seen not as a person but as a corporate office with the “sovereign” powers of government no longer inhering directly in the person of the ruler. These powers were to be exercised variously through the king-in-parliament, the king-in-council, the king’s ministers, and the king’s courts.
Institutionalization, internal differentiation, and corporatization of the office of the sovereign ultimately led to a distinction emerging between the sovereign powers of rule and the concept of sovereignty itself. Specifically, the powers of rule could be divided, but sovereignty—expressing the absolute authority of the ruling power—could not. In 1576, Bodin marked this development, explaining that there is a “great difference between the state and the government of the state,” that is, between sovereignty and the sovereign powers of government. The distinction, he suggested, “seems to me more than necessary for the good understanding of the state of every commonwealth, if a man will not cast himself headlong into an infinite labyrinth of errors.”11 Contemporary confusion comes from a failure to grasp this elementary point.
The significance of Enlightenment revolutions can now be explained. Overthrowing the claim that sovereign right is bestowed from above by God, they asserted that it was conferred from below by “the people.” But, as with the idea of the state, the people can exist qua “the people” only when the “sovereign” office of government has been established. Since it is difficult to vindicate the “sovereignty of the people” as a matter of historical fact, early modern social contract theorists, such as Hobbes, Locke, and Rousseau, sought a way out of the paradox by changing the basis of the argument. Treating the social contract not as historical fact but as a thought experiment, they posited the social contract as a symbolic expression of the passage from natural state to civil order. With its virtual character acknowledged, power is not actually delegated from the people—the multitude—to their governors; the contract simply signifies the creation of the imaginative world of “the political.” This is a political world in which we imagine ourselves as members of a collective association in which, as citizens, we are impressed with rights and responsibilities.
On this understanding, it is tenuous to assert that the “people is sovereign.” If, as Schmitt believed, the sovereign refers to “the highest, legally independent, underived power,”12 then in this constituted world of the political and the state, no “underived” power can exist. But although the existence of a sovereign might be contentious, the concept of sovereignty is not. Sovereignty comes into its own as a representation of the power and authority derived from the formation of this way of conceiving the world.
Sovereignty, then, vests neither in the ruler, nor in the office of government, nor in the people: it vests in the set of relationships established by these institutional actors. The trajectory of the idea of absolute authority moves from sovereign ruler, through the corporatization of the office, to a sense of sovereignty conceptually quite different from the actual institutional arrangements of government. Sovereignty expresses the autonomy and authority of this distinctively political way of viewing the world.
Constitutionalism was originally designed as a method of establishing a regime of limited government that could protect the basic liberties of the subject. But once the concepts of state and sovereignty are brought into the frame, maintaining such a constitutional order is seen to involve more intricate considerations.
When Dieter Grimm explained that not all states have a constitution, but every state is constituted, he was drawing attention to the significant shift involved in drafting documentary constitutions.13 His point is well taken, but our orientation is different. Constitutionalism concerns the appropriate form of the written constitution, but when we attend to the constitution of the state, we are directed to consider more precisely the way the state performs the integrative function of maintaining the political unity of a people. We are obliged to consider those factors that govern the traditional idea of the constitution, those that shape and reshape collective political identity. And it is from this perspective that constitutionalism is most clearly an ideology: already assuming the legitimacy of the established social order, it takes as its purpose the maintenance of the liberties enshrined in that order.
These different orientations were rigorously appraised by constitutional lawyers in the Weimar republic. Unexpectedly thrown into a new world of social democracy bolstered by a written constitution, they engaged in a rich methodological debate. At its core, their debates over methods and direction (Methoden und Richtungsstreit) involved a dispute about the status of the Weimar Constitution. Of particular significance are the challenges jurists posed to a prevailing legal positivism that claimed its authority derives from the norms of positive law enunciated in the text of that Constitution.
The distinction between the written constitution and the constitution of the state was most explicitly drawn by Rudolf Smend. Viewing the state as the cultural expression of the collective life of a people, in Verfassung und Verfassungsrecht (Constitution and Constitutional Law), Smend argued that the state’s main purpose is to promote the integration of a people as a political unity through a continuous exercise of nation-building. The state’s constitution acquires meaning through the immanent values of this integration rather than through legal interpretation of the formal rules of the written constitution.14
Schmitt’s Constitutional Theory makes a similar claim, but he sets it in a more comprehensive analytical scheme. Distinguishing between absolute and relative conceptions of the constitution, Schmitt argues that the relative is more prominent due to a modern tendency to view the constitution as a formal document that takes effect as fundamental law. He calls this a relative conception because many provisions in constitutional texts do not concern fundamental matters. They are treated as “fundamental” only within an “approach to law that is indiscriminately formalistic and relativistic” and which distorts understanding of the constitutional order of the state.15 It is only with reference to an absolute conception that a coherent constitutional theory can be generated.
Constitutional Theory presents a complex typology of six meanings of the absolute conception of the constitution but, replicating Jellinek’s two aspects of the state, they divide into two basic groups: the ideal and the existential. Schmitt’s objective is to expose the limitations of the ideal and accentuate the importance of the existential, but it is not necessary to accept his argument to recognize its utility.
The ideal sense presents the constitution as “a closed system of norms.” It sketches an idealized account of the normative legal framework of the office of government as “a unified, closed system of higher and ultimate norms” having the status of fundamental law. Schmitt argues that this normativist scheme conflates state, constitution, and law: rejecting Jellinek’s two aspects, the state is equated to the constitution and the constitution is equated to the legal order. The written constitution is assumed to embrace the constitution of the state. Presented as the “norm of norms,” it mirrors the legal order’s hierarchy of norms.16
In assuming the authority of the constitution as a self-positing and self-sustaining system of norms and equating it to state and law, this normativist account expresses the ideology of classical constitutionalism. Schmitt criticizes it on the ground that it must ultimately rest its claims on an existing political will and specifically from an act of the “constitution-making power” that sustains its authority. He contrasts it unfavorably with the existential sense of the constitution as “the concrete, collective condition of political unity and social order of a particular state.” In this conception, the state “does not have a constitution … rather, the state is constitution.” So Schmitt also equates state and constitution. But in his understanding, it is the constitution of the state that determines the meaning of the formal constitution. And since the state is in constant flux, that formal constitution must similarly express “the principle of the dynamic emergence of political unity, the process of constantly renewed formation and emergence of this unity from a fundamental or ultimately effective power and energy.”17
Schmitt argued that the true meaning of constitution is revealed only through existential method. Prior to the enactment of a constitution there is an existing order, a sociopolitical reality that expresses the organization of a group’s collective existence without which no constitution could be drafted. Schmitt’s sociological realism stands in direct opposition to classical constitutionalism; in place of the normative scheme of the state, he asserts the primacy of material forces.
Yet, neither the normativism of classical constitutionalism nor Schmitt’s materialist method fully engages with the dialectical aspects of the constitution of the state implied by Jellinek’s two-sided theory. The jurist who does is Hermann Heller. Heller recognizes that the state, a more fundamental unit than the constitution, is nevertheless a “legally organized, political power.” He argues that the state must adhere to legality both because of its essential integrative social function and also because it is needed to ensure its legitimacy. This double aspect is overlooked: “All the ideologists of force fail to recognize this power formation by law, while conversely all the pacifist ideologists do not want to recognize law formation by power.”18 Bringing the two elements into alignment, he offers a renovated account of the “normative power of reality.”
Heller maintains that the brute fact of power can only sustain itself by winning belief in its justification. In this way, normality is transformed into normativity. But “alongside this normative force of the factually normal” is “the normalizing force of the normative.” By this he means that the constitution formed by norms is able to establish its authority only on the foundation of the material constitution. The relationship between normativity and reality is dialectical: “the content and validity of a norm are never determined merely by its text, and never solely by the standpoints and characteristics of its legislators, but above all by the characteristics of the norm addressees who observe them.”19
Heller’s state theory comprehends the tension between the formal and the material, between the written constitution and the constitution of the state, highlighting its juridical significance by distinguishing between positive law and “political right.” Schmitt recognized a similar distinction but maintained that the absolute constitution rested ultimately on an existential entity, the political unity of the people. For Heller, this material constitution is not simply a fact. “Every theory that begins with the alternatives, law or power, norm or will, objectivity or subjectivity,” he argues, “fails to recognize the dialectical construction of the reality of the state and it goes wrong in its very starting point.” Once the power-forming quality of law is appreciated, the constitution cannot be treated “as the decision of a norm-less power.”20
Against the normativism of classical constitutionalism, Heller maintains that, although the constitution’s validity and efficacy can be logically distinguished, “they nevertheless apply to the same constitutional reality, in which the assertion of one [validity] always supposes the other [efficacy] at the same time.” Against the materialist account he argues that, although the state exists as an expression of collective political will, “without a normative act, a collection of people has neither a will capable of decision nor power capable of action, and at the very least it has no authority whatsoever.”21 The normative and material facets of constitutional order are mutually dependent.
These intense Weimar debates throw into relief the limitations of assuming the authority of the written constitution and the reasons why classical constitutionalism is inadequate. Every text has a context and behind the constitution is a rich history of the constitutional ordering of the state that illustrates how territory, people, and ruling apparatus have been drawn into alignment. Whatever authority the written constitution acquires must rest on the power of that narrative.