In the Weimar Republic, Schmitt was associated with Catholic conservatives. Relations were strained when he divorced his first of two wives, Pawla Dorotic, whom he met when she was a Spanish dancer in a vaudeville theater. The Vatican was not impressed by his request for an annulment, on the grounds that the Munich-born Protestant dancer had lied to him about having an aristocratic pedigree as the daughter of a Croatian baron. Moreover, according to Mehring, Schmitt did not attend church during the Nazi years.

But those who argue for his lifelong affinity with strains of Catholic reactionary politics can make a good case. Notwithstanding his embrace of Nazi racism, Schmitt’s sympathies lay with Latin authoritarianism rather than Teutonic totalitarianism. His only child, his daughter Anima, born to his second wife, married a Spanish law professor belonging to Franco’s Falangist party, and she translated some of Schmitt’s writings into Spanish. In Political Theology, he praised the nineteenth-century Catholic counterrevolutionary thinker Juan Donoso Cortés. In later life, he understood modern world events in terms of apocalyptic imagery borrowed from Christian thought, including the idea of a “katechon,” a figure who, by maintaining order, delays the end of the world. The katechon might be thought of as Schmitt’s answer to Thomas Hobbes’s metaphor of the Leviathan.

 

BUT SCHMITT did not think that the answers to modern problems could be found in Thomism or a restoration of papal authority. There was no going back to the Middle Ages. Schmitt embraced modern populism and tried to turn it to antidemocratic, illiberal ends. In his Verfassungslehre (Constitutional Theory) of 1928, for example, Schmitt praised the French revolutionary thinker Abbé Sieyès, author of What is the Third Estate?, for distinguishing between the pouvoir constituant and the pouvoir constitué, the maker of constitutional government and the constitutional government that is made.

The idea that constitutions exist at the will—and for the benefit—of the sovereign people or nation was central to the French and American Revolutions and goes back to the social-contract theory of John Locke and his successors. It was stated not only by Sieyès but also by Thomas Jefferson, in the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

As William E. Scheuerman and Renato Cristi point out in their contributions to a 1998 anthology edited by David Dyzenhaus, Law as Politics: Carl Schmitt’s Critique of Liberalism, Schmitt puts an antiliberal spin on the theory of popular sovereignty. Sieyès, like the American Founders, takes it for granted that the exercise of popular sovereignty operates under constraints, even if it is not constrained by constitutions or statutes. Even when acting in revolutionary fashion, by discarding one government and forming another, a sovereign people cannot violate natural law (in the version found in early modern social-contract theory, that is, not the natural law of premodern Scholasticism). Moreover, in a revolutionary interim between governments, the people are expected to act through representative, consultative bodies, such as constitutional conventions. The sovereign people’s natural, extralegal right of revolution is not an excuse for either communal atrocities or the dictatorship of an individual.

By dispensing with these constraints, Schmitt turns the theory of popular sovereignty into a rationale for Caesarist dictatorship. The cryptic first sentence of Political Theology, “Sovereign is he who decides the exception,” shows that the sovereign people have been conflated with the sovereign executive. Social-contract theorists would have written, “Sovereign are they who decide the exception.”

Schmitt does not mean that any malcontent colonel who manages to carry out a putsch is the “sovereign.” Instead, the sovereign is a charismatic leader who saves the people from danger by acting decisively, outside of the law if necessary. Because the paralysis of parliamentary politics can itself pose a danger to the nation, in the view of Schmitt and other antiliberals, the eighteenth-century French and American method of a quasi-parliamentary constitutional convention to represent the sovereign people must seem to be merely the attempted correction of one weak debating society by another.

The decisive leader creates the new order by deeds, not chatter. The Schmittian leader is a plebiscitarian ruler who can have his actions ratified by the acclamation of a grateful people, but he does not act on their instructions. In his Constitutional Theory, Schmitt argued that “the natural form for the direct expression of the popular will is the yea-saying or nay-saying shout of the assembled crowd.” Cristi notes that Schmitt “comes to accept and recognizes the pouvoir consituant of the people only because he has found a way to disarm it.”

 

THE “FRIEND/ENEMY” distinction is another original concept in Schmitt’s antiliberalism. All political theories that do not advocate for a global government must have some way of determining who belongs in particular polities and who does not. In deciding on the boundaries of new states formed from the partition of dynastic or colonial empires, the standard in international law has been the so-called Latin American doctrine: the borders of newly independent successor states in general should follow the boundaries, however arbitrary, of administrative or political units within the former, larger state.

An alternative approach, the so-called Central European approach, favors redrawing arbitrary political boundaries to create more homogeneous ethnic or linguistic groups. Neither doctrine is inherently illiberal. In his Representative Government, John Stuart Mill thus argued that liberal, representative government is most likely to succeed in countries in which most of the citizens share at least a common language, a thesis that the continuing disintegration of multiethnic states in our time would appear to confirm. In Mill’s words, “Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.” Neither approach to defining the citizens of sovereign states equates political independence of one community from another with inherent and unremitting enmity.

In keeping with his decisionist approach to law and politics, Schmitt is not interested in adumbrating general rules like these. The people are more than a collection of human beings in a common territory or sharing various characteristics like language and ethnicity. Rather, for Schmitt, the people must have a mystical solidarity defined by the recognition of common public enemies, who may be external or internal or both. The friend/enemy distinction in a particular context, like the exception or state of emergency in a particular situation, by its nature cannot be identified or limited in advance. Rather, it is the essence of great leadership to grasp, at any given time, which approach to legality or its opposite and which set of public enemies is in the interest of the nation.

Schmitt is sometimes compared to Hobbes as an authoritarian thinker. But the temperaments and mentalities of the two were quite different. The Hobbesian sovereign, while prepared for war and anarchy, prefers peace and quiet. Schmitt’s authoritarianism is histrionic and apocalyptic. What is most extreme is most authentic. The exception is the rule. The emergency is the norm. The nation is constantly on the verge of collapse and threatened by enemies without and within. Parliament is the problem, not the solution. The times demand leaders who can take bold and decisive action, not waste time in idle debate. Quoting Schmitt on parliamentary democracy (“The value of life stems not from reasoning; it emerges in a state of war where men inspirited by myths do battle”), Stephen Holmes observed in 1993, “That is Mussolini, not Hobbes.”

Or worse. The potential for toxic interaction among Schmitt’s ideas about mythicized politics and extralegal power is illustrated by his own short and sordid career as a Nazi apologist. Following the Night of the Long Knives, Schmitt published an article entitled “Der Führer schützt das Recht” (“The Führer protects the law”). In identifying and eliminating enemies of the state, “The Führer protects the law against the worst forms of abuse when, in the moment of danger, he immediately creates law by force of his character as Führer as the supreme legal authority.” In that one sentence, Schmitt collapses executive prerogative, martial law and constituent power into arbitrary, uncontrollable tyranny.

 

REGIMES THAT resemble Nazi Germany in detail are unlikely to appear again. But antiliberalism in some form, in liberal democracies themselves as well as authoritarian states, will be around as long as liberalism endures, deploying arguments like Schmitt’s as weapons.

Defenders of the liberal constitutional tradition would be well advised to respond to those who are antiliberal thinkers like Schmitt in two ways. To begin with, they need to take seriously the challenges to legality and constitutionalism posed by the hard cases that he dwells on. The reply should be that the tradition of constitutional liberalism within itself has the resources to deal with extreme situations, by means of concepts like the natural right of revolution exercised by constitutional conventions, and executive emergency powers which are adequate in their flexibility without being unconstrained by law or legislative oversight. (Schmitt himself distinguishes “commissarial dictatorship,” or emergency measures to save a constitutional order, from “sovereign dictatorship” that creates a new constitution.)