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CARL SCHMITT AND THECONSTITUTION OF EUROPE

Jan Müller∗

To be European, means to defend the state.Pierre Bourdieu

Federalise their wallets and their hearts and minds will follow.Madison

INTRODUCTION

Now that the “fourth wave” of democratization (Claus Offe)in Eastern Europe is over, the main constitutional challengeremaining in Europe today, arguably, is to democratically define—and redesign—the European Union (“EU” or “Union”). Despitemuch enthusiasm and recent work on the topic, the Unionremains, to a large degree, a polity in search of a politicalphilosophy. For some, it represents the best attempt yet attransnational democracy; for others, it is the worst example yet ofa lack of transnational democracy. Some long for the emergenceof “European public spheres,” while others see the extinction ofsovereignty and the dismantling of the nation-state as the “end ofpolitics”—not only as we know it, but of democratic politics assuch. But what, precisely, are the theoretical challenges posed bythe Union?

At the most basic level, there is the question of what kind ofpolity the EU actually is. Without answering this question, anormative political theory of the Union cannot proceed. Mostobservers agree that the European Community has undergonesome process of “constitutionalization”—the most important signsof which have been the direct effect and supremacy of Communitylaw and the development of the Union into a kind of Rechtsstaat—i.e., an entity which guarantees the rule of law. But, equally, thereis consensus that it falls short of being a “proper state” or a“proper federation,” and that, in any case, it still suffers from a“constitutional deficit.” Are we then dealing with a “transitional

∗ Jan Müller is a fellow of All Souls College, Oxford.


1778 CARDOZO LAW REVIEW [Vol. 21:1777

constitution” (Arthur J. Jacobson), which will eventually result ina “United States of Europe”—or is the EU something entirelynew, a supranational construction sui generis, permanentlysuspended between Bundesstaat (federal state) and Staatenbund (afederation of states), as German constitutional lawyers have beenarguing? Or is it, finally, as others have suggested, a constructionfamiliar, or maybe no longer familiar, from the Holy RomanEmpire, a kind of neofeudal collage of overlapping sovereigntyand multiple levels of loyalty? In any case, the question remains:Who precisely did, and continues to do, the European“constituting” in the first place, and what effects does the Unionhave on traditional notions of sovereignty—including Schmitt’s.

Secondly, there is the old, and, one might say, by now rathertrite, issue of the “democratic deficit.”1 The deficit—or rather, themultiple deficits—are obvious, and yet the demos seems to becontent with its undemocratic governance. Consequently, lawyersand political scientists have come up with new, but rathercontrived, forms of “legitimacy.” Adding to Weber’s three formsof legitimacy, they have introduced a notion of “self-legitimation”based on instrumental, functionalist criteria—or, to put it bluntly:bread and circuses.2 In this vision, the Union is based on a kind of“tacit consent,” which, in turn, is based on the fact that the Unionsimply “functions.” This essentially means that it fulfils its promiseof greater prosperity. Against this, the claim has been made thatnothing short of “existential legitimation” and a “politicalconstitution for Europe” will suffice to remedy both thedemocratic and the legitimacy deficits,3 and that the absence ofsuch legitimacy will eventually haunt a Europe constructed bytechnocrats.4

Thirdly, there is the problem—historically and theoreticallyprobably most interesting—of clashing state traditions andclashing cultures of public law in Europe. The larger states clearlyhave very different understandings of sovereignty, power,

1 Dario Castiglione, Contracts and Constitutions, in DEMOCRACY ANDCONSTITUTIONAL CULTURE IN THE UNION OF EUROPE 59-79 (Richard Bellamy et al.eds., 1995).

2 See Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question ofStandards, 4 EUR. L.J. 5-28 (1998).

3 It cannot be pointed out often enough that these deficits are analytically distinct,since democracy and legitimacy are not co-terminous, and the connections betweenparticipation, democracy, and legitimacy are far from straightforward. After all, as theParliament has acquired more powers, participation has decreased. See JEAN BLONDELET AL., PEOPLE AND PARLIAMENT IN THE EUROPEAN UNION: PARTICIPATION,DEMOCRACY, AND LEGITIMACY (1998).

4 See Manfred Henningsen, Die politische Verfassung Europas, 52 MERKUR 454(1998).


2000] CONSTITUTION OF EUROPE 1779

constitutionalism, and the rule of law. To put it veryschematically, whereas in Britain, the Crown in Parliament issovereign, in France, it is the state, representing the sovereignpeople, and its common national will. Finally, in Germany, theconstitution is interpreted through the Constitutional Court as thefinal arbiter.5 The EU is constructed, or so many critics havecharged, not only in the image of the centralized French state, uneet indivisible, but also on the model of the Catholic Church, unasancta.6 This seems to be the case partly because the British are soafraid of what they see as German “federalism”—i.e., the oppositeof what the Germans mean by it—that they opt for a Frenchmodel by default, even though, in fact, it is much more alien totheir constitutional tradition. Such conflicts do not only play outat the highest level, but, as integration proceeds, they will play outat this level even more often. The Commission’s recent corruptionscandal was arguably less an indication of the rotten core of theEU (although it was that, too), than the conflicted core of the EU:a cabinet system staffed with close political allies (or cronies) isarguably an acceptable part of the French system, whereas inGermany and Britain it is not.

What kind of tools does Schmitt’s political and legal theoryoffer to get a better handle on these challenges? Or doesEuropean integration, in fact, prove how useless the Schmittianintellectual tool kit has become, and, in particular, that“Schmittian sovereignty” remains caught in existentialist,concretist ways of thinking, which have long lost touch with theintricate “legitimation through procedure” or the legitimationthrough prosperity which some see at the heart of the EU?7 Hasfunctionalist integration, a kind of “polity-building by stealth,” by“neutralizing” the “primacy of the political,” disproved Schmitt’ssuspicion of the liberal order to sustain itself through purelyeconomic means? Has Schmittian unitary and decisionistsovereignty, which always asks for the identification of the finalarbiter, been extinguished in favor of “pooled sovereignty” and akind of subtle sovereignty by “mutual recognition, continuity andconsent?”8 Or is sovereignty merely disguised in what Schmittwould have called “apocryphal acts of sovereignty,” and thusmight reassert itself in the case of a political emergency? Can one

5 See ZUM BEGRIFF DER VERFASSUNG (Ulrich K. Preuß ed., 1994).6 See Konrad Adam, Die Heilige Allianz: Europa als katholisches Projekt betrachtet,

52 MERKUR 1110 (1998).7 See JÜRGEN HABERMAS, FAKTIZITÄT UND GELTUNG 600-31 (1992).8 JAMES TULLY, STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF

DIVERSITY 209 (1995).



say, then, to put it crudely, that if Europe works, Schmitt is wrong?Or is the joke, after all, on the anti-Schmittians, who remainfixated on Schmitt’s Weimar writings, and overlook his predictionsabout the end of the nation-state, and his advocacy of economicGroßräume (great spaces), in which case the EU would be the firstGroßraum realized?9

To be sure, Schmitt’s thought has been employed in thediscussion on the “European constitution.” Some, for instance,have suggested that Europe is in need of a new political “myth”:only an appeal to specifically European traditions, such as thesocial market economy and étatisme, fused with the political willfor integration, can provide the cohesion and homogeneitynecessary for a true European federation.10 Arguably, Schmitt’sconceptual connection between democracy and homogeneity wasat the basis of the German Constitutional Court’s Maastrichtdecision.11 German constitutional lawyers have consistentlyupheld the conceptual triangle of “people-state-constitution,” andargued that Europe’s democratic deficit needs no remedies, sincethere is no demos—or Staatsvolk—in the first place.12 Conversely,those who insist that the quality of statehood for the sake ofdemocracy is desirable for the European Union also argue thathomogeneity among the European peoples should be increased,while for those who hope to disentangle democracy andnationhood in favor of “public spheres,” Schmitt remains aformidable opponent at the European level. It seems, however,that all participants in such debates retain a state-centeredperspective, in which the “demos-state-constitution” triangleremains intact, even if the demos becomes European, “post-national,” or one of “constitutional patriots.” In other words, theinstitutions of the nation-state are merely writ large, with more orless nation added to the state.

In this Article, I discuss the specific question of sovereigntyand constitution-making, and ask whether Schmittian categories

9 See LOTHAR GRUCHMANN, NATIONALSOZIALISTISCHE GROßRAUMORDNUNG(1962).

10 See Markus C. Kerber, Der Mythos des Politischen und die Ratio der Ökonomie, 52MERKUR 375 (1998). For the view that functionalism provides its own myths ofrationalization, see Lene Hansen & Michael C. Williams, The Myths of Europe:Legitimacy, Community and the ‘Crisis’ of the EU, 37 J. COMMON MKT. STUD. 233-49(1999).

11 Maastricht Decision, BVerfGE 89, 155-213 (1993) (translated and reprinted in 33I.L.M. 388 (1994)); see also Dieter Grimm, Does Europe Need a Constitution?, 1 EUR. L.J.282 (1995); Jürgen Habermas, Comment on the Paper by Dieter Grimm: ‘Does EuropeNeed a Constitution?,’ 1 EUR. L.J. 303 (1995).

12 Ernst-Wolfgang Böckenförde even speaks of Gleichartigkeit in this context. ERNST-WOLFGANG BÖCKENFÖRDE, STAAT, VERFASSUNG, DEMOKRATIE 332 (1991).



can prove helpful in analyzing the European Union as such. Forthat purpose, I first present a brief outline of Schmitt’sconstitutional theory, bearing in mind that some observers haveclaimed that intellectual resources for “radical democracy” can beextracted from it. I will then return to the question whether thosewho desire more democracy, in particular, can find somethinguseful in the Schmittian intellectual tool kit, before applyingSchmittian categories directly to the current constitution ofEurope. I conclude that Schmitt’s thought sheds some light on thecurrent constitution of Europe, but that it holds few clues on howto remedy Europe’s democratic deficit.

I. THE POWER OF THE VOLK AS SOVEREIGN DICTATORSHIP:SCHMITT’S CONSTITUTIONAL CHALLENGE

In his relentless ideological battle against liberalism, Schmittdrew a stark distinction between liberalism and parliamentarism, onone hand, and democracy on the other. He charged that liberals,through “eternal discussion,” pretended to dissolve the political asexistential confrontation, by making it into either a question of ethicsor a question of economics, both of which could be answered bymeans of negotiation or rational deliberation. Democracy,however—defined by Schmitt as the “identity” of governors andgoverned—was a real political concept; consequently, in line withSchmitt’s definition of the political as the distinction between friendand enemy, it had to contain an agonal element. He claimed thatdemocracy was founded on equality and that “the democraticconcept of equality . . . like all real political concepts, refers to thepossibility of a distinction. Political democracy thus cannot rest onthe sameness of all human beings, but on belonging to a distinctpeople.”13 In short, Schmitt defined democratic equality as internalsubstantive homogeneity, which pointed to, and depended on, someexternal “other” which could be excluded, thereby establishing theidentity of the demos. In Schmitt’s words, “[d]emocracy requires,therefore, first homogeneity and second—if the need arises—elimination or eradication of heterogeneity.”14 The requirement ofequality in the sense of homogeneity was essential, and could not befulfilled by what he dismissively called liberal, “abstract, logical-arithmetical games” and “indifferent equality”; rather, it dependedon the “substance of equality.” In the past, such “substantialequality” had been found “in certain physical and moral qualities,for example in civic virtue, in arete, the classical democracy of vertus

13 CARL SCHMITT, VERFASSUNGSLEHRE 227 (5th ed. 1970) (1928).14 CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY 9 (Ellen Kennedy

trans., 1985).



(vertu).”15 Recently, however, the distinction between member andalien has become a national one, due to the fact that “since thenineteenth century, belonging consists above all in belonging to acertain nation, in national homogeneity.”16 But, in theory, the“heterogeneous” could also be slaves, as in Athenian democracy, orthe colonized, as in the Age of Empire. What supposedly hasremained a constant of political reality, however, is that “there hasnever been a democracy which has not known the concept of thealien and which realized the equality of all men.”17 Thus, thesubstance of equality could change over time, as long as equalityremained “interesting and valuable politically”—which it did as longas it had substance, “and for that reason at least the possibility andthe risk of inequality.”18 Regarding the present, Schmitt stated that“the earth is divided . . . mostly into naturally homogeneous states,which try to develop democracy internally on the basis of nationalhomogeneity.”19 Nationalism, in short, was a fact of present politicallife, and played a crucial role in underpinning “democracy” by fillingthe vacant space of “identity” with a “substance.”

In his Constitutional Doctrine, Schmitt argued that the nationand the Volk were often treated as synonymous concepts, but that“nation” in fact referred to “the people as a unit capable of politicalaction, with the consciousness of being politically different and withthe will to political existence, while the Volk not existing as a nationis just an ethnically and culturally somehow connected, but notnecessarily politically existing association.”20 Schmitt mentioneddifferent possible elements in the unity of the nation, and thenational consciousness of that unity, such as “common language,common political fate, traditions and memories, common politicalgoals and hopes.”21 While language played a particularly importantrole, the decisive factors were “having a historical life in common,conscious will to have this life in common,” and, finally, “greatevents and goals,” such as “real revolutions and victorious wars,”which could create a feeling of national community, even in theabsence of a common language.22 The nation was not the same asthe state, defined by Schmitt as “the status of political unity.” Thestate preceded and, in fact, constituted a precondition of a “nationalawakening,” as absolutist princes formed the political unity as a

15 Id.16 Id.17 Id. at 11 (translation modified).18 Id. at 9.19 Id. at 11.20 SCHMITT, supra note 13, at 79.21 Id. at 231.22 Id.



framework of political existence for the “coming to consciousness”of the nation.23 The nation, however, gave the state a new content or“substance,” and also increased state power through constant andconscious national mobilization, since the Volk now identified withitself in its state.24 Referring to Sieyès, Schmitt argued that theAbbé’s teachings of the creative pouvoir constituant presumed “theconscious will of a people to political existence, i.e. a nation.”25 Theparadigm case of this, of course, was the French Revolution, inwhich “a people, with full consciousness, took its destiny into its ownhands and made a free decision about the type and form of itspolitical existence.”26 After such a momentous existential decision,normatively “born out of nothingness,” the nation, according toSchmitt, remained das formlos Formende (the amorphous butforming entity), which could reaffirm its will to a particular politicalexistence or choose ever new constitutions if it so willed.27

In his 1921 study of dictatorship, Schmitt already interpretedSieyès’s doctrine as making the pouvoir constituant into dasunorganisierbare Organisierende—i.e., the organizing entity whichcould not itself be organized.28 He compared the contrast betweenthe sovereign pouvoir constituant, with its formless, arbitrarydecisionist will, and the pouvoir constitué, to Spinoza’s distinctionbetween natura naturans and natura naturata. The power of thenation, therefore, was essentially unlimited, precisely because itremained itself unconstituted and, as Sieyès had claimed, in the stateof nature. The nation, as the highest power, through a groundlessact of will, decided in favor of a particular constitution, which meantnot just a legal document, but an entire political way of life—i.e., thetrue “spirit” of the constitution. To change this constitution, it wassufficient that the “substance” of the state—i.e., the nation—in theimmediacy of its sheer power, reasserted itself.29 Constitutedpower—i.e., the state—as powerful as it might have appearedexternally, therefore was always dependent on the will of a“substantial” nation as the pouvoir constituant and its latent capacityto disrupt everyday, constituted politics.

However, as Stefan Breuer has pointed out, while the will of

23 Id. at 47-49, 79.24 See Carl Schmitt, Absolutismus, in STAAT, GROßRAUM, NOMOS: ARBEITEN AUS DEN

JAHREN 1916-1969 at 97 (Günter Maschke ed., 1995).25 SCHMITT, supra note 13, at 79.26 Id. at 78.27 CARL SCHMITT-DOROTIC, DIE DIKTATUR: VON DEN ANFÄNGEN DES MODERNEN

SOUVERÄNITÄTSGEDANKENS BIS ZUM PROLETARISCHEN KLASSENKAMPF 23 (1921).28 Id. at 142.29 See id. at 144; Maastricht Decision, BVerfGE 89 (1993) (translated and reprinted in 33

I.L.M 388 (1994)).



Sieyès’s nation remained bound by natural laws, Schmitt’s nation,once awakened to political consciousness, was absolute in itsfreedom.30 Also, the Volk, unformed, but of inexhaustible energy aslong as it continued to will its political existence and therebyconstitute a nation, always remained “present” through publicopinion, expressing its will directly through acclamation oracquiescence. In that sense, Schmitt’s revolution continued to belatent, rather than permanent, and was inevitably characterized byan underlying arbitrary popular will. It might seem, then, thatSchmitt conceived of the nation, above all, as willing, free, andactive, since he stressed self-assertion, the “active appearance of thenation” and its capacity to act, alongside consciousness, aspreconditions for nationality.31 Moreover, for Schmitt, there seemedto be nothing necessarily natural or primordial about a nation, evenif the nation remained in the state of nature, as Sieyès had claimed:nationality depended on the will to political existence, which, inaccordance with Schmitt’s own definition of the political, also meantthe identification of difference—that is, of an enemy.

However, the boundless power of the pouvoir constituant wasonly half the revolutionary narrative for Schmitt. In a furthertheoretical step, he claimed that, since the will of the nation alwayshad to remain amorphous and “unformed,” lest the nation suddenlybecome itself constituted, an agent to form and express the will ofthe nation was necessary. In Schmitt’s vision, a “sovereign,” butsupposedly transitory, dictatorship would be created for theexceptional moment of the founding. This dictatorship would haveto mold the constituting will of the nation and lay down thefundamental law of the land—i.e., devise the constitution. In otherwords, Schmitt drew a distinction between the “substance” of thepouvoir constituant and its exercise.32 Its substance, Schmitt claimed,could never be constituted, but its exercise could be carried out by asovereign dictatorship, which was derived from, but not authorizedby, the pouvoir constituant. Authorization, it seemed, would alwaysbe retroactive through plebiscitary measures.33 Moreover, while thesubstance and the exercise of the pouvoir constituant could

30 Stefan Breuer, Nationalstaat und pouvoir constituant bei Sieyès und Carl Schmitt, 70ARCHIV FÜR RECHTS-UND SOZIALPHILOSOPHIE 495 (1984).

31 However, Schmitt also contradicted his own account of the nation as necessarilyunformed when he argued that “the concept of nation is a concept of Bildung. Only a formed(gebildetes) Volk in the sense of quality of human will and human self-consciousness is anation, but not a Volk without Bildung and therefore without history.” SCHMITT, supra note13, at 311.

32 SCHMITT-DOROTIC, supra note 27, at 144.33 Cf. HANNAH ARENDT, ON REVOLUTION 125 (1993) (discussing the fictitiousness of

this authorization in the French Revolution).



supposedly be separated, Schmitt hinted that a division betweensovereignty and its exercise was impossible. Consequently, thedictator exercised the pouvoir constituant, but was also sovereign,pure and simple, since there could be no pre-constituted sovereigntyvested in the amorphous Volk.

Sovereign dictatorship also had to be deeply political, in theSchmittian sense, by virtue of the fact that part of its task was toexclude and even destroy the enemies of the new constitutionalorder, so as to create the sovereign unity of the nation. Thus, notonly was the sovereign dictator charged with making “fundamentallaws,” thereby establishing a “vertical” social contract between thenew rulers and the ruled, but he was also to unite the nation througha sovereign decision—i.e., a dictate.34 But even beyond the period ofthe sovereign dictatorship, governments were charged with the taskof integrating parts of the population into the political Einheit—i.e.,constructing the nation—since “the institutions of a state have thefunction of making homogeneity possible and recreating it everyday.”35 In nationally heterogeneous states, they could either try toassimilate or exclude the heterogeneous elements, but, in any case,had to ensure “democratic homogeneity.”36

According to Schmitt’s vision, day-to-day democracy itselfeffectively amounted to Caesarism: rather than through the privateact of voting, the Volk was to choose a government directly andvitally by acclamation.37 However, the general will to be expressedby acclamation depended only on those members of the Volk whowere politically conscious and present in the public sphere, asopposed to a majority without political will.38 A minority couldconfirm the decisions of a government that, by virtue of its identity inthe sense of being of the same substance as the Volk, divined thegeneral will. Thus, what might initially have seemed like aSchmittian version of the plebiscite des tous les jours, was certainlynot comprehensive. As I shall further demonstrate below, it was also

34 In that sense, Schmitt modeled his “sovereign dictatorship,” to some degree, on his owninterpretation of Hobbes, in whose theory “sovereignty developed out of a constitution ofabsolute power through the people.” The sovereign representative of the people thenretroactively created the unity of the people. Consequently, the whole process could only befounded on a decision based in turn on power—i.e., Schmitt’s favorite insight of “Autoritas,non Veritas facit Legem.” Quite clearly, however, “autoritas” here meant sheer power in anon-Arendtian sense. SCHMITT, supra note 13, at 22-23.

35 Carl Schmitt, Der bürgerliche Rechtsstaat, in STAAT, GROßRAUM, NOMOS: ARBEITENAUS DEN JAHREN 1916-1969, supra note 24, at 47.

36 SCHMITT, supra note 13, at 231-33.37 SCHMITT, supra note 14, at 16-17.38 See CARL SCHMITT, VOLKSENTSCHEID UND VOLKSBEGEHREN: EIN BEITRAG ZUR

AUSLEGUNG DER WEIMARER VERFASSUNG UND ZUR LEHRE VON DER UNMITTELBARENDEMOKRATIE 49 (1927).



not concrete, in the sense of actually appealing to concrete,contingent citizens.

Schmitt posited as an axiom of his constitutional theory thatthere were only two political “forms”—namely, “representation”and “identity.”39 He initially indicated that national unity haddemocratic consequences, in that it would require an identity in thesense of “sameness” qua homogeneity between the rulers and theruled.40 The need for identity was also derived from the fact that theVolk, which had achieved political Einheit in a nation, would alwaysbe directly and publicly present, and consequently could not berepresented in the way that an absolute ruler had represented theunity of the state. Schmitt claimed that he found this view confirmedin “the unrefutability of Rousseau’s democratic teachings.”41

Immediately, however, he reversed this position and relativized thenotion of the Volk as present and self-identical, arguing instead that“a complete, absolute identity of the Volk with itself as a politicalunity” was impossible.42 No state, he now added, without providingmuch of an argument, could dispense entirely with eitherrepresentation or identity, since both principles belonged to thepolitical existence of a Volk.43 Representation, or so Schmitt argued,had an existential quality, but at the same time only somethingresembling a mythical essence or substance could be trulyrepresented, since, according to Schmitt, no “arbitrary, low way ofbeing” was capable of representation.44 Therefore, in contrast to agroup of people who just happen to live together, the nation wascapable of representation, because it signified a “heightened, moreintensive way of being” by virtue of the Volk being identical withitself and present in the public sphere, as well as capable of national

39 SCHMITT, supra note 13, at 204.40 Id. at 51.41 Id. at 205.42 Id. at 207.43 Id. at 205.44 Id. at 209-11. On one hand, Schmitt claimed that “representation belongs to the sphere

of the political and is therefore something essentially existential [sic].” On the other hand, inhis 1923 book, Roman Catholicism and Political Form, Schmitt already had argued that:

[T]he idea of representation is so completely governed by conceptions ofpersonal authority that the representative as well the person represented mustmaintain a personal dignity—it is not a materialist concept. To represent in aneminent sense can only be done by a person, i.e., not simply a “deputy” but anauthoritative person or an idea which, if represented, also becomes personified.God or “the people” in democratic ideology or abstract ideas like freedom andequality can all conceivably constitute a representation. But this is not true ofproduction and consumption. Representation invests the representative with aspecial dignity because the representative of a noble value cannot be withoutvalue.

CARL SCHMITT, ROMAN CATHOLICISM AND POLITICAL FORM 21 (G. L. Ulmen trans.,Greenwood Press 1996).



will and consciousness, which ultimately depended on the capacity todistinguish between friend and enemy.45 Governments, therefore,were to represent the nation, making an “invisible being” publiclyvisible.46

What emerged from these seemingly contradictoryconstitutional axioms was that the nation acquired a “transcendentand transmundane” quality and had to be represented in the samemanner that, according to Schmitt, the Church represented atranscendent reality.47 Proper representation, in a strict juridicalsense, meant the “shining through” of a substantive idea and anessence, rather than the “mechanistic” reproduction of an alreadyvisible, empirical, and material reality.48 For Schmitt, politics,properly understood, had to contain a substantive idea, since therecould be no politics without authority, and no authority withoutsubstance.49 Consequently, the presence of a substantive ideal,intensity, publicity, and, finally, personality came to be Schmitt’scriteria for proper representation. In constitutional terms, whatneeded to be represented was the real presence of a singular, quasi-divine moment of establishing concrete order, authorized by thequasi-divine entity of a mythical “people” having decided on aparticular form of concrete order.50 As Günter Meuter has pointedout, the Volk became a transcendent political idea; not the citizens asconcrete individuals, but the idea of political Einheit as based onpolitical decisions about friends and enemies.51 This, then, is where

45 SCHMITT, supra note 13, at 210.46 “To represent means to make visible and present an invisible entity through an entity

publicly present. The dialectic of the concept lies in the fact that the invisible is assumed to beabsent but made present at the same time.” Id. John McCormick, drawing on WalterBenjamin’s famous distinction, sees Schmitt as championing an “auratic,” as opposed to a“mechanistic-positivistic,” conception of representation. McCormick is also right insuggesting that, in his critique of Weimar institutions, Schmitt did not advance the medievalmodel of representation in estates, but rather a radicalized, fascist model of personalistic,presidential authoritarianism. JOHN P. MCCORMICK, CARL SCHMITT’S CRITIQUE OFLIBERALISM: AGAINST POLITICS AS TECHNOLOGY 169 (1997).

47 For Schmitt’s ideas on the Catholic Church as an instance of perfected representation,see supra note 44.

48 See SCHMITT-DOROTIC, supra note 27, at 141, where Schmitt hints at the scholasticorigin of his ideas about substances. For this quasi-medieval Schmittian concept ofrepresentation, also see JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THEPUBLIC SPHERE (Thomas Burger trans., 1989), discussing the nature of medievalrepresentation of an authority embodied in a king or nobleman before, not for, the people;ERNST H. KANTOROWICZ, THE KING’S TWO BODIES: A STUDY IN MEDIEVAL POLITICALTHEOLOGY (1957); and HANNAH FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION(1967).

49 See supra note 44 for the essential connection Schmitt drew between the authentically“political,” authority, and “ideas” imposed from above.

50 See GÜNTER MEUTER, DER KATECHON 473 (1994).51 Günter Meuter, Zum Begriff der Transzendenz bei Carl Schmitt, 30 DER STAAT 483

(1991).



Schmitt sought what Hannah Arendt called an “absolute,” a kind ofArchimedean point, as a source of authority, although thesovereignty of the nation ultimately depended on an enemy to formpolitical unity. Such a quasi-religious or quasi-metaphysical view ofthe sovereign power was also confirmed by Schmitt’s explicitgenealogy of sovereignty in The Dictatorship, where sovereigndictatorship began as the Pope’s plenitudo potestatis and ended asthe quasi-divine national will of the pouvoir constituant.52 Therefore,what might at first have seemed like an existentialist, decisionist, andnormatively groundless theory of constitution-making throughsovereign dictatorship, in fact contained remnants of religiousthought and a belief in “substances” incompatible with any trulydisenchanted worldview. Part of what made Schmitt’s theoryseductive (and confusing) was this oscillation between the existentialand the essentialist, which allowed interpreters to project their own“substances” and “decisions” onto his theory.

II. CHERCHER LE PEUPLE

What I have tried to establish above is that a careful readingof Schmitt does not yield a theory of “radical democracy,” inwhich the people remain present and can actually subvert theconstituted powers at any time. In fact, such a reading reveals atheory still contaminated with religious-cum-authoritarian,“substantial” modes of thought, which cannot simply extractintellectual resources to remedy the democratic deficit byappealing to some European demos ready to assert itself.However, such an exegesis, of course, does not prevent us fromthinking with, beyond, and against Schmitt by attempting tosubtract the “substantialist” and authoritarian elements of histheory. After all, we could conceptualize a European pouvoirconstituant which stands legibus solutus—or, to put it differently,which remains present above, beside, and below the constitution.The resurgence of such a pouvoir might then coincide with theultimate loss of EU legitimacy—the moment when Europeanconstituted powers have become too far removed from thepeoples—and at the same time the constitution of a new order. Insuch a “with Schmitt against Schmitt” view, sovereignty alwaysrests with the peoples, and therefore remains inherently plural, atleast for now. It cannot be constituted as a substantial Einheit, yetit still remains up to “radical democrats” to explain how it canexpress itself in democratic ways, or, in other words, how theexercise of sovereignty—which Schmitt thought possible only in a

52 SCHMITT-DOROTIC, supra note 27, at 17, 127.



dictatorship—is to be conceptualized, especially if no singlesubstance can be posited.

Nevertheless, stripped of its essentialist, existential, and,above all, religious-authoritarian overtones, we are potentially leftwith a theory in which sovereignty simply cannot be extinguished,but stays alive with the European peoples. In such a reading, thereferenda after Maastricht in Denmark and France were suchassertions of different peoples, and thus constituted a true“constitutional moment” of the European Union.53

Can such an ultimately, once again, state-centered modelreally be useful in understanding the present constitution ofEurope, in remedying its “constitutional deficit,” and in furtherconstitutionalizing Europe? Can we, in this way, find the pouvoirconstituant and, ultimately, le peuple or les peuples, with Schmitt’shelp? The problem is that even such a “radically democratic”Schmittian view remains fixated on the state—but the Unionclearly is not, at least yet, a state.54 Therefore, to paraphraseJoseph Weiler, such a Schmittian reading is a description (andprescription) of oranges with a botanical vocabulary developed forapples.55 It also inevitably drives democrats in an étatist direction,since an increase in democracy depends on an increase instatehood and the formation of a true European Gemeinschaft—even though, to be fair to proponents of such views, not everyform of homogeneity has to be an ethnic or national one.

Let me suggest, however, that there is another way to applySchmittian constitutional thought to the European Union—onethat yields rather different results and also gets around thequestion of how sovereignty can be effectively exercised. I hastento add, though, that this model does not yield a real answer to the“democratic deficit,” but at least presents an ingenious way ofconceptualizing the current constitution of Europe. For thatpurpose, let me return for a moment to my initial question of whatEurope actually is. To put it rather broadly, the European Unioncontains intergovernmental, supernational, and what Weiler hascalled “infranational” elements.56 It also mixes aspects of“representative government,”57 in the broadest sense, with

53 See J. H. H. WEILER, THE CONSTITUTION OF EUROPE 4 (1999).54 The European Union (“EU”)is less than a state, even if it has appropriated many of

the bundle of functions which make up a state, but it also more than an internationalorganization.

55 WEILER, supra note 53, at 268.56 Id. at 271.57 In his effort to distinguish “representative government” from democracy, Bernard

Manin usefully defines these “invariable principles” as follows:(1) Those who govern are appointed by election at regular intervals.



“confederal, consociational” democracy, which aims at decisionalefficiency and inter-executive-elite accommodation.58 Mostimportantly, its constitution is treaty-based. Arguably, however,this makes it no less a constitution than that of the United States—or Britain59—even if the core of the European constitution hasneither been “codified” nor clarified, in the sense that the rules ofmembership, exit options, and the distribution of competence inthe European legal order have been spelled out.60 There is, as yet,no catalogue of fundamental rights (which would also expresscommon European values) which would not be subject to reviewby national constitutional courts, and, of course, there is no cleardivision of powers—even if there is extensive judicial review andthe European Court of Justice sometimes acts as the “guardian” ofthe European Constitution. In that sense, neither theRechtsstaat—i.e., the liberal rule of law—nor the liberal element ofthe division of powers, in Schmittian parlance, is fully present atthe European level.61 But, as Schmitt pointed out, these liberalelements only make sense in conjunction with a “political form”—whether of monarchy, aristocracy, or democracy. What then is thispolitical form? And who is the sovereign constituent power?

Clearly, the Union started as an intergovernmental enterprise,and only over time acquired supranational and infranationalcharacteristics.62 In that sense, the sovereigns of the Union werethe initial member states, which, in turn, represented theirsovereign peoples, seeking “an ever closer Union between thepeoples of Europe,” but not the formation of a “Europeanpeople.” In that sense, the initial constituent power was a pluralone: the member states, represented by their governments,engaged in elite bargaining, and made the political decision to

(2) The decision-making of those who govern retains a degree of independencefrom the wishes of the electorate.

(3) Those who are governed may give expression to their opinions and politicalwishes without these being subject to the control of those who govern.

(4) Public decisions undergo the trial of debate.BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 6 (1997).

58 See DIMITRIS N. CHRYSSOCHOOU, DEMOCRACY IN THE EUROPEAN UNION(1998).

59 Put simply, not every state has a constitution, but neither does every constitutionhave a state.

60 See Roland Bieber, Steigerungsform der europäischen Union: Eine EuropäischeVerfassung, in VERFASSUNGSRECHT IM WANDEL 291 (Jörn Ipsen et al. eds., 1995).

61 See Delf Buchwald, Zur Rechtsstaatlichkeit der Europäischen Union, 37 DER STAAT189 (1998) (discussing the elements of the liberal rule of law which the EU alreadyembodies and those it still lacks).

62 See ANDREW MORAVCSIK, THE CHOICE FOR EUROPE: SOCIAL PURPOSE ANDSTATE POWER FROM MESSINA TO MAASTRICHT (1998) (detailing the best account ofEuropean intergovernmental bargaining).



constitute the Community. Consequently, there was a deficit ofdirect democracy from the very start, but there was no lack of ademocratically constituted, plural constituent power. The lattermight seem like a contradiction in terms, if we are to believeSchmitt’s interpretation of the pouvoir constituant as das formlosFormende. In other words, how could the constituent poweralready be constituted? However, the undeniable fact of apartially constituted constituent power says more about thelimitations of Schmittian theory, and its search for an “absolute,”than it does about actually existing contradictions in the Europeanenterprise. After all, Hannah Arendt showed, with respect to theAmerican Revolution, that what prevented the Revolution fromfalling prey to a search for an “absolute,” such as Schmitt’s formlosFormende, was the fact that covenants and mini-constitutionspreceded constitution-making.63

In addition, as Andrew Arato and Ulrich Preuß have pointedout, the Eastern European revolutions of 1989 involvedconstituent powers which were plural and already formed in civilsociety.64 To argue that the constituent powers have to becompletely unorganized means falling victim to the metaphysics ofnatura naturans—a position which also leaves no answer to thequestion of how authority is actually to be exercised. InSchmittian terms, then, the European constituent power had arather determinate shape—but one that was open to reformationas member states’ governments changed, new member states wereadded, and the political will formed in interstate bargainingevolved. Moreover, the Community was designed to develop and,specifically, to both expand and intensify. In that teleologicalsense, it was different from a state from the very start, and it alsooffered a high degree of flexibility. But that meant that both theEuropean pouvoir constituant and the pouvoirs constituésexhibited a certain quality of “formlessness,” which, unlike inSchmittian theory, affected the shape of the political unity. This,then, was not just the Schmittian sense of “dynamic development”underlying every state that needed to be sustained by political will,but an actual extension and deepening.65 In sum, there was aVerfassungsvertrag without a Staatsvertrag—or, put differently, aconstitutionalization which transcended the member states, yet

63 ARENDT, supra note 33.64 For this notion of a pluralist founding, see ULRICH K. PREUß, REVOLUTION,

FORTSCHRITT UND VERFASSUNG: ZU EINEM NEUEN VERFASSUNGSVERSTÄNDNIS 84-88(1994); Andrew Arato, Dilemmas Arising from the Power to Create Constitutions in EasternEurope, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY 165 (MichelRosenfeld ed., 1994).

65 SCHMITT, supra note 13, at 5.



affected their constitutions.66

Nevertheless, this leaves open the question of what themember states’ governments, uniting their political wills afterelaborate processes of bargaining, actually chose to constitute.The political form they chose arguably was what Schmitt wouldhave called a status mixtus—i.e., a mixed state, with liberalelements of the Rechtsstaat added on. But, much as in anArendtian model of constitution-making, they also compoundedtheir powers, and shared and divided, rather than simply lost,sovereignty.67 Moreover, for all its cold war origins, the Union isnot a Schmittian political unity in the sense of depending onfriend-enemy identifications, and—to the extent that a Schmittian“absolute constitution,” an “existential way of life,” is concerned—it rests on what one might call the promise of prosperity and aconsensus about liberal democracy, which are, after all,preconditions for EU entry.68

Thus, the constituent power—the plurality of memberstates—remained both inside the constitution, as in the Council ofMinisters,69 and outside, as in those moments when the memberstates as high contracting parties redesigned the constituentpower—i.e., by adding new members, and by reshaping theEuropean Constitution itself. Obviously, not every subsequentmeeting of the member governments was a “constitutionalmoment,” but the Single European Act, the Maastrichtnegotiations, and the Amsterdam negotiations clearly were specialin transforming the very nature and limits of the Union. In thatsense, we are left with a kind of “dual system,” in which theconstitution transcends the contingent outcome of member states’bargaining in a constitutional moment, and in which the memberstates are both inside and outside the constitutional system.Sovereignty is then shared in “normal times” of Europeangovernance, in which supranational and infranational elementsloom large, but it reverts to the plural constituent power inmoments of constitutional remodeling. Moreover, since the Unionhas no Kompetenz-Kompetenz, constitutional decisions ultimately

66 See id. at 368.67 See Meuter, supra note 51, at 37; see also Neil MacCormick, Sovereignty, Democracy

and Subsidiarity, in DEMOCRACY AND CONSTITUTIONAL CULTURE IN THE UNION OFEUROPE 95 (Richard Bellamy et al. eds., 1995).

68 This does fulfill Schmitt’s criterion of a Gleichartigkeit of political principles.SCHMITT, supra note 13, at 376.

69 Although, strictly speaking, the Council is not part of the European Constitution asdefined by the treaties, it is, for all intents and purposes, part of the European politicalsystem. I would disagree here with Weiler’s assessment that the Council’s role is simplythat of a counterweight to the constitutionalization of Europe. WEILER, supra note 53, at36.



rest with the member states. At the same time, the member statesremain represented in the Council of Ministers. However, aboveand below the Constitution, they are precisely “the formlessforming entity”—which is “formless” in the sense of what Euro-jargon calls a “variable geometry,” “flexibility,” or “enhancedcooperation.” In exceptional moments of constitutional remakingof the Union, the member states then reassert their sovereignty.

Just as in the Schmittian model outlined above, member stategovernments also receive a kind of retroactive authorization fromtheir constituent powers, sovereigns, or “guardians of theconstitution.” Examples include the Germans and the Frenchfrom their respective parliaments and Constitutional Courts, whicheffectively answer the question of how sovereignty is to beexercised—the question to which Schmitt, in his original model,could only give the answer of a dictatorship.70 In that sense, thereis, of course, a further level of sovereignty below the sovereignmember states and their political decision to set up the constitutedpowers—which leads us back to the “radical democracy” optionspelled out above. Schmitt himself, in fact, declared that, infederations, sovereignty was not clearly located.71 According toSchmitt, federations in which two “political existences co-existed”were inevitably characterized by a number of antinomies—aboveall, the dualism of “existences” and the dualism of sovereigntywhich seemed to follow from this.72 These antinomies could onlybe overcome because the question of sovereignty—i.e., thequestion of who decides in the case of an existential conflict—would never be posed. The reason, not surprisingly, was thatevery genuine federation had to be characterized by “substantialhomogeneity” and the fact that all member states held to the samepolitical principles. Thus, according to Schmitt’s own theory offederalism, we are back to substantial homogeneity—while,according to a reading of Europe inspired by Schmitt’sconstitutional theory more generally, we are left with a complex,but not altogether implausible, picture of dual and dividedsovereignty, as it is actually practiced in present-day Europe. Thisdoes not answer the ultimate Schmittian question aboutsovereignty in the exception of existential conflict, but it does

70 The French made a specific “exception” with regard to Article 3 of the FrenchConstitution, whereas the Germans relied on the Constitutional Court to declare that theBundestag could effectively transfer power vested in it by the people to other agencies ofits choice. For an exceptionally clear discussion of the German case, see Thomas W.Pogge, Creating Supra-National Institutions Democratically: Reflections on the EuropeanUnion’s “Democratic Deficit,” 5 J. POL. PHIL. 163 (1997).

71 SCHMITT, supra note 13, at 373.72 Id. at 371.



answer the question about the constitutional “normalcy” of theUnion.73 After over forty years of integration, the Schmittianquestion should perhaps carry a little less weight, even for thosepolitically (and aesthetically) opposed to messy realities.

CONCLUSION

There are at least three ways in which Schmittian theorymight be useful in a descriptive (and prescriptive) analysis of theConstitution of Europe. First is Schmitt’s conceptual link betweendemocracy and homogeneity. This link has been stressed by thosewho want to deny the qualities of democracy and statehood toEurope, as well as those who want to advance democracy and theestablishment of a European demos. Both sides are in danger ofremaining within an étatist framework that conceives of Europeonly as a nation-state writ large.

Secondly, those seeking to remedy Europe’s democraticdeficit have drawn on the supposedly “radically democratic”elements that can be extracted from Schmitt’s work. In thisscenario, the European peoples remain a plural constituent powerthat can reassert itself against the executive elites which drive theEuropean project—but, for now, they can only do so in a statistframework. However, such a Schmittian reading also has tosubtract the “substantive,” even metaphysical, aspects of Schmitt’sconceptualization of pouvoir constituant, lest it falls into the drivetowards homogeneity inherent in the first position, or posits a“European substance” that remains part of a concretist,substantive notion of popular sovereignty. Europe and Schmittianconceptions of political unity will not go together.74

Finally, many parts of Schmitt’s constitutional theory, asoutlined in the Constitutional Doctrine, fit the evolution and actualworkings of the current European Union rather well—if, and onlyif, we shift to the level of the Union as such, and view the memberstates’ governments as a plural constituent power, which sustainsthe Union through its plural political will. In a kind of dualsystem, the governments can then be seen as both inside andoutside the European Constitution, depending on whether theUnion is in a period of “normal” or “constitutional” politics.75

Both the Union and the constituent power, then, appear assomewhat “formless,” and capable of evolution. As long as thepolitical will towards the Union is sustained, it will be subject toperiodic constitutional making and remaking by the member

73 See WEILER, supra note 53, at 271.74 See Ulrich R. Haltern, Europäischer Kulturkampf, 37 DER STAAT 591 (1998).75 See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).



states’ governments. With somewhat democratically adjustedSchmittian categories, such a model could be normatively justified.After all, the member states’ governments can (or cannot) receivethe kind of retroactive authorization which Schmitt conceptualizedin his Constitutional Doctrine.

Does any of this take us forward in the process of Europeanconstitutionalization and democratization? In the first model, weshould increase the drive towards European homogeneity, in orderto improve the chances for democracy. In the second, we shouldseek a foundational act, a democratic “baptism” through aconstitutional convention, to remedy the ongoing democraticdeficit of the Union as a whole—even though it is not clear howsuch an act, in and of itself, may increase the democratization ofthe workings of the Union on a day-to-day basis.76 In the thirdmodel, we can rest somewhat content with what we have: dividedsovereignty on different levels, ongoing struggles over quisiudicabit, and a plural, evolutionary approach, in which both theUnion and the constituent power change their forms, and in whichthe peoples of Europe lay constant “siege” to the Union powers-that-be, rather than transfer sovereignty in a unitary, concreteact.77 Ironically, such a Schmittian reading, at least at the Unionlevel, leaves us with a rather un-Schmittian option, even if its sheermessiness probably makes the democratic deficit even larger. It isunlikely, then, that this option will ultimately satisfy the call fordemocratization and constitutionalization. But it is also unlikelythat there ever will be a “democratic baptism.” Rather, it seemsthat there will be further muddling through well-intentionedproposals for amendments, which then fail at intergovernmentalconferences, and, above all, constitutional clashes at the EU’s core.As a result of the latter, there will be actual gradual reform, as inthe recent increase of accountability of the Commission to theParliament.

76 See Albert Weale, Democratic Legitimacy and the Constitution of Europe, inDEMOCRACY AND CONSTITUTIONAL CULTURE IN THE UNION OF EUROPE, supra note65, at 81-94.

77 See Adam, supra note 6; see also JÜRGEN HABERMAS, DIE POSTNATIONALEKONSTELLATION (1998).

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