Carl Schmitt, the Total State and the Guardian of the Constitution

Abstract

The debate on public law during the Weimar Republic (1918-1933), which took place between figures such as Hans Kelsen, Carl Schmitt, Rudolf Smend and Hermann Heller, is still of crucial importance to the study of the concepts of State and Constitution. Several doctrines and concepts opposed Kelsen's positivist normativism, whose common point was the desire to introduce politics into the analysis of the normative order concerning the State, in an attempt to get closer to constitutional and political reality. One of the main discussions was between Carl Schmitt and Hans Kelsen, in the debate over who should be the Guardian of the Constitution (Der Hüter der Verfassung): a Constitutional Court, along the lines of concentrated constitutional review (introduced by Kelsen in the Austrian Constitution of 1920), or the President of the Republic, elected by “the entire people”, as Schmitt proposed.