I D E NTI FYI N G O R E X P LO ITI N G TH E
PA R A D OX E S O F C O N STITUTI O NA L
D E M O C R ACY?
9
An Introduction to Carl Schmitt’s
Legality and Legitimacy
john p. mccormick
Carl Schmitt’s Legality and Legitimacy is an invaluable arti-
fact from the most notorious crisis in the history of constitu-
tional
democracy.1
It is also a critical yet often overlooked con-
duit in a century-long debate over the legitimacy of the rule
of law that raises perennial issues concerning the stability of
parliamentary government. Schmitt composed and published
the book in 1932 as Germany’s Weimar Republic (1919–33) stag-
gered through its final crisis—one characterized by devastat-
ing economic depression and often violent political
disorder.2
Schmitt, who has since become recognized as the last century’s
foremost reactionary
thinker,3
dissected the Weimar Constitu-
tion, identifying it as both the source of the near-civil-war cir-
cumstances plaguing the Republic and as a possible solution to
them as well. He claimed that while the parliamentary, liberal,
and legalistic aspects of the 1919 constitution may have exacer-
bated Germany’s problems, the presidential, democratic, and
popularly legitimate component might actually solve them.
Whether Schmitt’s prescriptions proved to be simply inade-
quate to the severity of the crisis or intentionally and success-
fully accelerated the Republic’s demise in 1933 has been a con-
troversial question for
years.4
Certainly, Schmitt’s subsequent
endorsement of National Socialism has made the case difficult
for those who portray him as merely a diagnostician of the im-
mediate circumstances, whose practical intention, if he had
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