A FTE RWO R D (1958)
9
1. The crisis then [1932] already involved the concept of the consti-
tution itself. The essay was a despairing attempt to safeguard the last
hope of the Weimar Constitution, the presidential system, from a form
of jurisprudence that refused to pose the question of the friend and
enemy of the constitution. This attempt provides the essay with its
intensity in a constitutional history sense. The essay encountered bit-
ter resistance, specifically to its core thesis: that the legality of a party
can only be denied when the authority to make constitutional amend-
ments is limited. Precisely this thesis had been rejected as not juristic
by the leading teachers of constitutional law and disqualified by them
as political fantasy law.
The procedure by which a party enters through the door of legality,
in order to close this door behind it, therefore, the model case of a legal
revolution, is recognized there [in Legality and Legitimacy
(1932)]1
and
reaffirmed once and for all. I quoted an almost page-long passage from
my 1931 book Der Hüter der
Verfassung,2
which was precisely a debate
with leading democratic law teachers of the Weimar period. Neither
long quotations nor self-quotations are my style. At that time, how-
ever, it was a protest and an affirmation. The essay’s
conclusion3
is a
warning; the last sentence—‘‘Then, the truth will have its revenge’’—
a true cry of desperation. The cry of desperation faded away then. But
it would be unfair and negligent to write a history of the presidential
system of the Weimar Constitution without fully understanding this
essay and acknowledging its fate.
Why did the cry of desperation have to fade away without effect?
‘‘This theory that the authority of initiating constitutional amend-
ments does not include the authority to recast the constitutional
structure fundamentally now finds express recognition in Article 79
of the Bonn Basic Law and in numerous Land constitutions. Unfortu-
nately, this expert opinion, so illuminating to us today, found slight
approval during the Weimar period. The famous commentator of the
Weimar Constitution, Gerhard Anschütz, cavalierly dismissed the
opinion that constitutional amendments may not destroy the politi-
cal substance of a constitution with the remark that this is solely a
demand that is only noteworthy politically de lege ferenda, but which
finds in Weimar constitutional law no foundation’’ (Schneider 1953,
216).4
[1958/346]
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