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State, Movement, People, Part 3

5,569 words

Part 3 of 4

Translated with notes by Simona Draghici

III. The Binary State Construction of Liberal Democracy and the German State of the Civil Service

1. The new triadic state structure of the twentieth century has long superseded the binary statal constitutional schema of the liberal democracy of the nineteenth century.

The bourgeois legal state of the 1800s was ruled by that duality right into the specificity of its legislative, administrative, and judiciary organizations, and even into the last ramifications of seemingly quite abstract theories and conceptualizations. This is expressed “ideologically” (a specific and typical term of the liberal nineteenth century) in the well-known and much-cherished antitheses, exchangeable and negotiable, now “oscillating,” now alternative between law and force, law and state, law and politics, intellect and power, intellect and state, individual and community, state and society, and so on and so forth. Still, the binary division has a very concrete constructive and organizational significance. It has succeeded in creating a “practical arrangement” of its own, to borrow a pithy expression of the Reich Commissioner for Justice, Dr. Frank (Juristische Wochenschrift, 1933, p. 2091), commensurate with its intellect. The subsequent effects both of the liberal “ideology” and of the binary state structure have until the present day dominated the legal thinking, as well as the manner of speaking of the jurists brought up in the liberal system. The liberals call a “legal state” only the dually built state. A differently built state “has no constitution,” is not a “constitutional state,” and naturally, is not a “legal state” either, it is not “free,” but an “autocracy,” a “dictatorship,” a “despotism,” and so on. The vocabulary of this political struggle is quite extensive on this point, but in fact, it is always the same in its political exploitation of a certain concept of “law” and of “legal state.” Hence, it is necessary to become aware not only of the ideological contradiction but also of the state structure erected on it, and of its institutional and conceptual constructs. Otherwise, the liberal outlook first forces the movement into the state, and then by way of the “legal state,” the state into a “law” opposed to the state, that is to say, into the liberal system of the nineteenth century.[1]

The duality rests on the contrast between the state and the free individual person, between statal power and individual freedom, between state and state-free society, between politics and the apolitical private sphere, therefore irresponsible and uncontrolled. This division explains the typically binary constitutional schema of the bourgeois legal state, the constitution of which, as it is known, consists of a basic legal part, namely, basic rights and freedoms of the society composed of free individuals, free in the sense of not statal and not “constituted,” and of an organizational part that establishes norms constitutive of and holding together the state. The part consisting of the liberal basic rights is no constitution in the organizational sense. On the contrary, it designates a non-constituted self-organizing sphere of freedom. Against it stands the organizational part of the statal constitution, the constitution of the state, that is to say, the commitment, delimitation, and restriction of the political power of the state. The so-called “precedence of the law” over all the other kinds of statal activity aims at the political subjection of the state to the allegedly apolitical society, because in that ranking system, the law is essentially a decision of parliament, but parliament is the representation of the non-statal society against the state. The universally recognized organizational principle of the so-called division of powers into three parts, the legislative, the executive, and the judiciary, had the same political sense, namely, to divide the state power in such a way as to allow the non-statal society to rule and effectively “control” the state “executive,” that is, the reality of the state command. Everything was set to regulate and control the political power of the state and to shield the freedom of the sphere of society from the “encroachments” of the state. A judiciary independent of the state was expected to lend legal and procedural safeguards to the protection against the state. In that constitutional system, the judiciary had organizationally an interesting intermediary position between the command mechanism of the state and the state-free social sphere of society. On the one side, it was a state officialdom, and on the other, it was independent of the official directives coming from state superiors. For that reason, it was a suitable tool for politicly influencing the state and holding it in the palm of one’s hand, in the name of the “law.”

The basic rights and freedoms of the statal and constitutional system of liberal democracy as such are essentially rights of the private individual person. Solely on those grounds may they be considered “political.” Therefore, they are neither a state-building principle nor a constitution, but only principles that bear upon the state constitution, and which should lend the state meaning and purpose, its justification and its limits. The liberal statal and constitutional structure thus reckons with a simple and direct confrontation between the state and the private individual. Only starting from this confrontation, it is a natural and sensible attempt to erect a whole edifice out of the protective legal means and institutions, in order to protect the helpless and defenseless, poor and isolated individual person from the powerful Leviathan, the “state.”[2] Most of the legal safeguards of the so-called legal state have sense only with regard to the protection of the poor individual. It justifies thereby that the protection against the state will always be shaped by justice and will result increasingly into the ruling of a court judicially independent of the state.

But all this becomes quite absurd as soon as strong collective formations or organizations occupy the non-statal and apolitical sphere of freedom, and those non-statal (but by no means political) “auto-organizations” will on the one hand compress the individual persons ever tighter and more forcefully, and on the other, challenge the state under various legal titles (such as people, society, free citizenry, productive proletariat, public opinion, a.s.o.). Then the political powers take cover in every conceivable way behind the rampart for safeguarding the individual freedom of apolitical individual persons in need of protection. Non-statal but, as already said, entirely political formations then dominate both the will of the state (by way of legislation) and also (through societal constraint and the force of the “purely private law”) the individual person whom they mediate. These become the true and real vehicles of the political decisions, and wielders of the statal instruments of power, but they will master it from the non-“public” individual sphere, free of state and constitution, and in this way, evade any political risk and responsibility. In the state constitution of the liberal-democratic legal state, they can legally never appear what they are in the political and the social reality, because the liberal binary schema has no place for them. Every attempt to insert them makes the liberal-democratic state and its system burst. Consequently, if such formations succeed in seizing the positions and the means of state power by way of the political parties dominated by them—and that is the typical development—then they look after their interests in the name of the state authority and of the law. They enjoy all the advantages of the state power without relinquishing the advantages of the sphere of freedom, politically irresponsible and uncontrolled, because ostensibly apolitical.

The pluralist system of a multi-party state may exist behind the veil of the liberal-democratic freedom and of the bourgeois legal state as it has been typical of the fourteen years of the Weimar Constitution. A number of political parties of the most varied kinds, trade-unions and powerful economic associations, churches and religious societies, solid and even self-contained organizations of national, confessional, or other kinds would come to an agreement in secret on the exercise of the state power and on the repartition of the national income. As it may said of the ideal democracy that it rests on a “daily plebiscite,”[3] in the same way, it may be said of such a pluralistic system that it is integrated and able to exist only by the “daily compromise” of heterogeneous powers and alliances, a compromise that is “always a commitment of the better to the worse,” as appropriately once said by a National-Socialist (Karl Fiehler, Nazionalsozialistische Gemeindepolitik [The Local Policy of National-Socialism], Munich, 1932, p. 12). In virtue of its internal logic, the constitutional law of such a system must be a purely instrumental, technical weapon which everyone wields against everyone else, the alien and the enemy of the state against the comrade of the people, as well, so that all the participants in this system are compelled to an inevitable abuse of all the legal resources. Groups and resources that remain in a minority and do not manage to join a majority coalition or strike a deal by compromising, are obliged out of necessity to defend their goals and principles, however illiberal or antiliberal, against the state by means of liberal-democratic arguments and methods. All the concepts and institutions of such a system cannot but become false and absurd. In 1932, I observed that the power of the governments of the Weimar coalition did not rest on their legality but on the political exploitation of the political advantages of the legal holding of power. All the political factors, majority or minority formations, government as well as opposition, national or international parties, loyal or inimical to the nation, recklessly take advantage of all the legal possibilities and of all the positions of power they occupy in such a statal and constitutional system, because the constitution had become simply a functionalist, neutral means, and the survival of the political unity of the people — a mere waste product of the “daily compromise.” The binary structure of the ensuing “legal state,” resting on the opposition between the state and the individual, is and remains utterly inadequate and incommensurable to the very reality of a social and political life that is ruled by politically powerful non-statal or suprastatal organizations. It is capable of distinguishing only between legality and illegality but neither between right and wrong nor between friend and enemy.

Two illustrations of the discrepancy between every liberal-democratic constitution and the reality of the social and political life of today may render this situation relevant.

a) Full as it is of internal contradictions, the second main part (that on basic rights) of the Weimar Constitution cancels itself out, and the first, organizational part, as well. The Weimar Constitution had been worked out dually, in accordance with the liberal-democratic schema. But under the title “Fundamental Rights and Obligations of the Germans,” the second part includes the liberal freedoms of the individual person only in the smallest degree. Besides, this part of the Constitution likes to render justice to the reality of today’s social life. As a result, numerous other dispositions of this “basic rights part” guarantee and firmly fix things that are in contradiction with a liberal-democratic constitutional construction, such as public-law institutions and claims of churches and religious societies (Article 137f),[4] the public-law institution of the career civil service (Article 129),[5] and likewise, the public-law institution of communal auto-administration (Article 127).[6] Moreover, workers’ unions and employers’ associations are so acknowledged in this part of the Constitution (Article 165),[7] although they have so far preferred technically to remain private-law organizations or even not legally-qualifying formations. That such strong collective forces have come to be “acknowledged” in a state constitution, and in spite of all that, still want and juridically can remain private-law associations is symptomatic of the confusion in the essentials of such a state. But, nonetheless, the remaining public-law institutions, featured in the so-called part of basic rights — churches, corporations, and the career civil service — would not be able in any way in such a system to stop making the widest use of the various political parties, on the one hand, and on the other and at the same time, of the other private-law supports and relief organizations. Not only political parties but also a powerful private-law confederation of countless religious and cultural associations and clubs, some integrated, some permitted, and some at least tolerated, linked up with and leaned upon the churches. Corporate bodies and local associations knew how to manage economically, with the help of all kinds of legal persons endowed with civil and commercial rights, and evade state control. Big private-law unions of civil servants came into being alongside of the public-law institution of the civil service. Ultimately, that pluralistic state consisted only of cross-sections and an aggregation and amalgamation, that was based on principle, of public and private interests and functions. In such a system, one may simultaneously be a Reichstag deputy, a Reichsrat delegate, a state official, a church dignitary, a party leader, and a member of the supervisory board of various societies, and many other things. Indeed, this remarkable system functions on the whole only by means of such transversal connections. In that way, everything was reconciled with everything else, and Germany was “the realm of unlimited compatibilities.” Behind the duality of the liberal-democratic constitutional schema, an anarchical pluralism of social forces would grow rankly, into a chaotic jumble of the statal and non-statal, the public and the private, the political and the fictitiously apolitical.

b) Another graphic illustration of the inadequacy the binary constitutional schema is offered by the story of the plan for an economic constitution which was also firmly “anchored,” so to speak, in Article 165, at the end of the baslc-rights part of the Weimar Constitution.[8] In liberal-democratic binary system, an economic constitution is an Impossibility. Either it is achieved indeed, and in that case, it unhinges the whole binary system, or it is practically insignificant, additional construct, with devices similar to those of the provisional Economic Council of the Reich, introduced by the decree of 4 May 1920, and which has remained without any significant practical result. It was not so much the deliberate ill will of all the interested parties of the pluralistic system, as much as the consequence of the internal logic of the Weimar liberal- democratic state, that the repeated attempts to introduce a real and definite economic council of the Reich would fail dismally. A social or economic constitution is possible only in a triadically assembled state.[9]

2. Not only are we today aware of the internal contradictions of such a pluralistic system that occurs behind the legality of the liberal-democratic constitutional system, but we experience already beyond it that our triadic state structure, when compared to the liberal-democratic duality (of state and society, or state and the political sphere of freedom), is the self-evident premise of political honesty and decency. Moreover, the duality seems to us a disguise and concealment of forces and powers, non-statal but certainly not apolitical, rather suprastatal, also often inimical to the state, forces which under the protection of “liberal freedom” can play their role of a politically decisive magnitude, in secret, anonymously, invisibly, and irresponsibly.

Today, we recognize those magnitudes and organizations, genuine carriers of the state, through all the disguise of freedom and equality, even in the earlier political formations and institutions. Because the past receives its light from the present and every knowing mind is a contemporary mind. Thus, we see now that many a time and in certain states, the church, for instance, with its clergy or a governing order, would assume the role of state-carrying organization. In other cases, this function might be exercised by a secret order like Freemasonry. In maritime and mercantile states, the economy or a certain professional organization with its own jurisdiction would more often take charge of the public order of the political unity. Many cross-connections are conceivable. But given the present-day condition of our political awareness, we will always come back to that triadic structure and to the question of the state-carrying organization, while we take the liberal-democratic constitutional schema of state and the individual, organizational norms and freedoms for a facade only. Thus, both the action and the task of Germany’s National Socialist movement appear ever greater and awe-inspiring. It openly stands by its historical responsibility, and with all publicity, takes on the gigantic performance of an organization that carries the state and the people.

As concerns the evolution of the German theory of the state particularly, it is dear that the historical peculiarities of the German civil service and of the army, as also of the organization of the National-Socialist party, and likewise, of the social and economic spheres are especially great and incomparable in Germany. Similarly, and as already mentioned, the German theory of the state until the middle of the nineteenth century, that is, to the victory of the liberal mode of thinking and of an unscientific positivism had had no knowledge of the binary schema of the contrast between state and society. According to Hegel (The Philosophy of Right §250f), for instance, the “corporations” constitute the transition from the bourgeois society to the state.[10] For him, the state is not a bureaucratic machine, on the one side, and a free bourgeois society, on the other, at all. Likewise, in 1865, in his administrative theory (I, p. 266),[11] Lorenz von Stein emphasized alongside of the government administration, as the office of authority, the auto-administration of districts, communities and corporations, and the associations assigned by him to the sphere of the public law, as integral part of public life. Afterwards, certainly, these insights into the structure of the state were lost in the so-called “theory of society,” and since about 1890, only the blindness and the unconnectedness of so-called positivism prevailed. A professor of state law, an alien to the German nation, could dismiss the work of a Lorenz von Stein as “muddling cleverness.” But behind the facade of the binary liberal constitutional state, of which the positivist theory of public law is part, the German state remained a state of soldiers and civil servants, thus an administrative state, even in the liberal nineteenth century. On this historical fact rests the ultimate and true meaning of the familiar words uttered by Otto Mayer: “The constitutional law wears out, whereas the administrative law abides.” These words express the superiority of the monarchical officialdom, representing the executive power, over the liberal constitutional system more to the point than their author himself had perhaps wanted to believe.

Above all, it was decisive that the German army and civil service in most of the German states, and particularly in Prussia, the leading German state, had alone for a century carried out the function of the state-carrying stratum. The state power machine and the state-carrying organization were concurrent. German officialdom has never become a mere bureaucratic “machine” in the sense current in the Western liberal democracies. About this officialdom Otto Mayer rightly remarks that it was “truly and above all a cultured career civil service that filled all the authoritative positions, and was no tool but a free-standing power inside the state.” That is the historical reality which had found a theoretical and philosophical system in Hegel’s philosophy of the state, in his theory of the state as realm of objective reason. Under the pretext of positivism, the German theory of public law, though, had indeed abstained just as soon from any scientific attempt to penetrate and explain this situation. Only in the teachings of the German historians and of the economists of the past generation, such as, for instance, Adolf Wagner[12] and Gustav Schmoller, was the great German concept of the state preserved while the jurists betrayed it. Even if “historically” relativized, there remains the living consciousness that the state of the cultivated, uncorrupted German civil service stands “above the bourgeois society.” It was in that way that a socially and culturally political state of the civil service became possible. But that was not enough to sustain intellectually a state that was threatened from the inside as well as from the outside. Within half a century, with its almost exclusively legal training, our German civil service has withered “intellectually and politically in a supposed “positivism.” Hence, it has become incapable of carrying out the decisive tasks of a politically leading stratum.

As long as the German state of soldiers and civil servants was a reality, and as a consequence, the state could be regarded as a sphere of “objective morality and reason” that stood over society, it was possible to have a socially and culturally political state of civil servants, which at any rate, was not a simple tool in the hands of foreign “societal” forces, whether open or secretive, visible or invisible. The reality of such a state of soldiers and civil servants, however, would continuously hit out at the prevailing system of norms and all the principles of the liberal- democratic constitution, well, at the whole “constitutionalism” of the nineteenth century. The extraordinary political success scored by Bismarck between 1866 and 1871[13] might blind one to the fact that from 1848 on, the German state of civil servants had been intellectually on the defensive. The German doctrine of state and law was neither the mixture of rhetoric and sophistry with which the Prussian conservatives were supplied by Friedrich Julius Stahl — his real name is Joll Jolson — nor the cynical positivism of a Laband. Notwithstanding all the obvious contradictions, they would all ultimately become the forerunners of the advancing political forces and powers of liberal democracy in the name of the “legal state” and of Marxism, following directly in its steps.

Indeed, not even the liberal-democratic Weimar Constitution and the fourteen years’ rule of a pluralistic party system could completely destroy the great tradition of the German state of civil servants. Likewise, it had become apparent already before the World War that the German civil service, spread over more than twenty individual states, was no longer in the position to fulfil alone both the offices of an objective and neutral administrative machinery and those of a politically ruling stratum in charge of the state. It was natural that the civil service would always seek its true worth rather in the matter-of-fact professional reliability and calculability of an exemplary administrative and judiciary activity than in the responsibility of political decisions. Because of its objectivity, neutrality, and positivism, it was no longer by itself capable of recognizing the state enemy, or what was more, of defeating him, with clear political determination. It became ensnared in a positivistic legal constraint which in the end was reduced to the legality of a positivistic legislative state, and the foundation of which, the law, had too little to do with “justice” in the practical and substantive sense. Then, that law was indeed only the compromise reached by a heterogeneous coalition. Thus the claim of the parliamentary parties to political leadership met no serious resistance. During the World War, a group of politicians from the parliamentary parties could infiltrate the German state without any credentials of political achievement, accepted only because of the need to fill the void of political leadership somehow. Between 1919 and 1932, after the collapse of the monarchical state of civil servants and in the multi-party state of the Weimar Constitution, the German civil service found its justification only in a negotiated settlement and a kind of neutral position of referee between the organized party interests. It stood no longer above society but rather between the layers of society. In that way, however, it got caught in the game of the pluralistic system. In order to survive in the long run it had to become playmate and political accomplice in the traffic of mutual concessions, and as a result, had to renounce its essence, and expand the pluralistic system by another magnitude. Finally, the best-intended “neutral accommodation,” even if morally superior to a system of internally corrupted parties, could be only a poor and insufficient substitute for the missing political leadership. Neither the neutral civil service nor the pluralistic party system and its parliamentary operation have accomplished their statal tasks, and produced a political leadership from their ranks. In this, they have failed utterly.

Not until the experiences of 1932, would this realization also profit the great majority of the German people. The Prussian coup of 20 July 1932 has removed the government of the Weimar system from Prussia and taken from its hands the Prussian state, a strong power complex and command mechanism.[14] But neither of the ostensibly “authoritarian” governments of von Papen (between July 1932 and November 1932) and of Schleicher (between November 1932 and January 1933), leaning only on the Military [Reichswehr] and on the machinery of the Prussian state power, could fill the political vacuum, created by the absence of a political leadership. In his work, published in 1932 and entitled Der Verfassungskompromiss von Weimar, das Experiment der Präsidialregierung und die national-Sozialistische Staatsidee [The Constitutional Compromise of Weimar: the Experiment of the Presidential Government and the National Socialist Idea of State], Paul Ritterbusch has shown the desperation at that stage in the evolution of pluralism, from the standpoint of the theory of state and law. The Supreme Court’s decision of 25 October 1932 admittedly did not restore the Weimar system, nor could it give the Reich government what it needed and what it did not dare to seize.[15] That decision also refused to recognize the enemy of the state for enemy of the state and help to render him harmless. Not until 30 January 1933, when the Reich President appointed the leader of the National Socialist movement, Adolf Hitler, Chancellor of the Reich, did the German Reich recover a political leadership, and the German state found the strength to crush Marxism, its enemy.

On this 30 January, the Hegelian state of civil servants of the nineteenth century, characterized by the identity of the civil service and the stratum in charge of the state, was replaced by another state construction. Therefore, on that day, one could say: “Hegel died.” But that does not mean that the great work of the philosopher of the German state has become meaningless, and that the idea of a political leadership standing above the selfishness of societal interests has been abandoned. That which in Hegel’s massive mental constructs is tunelessly great and German, remains effective in the new form. Only the forms of the Hegelian state of civil servants, that corresponded to the internal situation of the state in the nineteenth century, are eliminated, and are replaced by other formations corresponding to our reality of today.

Today, the German Reich, the political unity of the German people, may be grasped only with the help of the triad of state, movement and people. The enormous political task of the National Socialist party can be recognized only in this way. The German career civil servant is freed from a hybrid position grown obscure and unsustainable, and is spared the risk of being debased, in the liberal-democratic way, to the level of a blind tool of non-statal, societal powers, that is to say, politically irresponsible, invisible. On the other hand, the task of the movement does not exhaust itself in supplying new blood to the stiffened body of a state of civil servants, and then just resign when it fades into the “state.” The three great “flywheels,” as the Minister President of Prussia Göring once called them, must discriminate but not divide, unite but not fuse, run one next to the other, each according to its inner law, and all in unison with the political whole.[16]

 

Source: Carl Schmitt, State, Movement, People: The Triadic Structure of the Political Unity, ed. and trans. Simona Draghici (Corvallis, Oregon: Plutarch Press, 2001).

Notes

[1] That is apparently what Soviet Russia and Communist China have been fearing most from the economic overtures by the West since the ostensible end of the cold war.

[2] Allusion to the symbol used for the state, or what he called the civil and religious commonwealth, by Thomas Hobbes (1588–1679), the English political philosopher of the Civil War.

[3] That is the definition of the nation formulated by Ernest Renan (1823–1892) French historian and philologist, in the polemic between German and French scholars regarding Alsatia, in the aftermath of the Franco-Prussian war (1870–1871) that ended in France’s defeat and the annexation of Alsace-Lorraine by Prussian Germany.

[4] The first section of that law asserted the absence of a state church; its second section guaranteed the freedom of religious association without limitations, while the seventh section assimilated such associations which commonly pursued philosophical ideals to religious denominations. Furthermore, those denominations which had already been enjoying the status of public-law corporations were allowed to keep that status, whereas new applicants could obtain that status only if they were capable of giving sufficient proof of durability.

[5] That article referred to the inviolability of the well-earned rights of the civil servants whose tenure was affirmed, unless the law provided otherwise, and who could seek satisfaction for abuse and other grievances in courts of law.

[6] Article 127 contained one section only, which stated that the communities and unions of communities had a right to auto-administration within the limits of the law.

[7] Article 165, containing six sections started with an appeal to workers and employees to cooperate with the employers on an equal footing with regard to wages, working conditions, and the overall economic development of the productive forces. Moreover, the Constitution recognized the workers’ and employers’ associations and their contracts.

[8] It is in this article (which with the rest of the Constitution was made public on 11 August 1919, the era of workers’ and soldiers’ councils that mention was made of district labor councils which were to be organized according to economic regions, and of a Reich labor council meant to represent workers’ and employees’ interests. They were to function alongside of district economic councils and a national economic council that would have brought together employers and employees and all the socially and economically significant professional groups in order to carry out economic tasks and cooperate in the application of the laws of socialization. The Reich Economic Council had been meant to serve at an advisory office to the Reich government, and to make recommendations for social and economic laws to the Reichstag, either through the government, or directly, through one of its representatives. All those councils were also intended to be given the power of administration and control in their particular spheres. Nevertheless, like many other things, they seem to have been left without any practical consequence, because the political unity which they presupposed was not there, in the first place. See also what Carl Schmitt says in the footnote on page 6 above. A Reich Economic Council, however, was created on a provisional basis, although the distribution of its seats turned into a highly controversial and rather insoluble task. In practice, the political parties proved better agents of the interests of employers and employees alike.

[9] No social or economic constitution was ever worked out in the twelve years of the National Socialist system, but only piecemeal government legislation and party measures which led to the creation of the German Labor Front that eventually concentrated on National Socialist indoctrination and the organization of the workers’ leisure time, and which financed its activities from the assets of the former trade-unions and welfare institutions of the state and of the outlawed parties. On the other hand, a Reich government law of 19 May 1933 created “labor trustees” to be named by the provincial governments, with the task to determine wage contracts.

[10] The section in question from Hegel’s text reads in English translation as follows: “In virtue of the substantiality of its natural and family life, the agricultural class has directly within itself the concrete universal in which it lives. The class of civil servants is universal in character and so has the universal explicitly as its ground and as the aim of its activity. The class between them, the business class, is essentially concentrated on the particular, and hence it is to it that corporations are especially appropriate.” (Quoted from the T.M. Knox’s translation of 1942.)

[11] Unidentifiable.

[12] One need not mistake Adolf Wagner (1835–1917) German economic historian and social thinker, whose major work, Die Grundlegung der politiseben Okonomie (The Foundations of Political Economy), published in 1876, stimulated the search for a better conceptual understanding of the modern state, for his much younger namesake, Adolf Wagner (1890–1944), a National Socialist party member since 1923 and future Governor of Bavaria.

[13] That is, the period between the Prussian military victory over Austria at Sadowa, that turned Prussia into the major German power at the expense of the Hapsburg Empire, and the French defeat in the Franco-Prussian war, that led to the unification of Germany.

[14] On 20 July 1932, the head of the federal government, Franz von Papen, informed the Prussian government that it felt necessary to take over the governmental powers in Prussia because its caretaking government, largely Social Democrat, had not shown enough anti-communist zeal. More likely that was an excuse for assuming control of the Prussian police, the largest armed force in the federation, second only to the Army, and so prevent the National- Socialists from taking it over.

[15] The Court did not declare the taking over of the Prussian administration by the federal government unconstitutional, but ruled that the latter could not assume the representation of Prussia in the Reichsrat without for that matter changing the federal structure of Germany. As a result, the old cabinet of Otto Braun returned to Berlin just to oversee Prussia’s vote in the Reichsrat, while von Papen’s commissioners occupied the Prussian government offices, from which they proceeded to clean the administration of social-democratic and republican elements, with consequences contrary to von Papen’s original intentions. In that way, they facilitated the National Socialist country-wide campaign of infiltration.

[16] This imagery is pure gibberish, which unfortunately has survived Hitlerite Germany, as its kind has become the stock-in-trade of presidents and heads of governments and their representatives alike, everywhere in the world. Carl Schmitt finds it convenient to cover the obvious conclusions to be drawn from his previous statements, namely that the party was swerving the civil service from its traditional purpose and procedures to those of the party which was replacing the state.

 

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