MULLER WEBGALLEYS1.

DOC 08/04/00 12:55 PM

CARL SCHMITT AND THE

CONSTITUTION 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 challenge
remaining in Europe today, arguably, is to democratically define—
and redesign—the European Union (“EU” or “Union”). Despite
much enthusiasm and recent work on the topic, the Union
remains, to a large degree, a polity in search of a political
philosophy. For some, it represents the best attempt yet at
transnational democracy; for others, it is the worst example yet of
a lack of transnational democracy. Some long for the emergence
of “European public spheres,” while others see the extinction of
sovereignty and the dismantling of the nation-state as the “end of
politics”—not only as we know it, but of democratic politics as
such. But what, precisely, are the theoretical challenges posed by
the Union?
At the most basic level, there is the question of what kind of
polity the EU actually is. Without answering this question, a
normative political theory of the Union cannot proceed. Most
observers agree that the European Community has undergone
some process of “constitutionalization”—the most important signs
of which have been the direct effect and supremacy of Community
law and the development of the Union into a kind of Rechtsstaat—
i.e., an entity which guarantees the rule of law. But, equally, there
is 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.

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constitution” (Arthur J. Jacobson), which will eventually result in

a “United States of Europe”—or is the EU something entirely
new, a supranational construction sui generis, permanently
suspended between Bundesstaat (federal state) and Staatenbund (a
federation of states), as German constitutional lawyers have been
arguing? Or is it, finally, as others have suggested, a construction
familiar, or maybe no longer familiar, from the Holy Roman
Empire, a kind of neofeudal collage of overlapping sovereignty
and 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 Union
have on traditional notions of sovereignty—including Schmitt’s.
Secondly, there is the old, and, one might say, by now rather
trite, issue of the “democratic deficit.”1 The deficit—or rather, the
multiple deficits—are obvious, and yet the demos seems to be
content with its undemocratic governance. Consequently, lawyers
and political scientists have come up with new, but rather
contrived, forms of “legitimacy.” Adding to Weber’s three forms
of 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 Union
simply “functions.” This essentially means that it fulfils its promise
of greater prosperity. Against this, the claim has been made that
nothing short of “existential legitimation” and a “political
constitution for Europe” will suffice to remedy both the
democratic and the legitimacy deficits,3 and that the absence of
such legitimacy will eventually haunt a Europe constructed by
technocrats.4
Thirdly, there is the problem—historically and theoretically
probably most interesting—of clashing state traditions and
clashing cultures of public law in Europe. The larger states clearly
have very different understandings of sovereignty, power,

1 Dario Castiglione, Contracts and Constitutions, in DEMOCRACY AND

CONSTITUTIONAL CULTURE IN THE UNION OF EUROPE 59-79 (Richard Bellamy et al.
eds., 1995).
2 See Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of
Standards, 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 between
participation, democracy, and legitimacy are far from straightforward. After all, as the
Parliament has acquired more powers, participation has decreased. See JEAN BLONDEL
ET 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).
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constitutionalism, and the rule of law. To put it very

schematically, whereas in Britain, the Crown in Parliament is
sovereign, in France, it is the state, representing the sovereign
people, and its common national will. Finally, in Germany, the
constitution is interpreted through the Constitutional Court as the
final arbiter.5 The EU is constructed, or so many critics have
charged, not only in the image of the centralized French state, une
et indivisible, but also on the model of the Catholic Church, una
sancta.6 This seems to be the case partly because the British are so
afraid of what they see as German “federalism”—i.e., the opposite
of what the Germans mean by it—that they opt for a French
model by default, even though, in fact, it is much more alien to
their constitutional tradition. Such conflicts do not only play out
at the highest level, but, as integration proceeds, they will play out
at this level even more often. The Commission’s recent corruption
scandal was arguably less an indication of the rotten core of the
EU (although it was that, too), than the conflicted core of the EU:
a cabinet system staffed with close political allies (or cronies) is
arguably an acceptable part of the French system, whereas in
Germany and Britain it is not.
What kind of tools does Schmitt’s political and legal theory
offer to get a better handle on these challenges? Or does
European integration, in fact, prove how useless the Schmittian
intellectual tool kit has become, and, in particular, that
“Schmittian sovereignty” remains caught in existentialist,
concretist ways of thinking, which have long lost touch with the
intricate “legitimation through procedure” or the legitimation
through prosperity which some see at the heart of the EU?7 Has
functionalist integration, a kind of “polity-building by stealth,” by
“neutralizing” the “primacy of the political,” disproved Schmitt’s
suspicion of the liberal order to sustain itself through purely
economic means? Has Schmittian unitary and decisionist
sovereignty, which always asks for the identification of the final
arbiter, been extinguished in favor of “pooled sovereignty” and a
kind of subtle sovereignty by “mutual recognition, continuity and
consent?”8 Or is sovereignty merely disguised in what Schmitt
would have called “apocryphal acts of sovereignty,” and thus
might 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 M ULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF
DIVERSITY 209 (1995).
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say, then, to put it crudely, that if Europe works, Schmitt is wrong?

Or is the joke, after all, on the anti-Schmittians, who remain
fixated on Schmitt’s Weimar writings, and overlook his predictions
about the end of the nation-state, and his advocacy of economic
Großräume (great spaces), in which case the EU would be the first
Großraum realized?9
To be sure, Schmitt’s thought has been employed in the
discussion 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 the
social market economy and étatisme, fused with the political will
for integration, can provide the cohesion and homogeneity
necessary for a true European federation.10 Arguably, Schmitt’s
conceptual connection between democracy and homogeneity was
at the basis of the German Constitutional Court’s Maastricht
decision.11 German constitutional lawyers have consistently
upheld the conceptual triangle of “people-state-constitution,” and
argued that Europe’s democratic deficit needs no remedies, since
there is no demos—or Staatsvolk—in the first place.12 Conversely,
those who insist that the quality of statehood for the sake of
democracy is desirable for the European Union also argue that
homogeneity among the European peoples should be increased,
while for those who hope to disentangle democracy and
nationhood in favor of “public spheres,” Schmitt remains a
formidable opponent at the European level. It seems, however,
that all participants in such debates retain a state-centered
perspective, in which the “demos-state-constitution” triangle
remains intact, even if the demos becomes European, “post-
national,” or one of “constitutional patriots.” In other words, the
institutions of the nation-state are merely writ large, with more or
less nation added to the state.
In this Article, I discuss the specific question of sovereignty
and 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, 52
MERKUR 375 (1998). For the view that functionalism provides its own myths of
rationalization, 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 33
I.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 Europe
Need 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).
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can prove helpful in analyzing the European Union as such. For

that purpose, I first present a brief outline of Schmitt’s
constitutional theory, bearing in mind that some observers have
claimed that intellectual resources for “radical democracy” can be
extracted from it. I will then return to the question whether those
who desire more democracy, in particular, can find something
useful in the Schmittian intellectual tool kit, before applying
Schmittian categories directly to the current constitution of
Europe. I conclude that Schmitt’s thought sheds some light on the
current constitution of Europe, but that it holds few clues on how
to 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, Schmitt
drew a stark distinction between liberalism and parliamentarism, on
one hand, and democracy on the other. He charged that liberals,
through “eternal discussion,” pretended to dissolve the political as
existential confrontation, by making it into either a question of ethics
or a question of economics, both of which could be answered by
means of negotiation or rational deliberation. Democracy,
however—defined by Schmitt as the “identity” of governors and
governed—was a real political concept; consequently, in line with
Schmitt’s definition of the political as the distinction between friend
and enemy, it had to contain an agonal element. He claimed that
democracy was founded on equality and that “the democratic
concept of equality . . . like all real political concepts, refers to the
possibility of a distinction. Political democracy thus cannot rest on
the sameness of all human beings, but on belonging to a distinct
people.”13 In short, Schmitt defined democratic equality as internal
substantive homogeneity, which pointed to, and depended on, some
external “other” which could be excluded, thereby establishing the
identity 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 of
equality in the sense of homogeneity was essential, and could not be
fulfilled by what he dismissively called liberal, “abstract, logical-
arithmetical games” and “indifferent equality”; rather, it depended
on the “substance of equality.” In the past, such “substantial
equality” 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).
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(vertu).”15 Recently, however, the distinction between member and

alien has become a national one, due to the fact that “since the
nineteenth century, belonging consists above all in belonging to a
certain nation, in national homogeneity.”16 But, in theory, the
“heterogeneous” could also be slaves, as in Athenian democracy, or
the colonized, as in the Age of Empire. What supposedly has
remained a constant of political reality, however, is that “there has
never been a democracy which has not known the concept of the
alien and which realized the equality of all men.”17 Thus, the
substance of equality could change over time, as long as equality
remained “interesting and valuable politically”—which it did as long
as it had substance, “and for that reason at least the possibility and
the 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 national
homogeneity.”19 Nationalism, in short, was a fact of present political
life, and played a crucial role in underpinning “democracy” by filling
the vacant space of “identity” with a “substance.”
In his Constitutional Doctrine, Schmitt argued that the nation
and the Volk were often treated as synonymous concepts, but that
“nation” in fact referred to “the people as a unit capable of political
action, with the consciousness of being politically different and with
the will to political existence, while the Volk not existing as a nation
is just an ethnically and culturally somehow connected, but not
necessarily politically existing association.”20 Schmitt mentioned
different possible elements in the unity of the nation, and the
national consciousness of that unity, such as “common language,
common political fate, traditions and memories, common political
goals and hopes.”21 While language played a particularly important
role, the decisive factors were “having a historical life in common,
conscious will to have this life in common,” and, finally, “great
events and goals,” such as “real revolutions and victorious wars,”
which could create a feeling of national community, even in the
absence of a common language.22 The nation was not the same as
the state, defined by Schmitt as “the status of political unity.” The
state preceded and, in fact, constituted a precondition of a “national
awakening,” 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.
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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 and
conscious national mobilization, since the Volk now identified with
itself in its state.24 Referring to Sieyès, Schmitt argued that the
Abbé’s teachings of the creative pouvoir constituant presumed “the
conscious will of a people to political existence, i.e. a nation.”25 The
paradigm case of this, of course, was the French Revolution, in
which “a people, with full consciousness, took its destiny into its own
hands and made a free decision about the type and form of its
political existence.”26 After such a momentous existential decision,
normatively “born out of nothingness,” the nation, according to
Schmitt, remained das formlos Formende (the amorphous but
forming entity), which could reaffirm its will to a particular political
existence or choose ever new constitutions if it so willed.27
In his 1921 study of dictatorship, Schmitt already interpreted
Sieyès’s doctrine as making the pouvoir constituant into das
unorganisierbare Organisierende—i.e., the organizing entity which
could not itself be organized.28 He compared the contrast between
the sovereign pouvoir constituant, with its formless, arbitrary
decisionist will, and the pouvoir constitué, to Spinoza’s distinction
between natura naturans and natura naturata. The power of the
nation, therefore, was essentially unlimited, precisely because it
remained itself unconstituted and, as Sieyès had claimed, in the state
of nature. The nation, as the highest power, through a groundless
act of will, decided in favor of a particular constitution, which meant
not just a legal document, but an entire political way of life—i.e., the
true “spirit” of the constitution. To change this constitution, it was
sufficient that the “substance” of the state—i.e., the nation—in the
immediacy of its sheer power, reasserted itself.29 Constituted
power—i.e., the state—as powerful as it might have appeared
externally, therefore was always dependent on the will of a
“substantial” nation as the pouvoir constituant and its latent capacity
to 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)).
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Sieyès’s nation remained bound by natural laws, Schmitt’s nation,

once awakened to political consciousness, was absolute in its
freedom.30 Also, the Volk, unformed, but of inexhaustible energy as
long as it continued to will its political existence and thereby
constitute a nation, always remained “present” through public
opinion, expressing its will directly through acclamation or
acquiescence. In that sense, Schmitt’s revolution continued to be
latent, rather than permanent, and was inevitably characterized by
an underlying arbitrary popular will. It might seem, then, that
Schmitt conceived of the nation, above all, as willing, free, and
active, since he stressed self-assertion, the “active appearance of the
nation” and its capacity to act, alongside consciousness, as
preconditions for nationality.31 Moreover, for Schmitt, there seemed
to be nothing necessarily natural or primordial about a nation, even
if the nation remained in the state of nature, as Sieyès had claimed:
nationality depended on the will to political existence, which, in
accordance with Schmitt’s own definition of the political, also meant
the identification of difference—that is, of an enemy.
However, the boundless power of the pouvoir constituant was
only half the revolutionary narrative for Schmitt. In a further
theoretical step, he claimed that, since the will of the nation always
had to remain amorphous and “unformed,” lest the nation suddenly
become itself constituted, an agent to form and express the will of
the nation was necessary. In Schmitt’s vision, a “sovereign,” but
supposedly transitory, dictatorship would be created for the
exceptional moment of the founding. This dictatorship would have
to mold the constituting will of the nation and lay down the
fundamental law of the land—i.e., devise the constitution. In other
words, Schmitt drew a distinction between the “substance” of the
pouvoir constituant and its exercise.32 Its substance, Schmitt claimed,
could never be constituted, but its exercise could be carried out by a
sovereign dictatorship, which was derived from, but not authorized
by, the pouvoir constituant. Authorization, it seemed, would always
be retroactive through plebiscitary measures.33 Moreover, while the
substance and the exercise of the pouvoir constituant could

30 Stefan Breuer, Nationalstaat und pouvoir constituant bei Sieyès und Carl Schmitt, 70
ARCHIV FÜR RECHTS-UND SOZIALPHILOSOPHIE 495 (1984).
31 However, Schmitt also contradicted his own account of the nation as necessarily
unformed 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 a
nation, but not a Volk without Bildung and therefore without history.” SCHMITT, supra note
13, 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).
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supposedly be separated, Schmitt hinted that a division between

sovereignty and its exercise was impossible. Consequently, the
dictator exercised the pouvoir constituant, but was also sovereign,
pure and simple, since there could be no pre-constituted sovereignty
vested in the amorphous Volk.
Sovereign dictatorship also had to be deeply political, in the
Schmittian sense, by virtue of the fact that part of its task was to
exclude and even destroy the enemies of the new constitutional
order, so as to create the sovereign unity of the nation. Thus, not
only was the sovereign dictator charged with making “fundamental
laws,” thereby establishing a “vertical” social contract between the
new rulers and the ruled, but he was also to unite the nation through
a sovereign decision—i.e., a dictate.34 But even beyond the period of
the sovereign dictatorship, governments were charged with the task
of integrating parts of the population into the political Einheit—i.e.,
constructing the nation—since “the institutions of a state have the
function of making homogeneity possible and recreating it every
day.”35 In nationally heterogeneous states, they could either try to
assimilate or exclude the heterogeneous elements, but, in any case,
had to ensure “democratic homogeneity.”36
According to Schmitt’s vision, day-to-day democracy itself
effectively amounted to Caesarism: rather than through the private
act of voting, the Volk was to choose a government directly and
vitally by acclamation.37 However, the general will to be expressed
by acclamation depended only on those members of the Volk who
were politically conscious and present in the public sphere, as
opposed to a majority without political will.38 A minority could
confirm the decisions of a government that, by virtue of its identity in
the sense of being of the same substance as the Volk, divined the
general will. Thus, what might initially have seemed like a
Schmittian version of the plebiscite des tous les jours, was certainly
not comprehensive. As I shall further demonstrate below, it was also

34 In that sense, Schmitt modeled his “sovereign dictatorship,” to some degree, on his own
interpretation of Hobbes, in whose theory “sovereignty developed out of a constitution of
absolute power through the people.” The sovereign representative of the people then
retroactively created the unity of the people. Consequently, the whole process could only be
founded 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 a
non-Arendtian sense. SCHMITT, supra note 13, at 22-23.
35 Carl Schmitt, Der bürgerliche Rechtsstaat, in STAAT, GROßRAUM, NOMOS: ARBEITEN
AUS 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 UNMITTELBAREN
DEMOKRATIE 49 (1927).
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not concrete, in the sense of actually appealing to concrete,

contingent citizens.
Schmitt posited as an axiom of his constitutional theory that
there were only two political “forms”—namely, “representation”
and “identity.”39 He initially indicated that national unity had
democratic consequences, in that it would require an identity in the
sense of “sameness” qua homogeneity between the rulers and the
ruled.40 The need for identity was also derived from the fact that the
Volk, which had achieved political Einheit in a nation, would always
be directly and publicly present, and consequently could not be
represented in the way that an absolute ruler had represented the
unity of the state. Schmitt claimed that he found this view confirmed
in “the unrefutability of Rousseau’s democratic teachings.”41
Immediately, however, he reversed this position and relativized the
notion of the Volk as present and self-identical, arguing instead that
“a complete, absolute identity of the Volk with itself as a political
unity” was impossible.42 No state, he now added, without providing
much of an argument, could dispense entirely with either
representation or identity, since both principles belonged to the
political existence of a Volk.43 Representation, or so Schmitt argued,
had an existential quality, but at the same time only something
resembling a mythical essence or substance could be truly
represented, since, according to Schmitt, no “arbitrary, low way of
being” was capable of representation.44 Therefore, in contrast to a
group of people who just happen to live together, the nation was
capable of representation, because it signified a “heightened, more
intensive way of being” by virtue of the Volk being identical with
itself 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, in
his 1923 book, Roman Catholicism and Political Form, Schmitt already had argued that:
[T]he idea of representation is so completely governed by conceptions of
personal authority that the representative as well the person represented must
maintain a personal dignity—it is not a materialist concept. To represent in an
eminent sense can only be done by a person, i.e., not simply a “deputy” but an
authoritative person or an idea which, if represented, also becomes personified.
God or “the people” in democratic ideology or abstract ideas like freedom and
equality can all conceivably constitute a representation. But this is not true of
production and consumption. Representation invests the representative with a
special dignity because the representative of a noble value cannot be without
value.
CARL SCHMITT, ROMAN CATHOLICISM AND POLITICAL FORM 21 (G. L. Ulmen trans.,
Greenwood Press 1996).
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will and consciousness, which ultimately depended on the capacity to

distinguish between friend and enemy.45 Governments, therefore,
were to represent the nation, making an “invisible being” publicly
visible.46
What emerged from these seemingly contradictory
constitutional axioms was that the nation acquired a “transcendent
and transmundane” quality and had to be represented in the same
manner that, according to Schmitt, the Church represented a
transcendent reality.47 Proper representation, in a strict juridical
sense, meant the “shining through” of a substantive idea and an
essence, rather than the “mechanistic” reproduction of an already
visible, empirical, and material reality.48 For Schmitt, politics,
properly understood, had to contain a substantive idea, since there
could be no politics without authority, and no authority without
substance.49 Consequently, the presence of a substantive ideal,
intensity, publicity, and, finally, personality came to be Schmitt’s
criteria for proper representation. In constitutional terms, what
needed to be represented was the real presence of a singular, quasi-
divine moment of establishing concrete order, authorized by the
quasi-divine entity of a mythical “people” having decided on a
particular form of concrete order.50 As Günter Meuter has pointed
out, the Volk became a transcendent political idea; not the citizens as
concrete individuals, but the idea of political Einheit as based on
political 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 be
absent but made present at the same time.” Id. John McCormick, drawing on Walter
Benjamin’s famous distinction, sees Schmitt as championing an “auratic,” as opposed to a
“mechanistic-positivistic,” conception of representation. McCormick is also right in
suggesting that, in his critique of Weimar institutions, Schmitt did not advance the medieval
model of representation in estates, but rather a radicalized, fascist model of personalistic,
presidential authoritarianism. JOHN P. MCCORMICK, CARL SCHMITT’S CRITIQUE OF
LIBERALISM: 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 scholastic
origin of his ideas about substances. For this quasi-medieval Schmittian concept of
representation, also see JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE
PUBLIC SPHERE (Thomas Burger trans., 1989), discussing the nature of medieval
representation 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 POLITICAL
THEOLOGY (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).
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Schmitt sought what Hannah Arendt called an “absolute,” a kind of

Archimedean point, as a source of authority, although the
sovereignty of the nation ultimately depended on an enemy to form
political unity. Such a quasi-religious or quasi-metaphysical view of
the sovereign power was also confirmed by Schmitt’s explicit
genealogy of sovereignty in The Dictatorship, where sovereign
dictatorship began as the Pope’s plenitudo potestatis and ended as
the quasi-divine national will of the pouvoir constituant.52 Therefore,
what might at first have seemed like an existentialist, decisionist, and
normatively groundless theory of constitution-making through
sovereign dictatorship, in fact contained remnants of religious
thought and a belief in “substances” incompatible with any truly
disenchanted worldview. Part of what made Schmitt’s theory
seductive (and confusing) was this oscillation between the existential
and 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 reading
of Schmitt does not yield a theory of “radical democracy,” in
which the people remain present and can actually subvert the
constituted powers at any time. In fact, such a reading reveals a
theory still contaminated with religious-cum-authoritarian,
“substantial” modes of thought, which cannot simply extract
intellectual resources to remedy the democratic deficit by
appealing to some European demos ready to assert itself.
However, such an exegesis, of course, does not prevent us from
thinking with, beyond, and against Schmitt by attempting to
subtract the “substantialist” and authoritarian elements of his
theory. After all, we could conceptualize a European pouvoir
constituant 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 the
ultimate loss of EU legitimacy—the moment when European
constituted powers have become too far removed from the
peoples—and at the same time the constitution of a new order. In
such a “with Schmitt against Schmitt” view, sovereignty always
rests with the peoples, and therefore remains inherently plural, at
least for now. It cannot be constituted as a substantial Einheit, yet
it still remains up to “radical democrats” to explain how it can
express itself in democratic ways, or, in other words, how the
exercise of sovereignty—which Schmitt thought possible only in a

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

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2000] CONSTITUTION OF EUROPE 1789

dictatorship—is to be conceptualized, especially if no single

substance can be posited.
Nevertheless, stripped of its essentialist, existential, and,
above all, religious-authoritarian overtones, we are potentially left
with a theory in which sovereignty simply cannot be extinguished,
but stays alive with the European peoples. In such a reading, the
referenda after Maastricht in Denmark and France were such
assertions of different peoples, and thus constituted a true
“constitutional moment” of the European Union.53
Can such an ultimately, once again, state-centered model
really be useful in understanding the present constitution of
Europe, in remedying its “constitutional deficit,” and in further
constitutionalizing Europe? Can we, in this way, find the pouvoir
constituant and, ultimately, le peuple or les peuples, with Schmitt’s
help? The problem is that even such a “radically democratic”
Schmittian view remains fixated on the state—but the Union
clearly is not, at least yet, a state.54 Therefore, to paraphrase
Joseph Weiler, such a Schmittian reading is a description (and
prescription) of oranges with a botanical vocabulary developed for
apples.55 It also inevitably drives democrats in an étatist direction,
since an increase in democracy depends on an increase in
statehood and the formation of a true European Gemeinschaft—
even though, to be fair to proponents of such views, not every
form of homogeneity has to be an ethnic or national one.
Let me suggest, however, that there is another way to apply
Schmittian constitutional thought to the European Union—one
that yields rather different results and also gets around the
question of how sovereignty can be effectively exercised. I hasten
to add, though, that this model does not yield a real answer to the
“democratic deficit,” but at least presents an ingenious way of
conceptualizing the current constitution of Europe. For that
purpose, let me return for a moment to my initial question of what
Europe actually is. To put it rather broadly, the European Union
contains intergovernmental, supernational, and what Weiler has
called “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 international
organization.
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.
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1790 CARDOZO LAW REVIEW [Vol. 21:1777

“confederal, consociational” democracy, which aims at decisional

efficiency and inter-executive-elite accommodation.58 Most
importantly, 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 has
neither been “codified” nor clarified, in the sense that the rules of
membership, exit options, and the distribution of competence in
the European legal order have been spelled out.60 There is, as yet,
no catalogue of fundamental rights (which would also express
common European values) which would not be subject to review
by national constitutional courts, and, of course, there is no clear
division of powers—even if there is extensive judicial review and
the European Court of Justice sometimes acts as the “guardian” of
the European Constitution. In that sense, neither the
Rechtsstaat—i.e., the liberal rule of law—nor the liberal element of
the division of powers, in Schmittian parlance, is fully present at
the European level.61 But, as Schmitt pointed out, these liberal
elements only make sense in conjunction with a “political form”—
whether of monarchy, aristocracy, or democracy. What then is this
political form? And who is the sovereign constituent power?
Clearly, the Union started as an intergovernmental enterprise,
and only over time acquired supranational and infranational
characteristics.62 In that sense, the sovereigns of the Union were
the initial member states, which, in turn, represented their
sovereign peoples, seeking “an ever closer Union between the
peoples of Europe,” but not the formation of a “European
people.” In that sense, the initial constituent power was a plural
one: 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 independence

from the wishes of the electorate.
(3) Those who are governed may give expression to their opinions and political
wishes 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 constitution
have a state.
60 See Roland Bieber, Steigerungsform der europäischen Union: Eine Europäische
Verfassung, in VERFASSUNGSRECHT IM WANDEL 291 (Jörn Ipsen et al. eds., 1995).
61 See Delf Buchwald, Zur Rechtsstaatlichkeit der Europäischen Union, 37 DER STAAT
189 (1998) (discussing the elements of the liberal rule of law which the EU already
embodies and those it still lacks).
62 See ANDREW M ORAVCSIK, THE CHOICE FOR EUROPE: SOCIAL PURPOSE AND
STATE POWER FROM MESSINA TO MAASTRICHT (1998) (detailing the best account of
European intergovernmental bargaining).
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2000] CONSTITUTION OF EUROPE 1791

constitute the Community. Consequently, there was a deficit of

direct democracy from the very start, but there was no lack of a
democratically constituted, plural constituent power. The latter
might seem like a contradiction in terms, if we are to believe
Schmitt’s interpretation of the pouvoir constituant as das formlos
Formende. In other words, how could the constituent power
already be constituted? However, the undeniable fact of a
partially constituted constituent power says more about the
limitations of Schmittian theory, and its search for an “absolute,”
than it does about actually existing contradictions in the European
enterprise. After all, Hannah Arendt showed, with respect to the
American Revolution, that what prevented the Revolution from
falling prey to a search for an “absolute,” such as Schmitt’s formlos
Formende, was the fact that covenants and mini-constitutions
preceded constitution-making.63
In addition, as Andrew Arato and Ulrich Preuß have pointed
out, the Eastern European revolutions of 1989 involved
constituent powers which were plural and already formed in civil
society.64 To argue that the constituent powers have to be
completely unorganized means falling victim to the metaphysics of
natura naturans—a position which also leaves no answer to the
question of how authority is actually to be exercised. In
Schmittian terms, then, the European constituent power had a
rather determinate shape—but one that was open to reformation
as member states’ governments changed, new member states were
added, and the political will formed in interstate bargaining
evolved. Moreover, the Community was designed to develop and,
specifically, to both expand and intensify. In that teleological
sense, it was different from a state from the very start, and it also
offered a high degree of flexibility. But that meant that both the
European pouvoir constituant and the pouvoirs constitués
exhibited a certain quality of “formlessness,” which, unlike in
Schmittian 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 a
Verfassungsvertrag without a Staatsvertrag—or, put differently, a
constitutionalization 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 Eastern
Europe, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY 165 (Michel
Rosenfeld ed., 1994).
65 SCHMITT, supra note 13, at 5.
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1792 CARDOZO LAW REVIEW [Vol. 21:1777

affected their constitutions.66

Nevertheless, this leaves open the question of what the
member states’ governments, uniting their political wills after
elaborate processes of bargaining, actually chose to constitute.
The political form they chose arguably was what Schmitt would
have called a status mixtus—i.e., a mixed state, with liberal
elements of the Rechtsstaat added on. But, much as in an
Arendtian model of constitution-making, they also compounded
their powers, and shared and divided, rather than simply lost,
sovereignty.67 Moreover, for all its cold war origins, the Union is
not a Schmittian political unity in the sense of depending on
friend-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 a
consensus about liberal democracy, which are, after all,
preconditions for EU entry.68
Thus, the constituent power—the plurality of member
states—remained both inside the constitution, as in the Council of
Ministers,69 and outside, as in those moments when the member
states as high contracting parties redesigned the constituent
power—i.e., by adding new members, and by reshaping the
European Constitution itself. Obviously, not every subsequent
meeting of the member governments was a “constitutional
moment,” but the Single European Act, the Maastricht
negotiations, and the Amsterdam negotiations clearly were special
in transforming the very nature and limits of the Union. In that
sense, we are left with a kind of “dual system,” in which the
constitution transcends the contingent outcome of member states’
bargaining in a constitutional moment, and in which the member
states are both inside and outside the constitutional system.
Sovereignty is then shared in “normal times” of European
governance, in which supranational and infranational elements
loom large, but it reverts to the plural constituent power in
moments of constitutional remodeling. Moreover, since the Union
has 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 OF
EUROPE 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 as
defined by the treaties, it is, for all intents and purposes, part of the European political
system. I would disagree here with Weiler’s assessment that the Council’s role is simply
that of a counterweight to the constitutionalization of Europe. WEILER, supra note 53, at
36.
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2000] CONSTITUTION OF EUROPE 1793

rest with the member states. At the same time, the member states
remain represented in the Council of Ministers. However, above
and below the Constitution, they are precisely “the formless
forming entity”—which is “formless” in the sense of what Euro-
jargon calls a “variable geometry,” “flexibility,” or “enhanced
cooperation.” In exceptional moments of constitutional remaking
of the Union, the member states then reassert their sovereignty.
Just as in the Schmittian model outlined above, member state
governments also receive a kind of retroactive authorization from
their constituent powers, sovereigns, or “guardians of the
constitution.” Examples include the Germans and the French
from their respective parliaments and Constitutional Courts, which
effectively answer the question of how sovereignty is to be
exercised—the question to which Schmitt, in his original model,
could only give the answer of a dictatorship.70 In that sense, there
is, of course, a further level of sovereignty below the sovereign
member states and their political decision to set up the constituted
powers—which leads us back to the “radical democracy” option
spelled out above. Schmitt himself, in fact, declared that, in
federations, sovereignty was not clearly located.71 According to
Schmitt, federations in which two “political existences co-existed”
were inevitably characterized by a number of antinomies—above
all, the dualism of “existences” and the dualism of sovereignty
which seemed to follow from this.72 These antinomies could only
be overcome because the question of sovereignty—i.e., the
question of who decides in the case of an existential conflict—
would never be posed. The reason, not surprisingly, was that
every genuine federation had to be characterized by “substantial
homogeneity” and the fact that all member states held to the same
political principles. Thus, according to Schmitt’s own theory of
federalism, we are back to substantial homogeneity—while,
according to a reading of Europe inspired by Schmitt’s
constitutional theory more generally, we are left with a complex,
but not altogether implausible, picture of dual and divided
sovereignty, as it is actually practiced in present-day Europe. This
does not answer the ultimate Schmittian question about
sovereignty in the exception of existential conflict, but it does

70 The French made a specific “exception” with regard to Article 3 of the French
Constitution, whereas the Germans relied on the Constitutional Court to declare that the
Bundestag could effectively transfer power vested in it by the people to other agencies of
its choice. For an exceptionally clear discussion of the German case, see Thomas W.
Pogge, Creating Supra-National Institutions Democratically: Reflections on the European
Union’s “Democratic Deficit,” 5 J. POL. PHIL. 163 (1997).
71 SCHMITT, supra note 13, at 373.
72 Id. at 371.
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1794 CARDOZO LAW REVIEW [Vol. 21:1777

answer the question about the constitutional “normalcy” of the

Union.73 After over forty years of integration, the Schmittian
question should perhaps carry a little less weight, even for those
politically (and aesthetically) opposed to messy realities.

CONCLUSION
There are at least three ways in which Schmittian theory
might be useful in a descriptive (and prescriptive) analysis of the
Constitution of Europe. First is Schmitt’s conceptual link between
democracy and homogeneity. This link has been stressed by those
who want to deny the qualities of democracy and statehood to
Europe, as well as those who want to advance democracy and the
establishment of a European demos. Both sides are in danger of
remaining within an étatist framework that conceives of Europe
only as a nation-state writ large.
Secondly, those seeking to remedy Europe’s democratic
deficit have drawn on the supposedly “radically democratic”
elements that can be extracted from Schmitt’s work. In this
scenario, the European peoples remain a plural constituent power
that can reassert itself against the executive elites which drive the
European project—but, for now, they can only do so in a statist
framework. However, such a Schmittian reading also has to
subtract the “substantive,” even metaphysical, aspects of Schmitt’s
conceptualization of pouvoir constituant, lest it falls into the drive
towards homogeneity inherent in the first position, or posits a
“European substance” that remains part of a concretist,
substantive notion of popular sovereignty. Europe and Schmittian
conceptions of political unity will not go together.74
Finally, many parts of Schmitt’s constitutional theory, as
outlined in the Constitutional Doctrine, fit the evolution and actual
workings of the current European Union rather well—if, and only
if, we shift to the level of the Union as such, and view the member
states’ governments as a plural constituent power, which sustains
the Union through its plural political will. In a kind of dual
system, the governments can then be seen as both inside and
outside the European Constitution, depending on whether the
Union is in a period of “normal” or “constitutional” politics.75
Both the Union and the constituent power, then, appear as
somewhat “formless,” and capable of evolution. As long as the
political will towards the Union is sustained, it will be subject to
periodic 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).
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2000] CONSTITUTION OF EUROPE 1795

states’ governments. With somewhat democratically adjusted

Schmittian categories, such a model could be normatively justified.
After all, the member states’ governments can (or cannot) receive
the kind of retroactive authorization which Schmitt conceptualized
in his Constitutional Doctrine.
Does any of this take us forward in the process of European
constitutionalization and democratization? In the first model, we
should increase the drive towards European homogeneity, in order
to improve the chances for democracy. In the second, we should
seek a foundational act, a democratic “baptism” through a
constitutional convention, to remedy the ongoing democratic
deficit of the Union as a whole—even though it is not clear how
such an act, in and of itself, may increase the democratization of
the workings of the Union on a day-to-day basis.76 In the third
model, we can rest somewhat content with what we have: divided
sovereignty on different levels, ongoing struggles over quis
iudicabit, and a plural, evolutionary approach, in which both the
Union and the constituent power change their forms, and in which
the peoples of Europe lay constant “siege” to the Union powers-
that-be, rather than transfer sovereignty in a unitary, concrete
act.77 Ironically, such a Schmittian reading, at least at the Union
level, leaves us with a rather un-Schmittian option, even if its sheer
messiness probably makes the democratic deficit even larger. It is
unlikely, then, that this option will ultimately satisfy the call for
democratization and constitutionalization. But it is also unlikely
that there ever will be a “democratic baptism.” Rather, it seems
that there will be further muddling through well-intentioned
proposals for amendments, which then fail at intergovernmental
conferences, and, above all, constitutional clashes at the EU’s core.
As a result of the latter, there will be actual gradual reform, as in
the recent increase of accountability of the Commission to the
Parliament.

76 See Albert Weale, Democratic Legitimacy and the Constitution of Europe, in

DEMOCRACY AND CONSTITUTIONAL CULTURE IN THE UNION OF EUROPE, supra note
65, at 81-94.
77 See Adam, supra note 6; see also JÜRGEN HABERMAS, DIE POSTNATIONALE
KONSTELLATION (1998).