The Reichsgericht as “guardian of the constitution” in Carl Schmitt’s work

Abstract

This article deals with the peculiar defensive role of the Constitution assigned by Carl Schmitt to the ordinary courts of the Weimar Republic. To this end, we analyse a work published in 1929 by the German author which has received little attention from specialists: ‘Das Reichsgericht als Hüter der Verfassung (The Reichsgericht as guardian of the Constitution)’. The detailed and systematic interpretation of this contribution offers a novel perspective of Schmitt’s reflection on the various institutional mechanisms
available to protect the basic arrangement of a society. This approach entails an emancipation from the most common prejudices in relation to the jurist’s critique of liberalism. In particular, this paper argues that Carl Schmitt never objected to a narrow judicial review exclusively functional to the interests of
the Weimarian bourgeoisie. To conclude, we note the implications of what was has been said for the doctrine of institutional guarantees developed by the author in the final years of the German republic and, in general terms, for his institutionalist theory of law.