18 Habermas: An intellectual biography
take hold in Germany. When the Rechtsstaat first developed in
Germany, civil and political rights were grants of the state. Liberal
constitutionalism in Germany initially accompanied a monarchy,
not a republic. For Marx, Weber, and Schmitt, liberal constitution-
alism and democracy pointed in different directions. Habermas’s
mature project in political theory was to show the conceptual and
practical connections between the rule of law and democracy. To an
American audience, this may seem a touch banal. In the German
context, however, making the case for the connection between the
two involved a staggering feat of overcoming German tradition.
In Schmitt’s hands, a tension between liberalism and democracy is
inflated into an irreconcilable contradiction: In his Constitutional
Theory (1928), Schmitt asserted that “... the entire effort of consti-
tutionalism was aimed at repressing the political.”^68 In his Concept of
the Political (1927), an abstruse, vitalist concept of “the political” is
proffered, by which Schmitt insisted that the state must retain the
critical power to decide how to meet existential threats. In Crisis
of Parliamentary Democracy (1923), Schmitt argued that liberalism
and democracy were fundamentally alien to one another: the former
having to do with an antiquated faith in public, rational debate and
the latter essentially linked to finding mechanisms for identifying
ruler and ruled.
The lesson the drafters of the Basic Law drew from the failure
of the Weimar Republic was that the constitution should elevate
certain basic rights beyond the reach of the legislature’s power to
amend. Article 1 announces that “The dignity of man is inviolable.”
Article 20 declares the constitution “a democratic, federal and social
state (Sozialstaat).” Article 79, paragraph 3 bars any amendment that
would impinge on “... the basic principles laid down in Articles 1
and 20.” Article 79 for this reason is sometimes called the “perpetu-
ity clause.” The “free democratic basic order” announced in Article
21 and repeated numerous other times in the Basic Law is usually
invoked to limit rights. The Basic Law departed from legal positiv-
ism by asserting the “... universal and extralegal character of these
rights which exist prior to and irrespective of their official recog-
nition by the state.”^69 The Basic Law restored the Rechtsstaat but(^68) Carl Schmitt, Ve r fa ss ungsl ehre (Berlin: Duncker & Humblot, 1928), 41.
(^69) Rainer Grote, “Rule of Law, Rechtsstaat, and État de Droit,” in Christian
Starck, ed., Constitutionalism, Universalism and Democracy – Comparative
Analysis (Baden-Baden, Germany: Nomos Verlagsgesellschaft 1999 ), 286.