Synthesizer of Constitutional Theory, 1958–1963 71
Habermas, aware of the brown pasts of the Schmitt students, held
them at arm’s length. Nevertheless, he appropriated their radical
critique of the welfare state against the grain of their intention. Like
them, Habermas was repelled by the influence of powerful interest-
groups. But where they criticized a “vacuum” of state authority, he
did not seek to reconstruct a strong executive branch and instead saw
the legislative branch as his preferred guardian of the constitution.
Habermas learned from the Schmittians that the spheres of “state”
and “society” had interpenetrated each other. If public and private
spheres were collapsing in on one another, Habermas reasoned, the
idea of prepolitical, negative liberties had ceased to be meaningful.
Negative liberties could be reinvented only as positive guarantees of
participation with a unified state-society. Only by becoming a truly
“political society” could the tension between homme and citoyen be
overcome.^58 This is the meaning of Habermas’s statement that
The state-form, which essentially presupposes the division of
state and society, still remains, though no longer in its older form.
Although society no longer stands opposite the state as an indepen-
dent entity (as in the liberal model), society is equally not politi-
cal in an actual sense. This ambivalence stamps the essence of the
constitution.^59
Habermas resolved the “ambivalence” of the constitution with
an embrace of a statist solution. With this conclusion, Habermas
gambled that Rechtsstaat would not be a casualty of democracy. Like
Abendroth, Habermas elided the tensions between liberalism and
democracy. Abendroth had simply trusted that the democratic leg-
islator would secure the traditional legal guarantees of civil rights
to citizens. Similarly, Habermas argued vaguely that the idea of
democracy was “co-institutionalized” with the idea of the Rechtsstaat
but could be realized only in the shape of a “political society.” This
potentially illiberal feature of Abendroth’s positions migrated into
Habermas’s synthesis. But a seed of doubt remained: “The political
control of social power is the necessary condition for the realization
of democracy in this sense; whether it is sufficient we will see.”^67 In
sum, Habermas believed that the resurrection of the public sphere
did not require reestablishing the boundary between the state
(^58) Habermas, Student und Politik, 22.
(^59) Ibid., 21.