78 Habermas: An intellectual biography
Habermas’s description of the Nordrhein-Westfalen case as a
progressive one is intriguing. The Federal Constitutional Court
had affirmed the freedom of the press according to Article 5 but
did nothing to challenge the doctrine of militant democracy: It
rejected the state’s right to censor the press because the right to
censor belonged at the federal level. Habermas’s reading of the first
Television, North Rhine-Westphalia, and Schmid-Spiegel cases reveals
the influence of the Abendroth school on his thinking about the
public sphere.
The influence of both the Schmitt and Abendroth schools
on Habermas’s thought in the 1957–63 period is clear, abundant,
and direct. With the third major school of constitutional theory,
that of Rudolf Smend, however, the influence is less direct but
equally significant. Habermas must have known Smend’s writings
from Abendroth, who regularly taught his texts in his seminars.^80
Nevertheless, Habermas practically never cited Smend in his writ-
ings. There are only two exceptions: One is a citation to an ency-
clopedia article of Smend’s in his “Natural Law and Revolution”
(1963) and the other a sole reference in Transformation.^81 But
Smend’s thought nonetheless had a major impact on Habermas
through Smend’s students and intellectual network, on the one
hand, and the hegemony of Smend’s constitutional theory on the
high court throughout the 1950s, on the other. Gerhard Leibholz,
an influential jurist on the high court from 1951, had written his
Habilitation u nder Smend, a nd Smend i nv ited Leibholz to t a ke over
his chair in Göttingen.^82 Leibholz opened the door for Smend’s
influence on the Court.^83 Leibholz brought Horst Ehmke, a stu-
dent of Smend’s, to the Court as his assistant in 1956. Ehmke had
worked with SPD delegate Adolf Arndt (1904–74) from 1952–6.
Arndt subsequently brought another Smend student, Wilhelm(^80) Abendroth Nachlass, Institute for Social History, Amsterdam.
(^81) Habermas made reference to Smend’s 1956 lexicon article, “The Theory
of Integration” in order to critique it, but there is no sustained argument.
See Habermas, “Natural Law and Revolution,” in Theory and Practice, 117;
orig. “Naturrecht und Revolution,” in Theorie und Praxis: Sozialphilosophische
Studien, 5th ed. (Frankfurt/Main: Suhrkamp, 1988 ), 123. The reference in
Transformation is to a 1955 essay by Smend on the concept of public opinion.
See Strukturwandel, 137; Transformation, 70.
(^82) Günther, Denken, 191.
(^83) Peter Badura, “Staat, Recht und Verfassung in der Integrationslehre. Zum
Tode von Rudolf Smend,” Der Staat 16 ( 1977 ), 304. Cited in Henne, Lüth-
Urteil, 214.