The Making of a ‘58er 51
“outwitted” by constitutional design. But beneath these rhetorical
invocations of democratic sovereignty lay Werner Weber’s true
anxieties – preeminently, the fear that the judicial branch would be
strengthened at the expense of the executive branch.
Adenauer’s chancellor democracy needed all its power to wage
the Cold War, Weber asserted. The emergency powers afforded
by Article 48 of the Weimar constitution were a necessary tool
for a state – the right to declare a “state of exception,” in Schmitt’s
famous phrase. Without emergency powers, the state would not be
able to defend its existence from internal or external threats. In the
late 1960s, the question of emergency powers would become a major
cleavage point in the public debate. The Basic Law, Weber wrote,
shapes the political order “according to a system of abstractions,”
namely, the idea of divided branches of government. As Weber
argued plaintively, though, “How can one make it clear to the peo-
ple that its lord is three powers?”^106
Werner Weber’s text is also a quasi-Nietzschean lament for a lost
world of risk: “The Basic Law... gives us a picture of a constitu-
tional life without risk, of calming security and a practically bucolic
peace.”^107 Because he conceived law and power as insoluble antino-
mies, Weber could write statements such as the following: “The
elastic power, which the Weimar constitution still had, is replaced
in the Basic Law by a thin-walled system of glass brittleness” or
“... certainly, the unbridled vital power of the political, which one
does not evade in Weimar, appears outwitted in the Basic Law.”^108
His metaphorical contrast of the elasticity of the old order to the
brittleness of the new expresses the conviction that the ability to
assert power is the defining aspect of the political: The “... system
of written constitutions, that is ossified in traditional formulae and
constructions... leaves us helpless against the actual political power
game of our time.”^109
An émigré to the United States, Frankfurt school jurist Otto
Kirchheimer labeled Weber’s work “a curious spectacle” and a
“brilliant, if dangerously lopsided indictment” of the Basic Law.^110
(^106) Weber, Spannungen, 42.
(^107) Ibid.
(^108) Ibid., 38.
(^109) Ibid., 40.
(^110) Otto Kirchheimer, “Review of Werner Weber,” American Political Science
Review 46:3 (September, 1952 ), 885.