Weimar Moments II: The Past and Future of Transformative Constitutionalism

The provisions of the Weimar Constitution on the binding force of international law were one of its innovative elements. This Weimar ‘foreign relations law‘ was intended to send a signal to the former war enemies, that the new German republic was trustworthy. In general, the public perception of the Treaty of Versailles demonstrates the unprecedented tension between international negotiation processes on the one hand and the expectations of domestic audiences in democratic constitutional states on the other. My contribution will start with analysing continuity and change in the status of international law under the Weimar Constitution as compared to its forerunner, the ‘Bismarck Constitution‘. In the main part, I will explore the tension between international law and mass democracy. Here, I will keep a focus on the special situation of a newly established order which seeks international trust and a widespread public distrust towards Versailles and international and foreign influences.

In my remarks, I look first to the substance and legacy of Schmitt‘s distinction between the constitution (as concrete unity), which results from the fundamental political decision by the constitution-making power to establish a particular political and social order, and constitutional laws, which instantiate aspects of that order. Second, I detach the idea of the constitution as concrete unity from Schmitt‘s identitarian cast and redefine it at least insofar as it refers to the fundamental choice of a form of government. I then connect that fundamental choice to the part of the Goldmann/Menendez paper that discusses the positioning and self-understanding of the Weimar republic in relation to the international legal order. I seek to specify that openness in terms that help us make sense of the contemporary constitutional experience. I use some of the jurisdictions referred in the paper to explore the continuing relevance of that specific aspect of the Weimar constitutional moments.

The presentation will address first, briefly, how Italian legal culture approached the Weimar Model over the 20s and 30s, focusing then on what substantive influence it has had on the Italian Constitution. The Ministry for the constituent, as a matter of fact, published in 1946 a series of documents called “Text and Constitutional Documents“ and one of them was the Weimar Constitution. The debates of the constituent assembly therefore reveal the circulation of ideas and shed light on current constitutional developments.