The first line of Carl Schmitt's Political Theology is perhaps the most famous sentence—certainly one of the most infamous—in German political theory: “Sovereign is he who decides on the exception” [Souverän ist, wer über den Ausnahmezustand entscheidet]. And yet the full significance of this famous sentence is often underestimated. I intend to focus upon 1) its significance in the overall trajectory of Schmitt's Weimar work, and 2) its potential significance for contemporary constitutional theories of emergency powers.

Schmitt's Verfassungslehre stands as perhaps the most systematic and least circumstantial of his works. While his production is marked, on the whole, by an extraordinary sensitivity toward his own concrete situation, leading at one point to an unbounded and shameless opportunism, this particular work seems to rise above the political fray, reflecting possibly the mood of 1928, which marks the halcyon days of the Weimar republic. Recently, Ernst-Wolfgang Böckenförde has tried to shake off the Verfassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriff des Politischen (1927) and Schmitt's characterization of the state as the political unity of a nation. Beyond this, Böckenförde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Politische Theologie (1922), where he flaunts his allegiance to the Catholic counterrevolution.

In one of his most famous dicta, the German legal and political theorist Carl Schmitt proclaimed it “obvious” that “all political concepts, images, and terms have a polemical meaning,” because “[t]hey are focused on a specific conflict and are bound to a concrete situation.” Taking Schmitt at his word, I argue that one must read Schmitt's masterpiece of comparative law from the Weimar period, Verfassungslehre, as a response to the Weimar state crisis. Schmitt's conceptual approach in Verfassungslehre aims to create a form of constitutional theory capable of compensating for structural defects of the Weimar state. Reading Verfassungslehre in this way also reveals that Schmitt does not present his constitutional theory as an alternative to liberal constitutionalism, but rather Schmitt's comparative history of constitutionalism in Verfassungslehre locates his decisionism at the very core of the liberal constitutional tradition.