Carl Schmitt Redux: Law and the Political in Contemporary Global Constitutionalism

Abstract

Carl Schmitt, who died in 1985, did not live long enough to witness the heyday of globalization after the Cold War, especially in the field of constitutional law. In the decades following his death, new developments of constitutional law around the world have been fermenting. Judicial review, along with written constitutions with bills of rights, has been established in most countries or regions. In constitutional practice, the political salience of higher courts or constitutional courts looms large. Constitutional judges have been learning from their international colleagues in deciding hard cases like abortion, same-sex marriage, and even national election disputes. The power of the judiciary has expanded globally.

Old ideas, however, can be as powerful as new ones. Against the contemporary backdrop of the globalization of constitutionalism, this chapter tries to somberly reflect on the new constitutionalism, especially the judicialization of highly political issues, by thinking with an old constitutional thinker, Carl Schmitt. Two prominent features of the new constitutionalism — judicial centrism and constitutional globalism — can be better understood and better evaluated with Carl Schmitt’s insights.