Room for the Rechtsstaat in Times of Extremes

Weimar years marked a moment of thorough reconsideration of the main features of the rights-based modern constitutionalism, such as the relationship between the individual rights and collective social processes. The constitutional compromise tried to extend the fundamental rights and duties beyond the limits of moral and normative individualism vis-à-vis the state by implementing mechanisms for a democratic governmental action in economy as well as in politics. However, its scarce effectiveness incited Hermann Heller to reconsider the fundamentals of constitutionalism. A group of young leftist constitutionalists—Franz Neumann, Otto Kirchheimer and Ernst Fraenkel—followed his attempt to develop a social Rechtsstaat and a corresponding collective democracy. By contrast, right-wing constitutional scholarship either denigrated the Rechtsstaat principle (Schmitt) or misrepresented it for the purposes of the Nazi dictatorship (Koellreutter).