Judicialization of politics, judicial self-restraint, and the defense of the constitution: Carl Schmitt’s lessons from The Guardian of the Constitution

Abstract

In this paper, I present an interpretation of some of Carl Schmitt’s theses in his work Der Hüter der Verfassung (The Guardian of the Constitution). Initially, I present the Schmittian definition of a “guardian of the constitution” as opposed to a “sovereign ruler of the constitution” and compare it to contemporary approaches to constitutional
theory. Next, I discuss Schmitt’s theses on the function of the Reich President as the guardian of the constitution, his defense of an attitude of judicial self-restraint in the judicial review of the constitutionality of laws, and his critique of the “judicialization of politics”. Finally, I draw on those theses to raise a discussion on the Brazilian Supreme Court and question its status as “guardian of the constitution”.