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Introduction

"value-free" and "legalistic" fashion.21 He acknowledged that such an interpretation might be appropriate in countries where political parties accept the legitimacy of the constitution and hence adhere to what are commonly known as the rules of the game, as in England, for example. There, as Lord Balfour noted in his introduction to Walter Bagehot's The English Constitution, "[the] whole political machinery presupposes a people so fundamentally at one that they can safely afford to bicker; and so sure of their own moderation that they are not dangerously disturbed by the never-ending din of political conflict." Because such conditions did not exist in Germany, Schmitt argued, a value-neutral and legalistic interpretation of the constitution facilitated its subversion. Having once gained power, a militant party would not hesitate to exercise sovereignty in order to transform itself into the state.22 By insisting that a constitution by definition does not aim at its self-destruction, Schmitt concluded that an equal chance should be accorded only to those parties committed to the preservation of the existing constitutional order. In the crisis year of 1932, therefore, he saw no alternative to the full assertion by President Hindenburg of his constitutional prerogatives and sovereign powers to save the state.23

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