Volpi on Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy

Alessandro Volpi, Max Planck Institute fr the Study of Crime, Security and Law, has published Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy as Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2026/01. Here is the abstract.

This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.

Download the paper from SSRN at the link.