Living in the era of semantic constitutionalism without noticing it: the relevance of Loewenstein’s teaching

Karl Loewenstein, notoriously known for being the architect of ‘militant democracy’, had less luck with the introduction in 1957 of the term ‘semantic constitution’, a concept that still remains mostly unexplored and underestimated in the academic literature. Even so, several commentators have indirectly questioned the practical relevance of his classification, that being something that would only be employed in a very few and residual cases, would lead to the conclusion that even an elementary treatise can show that power does not reside where the Soviet constitution seems to place it (Leiman, 1958). Giovanni Sartori in 1962 further developed the original Loewenstein’s scheme, partially departing from it through the first appearance of the pair ‘nominal’ and ‘façade’ which, as he confessed, would often result in a blurring and overlapping distinction. The paper argues for the relevance in the contemporary constitutional democracies of Loewenstein’s semantic constitutionalism.