The Schmitelsen Court: The Question of Legitimacy

In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. After establishing these theoretical points, I proceed by examining how the Schmitelsen Court model manifests itself in three case studies: the American Supreme Court, the Israeli Supreme Court and the European Court of Human Rights.