When the so-called Republican Revolution ushered in the aggressive and self-important style of politics under which we still labor today, their main spokespersons made many sweeping historical arguments, some of them good and some poor. It seems like ancient history, but it was only 1994.
One of the best arguments, I thought—voiced by none other than Newt Gingrich—was their insistence that under the unique pressures of the Cold War, the Legislative branch had temporarily ceded enormous power to the Executive branch, especially as regards the declaring and waging of wars. And now, the Legislative branch was taking its power and its responsibilities back. Ever since the Second World War, as we engaged the Soviet Union in one outlying front after another, from Korea to Vietnam to Afghanistan, war became something quite literally unexceptional, something that never was named explicitly or accurately. They were “police actions,” or “interventions,” or responses to “states of emergency.”
The Italian theorist, Giorgio Agamben, has done much to focus our attention on the political (and theological) stakes in all such declarations, especially those invoking the “state of exception.” But he is building on the lesser-known work of Carl Schmitt, an early 20th century legal and political theorist who would have been far better known had he not cast his lot with the Nazis, submitting rather cravenly to some of their most egregious anti-Semitic rhetoric. In this way, Schmitt drowned out his own most important arguments in a cacophony of ethnocentric hate speech. It is a shame, because his political arguments are worth hearing and they are, in Agamben’s view, altogether premonitory.
Schmitt came of age in the pre- and post-World War One era of global crisis. It was precisely that sense of crisis that led many to conclude than Anglo-American attempts to reform the current system failed to take the depth of the crisis seriously. A revolution was called for, and the only political movements facing up to that hard truth were communism and fascism. Schmitt was a very early critic of Enlightenment Liberalism in ways that anticipate the communitarian and neo-traditionalist critiques of the 1980s. And it was Schmitt who argued that periods of crisis presented sovereign states with “states of exception,” in response to which the true nature of sovereignty suddenly becomes clear.
It is as if the sleeping sovereign suddenly comes awake in such exceptional moment, Schmitt says. In fact, the starting assumption that makes his classic 1922 treatise, Political Theology, work is that “the sovereign is he who decides on the exception.” Schmitt is fundamentally interested in the way contemporary political concepts are “secularized” theological conceptions. As he puts it pithily, “the exception is in jurisprudence analogous to the miracle in theology.”
Schmitt grounded this claim in a fascinating historical argument that moved breezily across the past five centuries in Europe. In the 1500s, he noted, the world was organized around theological God-concepts. In the 1600s, the language of theology was replaced by the language of metaphysics and science. In the 1700s, the foundational concepts for politics were the ethical humanism so evident in the American Declaration of Independence, and in the 1800s, everything of importance was subsumed within economic categories. But in the twentieth century, Schmitt noted (and we should think of trench warfare, mustard gas, artillery and machine guns, and the airplane dropping bombs from the
sky), technology created the order of the technological state, which created an exceptional kind of exception, a stress and a pressure to which all modern states needed to respond. The 9/11 attacks were powerfully symbolic exploitations of the new techno-military possibilities opened up by human exploitation of the air.
Modern states have responded by creating explicit and constitutional states of exception. In Schmitt’s case, that state of exception was clearly anticipated in Article 48 of the Weimar Constitution. It read as follows:
If in the German Reich, public security and order are considerably disturbed or endangered, the Reich-President may undertake necessary measures to restore public security and order, and if necessary may intervene with the aid of armed forces. For this purpose he may suspend, temporarily, in part or entirely, the basic rights as provided in articles…
Naturally, this reasoning is very close to that which underwrites the USA Patriot Act, interminable detentions in Guantanamo and elsewhere, and the whole quasi-legal edifice the current administration attempts to broadcast as its legitimation of the current rules of engagement in the global war on terror.
Schmitt’s reading of the implications of this article are interesting and of great use in the current muddle. He had written a study of “The Dictator” just prior to his important essay on Political Theology. In it, he distinguished two forms of dictatorship, a sovereign dictatorship versus a commissarial dictatorship (later, in the 1934 Preface to the unedited second edition of Political Theology, he seems to have envisioned a third category: institutional legal/political thinking).
The sovereign dictator in Schmitt’s technical sense uses a period of crisis to abrogate the existing constitutional norms in order to bring about “a condition whereby a constitution [which the sovereign] considers the true constitution will become possible.” This idea Schmit opposes to the commissarial dictator who sees him- or herself as a temporary measure designed to restore order, and then the normal constitutional order that predated the crisis.
Clearly, in this sense, the Bush team, like its ambitious and ambiguous doctrines, are classic exemplars of Carl Schmitt’s worrisome “sovereign dictator.” As Schmitt rightly saw, these political conceptions are borrowed from Christian theology. And so this sovereign is a throwback to the pre-Enlightenment era of theocratic politics, of kings who looked like, and acted like, gods.
It is always unhelpful to complain that “these people are fascists,” or that “they are no better than the Nazis.” They are not. But “family resemblances” in their political reasoning and self-conception there surely are. And on those central self-images of the nation hang the fortunes of a nation in genuine crisis, and a very tenuous electoral season.
