an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Carl Schmitt and the Military Commissions Act of 2006
"Sovereign is he who determines the exception. …. "The exception is more interesting than the norm. The norm proves nothing, the exception proves everything; it confirms not only the rule, rather the rule's existence is dependent upon the exception. Through the exception the power of real life breaks the crust of a mechanism stultified by repetition."
- Carl Schmitt, Politische Theologie (1922)
In a few hours, George W. Bush will sign into law the Military Commission Act of 2006 (MCA), a piece of legislation which breaks with American legal tradition in some ominous ways. Most disturbing from the perspective of the legal profession are its termination of the writ of habeas corpus with respect to the claims of detainees and its sweeping grant to the Executive of rights to label persons enemy combatants and thereby leave them without legal rights which can be vindicated in courts. But the broader significance of this legislation is surely political. Its entire thrust is a massive channeling of power from the legislature and the courts to the Executive, a channeling which occurs just after the Supreme Court called the Executive on its trashing of both United States and international law governing armed conflict and on the eve of elections which pollsters suggest will produce a Congress which better reflects public attitudes - at this point, very sharply critical of the Executive.
In 1999, William Scheuerman wrote that "[t]he ghost of Carl Schmitt haunts political and legal debates... in the contemporary United States." (Carl Schmitt: The End of Law, p. 1). He made an interesting case for Schmitt's influence, acknowledging that it is "subterranean," and identifying in Joseph Schumpeter, Friedrich August von Hayek and Hans Morgenthau important intermediaries for Schmittian concepts received in the United States. But since September 11, 2001, the case has grown ever stronger and more direct. The MCA, for instance, is filled with echos of Weimar. It bears an uncanny similarity to the Ermächtigungsgesetz (Enabling Law) of March 23, 1933. Both seize upon terrorist threats and deeds as an emergency circumstance justifying a delegation of powers to the Executive, though the transfer of powers in the Enabling Law is vast in scope - dwarfing that of the MCA. On the other hand, the Enabling Law was also seen as a temporary measure, and thus incorporated a sunset provision (art. 7, providing for expiration of the act on April 1, 1937) which the MCA does not have. But both pieces of legislation have at their core the Schmittian notion of a state of exception, and in each case the exception appears to be exploited to drive a more generic change.
It is characteristic of Schmitt that he sees sovereignty not in terms of a monopoly of state power, indeed the right to use violence (the twin aspects of Gewalt) like Hegel or Max Weber, but rather in control over decisions. His understanding is fundamentally hierarchical and sharply distrustful of Anglo-American notions of checks and balances. On this point more than any other rests Schmitt's central thesis that much of modern political theory is essentially secularized theology. So for Schmitt the key for modifying the liberal-democratic Weimar Constitution rests in the state of exception, and indeed, the state of exception is ultimately no exception at all.
But the methodology that Schmitt foresees for implementation of the change is more elaborate. On this point his key writing surely is Staat, Bewegung, Volk - die Dreigliederung der politischen Einheit (1933) which can be read as a manual for the implementation of the National Socialist restructuring (Gleichschaltung) in the legal sector. His remarks about the role of the judiciary are telling. In the liberal democratic tradition, the role of the judge as the autonomous "bouche qui prononce les paroles de la loi" (Montesquieu) is axiomatic. However, Schmitt sees stilling the independent role of the judges as the key for conforming the legal process - judges as the "faithful implementers of the sovereign's will" must recognize the ultimate primacy of the Executive, and they must recognize that their autonomy is substantially curtailed from the Weimar period. Schmitt goes on to embrace the slogan of Roland Freisler, later the most infamous judge of the Volksgerichtshof, that Germany needed to "reform the judges, not its law." In the period following the passage of the Enabling Law, the process of Gleichschaltung within the legal profession was pursued on a number of simultaneous planes. At its apex surely was the ideological component which Schmitt himself provided. A bureaucratic component aimed to weed out judges and lawyers who were out of step with the new regime. And in the dark shadows, political functionaries such as the Sturmabteilung, pursued their thuggery, driving leading figures in the profession into retirement or emigration. This process was ultimately successful, producing a judiciary which was a disciplinary tool of the Executive, not an autonomous expositor of the law. As Otto Kirchheimer wrote in his authoritative study, The Legal Order of National Socialism (1941):
The Nazi judge... [was] accountable for the contents of his decision. Where the relentless pressure of the party through channels like the Schwarze Korps should prove of no avail... new organizational statutes provide ample facilities for discharging or transferring a recalcitrant judge. The judiciary is entitled to have and express opinions of its own only in those cases where it does not act as a kind of common executive organ to the combined ruling classes.
This result is difficult to distinguish from the model that Schmitt prescribed.
The events of the Weimar endphase find a fainter, but nevertheless distinct echo in the United States in recent years. It is remarkable that one of the first public statements to be made by an administration official in the wake of passage of the MCA was a "warning" issued by Attorney General Alberto Gonzales to sitting federal judges. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches," Gonzales stated to a gathering of judges. The inescapable message being sent was to warn judges from taking any step to interfere with Bush's policies addressing detainees in the war on terror, policies largely crafted under the supervision of Gonzales. But the provocative nature of Gonzales' remarks becomes apparent when we consider that these are the very policies which the Supreme Court determined to be unlawful in its opinion in Hamdan.
These threats, repeatedly disseminated in "polite" form by Gonzales and others, were underscored through far cruder political discourse. The Family Research Council lead by James Dobson organized a series of events called "Justice Sunday" at which the federal judiciary was attacked and its total obeisance to the rule of the Bush Administration was demanded. These events attracted a broad array of senior Republican officials, including Majority Leader Frist, and the Administration's support to the functions was manifest. In the words of former Republican House Leader Dick Armey, the principal organizers of these events were "a band of thugs" and "nasty bullies." As Armey stated with reference to the Terri Schiavo affair, which also entailed broad attacks on the judiciary and was linked with the Justice Sunday events, "That was pure, blatant pandering to James Dobson. That’s all it was. It was silly, stupid, and irresponsible. Nobody serious about the Constitution would do that. But the question was will this energize our Christian conservative base for the next election.” But in addition to the electoral agenda, another aim was completely clear: the intimidation of judges.
The reordering of the legal branch takes other forms. As is regularly discussed in this space, the process of selecting federal judges is increasingly subject to ideological litmus tests, which these days seem to doom the chances of a mainstream Republican to achieve appointment to the bench (other than as a courtesy appointment in a Democratic administration). As the Boston Globe has reported, the Department of Justice itself has witnessed an increasing process of politicization of hiring, affecting the Civil Rights Division, the Office of Legal Counsel, Office of Legal Policy, and other politically sensitive sections. Under the Bush Administration, even the Criminal Division has developed into a political flash point through its tight connections with the torture issue - much of which has not - yet - been aired in the press. There seems little doubt that the appointment of Alice Fisher to head this division occurred as a result of her close personal connection with torture and torture impunity issues, for instance.
Obviously, the political ideologies that are in play are broadly different. We should recall that apart from his Nazi flirtation, Schmitt's thinking is authoritarian but not necessarily fascist. Indeed, Schmitt urged President von Hindenburg to ban both the Nazi and Communist Parties, and discovery of this fact led to Schmitt's sudden purge from a position of confidence in the Nazi administration. Schmitt's own political thought is strongly Catholic in its orientation and can easily be related to a series of continental European throne-and-altar conservatives in a line running from Joseph de Maistre and Jean Domat. But it is not so much Schmitt's political philosophy that seems relevant to current developments in the United States as his critique of liberal constitutionalism, and better still, the set of tools he has crafted for the purpose of dismantling liberal democratic institutions. It is hard to escape the notion that this toolbox has been studied very carefully by current actors on the American political stage. But it is also difficult to validate this suspicion with objective evidence.
If the elections on November 7 proceed as the polls now suggest, the stage will be set for events quite different from the years following the Enabling Law. It appears likely that a more assertive, opposition-oriented Congress will try to draw back on the transfer of power to the Executive. This new Congress will very likely use the committee hearing process to probe the dark secrets of the first six years of the Bush Administration in a way we have not seen up to this point. Further it is clear that the MCA will be challenged as an unconstitutional termination of habeas corpus, a proposition which Hamdan suggests may get very favorable reception in the courts. Moreover, the Republican claim that the assumption of an imperial Executive authority is legitimized by the ballot box would then also be less plausible. All of this suggests that unlike 1933, the future assertions of rule by exception will be steadily more tenuous. But this analysis also underscores the tremendous importance of the November 7 elections. In a very real sense, this election will determine not merely the identity of various representatives to Congress, but the constitutional structure of the American Government going forward. In that respect, it is unlike any other election in my lifetime.
Scott Horton: In a very real sense, this election will determine not merely the identity of various representatives to Congress, but the constitutional structure of the American Government going forward.
First, "Bravo!" for showing that Godwin's law need not stifle legitimate observation. There are parallels, and the demonizing of Germany such that we calmly reassure ourselves that "it can't happen here" is our greatest danger. I can happen here, it is happening here by slow steps, and it must be fought by all true patriots. Thank you for helping arm us for that fight. This election may vindicate the work of the framer's of our Constitution, or it may repudiate that work. But even if we lose this round the fight will not be over so long as folks like you help folks like us keep the faith. Peace.
A delicate balance indeed: carefully distinguishing between the authoritarian views of Schmidt and its implementation several years later.
I would suggest that by signing this law, Bush leaves an ambiguity on how detainees must be treated, thus handing a victory in the struggle of ideas. He is giving the terrorists a weapon of propaganda. According to his kind of logic, he is emboldening the terrorists.
Consider this: we can discern a new twist in fascist ideology. The German and Italian fascists based their thinking on a nationalist critique of revolutionary socialism and Marxism. Modern fascists, often followers of Schmitt, have a new view based on a critique of evolutionary socialism (Edouard Bernstein).We may call this "evolutionary fascism". As society becomes more conservative, they see the possibility of a fascist state evolving by means of having control of government and changing the legal foundations of the state from above. This is precisely what is occurring before our eyes. Scott is hoping for a reversal of this movement through election of Democrat majorities. My crystal ball does not see this happening. The Schmittians already have enough authority over the electoral process and the system of legal remedy to prevent it. Sorry to be so negative.
"It appears likely that a more assertive, opposition-oriented Congress will try to draw back on the transfer of power to the Executive."
And there's the rub, actually. It is by no means clear that there will be a more "assertive, opposition-oriented Congress" after the November election. To the contrary, your confidence in there being a reversal of a "post Enabling Act" psychology seems to me poorly invested. Late 1920s, early 1930s Germany saw a coming-together of the general outlook of the non-National Socialist right and the democratic parties of the center, so much so that in many important respects they were virtually indistinguishable. I should like to propose that something along these same lines has happened to the Democrats and that this "coming-together" of perspectives is now the dominant theme, that we are now in a uniquely American one party state. Claims similar to this one have been made for years, of course, but without benefit of historical context. That context now seems to have emerged. It would seem to me that we're right on track at the moment, with a next stop - particularly so in the event of another 9/11 - the building of concentration camps for Muslims and opponents of the regime. Apart from the optimism, a singularly cogent analysis, no doubt.
Thank you for your discussion of Schmitt, and I'll look forward to more on this subject in the future.
As for Alberto "quaint" Gonzalez and his threats, I'm reminded of Hans Frank, who was hanged following the trial of the major Nazi war criminals. It was Frank who said, "Hitler is the law, and the law is Hitler" (Frank was a lawyer and Minister of Justice at the time).
As for our own judges, I'm reminded that, following the trial of the major war criminals, many more "minor" trials followed: the doctors' trial, the Treblinka trial, etc. There was also a judges' trial, memorialized by the movie "Judgment at Nuremberg."
On a more general level, there have been many reactions against liberalism in the West and none have succeeded. Liberalism affirms the autonomy of the individual and his/her right to political representation. Hierarchial models deny both the autonomy and this right, and explicitly place the individual in a class, subject to "decision" from within the hierarchy. And, although Schmitt was probably more in the cast of the "throne and altar" type, this kind of thinking is common in the US today, and views the federal government as the embodiment of the nation, the apex and enforcer of the hierarchy, and the executor of some divine order to which they have exclusive access.
And, because this political order has divine origins, it is suitable (indeed, inevitable) for the entire world. My citation at this point is Bush's Second Inaugural, a speech everyone should read.
You make some particularly poignant remarks, the Hans Frank/Gonzalez equivalency for example. Right on the button!
Respecting the follow-on trials, particularly the judges trial which you correctly see as memorialized in Judgement At Nuremberg, I'm often impressed with the final scene of the movie in which Tracy, the American justice, confronts Lancaster, the former Nazi judge, who tells him that had he known in advance the extent to which the anti-semitism would go he would have resigned from the bench earlier than he had in the late 1930s. Tracy pulls the rug out from under him by saying that to have participated in any of the unjust judgments of the regime was to have participated in them all. Assuming the propriety of that principle in those circumstances, how might we view "Catholic" justices Roberts and Alito at their nomination hearings offering assurances that they would be willing to lay aside that which one might expect to be most precious to them - their faith - in the interests of serving the state and its law. I'd say there's not a dime's worth of difference.
Gentlemen: there are lots of differences between Bush and Hitler or Mussolini. What is important are the fundamental similarities: all are authoritarian national supremacists who want to dominate large chunks of the world-- each is a variety of fascist.