Looking more like Weimar (in the '20s) every day

Sandy Levinson

During the heyday of the late, unlamented Bush Administration, I wrote a number of posts suggesting the value of reading Carl Schmitt, the brilliant political and legal theorist of Weimar Germany (who ended up supporting Hitler in the '30s). In The Crisis of Parliamentary Democracy, written in 1923, he argued, among other things, that Parliament was incapable of functioning because of the nature of the German party system. There was no serious sense in which Parliament was a forum for "deliberation," which requires, for example, that people with opposing views actually listen seriously to one another and possibly even be influenced by reason-based arguments from their opponents. Instead, if parliamentarians spoke at all, they really were speaking to their base outside the halls of Parliament and trying to rev them up for the near-warfare among the central parties. Since no one party had control of Parliament, thanks to the system of proportional representation, this meant the frequent invocation of Article 48 of the Weimar Constitution, which effectively transferred decisionmaking power to the German President: "If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153."

Giorgio Agamben has noted that there were 250 invocations of Article 48 during the 1920's, all on grounds of "economic emergency." Obviously, this didn't involve "the assistance of the armed forces." It was enough that the President of the Reich ws empowered to take "measures necessary" or the "restoration of public security." It would be a piece of cake for the Reich President to justify, especially given the presence of Section 4 of the Fourteenth Amendment, a fiat decree. Rightly or wrongly (I think this is an open question), our law-abiding President has rejected this and appears willing to take us over the cliff, unless he can get the House Republicans to accept his all-but-unconditional-surrender.

The preferred Obama alternative seems to be a "grand bargain" that is basically negotiated by the President and the Speaker, with practically no one else participating until the "grand bargain" is announced, and at that point the role of congressional Democrats and Republicans alike is to obey orders and ratify whatever the "grand bargain" is. Whatever process this describes, it sure as hell isn't "democracy," "democratic deliberation," or a "republican form of government." But it does fit a model of how decisions are made in times of emergency.

Is it surprising, then, that in a recent poll of confidence levels in fourteen American institutions, Congress came in dead last? 48% have little or no confidence in Congress, and only 12% have "a great deal/quite a lot." The "presidency" looks far better: 35% have "a great deal/quite a lot," but the bad news is that 36% have "little or none," with the remainder having "some." confidence. The Supreme Court gets 39% "great deal/quite a lot" and "only" 20% "little or none." The first institution to get significant public support, re "confidence," is the police,
which has he strong confidence of 56% of those polled; only 13% are at the other end. What is the institution generating most confidence? It's the military: 78% have high confidence levels, and only 3% low.

So do these numbers have an "constitutional" significance? Then Lt-Col. Charles Dunlap, of the US Air Force, wrote a much-discussed essay in 1992 on "The Origins of the American Military Coup of 2012." As I've written before, I don't think this is anywhere close to a "clear and present danger" (though, as I've also written, I suspect the idea would seem more attractive to many if, say, Michelle Bachman or Sarah Palin actually were slated to become Commander-in-Chief of the United States armed forces). But, although I seem to be wrong in an earlier prediction that now former-Gen. Davie Petraeus--who has, of course, gone on to become the head of the C.I.A.--would become the GOP candidate in 2012, I can easily see a strong pro-Petraeus movement in 2016, following "four more years" of absolutely dysfunctional and increasingly chaotic "government" that leads serious people to wonder whether the United States--like California--is "ungovernable" because of a mixture of the pathologies of our political culture and the pathologies of our 1787 Constitution. So we don't get a "coup," but we do get the further militarization of the US Government because that's the only institution today that "We the People" really seem to have confidence in. (And, for what it's worth, I presume that we're talking about the truly "professional military," not someone like John McCain, say, who was a thoroughly mediocre student at Annapolis who got out of the military after his truly admirable heroism as a prisoner of war.)

And, incidentally, I'm not even discussing at this point potential responses to Oslo and the rise of ever more fanatically anti-Moslem movements in the US.
Posted 12:23 PM by Sandy Levinson [link]