Anne Kornhauser on German Émigré Intellectuals and the Struggle Over the Emerging National Security State

This is the third post in a roundtable based on a recent panel on Law and Ideology in the National Security State at the American Society for Legal History conference.

Anne Kornhauser, Department of History, City College of New York, CUNY

In a recent book on the American administrative state’s struggles with legitimacy, I argued that the group who best articulated those struggles was a bevy of German émigré intellectuals who were trained in law. In more recent work I show how their ideas about law and democracy under duress, forged during World War II and the German occupation, were reformulated during the Cold War. They began by emphasizing the necessity of the rule of law and a carefully hedged in democracy to secure constitutional democracy during the temporary emergency of World War II and moved to a less legalistic, more moralistic conception of democracy during the perpetual emergency of the Cold War.

The emergency-based and repressive national security state complicated the émigrés’ ideas for constraining state power through temporary legal means and limiting democratic participation until the emergency had passed. German émigrés such as Franz L. Neumann and Carl J. Friedrich concluded that law was proving less and less effective against such a state. While not giving up on legality, they sought refuge in the very phenomenon they had dismissed during the German occupation as too fragile to rely on without myriad qualifications: a robust democracy. But, as with so many of their American-born counterparts, their concept of democracy listed toward the psychological, the spiritual, the moral—toward the character of the individual citizen. The free and vigilant individual, who would not succumb to state-induced fear or propaganda, stood as the new hope for the émigré legalists. These vigilant citizens would need rights, of course, to perform their duty of keeping the state within bounds; however rights appeared to be the only institutional requisites for a reformed democracy. Notably, the courts were virtually absent in their Cold War writings, despite their clear role in protecting the individual from the excesses of the national security state. Friedrich, as late as 1950, called American courts “conservative” and “partisan.” Here the ghost of Weimar still hovered: German courts had failed to stop the Nazi juggernaut.

In my book Debating the American State, I argued that the German legalists, many of whom advised the U.S. government throughout the war and the German occupation, drew on their experiences with the fall of Weimar and the rise of Nazism to formulate ideas about how a constitutional democracy could be established by force while still preserving the norms of legality (the rule of law) and democracy (popular sovereignty). The émigrés believed some sort of rule by fiat was necessary to rid postwar Germany of any totalitarian remnants but it ought to be constrained by the rule of law.

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In their efforts to balance legality and dictate, the German émigrés turned to notions of “militant democracy,” “constitutional dictatorship” and a “purge” of people, laws, and institutions that threatened the existence of a constitutional democracy. These notions foreshadowed the more extreme arguments of necessity made by the U.S. government in legitimating the emergency rule of the national security state as well the conundrums that a perpetual emergency and a so-called enemy within a constitutional democracy would pose for the émigrés’ temporary expedients for legality and democracy under threat.

Despite their different backgrounds, the representative figures of Neumann and Friedrich held similar views about the problems of taming an emergency state. Yet simply calling these men “Cold War thinkers” does not capture the range of their thought or the dilemmas for constitutional democracy presented by the Cold War national security state. Friedrich, born in Germany in 1901, arrived in the United States as a student in the 1920s and decided to stay, becoming a prominent constitutional law scholar at Harvard. Strongly influenced by Weber, he has become known to scholars as a Cold War thinker largely because of his numerous books and articles on totalitarianism. Neumann’s background was more overtly political—and left-wing. Born just one year earlier, Neumann studied law with Carl Schmitt, joined the SPD, and became a labor lawyer; as he was Jewish, academic opportunities were largely foreclosed to him. Neumann later joined the Institute for Social Research in London and helped found its American outpost in New York City.

Neumann and Friedrich rejected the national security state’s transformation of necessity from the exception to the rule. The state’s abuse of power, often through “legal” means, such as Internal Security Act of 1950, prompted the realization that law was not enough and that sometimes it was too much, that the survival of “constitutionalism as such” was at stake. Friedrich expressed concern that the national security state had come to put what he called reason of state—the state’s very existence—ahead of all other concerns. But, he warned, to do that was to risk preserving a state not worth living in.

In the face of the national security state’s increased and prolonged use of emergency powers, Friedrich leaned on a notion of constitutional morality in which a vigilant constituent power would uphold the spirit of constitutionalism. Similarly, Neumann, fearing “rational” law’s inability to confront “irrational” power, turned to individual freedom, specifically political freedom. Echoing many of his American liberal compatriots, Neumann seemed most concerned that people thought for themselves and did not give into the “fear” constantly generated by the national security state. Fear made democracy “impossible.” For fear turned citizens into masses and shunned those who did not accept the state’s characterization of the political enemy. Meanwhile, the “moral element” that integrated democracy was replaced by another form of integration, the fear of a common enemy. Lacking concrete prescriptions for a reformed democracy, both men placed their faith in the combination of a strong state and a self-generated morality. They now sought not just to shackle democracy’s enemies but—ironically, given their doubts about democratic potential following the collapse of Weimar— to empower its friends. Unfortunately for us, their ideas of how to accomplish this goal remained vague.