Carl Schmitt's time has come (alas)

I confess that when I read reports of distinguished lawyers defending the actions of the national government in Portland (and, perhaps, Chicago, Boston, ….), I am put in mind yet once more of the person I continue to believe is the most important jurisprudential figure of the 20^th century, i.e., the egregious Carl Schmitt.  His most important case as a practicing lawyer was defending the takeover of Prussia, then run by a Socialist government, by the new national government of Germany basically on the ground that intervention by the national government was necessary (and proper) to restore law and order.  He finished his argument to the German court by quoting Abraham Lincoln:  “A house divided against itself cannot stand.” 

I see no more merit to the argument defending the presence of what some hotheads are referring to as “jack-booted thugs.” purporting to represent the United States of America but totally unwilling to provide anything that might count as solid evidence for that proposition to the American citizens who are being swept up in the program of arrests, than to Schmitt's (successful) effort to justify the takeover of Prussia by the new Nazi regime.  Note that I’m not necessarily criticizing Schmitt’s understanding of German law.  Perhaps he was “correct” as to the powers of the national government.  He did win the case, after all.  How important is that to us today in assessing Schmitt’s collaboration? 

No doubt there are relevant statutes that a Trumpista lawyer can cite, representing what might well be regarded as “delegation run riot” (but, nonetheless, constitutional), that support Trump’s power. (I dare not use the word “authority” in this context, which requires some respect for the decisionmaker, even if one “respectfully dissents,” as justices usually (but not always) put it, from the decision that is being made.)  As we know, there was lots of legal support for slavery and Jim Crow, including decisions by the U.S. Supreme Court.  But, rightly or wrongly, Roger B. Taney has never been honored with a commemorative stamp, unlike, bizarrely, Robert E. Lee and Jefferson Davis.  One virtue of legal positivism is its separation of law and morality; i.e., it is simply foolish (and indefensible) to believe that legal fidelity is automatically respect-worthy.  (Think of John Lewis in this regard.  For all I know, Jim Clark was perfectly within his rights, as Selma’s sheriff, to stop him from crossing the Edmund Pettus Bridge.  So what?)

I am fully aware that Donald J. Trump is not Adolf Hitler.  But his attempt basically to take over the lawfully elected and completely legitimate governments of Portland and Oregon, using the pretext of threats to national monuments and office buildings as dire threats to “law and order,” is the equivalent of the takeover of Prussia or the use of the Reichstag fire to consolidate power and should be described as such by anyone who really cares about preserving the American constitutional order. 

As a matter of fact, I don’t think he’ll get away with it because I don’t really see a significant portion of the country rallying ‘round him on this, even though, so far, there has been a typically deafening silence from purported “conservatives” who might ordinarily be expected to criticize “black helicopters.”  Perhaps if Donald J. Trump had earned trust since becoming president, the situation would be different, but even many of his erstwhile supporters seem to realize that he is a congenital liar who cannot in fact be trusted with regard to anything he says.  (Some of them are going to pay for their mistaken trust in the sociopath with their lives, given the current spread of Covid-19.)  But, as already suggested, what really interests me is not Donald J. Trump, but, rather, the lawyers who are willing to defend him, and exactly why we should differentiate them from Carl Schmitt (save for the fact that Schmitt was a genius, albeit a thoroughly evil one). 

At a time when we’re consumed by a national discussion of who is worthy of public honor, I think it a worthwhile exercise to ask who among our “public lawyers” in the last 25 years, say, we’d want to memorialize in statues, building names, or even Dean’s suites.  As to this last, I note that George Washington has renounced the naming of their Dean’s suite after their alumnus William Barr (and, I believe, have offered to return his $100,000 that he contributed).  So the question is not whether Donald J. Trump is Adolf Hitler.  It is, rather, whether at this point those defending his actions in Portland and threatened actions throughout the U.S. (as distinguished, say, from those who defended him against impeachment) are truly comparable, in their collaboration, to Carl Schmitt (who, I will note, was not allowed to teach after World War II because he had the crazy integrity not to renounce his past as a defender of the Nazi regime and, for two years, as a member of the Nazi Party).

UPDATE:  I note that a couple of regular discussants note that some of the protesters in Portland are trying in effect to "overthrow the government."  I have no idea to what degree this is true, but it occurs to me that were we living in the parliamentary system that I increasingly would prefer--I think that presidentialism is an idea that should have run its course in the U.S., whatever its possible merits when we had George Washington--there would be nothing unusual about demonstrators trying to "overthrow the government" of the day by demanding, say, that parliamentary majorities simply vote "no confidence" in the prime minister and organize a new, and presumably, better government.  That is to say, in parliamentary systems, no one confuses the government of the day with "the state" or "the constitutional order." Peaceful "overthrows" of existing governments is simply part of the ordinary course of politics.  Margaret Thatcher was "overthrown" by her own party and no one wrote essays about the demise of the British political system.

In the U.S., however, we have a terrible tendency to identify the President as "the government" and, what is even worse, "the head of State," so that calls to "overthrow a government" seem identical with calls for revolution, the equivalent of overthrowing the Monarch (as was done in the Secession of 1776).  We should have accepted the wise counsel of the late Ross Perot, when he was running for president in 1992, who correctly told us that we should consider the president as our "employee," to be hired (or fired) on the basis of fitness for the job.  As I've posted before, one of the ironies, with regard to those who say that the national government should be run in a more "business-like" manner, is that, unlike the case with "real" businesses, we are unable for a variety of structural and psychological reasons to fire demonstrably incompetent chief executives.  In any event, I applaud every demonstrator who wants to "overthrow our national government" if that means peacefully getting rid of Donald J. Trump and his collaborative enablers at the earliest possible moment.  (And, yes, "peaceful" can include some graffiti on buildings.  It is, as we sometimes say, the price we collectively pay for living in a free society.)