Constitutional Contradictions of Democracy by John Brenkman Book Review

This is the second post in a short series on mail-9/11 legal thought.

One of the more curious turns in post-nine/11 legal scholarship was the embrace of the work of German theorist and "Nazi fellow-traveler" Carl Schmitt. References to Schmitt proliferated in an ongoing discourse of exceptionality (the idea that normal time had been ruptured past non-normal fourth dimension). Schmitt's most widely invoked quote was that the "Sovereign is he who decides on the exception." This seemed to fit the post-nine/11 context perfectly, since President Bush-league had alleged that an exceptional moment, a wartime, had commenced with the September 11 attacks. Italian philosopher Georgio Agamben was also turned to. He draws from Schmitt's theory of sovereignty to develop a radical critique of the mod state, arguing that states of exception tend to become normalized. (The scholarly consensus is described here.)

For American scholars, the ongoing character of the new security age was evidence that an emergency regime was being normalized. Schmitt's work, drawing from the experience of Weimar Federal republic of germany, served equally an of import warning of what can happen when security concerns stemming from state of war or crisis seep into domestic politics. Simply the turn to Schmitt and Agamben reinforced a discourse of exceptionality, seeing the post-9/xi years every bit a departure from normal times. Consistent across this literature was the idea that time had changed on September eleven, that it had ushered in a new era.

Citations to Schmitt in legal scholarship steadily increased. A search of the Westlaw legal periodicals database shows twenty-4 citations to Schmitt in 2001, xx-nine in 2002, fifty-one in 2003, and 80-vi in 2009. Important and influential works invoked Schmitt'southward ideas.

[These numbers and the chart are based on a search in the Westlaw Journals and Police force Reviews database. The search was conducted using a common technique for scholarly affect surveys: a search for carl /2 schmitt. Imitation hits were removed from totals. Many cheers to Paul Moorman of the USC Law Library for help with this.]

While some of this work draws upon Schmitt'due south articulation of a state of exception and applies it to various contexts, other works critically engage Schmitt in the context of a wider literature on governmental ability.  Panels on Schmitt at scholarly conferences were heavily attended.  Some some scholars pushed back. Bruce Ackerman argued that reliance on Schmitt made discussions of emergency power melodramatic when they need to be taken seriously. Eric Posner and Adrian Vermeule saw the encompass of Schmitt as tied to an undue focus on Weimar.  That history had received too much attention, they argued.  "Weimar was an unconsolidated and institutionally shaky transitional democracy" of the early on twentieth century.  Its relevance for gimmicky democracies, which tend to be more than stable, "is not obvious."  Only curiously, rather than turn away from Schmitt, they drew from what they considered to be the "marrow" of his ideas, and incorporated that marrow into their analysis of executive power. This illustrates the way invocations of Schmitt became a linguistic communication for discussions of executive ability, even for scholars who decried his influence.

A more searching critique of Schmitt's influence in American political thought appears in John Brenkman, The Cultural Contradictions of Democracy: Political Thought since September 11.  The political problem posed by Schmitt'south theorem, as Brenkman puts it, is that "since the rule of police rests on the capacity to append the rule of law if necessary, whoever declares a state of exception will about inevitably merits that it is necessary for the preservation of the rule of law and indeed the torso politic itself," even if the claim is specious.  However, claims of emergency do not necessarily pb democracies to unravel.  "Political systems can be resiliently self-correcting, especially every bit the public'due south sense of emergency wanes or the government's claim of necessity is thrown into doubt."  More than fundamentally, Brenkman argues that Schmitt and Agamben'south conception of the sovereign every bit he who declares the exception obscures "the little wedge created by the distinction – and hence the potential gap – between declaration and merits, act and justification, dominion and legitimacy."  It is hither, "along these hairline fractures in the discourse of ability" that Brenkman finds "the very possibility of a political realm and of democracy."

Where does this hairline fracture appear in legal thought, and how is information technology managed?  Legal scholars writing about the post-9/11 era, like those engaging the Cold War and other conflicts, tend to take external events that generate a crisis, like wars, as a given.  The crisis appears to be out in the world, outside the realm of police force, and it is the legal scholar's task to have up the way those external events affect the law'due south performance.  The crisis exists, and law reacts until the crisis goes away.  This mode of thinking is reflected in the current exceptionality soapbox which assumes that we are in a form of crunch time that differs from normal time. But following from Brenkman, the exception derives non only from something external, just in the wedge betwixt "announcement and merits, act and justification."  The need for legitimacy puts the possibility of politics in the center of the identifying of a land of exception.  The crisis isn't external to the world of politics that law occupies.  Instead, exceptionality derives from something internal and political: the framing or articulation of crisis, and its justification.

Along that hairline fracture, in that political infinite, lies the structure of the thought of wartime.  It is in that location that the narrative piece of work is washed, framing an episode as a war, and placing information technology in the legacy of great American conflicts.  For all the challenges of George W. Bush's presidency, he succeeded completely in this most fundamental job: rallying the nation behind the thought that we were at war.

The greatest challenge to the exceptionality thesis was only the facts on the ground.  If the state of war on terror was a rupture of normal time, then it was inherently temporary, and would last only until normal times returned.  As the era pressed on, Americans turned their focus to their daily lives, even as American troops connected to patrol dangerous territory in Afghanistan and Iraq, and as American unmanned war planes bombed targets in Pakistan.  This was non the normalization of a country of exception, for ongoing smaller-scale wars had been a characteristic of American international relations since at least the Cold State of war.  It was instead the passage of what had become normal time in America.

More than on this topic volition appear in State of war Time: A Disquisitional History.

Cross-posted from Balkinization.

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Source: https://legalhistoryblog.blogspot.com/2011/02/schmitt-and-post-911-legal-thought.html

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