and Emergency Powers John P. Mccormick Carl Schmitt begins Dictatorship,1 his classic work of 1921, by distinguishing the olitical institution of the title from !onaartism and Caesarism. "owe#er, Schmitt himself e#entually con$ates dictatorshi with Caesarism, somewhat crytically by the end of the book, more directly in his ne%t book, and une&ui#ocally o#er the course of his'eimar career. (his chater e%licates Schmitt)s theory of dictatorshi, esecially his distinction between *commissarial+ and *so#ereign+ dictatorshi, and his diagnosis of the abuse or desuetude of the concet in the twentieth century, e%amines the e%tent to which, and attemts to e%lain the reasons why, Schmitt)s doctrine of dictatorshi e#entually collases into Caesarism, and e#aluates the #alidity of Schmitt)s charge that liberal constitutionalism is incaable of dealing with the kind of olitical circumstances that call for dictatorshi. dictatorshi between mar%ism and liberalism Schmitt)s argument in Dictatorship hinges on the theoretical- historical distinction between the traditional concet of *commissarial+ dictatorshi and the modern one of *so#ereign+ dictatorshi. (he two are searated by a concetual distinction, on the one hand, but, on the other, .oined by the historical transformation of one into the other in modernity. Commissarial dictatorshi, as racticed in the /oman /eublic and chamioned by Machia#elli,2 was limited in its e%ercise during emergency circumstances by (his essay is an e%tensi#ely re#ised and considerably e%anded elaboration of Chater 0 of my Carl Schmitts Critique of Liberalism: Against Politics as Technology 1Cambridge, 19923. 1 Schmitt, Die Diktatur: Von en Anf!angen es moernen Sou"er!anit!atsgeankens bis #um proletarischen $lassenkampf 1!erlin, 19493, hereafter D. 2 5iccol6o Machia#elli, The Discourses on Li"y, trans. "ar#ey C. Mans7eld and 5athan (arco#, 8, 09 1Chicago, 199:3, 20;<. 192 194 %ohn P& 'cCormick allotted time, seci7ed task, and the fact that the dictator had to restore the re#iously standing olitical-legal order that had authori=ed the dictatorshi. So#ereign dictatorshi, as encouraged by both modern absolutist and re#olutionary olitical ractices, is unlimited in its arameters and may, and likely will, roceed to establish a comletely new order as a result of its e%ercise.0 Schmitt identi7es the /oman dictatorshis of Caesar and Sulla as *so#ereign,+ because they used emergency owers to change the constitutional order of /ome for their own ersonal olitical agendas. "owe#er, it was not until the de#eloment of the modern notion of so#ereignty that indi#iduals like Cromwell and !onaarte or olitical bodies like those of re#olutionary >rance could use military force and claims to reresent the whole or the *real+ eole to abrogate an old order and institute a new one. ?s unlimited as the means a#ailable to a /oman dictator (ithin his commission to address an emergency such as a rebellion, war, or famine were, there was a strict boundary in his re&uirement to return the olity to a situation of status quo ante. 8n other words, commissarial dictatorshi must seek to *make itself suer$uous.+9 So#ereign dictatorshi, on the other hand, seeks to eretuate itself, e#en if it uses its ower under the retense of merely *temorary+ circumstances. 8 will not recaitulate the details of Schmitt)s account of how commissarial dictatorshi gi#es way to so#ereign dictatorshi, or e#en transmutes into it. 'hat is more ertinent here is Schmitt)s understanding of why he takes u such a ro.ect at this oint in the early twentieth century. (here are ob#ious reasons of historical conte%t@ 8n the new olitical order of the'eimar /eublic, 7rst /eichsrAasident >riedrich Bbert made e%tensi#e use of emergency owers at the time of the comosition of Dictatorship to address right-wing and communist rebellion as well as an o#erwhelming economic crisis.< "owe#er, there are broader world historical moti#ations at issue for Schmitt as well. ?ccording to Schmitt, liberals, to the e%tent that they ay attention to the concet at all, comletely misarehend dictatorshi. 'hat Schmitt 0 Cn Schmitt)s aroriation of the etymological-theoretical distinction of *commissarial+ and *so#ereign+ from Jean !odin, and a general discussion of the thesis, see Deorge Schwab, The Challenge of The )*ception: An +ntrouction to the Political +eas of Carl Schmitt bet(een ,-., an ,-/0 1'estort, 19493, 0E;1. 9 D, %#i. < See >rederick Mundell 'atkins, The 1ailure of Constitutional )mergency Po(ers uner the 2erman 3epublic 1Cambridge, 19093, Clinton /ossiter, Constitutional Dictatorship: Crisis 2o"ernment in 'oern Democracies 1Princeton, 19943, and "ans !oldt, *?rticle 94 of the'eimar Constitution, 8ts "istorical and Political 8mlications,+ in ?nthony 5icholls and Brich Matthias, eds., 2erman Democracy an the Triumph of 4itler 1Fondon, 19213, 92;:0. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 199 calls the *bourgeois olitical literature+ either ignores the concet of dictatorshi altogether or treats it as a slogan to be used against its oonents.: Fiberals ha#e comletely forgotten its classical meaning and associate the idea and institution solely with *so#ereign+ dictatorshi@ *a distinction is no longer maintained between dictatorshi and Caesarism, and the essential determination of the concet is marginali=ed & & & dictatorshi)s commissarial character.+2 Fiberals deem a dictator to be any single indi#idual, often democratically acclaimed, ruling through a centrali=ed administration with little olitical constraint, and they e&uate dictatorshi unre$ecti#ely with authoritarianism, Caesarism, !onaartism, military go#ernment, and e#en the Paacy.4 (his inattention and misarehension rules out an imortant resource for constitutionalists, liberal or conser#ati#e, in the resent time of crisis and allows dictatorshi to be misused by those who would ut it to less than *classical+ ends. Schmitt is alarmed that the concet of dictatorshi seems to be taken seriously only by the communists with their doctrine of the *dictatorshi of the roletariat.+9 (he communists ha#e the concet artially right in classical terms, according to Schmitt, for they recogni=e its urely technical and temorary characteristics@ (he dictatorshi of the roletariat is *the means for the imlementation of the transition to the communists) 7nal goal.+1E (he re#olutionary sei=ure of the state by the roletariat is not *de7niti#e+ for the communists, according to their ideology, but rather *transitional.+11 Schmitt notes that one might then see the communist theory of dictatorshi as simly a modern incarnation of the classical institution. !ut this obscures the truly fundamental transformation of the essence of the classical concet@ (he communist institution emloys temorary means to create a new situation, the classical institution emloyed them to restore a re#iously e%isting one.12 (his diGerence has imortant rami7cations for the &uestion of .ust how limited a dictatorshi can be if it is legitimated and bound by a future situation as oosed to being legitimated by a pre"iously e*isting one. (he communist dictatorshi reresents for Schmitt the culmination of the modern historical trend toward totally unrestrained olitical action@ (he radical orientation of modern olitics is dri#en by a fer#or to bring about some future good, whose &ualities are so #ague as to .ustify unbounded means in the achie#ement : D, %i;%ii. 2 8bid., %iii. 4 8bid. 9 8bid. 1E 8bid., %i#. 11 8bid. 12 >or an e%cellent analysis of dictatorshi in Mar% and Bngels, see Peter !aehr, Caesar an the 1aing of the 3oman 6orl: A Stuy in 3epublicanism an Caesarism 1Fondon, 19943, 101G. 2EE %ohn P& 'cCormick of the end. Schmitt distrusts the general historical de#eloment by which the concets of so#ereignty, increasingly oular so#ereignty, and emergency action are merged, culminating in the theorists of the >rench /e#olution, such as Mably and Siey6es. 8n Schmitt)s #iew, they ad#ocate a so#ereign dictatorshi that destroys an old order and creates a new one not on the authority of a seci7c constitutional arrangement or legal charge, but rather as the agent of a #ague entity such as the *eole.+10 8n the conclusion of Dictatorship, Schmitt returns to the communist use of the term dictatorshi, for he clearly sees the communists as the heirs of the >rench /e#olution@ a radical elite that 1a3 will use #iolent means, 1b3 in ste with suosedly world-historical rocesses, 1c3 according to the sanction of an anointed oulace to which it can ne#er really be held accountable. Schmitt writes, (he concet of dictatorshi & & & as taken u in the resentations of Mar% and Bngels was reali=ed at 7rst as only a generally re&uisite olitical slogan & & & !ut the succeeding tradition & & & infused a clear concetion of 1290 into the year 1494, and indeed not only as the sum of olitical e%erience and methods. ?s the concet de#eloed in systematic relationshi to the hilosohy of the nineteenth century and in olitical relationshi with the e%erience of world war a articular imression must remain. & & & Hiewed from a general state theory, dictatorshi by a roletariat identi7ed with the eole as the o#ercoming of an economic condition, in which the state *dies out,+ resuoses a so#ereign dictatorshi, as it underlies the theory and ractice of the 5ational Con#ention. Bngels, in his seech to the Communist Inion in March 14<E demanded that its ractice be the same as that of *>rance 1290.+ (hat is also #alid for the theory of the state which osits the transition to statelessness.19 8n other words, the dangerous sirit of >rance in 1290, a sirit of so#ereign dictatorshi in the name of a newly so#ereign eole, a sirit that culminates for Schmitt only in domestic terror and continental war, was radicali=ed in the re#olutions of 1494. 5ow it is embodied by the new So#iet ower to Dermany)s east and by the Derman re#olutionary organi=ations that, at the #ery moment that Schmitt wrote Dictatorship, were attemting to sei=e the Derman state. (he tone of Schmitt)s conclusion diGers signi7cantly enough from that of the reface and the body of the work such that we can detect a subtle yet distinct change in his strategy. Schmitt)s reface seemed to suggest that his goal was@ 113 to make u for the scholarly de7ciency in the *bourgeois literature+ on the sub.ect of dictatorshi, 123 to render it ossible to deem the communist use of the term dictatorshi *so#ereign+ in 10 D, 19<. 19 8bid., 2E<. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E1 essence, and hence somehow illegitimate, and 103 to oGer a more legitimate, constitutional, *commissarial+ alternati#e with which the new reublic might tackle the barrage of emergencies with which it was assaulted. ?gain, the communists understand the classical notion of dictatorshi but tamer with it so as to eliminate the kinds of legal constitutional orders that re&uire such an institution for their reser#ation. Fiberals ignore or mischaracteri=e it and thus aid and abet the communists and their designs. "owe#er, Schmitt intimates toward the close of Dictatorship that erhas what should confront the so#ereign notion of dictatorshi, touted by domestic and foreign re#olutionaries, is not a notion of commissarial dictatorshi at all, but erhas a counter-theory of so#ereign dictatorshi. Since both absolutism and mass democracy arise out of the same historical mo#ement, Schmitt suggests, gently and furti#ely, that erhas a radicali=ed notion of so#ereignty deri#ed from absolute monarchy should meet the radicali=ed notion of so#ereignty deri#ed from the >rench /e#olution.1< Schmitt intimates that, due to the tra.ectory of modern history, the con.unction of emergency owers and mass socio-olitical mo#ements as embodied in the re#olutionaryJcounterre#olutionary moments of 1402 and 1494 ought not to be se#ered. ? re#i#al of the notion of commissarial emergency owers would enact such a di#orce. ?dditionally, the return of owerful social grous threatening the state in the form of working-class mo#ements ought to be met by a olitical resonse new and yet akin to the way that the absolute monarchs had earlier neutrali=ed or destroyed aristocratic and religious grous. >inally, the oulist So#iet state that can be directed to do almost anything by an all-owerful, unaccountable, historically legitimated elite should be engaged by a similarly de7ned Derman state directed by a charismatically, and lebiscitarily, legitimated resident. (hese are conclusions imlicitly suggested, not e%licitly argued, in the closing ages of Dictatorship. (hus, Schmitt grales with the dilemma that the concet of dictatorshi is being ulled radically leftward by the success of !olshe#ism and the #acuum that liberals ha#e created with resect to constitutional dictatorshi on their side of the sectrum. Fiberals, those who are most concerned with constitutionalism in the contemorary world, ha#e forsaken 1< Cn the relationshi between the theory of so#ereignty during the >rench /e#olution and Schmitt)s own 1D, 2E0;93, see Stefan !reuer, *5ationalstaat und ou#oir constituant bei Siey6es und Carl Schmitt,+ Archi" f!ur 3echts7 un So#ialphilosophie FKK 119493, 12<;9:, and Pas&uale Pas&uino, *Lie Fehre #om ou#oir constituant bei ?bbe Siey6es und Carl Schmitt@ Bin !eitrag =ur Intersuchung der Drundlagen der modernen Lemokratietheorie,+ in "elmut Muaritsch, ed., Comple*io 8ppositorum: 9! ber Carl Schmitt 1!erlin, 19443, 94;:2. 8 would argue that Schmitt is trying to re-absoluti=e the re#olutionary concet of oular so#ereignty as much as aroriate it. 2E2 %ohn P& 'cCormick this constitutionally crucial institution and allowed it to be abducted and rerogrammed by their enemies on the left. Communists are ressing for emergency, oulist constitutional change with #arious #ersions of the dictatorshi of the roletariat. Fiberals are neither able nor willing to defend a #iable theory and ractice of dictatorshi in its classical sense e#en in the midst of such crisis-ridden times. (hey refuse to resort to the time- and task-seci7c temorary measures necessitated by the same economic and olitical crises that the left uses as occasion and .usti7cation to o#erhaul centuries-old dynasties and new reublican constitutional systems.1: ?s we e%amine Schmitt)s de#eloing theory of dictatorshi in the ne%t section, 8 argue that Schmitt seeks to ush liberal constitutionalism de7niti#ely aside as olitically ineGectual and obstructionist in the face of the leftist aroriation of dictatorshi. (o do so, he de#elos a rightwing Caesarism to combat the #itality of what he sees as the left- wing Caesarism of !olshe#ism, a counternotion of dictatorshi that is as substanti#e, all-encomassing, misleadingly *temorary+ yet .ust as constitutionally abrogating as that of the communists. Schmitt eGecti#ely argues that since the liberal imagination can do no more than con$ate dictatorshi with Caesarism, this con$ation is e%actly what the liberals deser#e, and Schmitt will be the one to gi#e it to them. 8n his ne%t book, Political Theology, Schmitt esouses a notion of so#ereignty embodied in the 3eichspr!asient, who is not encumbered by constitutional restraints but only the demands of a olitical e%cetion. (he resident, as the ersonal embodiment of the oular will that can not be rocedurally ascertained in a time of crisis, has the democratically charismatic authority to act ; unconstitutionally or e#en anticonstitutionally, with all the force and legitimacy of that originary oular will.12 Schmitt ad#ances the #ery fusing of oular so#ereignty and emergency owers that he showed to be otentially abusi#e in Dictatorship. 1: Schmitt rotests too much. "e makes it sound as if his case for dictatorshi against liberalism is more diNcult than it actually is, as his rescritions conform with a owerful sociological reality@ Schmitt)s call for Caesarism was likely to be recei#ed warmly by a 'eimar bourgeoisie that was no longer so readily inclined toward liberalism. See the de#astating analysis of Schmitt, his intellectual circle, and the Derman bourgeoisie by Siegfried Oracauer@ */e#olt of the Middle Classes+ 119013, in Oracauer, The 'ass 8rnament: 6eimar )ssays, trans. and ed. (homas P. Fe#in 1Cambridge, 199<3, 1E2;24. 12 Sace constraints do not ermit a discussion of the signi7cance of Schmitt)s continued engagement with Ma% 'eber)s olitical and legal sociology on this toic. (he most e%tensi#e and incisi#e discussion of Caesarism and charisma in 'eber is !aehr, Caesar an the 1aing of the 3oman 6orl, cha. 9. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E0 commissarial or caesarist dictatorshiQ Cne of the central aims of Schmitt)s 'eimar work is to .ustify so#ereign dictatorial owers for the 3eichspr!asient of the /eublic. Loes Schmitt)s formulation of residential so#ereign dictatorshi conform with CaesarismQ 8f the latter concet can be understood in terms of a single leader who claims to reresent an entire eole as a result of lebiscite, who maintains his authority through owerful military authority and e%tensi#e bureaucratic machinery, then the answer is, as this section demonstrates, yes.14 (he 7rst sentence of Political Theology, ublished the year after Dictatorship, signals Schmitt)s endorsement of something much closer to so#ereign than commissarial dictatorshi@ *So#ereign is he who decides on the e%cetion+ 1Sou"er!an ist5 (er !uber en Ausnahme#ustan entscheiet3.19 Schmitt celebrates the #ery merging of the normal and e%cetional moments that in Dictatorship he analy=ed as a olitically athological element of so#ereign dictatorshi. "e e#en encourages it with the ambiguous use of the reosition *on+ 1!uber3, which belies the distinction that he himself acknowledges in the earlier book between, on the one hand, the body that decides that an e%cetional situation e%ists 1in the /oman case, the Senate through the consuls3 and, on the other, the erson aointed by that body to decide what to do in the concrete articulars of the emergency, the dictator himself. (he two searate decisions, one taking lace in the moment of normalcy, the other in the moment of e%cetion, are lumed together and then hidden behind the ostensible directness of Schmitt)s oening statement in Political Theology. 8ndeed, further on in the work Schmitt e%licitly and deliberately con$ates the two decisions@ (he so#ereign *decides whether there is an e%treme emergency as (ell as what must be done to eliminate it.+2E (here is also no attemt in Political Theology to rescribe what fundamental time- 1or task-3 related limits might be imosed on a so#ereign)s action in the e%cetional situation, Schmitt suggests that this is, in fact, imossible because an e%cetion *cannot be circumscribed factually and made to conform to a reformed law& & & (he reconditions as well as the content of a .urisdictional cometence in such a case must necessarily be unlimited.+21 /ather than restoring a re#ious order in an emergency, the emergency 14 8 draw somewhat loosely on the more re7ned tracing of !onaartism and Caesarism to fascism by Fuisa Mangoni, *Per una de7ni=ione del fascismo@ 8 concetti di bonaartismo e cesarismo,+ +talia Contemporanea 01 119293, 12;<2. 19 Political Theology: 1our Chapters on the Theory of So"ereignty 119223, trans. Deorge Schwab 1Cambridge, 194:3, <, hereafter PT, Derman references corresond to Politische Theologie: Vier $apitel #ur Lehre "on er Sou"er!anit!at 1MAunchen, 19093, here 11. 2E PT, 2 1emhasis added3. 21 8bid., :;2. 2E9 %ohn P& 'cCormick actor is the order itself made dramatically manifest by a crisis@ *8t is recisely the e%cetion that makes rele#ant the sub.ect of so#ereignty, that is, the whole &uestion of so#ereignty.+22 ?ccording to the commissarial notion of dictatorshi, the dictator was free to do whate#er was necessary in the articular e%cetional moment to address an unforeseen crisis that is identi7ed by a diGerent and regular institution. ?nd the dictator was bound as a *recondition+ to return the go#ernment to that law within a seci7c eriod of time. Schmitt occludes these crucial distinctions in the second more famous work and e%ands the unlimitedness of dictatorshi by renouncing the #ery characteristics of the classical model he only recently admired as well as those of the liberal constitutionalism he now consistently derides@ *8f measures undertaken in an e%cetion could be circumscribed by mutual control, by imosing a time limit, or 7nally, as in the liberal constitutional rocedure go#erning a state of siege, by enumerating e%traordinary owers, the &uestion of so#ereignty would then be considered less signi7cant.+20 8ndeed, his use of the term *so#ereign+ imlies some kind of lawmaking or lawgi#ing ower that could change the re#ious order or e#en create a new one. (he conclusion that one is comelled to draw from Political Theology is that a regime with institutional di#ersity, with a constitutionally enumerated *di#ision and mutual control of cometences+29 ; or what is more generally known as searation of owers ; ine#itably araly=es a state in the face of an e%cetion because it obscures who is so#ereign, who must decide and act at that moment.2< ?ccording to Schmitt)s formulation, in all cases of emergency it would seem necessary to ha#e recourse to a unitary institution with a monooly on decisions so that no such confusion or con$ict occurs. (hus, in #iolation of the main rinciles of classical dictatorshi, normalcy and e%cetion are collased, and ordinary rule of law and constitutional structure are dangerously encroached uon by e%cetional absolutism. 22 8bid. 20 8n Dictatorship Schmitt obser#es that the military state of siege is the closest thing to commissarial dictatorshi allowed by liberal theory, but e#en this is con$ated with so#ereign dictatorshi 1D, %i#3. Schmitt distinguishes between dictatorshi and a military state of siege most e%tensi#ely in *Liktatur und !elagerungs=ustand@ Bine staatsrechtliche Studie,+ :eitschrift f!ur ie gesamte Strafrechts(issenschaft 04 119123, 104;:1. >or an e%cellent discussion of the essay, see Peter C. Caldwell, Popular So"ereignty an the Crisis of 2erman Constitutional La(: The Theory an Practice of6eimar Constitutionalism 1Lurham, 19923, <9;4. Caldwell)s interretation of this essay suggests that Schmitt turned to the notion of commissarial dictatorshi after it became clear that the state of siege had been irre#ocably linked with dictatorshi in a so#ereign sense. ?s 8 argue abo#e, Schmitt abandons commissarial dictatorshi as well once he reali=es that it too can no longer be e%tricated from *so#ereign+ connotations. Schmitt)s own caitulation to so#ereign dictatorshi hence ser#es to radicali=e his theory from conser#atism to fascism. ?lso, PT, 12. 29 PT, 11. 2< 8bid., 2. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E< 8n later ractical olitical treatises that deal with emergency owers written during 'eimar, such as *(he Lictatorshi of the 3eichspr!asient ?ccording to ?rticle 94 of the 'eimar Constitution+ 119293, The 2uarian of the Constitution 119013, and Legality an Legitimacy 119023, Schmitt continues to argue that only the 3eichspr!asient can defend the 'eimar constitutional regime during a crisis.2: (he *?rticle 94+ iece of 1929 is not so ob#iously an endorsement of so#ereign dictatorshi.22 Schmitt declares that according to ?rticle 94 *dictatorial authority+ is only *lent+ to the resident, and he seemingly argues that the scoe of that authority should remain within a commissarial rubric.24 "owe#er, after that commissarial gesture, Schmitt makes it clear that he does not want too e%tensi#e and e%licit limitations on the emergency owers of the resident because *it is a dangerous abuse to use the constitution to delineate all ossible aGairs of the heart as basic law and &uasi-basic law.+29 Moreo#er, Schmitt)s descritions of the source of the resident)s legitimacy in reser#ing the constitution in *?rticle 94+ increasingly sound as though they were mandated not by the constitutional order itself, but by something like a so#ereign will that is itself prior to that order@ *(he dictatorshi of the 3eichspr!asient & & & is necessarily commissarial as a result of seci7c circumstances & & & 8n asmuch as it is allowed to act so broadly, it oerates 1in fact, not in its legal establishment3 as the residue of the so#ereign dictatorshi of the 5ational ?ssembly Rwhich created the constitutionS.+0E ?t the conclusion of the essay, Schmitt recalls the framing of ?rticle 94 at the /eublic)s constitutional founding@ *8n the Summer of 1919 when 2: /esecti#ely, *Lie Liktatur des /eichsrAasident nach ?rt. 94 der'eimarer Herfassung+ 119293, aended to subse&uent editions of Dictatorship, 210;<9, and thus hereafter D++, Der 4!uter er Verfassung 1(Aubingen, 19013, hereafter 4V, and Legalit!at un Legitimit!at 119023, hereafter LL, from the rerint in Schmitt, Verfassungsrechtliche Aufs!at#e aus en %ahren ,-.;<,-=;: 'aterialien #u einer Verfassungslehre 1!erlin, 19<43, 2:0;0<E. ?n Bnglish translation of Legalit!at un Legitimit!at by JeGrey Seit=e will be ublished in 2EE9. 22 8n general, there is little scholarly consensus on the e%act moment of Schmitt)s con#ersion to so#ereign dictatorshi@ /enato Cristi, for instance, locates it already in the 1921 main te%t of Dictatorship, while Stanley F. Paulson dates it e#en after the 1929 *?rticle 94+ essay@ see Cristi, *Carl Schmitt on So#ereignty and Constituent Power,+ in La#id Ly=enhaus, ed., La( as Politics 1Lurham, 19943, 129;9<, and Paulson, *(he /eich President and 'eimar Constitutional Politics@ ?sects of the Schmitt-Oelsen Lisute on the TDuardian of the Constitution)+ 1aer resented at the ?nnual Meeting of the ?merican Political Science ?ssociation, Chicago, ?ug. 01;Set. 0, 199<3. Comare also Dabriel 5egretto and Jose ?ntonio ?guilar, *Schmitt, Fiberalism and Bmergency Powers in Fatin ?merica,+ and Cren Dross, */ethinking the Myth of Schmitt)s T5orm-B%cetion) Lichotomy,+ in Caro#o La( 3e"ie( 21, no. < 12EEE3, 142<.:4. 8 must emhasi=e that my interretation of Dictatorship does not rule out the resence of a so#ereign-dictatorial element in Schmitt)s 1921 book. 8n other words, 8 do not conclude that the entire thrust of Dictatorship, as Cristi charges 11993, romotes only *functional+ and *temorary+ dictatorshi. See my discussion in the re#ious section and Carl Schmitts Critique of Liberalism, 102;9. 24 D++, 2<<. 29 8bid., 290. 0E 8bid., 291. 2E: %ohn P& 'cCormick ?rticle 94 came to be, one thing was clear@ Dermany found itself in a wholly abnormal crisis and therefore for the moment a one-time authority was necessary which made ossible decisi#e action.+01 Schmitt calls for similar *abnormal+ and *decisi#e+ action, but attemts to allay the fears of those who might be concerned with the constitutional status of such action with his 7nal sentence@ *(hat would be no constitutional alteration.+02 8n other words, he is not calling for constitution-abrogating action characteristic of so#ereign dictatorshi on the art of the resident, but rather commissarial, constitutionally reser#ing action. Cf course, his harkening back to the crisis in which the constitution was founded and to the reconstitutional constituting decision and not to the body of the constitution itself imlies a reetition of a so#ereign act of founding to sa#e the constitution. (his *rescue+ may in fact entail changing the constitution as long as the reconstitutional will is not changed. Cf course, Schmitt gi#es us no way of e#aluating how a eole might change their original will or demonstrate that they would refer it not be altered at all. (his strategy of .ustifying residential dictatorial action on the basis of the reconstitutional so#ereign will of the eole and not the rinciles embodied within the constitution itself becomes more ronounced in his books The 2uarian of the Constitution and Legality an Legitimacy, ublished in the wake of a second de#astating economic deression and renewed widesread olitical unrest in the early 190Es. Schmitt begins 2uarian of 1901 in much the same way that he began his book on dictatorshi e%actly ten years earlier. "e blames nineteenth-century liberalism for bringing a crucial constitutional institution into ill reute and he draws uon e%amles from classical Sarta and /ome to demonstrate the historical legitimacy of such a concet and authority. !ut whereas in Dictatorship the e%amle that Schmitt is attemting to re#i#e is commissarial dictatorshi, in 2uarian it is the notion of a defender of the constitution.00 8ndeed, the merging of the two henomena 1emergency owers and the &uestion of in what institution so#ereignty lies3 is, again, .ust his strategy.09 (he socio-economic fracturing of society that Schmitt attributes to an uncontrolled luralism has rendered arliament suer$uous and was threatening the #ery e%istence of the state@ *(he de#eloment toward an economic state was encountered by a simultaneous de#eloment of arliament into a stage for the luralist system. 8n that lies the cause of the constitutional entanglement as well as the necessity for establishing a remedy and 01 8bid., 2<4;9. 02 8bid., 2<9. 00 4V, 2;9. 09 >or a detailed account of this strategy, see 8ngeborg Maus, >!urgerliche 3echtstheorie un 1aschismus: :ur so#ialen 1unktion un aktuellen 6irkung er Theorie Carl Schmitts 1MAunchen, 194E3, 122;01. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E2 countermo#ement.+0< "owe#er, this articular socio- economic situation that the resident must address necessarily calls for acti#ity that is substantially beyond commissarial action and restitution. 8n fact, it entails the wholesale redirecting of structural historical transformation on a macroeconomic, social, and olitical scale, a redirecting that could ne#er be met in the time- 1and task-3 bound fashion of commissarial dictatorshi, but that must rather be met by the constitution amending of so#ereign dictatorshi.0: Loes Schmitt e%ect that he can address the wholesale reconstruction of the state society relationshi that he describes in 2uarian and not be ercei#ed as simultaneously calling for the wholesale reconstruction of the 'eimar constitutionQ 5o. Schmitt does not rely on the earlier e%amle of President Bbert)s temorary economic measures in the new reublic, but rather seaks in terms of much more comrehensi#e change. (hus, gi#en the scale of the necessary state control of the economy, the resuosed doling out of social transfers through military ser#ice bene7ts rather than uni#ersal welfare ro#isions, the romotion of nationalism through mass media, and the achie#ement of cultural conformity through bureaucratic administration, Schmitt can be said to theori=e the socially transformati#e asects of Caesarism to another le#el. (he redistributi#eJ military ro.ects of Julius Caesar, the Jacobins, and the !onaartes are smaller scale and &ualitati#ely less intrusi#e olitically than Schmitt)s reformulation of the stateJsociety di#ide in his works of the early thirties. Schmitt disaro#es of socially generated state inter#ention, whether liberal, social democratic, or !olshe#istic, but encourages state self- generated inter#ention characteristic of Mussolini)s >ascism.02 8n seci7c constitutional terms, this socio-economic agenda is to be achie#ed by dismantling or neutrali=ing the searation of owers. !y marginali=ing the other branches of go#ernment in 2uarian, Schmitt cle#erly remo#es any checks that could limit or shae the resident)s dictatorial actions in such a way as to gi#e them any semblance of commissarial character. Schmitt admits that a working /eichstag would be an aroriate check on residential emergency owers.04 Since such a situation of arliamentary eNcacy does not obtain in the socially tumultuous conditions of 0< 4V, 112. 0: Cn the radically dynamic as oosed to statically conser#ati#e character of Schmitt)s socio-economic roosals, see Maus, >!urgerliche 3echtstheorie un 1aschismus, 1E9, 12:, on the constitutionally abrogating rami7cations of his olitical economy, see Jean Cohen and ?ndrew ?rato, Ci"il Society an Political Theory 1Cambridge, 19923, 201;91. 02 See McCormick, Carl Schmitts Critique of Liberalism, 199, 229;99, 229;4E. 04 4V, 10E;1. 2E4 %ohn P& 'cCormick 'eimar, he makes no eGort to search for an alternati#e check. 8n fact, recisely because the resident is lebiscitarily elected by the eole there is no need for checks because the unity of the eole)s so#ereign will is charismatically embodied within him and his emergency action is thus necessarily legitimate.09 !y the conclusion of 2uarian, Schmitt has formulated a oularly legitimated so#ereign dictatorshi of the nation in the erson of a urortedly charismatic Derman resident that in essence mirrors the oularly legitimated so#ereign dictatorshi of the So#iet communist arty. Schmitt counters the *dictatorshi of the roletariat+ with a *dictatorshi of the nation.+ Presumably it is against the e%ternal enemy and its domestic artisans who chamion the former dictatorshi that Schmitt)s national dictatorshi is ready to take *action.+ (he 'eimar Constitution, concludes Schmitt, resuoses the entire Derman eole as a unity which is immediately ready for action and not 7rst mediated through social-grou organi=ation. 8t can e%ress its will and at the decisi#e moment 7nd its way back to unity and bring its in$uence to bear o#er and beyond luralistic di#isions. (he constitution seeks esecially to gi#e the authority of the 3eichspr!asient the ossibility of binding itself immediately with the olitical total will of the Derman eole and recisely thereby to act as guardian and rotector of the unity and totality of the Derman eole.9E Schmitt emhasi=es the artial, that is, democratically illegitimate &uality of the de facto arty dictatorshi of !olshe#ism. "e hides the elitist, and hence e&ually artial and illegitimate, &uality of his own formulation of a dictatorshi of the resident, which means in actuality, go#ernment of the aristocrats and cororate barons that surround 3eichspr!asient "indenburg. 8n 1902, .ust as the crisis of the 'eimar /eublic was reaching its clima%, and .ust before Schmitt would endorse a more radical form of fascism as the ultimate solution to that crisis, Schmitt ublished the book-length essay, Legality an Legitimacy. Schmitt cas oG the line of thought that he had been de#eloing o#er the last decade such that it is almost comletely imossible to identify in the book when he is talking about normal constitutional oerations and when he is talking about emergency ones. (he tension that Schmitt sees inherent in the'eimar constitution and that ser#es as the source for the book)s title 1*lebiscitary legitimacy+ #ersus *statutory legality+391 is de7niti#ely resol#ed in fa#or of the former. Schmitt resol#es it on the basis of the historical necessity of a mass democratic moment, what Schmitt calls *the lebiscitary immediacy of the deciding eole as 09 8bid., 11:, 1<:;2. 9E 8bid., 1<9. 91 LL, 012. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E9 legislator.+92 (he resident, as conduit for such *immediacy,+ takes on authority similar to that of the traditional *e%tra-ordinary legislator+ who may act *against the law.+90 (he ossibility of a commissarial dictatorshi is no longer mentioned either as it was for substanti#e uroses in 1921 or as it was for cosmetic uroses in the mid-twenties. (he unlimited e%tent of ower that was re#iously reser#ed for e%traordinary moments is now in#oked as the ordinary cometence of an e%ecuti#e answerable only to the acclamation of lebiscitary moments. 8n May 1900, Schmitt .oined the 5ational Socialist arty. >or the uroses of this #olume, Schmitt)s theory is clearly imortant for better understanding the continuity and rutures within the legacy of modern authoritarianism. "owe#er, Schmitt)s writings ose something of a u==le for those who wish to see the historical seci7city of fascism within this legacy. ?fter all, at the most abstract le#el, at the le#el of te%tual analysis alone, it is diNcult to inoint what makes Schmitt)s thought fascist, as oosed to absolutist or !onaartist. "is writings call for the rule of one erson who embodies the oular will to maintain social order and to defend against e%ternal enemies. "is ersistent rhetoric insists on the state)s searation from society so as to better maintain order within it. (hese arguments can be read in assi#e as oosed to aggressi#e terms. Students of Schmitt with an without neoconser#ati#e olitical agendas ha#e read him in this way. 8 would submit that were it not for our historical knowledge of Schmitt)s comlicity with the olitical strategies of, successi#ely, Prussian military elites, Catholic aristocrats, and, 7nally, 5ational Socialism, it would be diNcult to deciher the seci7cities of Schmitt)s ractical rogram from his work alone. (he case of Schmitt highlights the necessity of using sociological and historical methods along with those of te%tual olitical theory. Cnce we take into account Schmitt)s olitical aNliations and ractical engagements, we can begin to make some ro#isional comarisons. 'hat is interesting about Schmitt)s own brand of fascism is its combination of absolutist and !onaartistJCaesarist elements. Schmitt)s theory diGers from Caesarism in its fundamentally reactionary &uality. Caesar and 5aoleon could claim to sol#e olitical crises while at the same time ad#ancing the oulist sirit of the regimes they o#erthrew. (he more or less genuinely egalitarian social olicies of the 7rst Caesar and !onaarte 1notwithstanding the stultifying eGects of those olicies on the oulace3 do not e%ist in Schmitt)s scheme. Inlike theorists of absolutism, Schmitt celebrates oular so#ereignty, e#en democracy. "owe#er, the authentic e&uality of *all before the one+ in 92 8bid., 019. 90 8bid., 02E. 21E %ohn P& 'cCormick Caesarism and !onaartism is aroriated only rhetorically by Schmitt. (he rograms that he endorses ser#e cli&ues ruling through the residency and olicies that reinforce social hierarchy. Fike absolutism then, Schmitt)s osition is far more tolerant in ractice than it is in the theory of *intermediary bodies+ that ser#e, rather than threaten, the state. (hus, while Caesarism and !onaartism might be athologically democratic, Schmitt)s olitical theory and ractice remind us that fascism is bogusly democratic. liberalism, e%cetions, and the so#ereign dictatorshi of rocedures 8f we e%amine Schmitt)s criti&ue of liberalism with resect to dictatorshi at its most abstract, we obser#e these two rongs of his assault@ 113 liberals ha#e no concetion of the olitical e%cetion because of scientistic delusion, a delusion that will lead to the collase of constitutional regimes, and 123 if liberals concede that they do indeed ha#e such a concetion, they will necessarily resort to measures that are antiliberal to address such circumstances, thereby also endangering constitutional regimes. 8n this section, 8 e#aluate these two asects of Schmitt)s criti&ue of liberalism and olitical crisis. 8 conclude the section with Schmitt-informed re$ections on !ruce ?ckerman)s liberal theory of crisis and constitutional change. (he 7rst comonent of Schmitt)s criti&ue is grounded in his understanding of modernity@ ?s Bnlightenment olitical thought falls increasingly under the thrall of modern natural science, it comes to regard nature, and hence olitical nature, as a more regular henomenon. Conse&uently, there is deemed less need for the discretionary and rudential owers, long conferred uon .udges and e%ecuti#es by traditional olitical theories, including ?ristotelianism and Scholasticism ; discretion and rudence that found its e%treme e%amle in the case of classical dictatorshi. ?s the functional necessity of such discretion aarently subsides in the Bnlightenment, the normati#e assessment of it becomes increasingly negati#e, and such rudence becomes associated with arbitrariness and abuse of state ower. Schmitt comares the e%cetion in constitutional theory to the miracle in theology@ (he latter is the direct inter#ention of Dod into the normal course of nature)s acti#ity, and the former is the occasion for the inter#ention of the so#ereign into the normal legal order.99 "owe#er, the *rationalism of the Bnlightenment re.ected the e%cetion in e#ery form.+9< Leism, with its 99 PT, 0:;2. 9< 8bid., 02. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 211 watchmaker Dod, who ne#er interacts with the world after its creation, banished the miracle from religious thought, and liberalism, with its strict enumeration of go#ernmental owers, re.ected any olitical ossibilities outside of those set forth within the arameters of its constitutions.9: Schmitt)s #iew of modern constitutionalism undergirded by the searation of owers is best re$ected in his rather chilling remark, *(he machine now runs by itself.+92 (he second rong of Schmitt)s strategy becomes clearer in his discussion of John Focke@ Schmitt remarks that the e%cetion was *incommensurable+ with Focke)s theory of constitutionalism.94 Focke)s famous *rerogati#e+ ower is erhas the best e%amle of the notion of olitical rudence within liberalism@ )tis 7t that the laws themsel#es should in some cases gi#e way to the e%ecuti#e ower & & & that as much as may be, all the members of the society are to be reser#ed & & & since many accidents may haen, wherein a strict and rigid obser#ation of the law may do harm& & & R8St is imossible to foresee, and so by laws ro#ide for, all accidents and necessities, that may concern the ublic & & & therefore there is a latitude left to the e%ecuti#e ower, to do many things of choice, which the laws do not rescribe.99 Contra Schmitt)s account of the disaearance of the e%cetion in modernity, Focke clearly does ha#e an e%licit notion of acting abo#e or against the law in times of unforeseen occurrences. "owe#er, does this notion comromise his constitutionalismQ (he &uestion of *commensurability,+ as Schmitt uts it, is imortant. Fiberals may in fact admit the e%istence of e%cetional situations, but the articular sharness of Schmitt)s oint is whether they can address them without undermining constitutional rinciles. (he 7rst and more historical art of Schmitt)s criti&ue has real merit, notwithstanding the rominence of the e%amle of Focke. (he ost- Fockean theory of the searation of owers, articularly in the form that Montes&uieu made so in$uential, is, as Schmitt suggested, une&ui#ocally culable in a somewhat mechanistic de-discretioni=ing of olitics. <E ?s !ernard Manin obser#es, *Cne of Montes&uieu)s most imortant 9: 8bid. 92 8bid., 94. 94 8bid., 10. 99 John Focke, *(he Second (reatise on Do#ernment,+ K8H, 1<9, 1<;19, in Focke, T(o Treatises on 2o"ernment, ed. Peter Faslett 1Cambridge, 19443, 02< 1selling udated3. Cr as he de7nes it more succinctly later in the te%t@ *Prerogati#e being nothing, but a ower in the hands of the rince to ro#ide for the ublic good, in such cases, which deending uon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct, whatsoe#er shall be done manifestly for the good of the eole+ 1K888, 1<4, 1<;2E, 0203. <E See !aron de Charles de Secondat Montes&uieu, The Spirit of the La(s, ed. and trans. ?. M. Cohler, !. C. Miller, and ". S. Stone, K8 1Cambridge, 19493, :. 212 %ohn P& 'cCormick inno#ations was recisely to do away with any notion of a discretionary ower in his de7nition of the three go#ernmental functions.+<1 (he innacle of Bnlightenment constitutional engineering, the I.S. Constitution, is both the e%emlar of sohisticated searation of owers and the most famous constitution not to ha#e clearly enumerated ro#isions for emergency situations.<2 (his is a owerful testament to liberalism)s neglect of the olitical e%cetion. 8t is this liberalism that Schmitt was most concerned to critici=e for attemting to systemati=e all of olitical henomena. 8n the essays defending the I.S. Constitution collected as The 1eeralist Papers,<0 it is interesting to obser#e the contrast between the aers written by rincial framer, James Madison, the liberal technician who seeks to account for all ossibilities by enumerating them or building them into the constitutional mechanism, and ?le%ander "amilton, the roonent of olitical rerogati#e who seeks to kee oen the ossibility of e%cetional circumstances. Schmitt, not surrisingly, critici=es the Madisonian 1eeralist Papers and raises the "amiltonian ones.<9 Fiberalism)s denial of the e%cetion and a#oidance of the discretionary acti#ity that was traditionally sanctioned to deal with it not only makes liberal regimes suscetible to emergencies but also lea#es them #ulnerable to the more rofound criticism le#eled by Schmitt. ?s Manin formulates the roblem, *Cnce the notion of rerogati#e ower was abandoned, no ossibility of legitimately acting beside or against the law was left.+<< "ence, the 7rst asect of Schmitt)s criti&ue coerces liberalism into entertaining the ossibility of the second@ that the only aarent recourse a#ailable to olitical actors confronted with a olitical e%cetion is to act illegitimately and hoe to ass oG such action as legitimate. (his is an outcome that would seriously <1 !ernard Manin, *Checks, !alances, and !oundaries@ (he Searation of Powers in the Constitutional Lebate of 1242,+ in !iancamaria >ontana, ed., The +n"ention of the 'oern 3epublic 1Cambridge@ Cambridge Ini#ersity Press, 19993, 91, n. <1. See also Manin, *Lrawing a Heil o#er Fiberty@ (he Fanguage of Public Safety during the >rench /e#olution.+ Paer resented at the Collo&uium on Political and Social (hought, Columbia Ini#ersity, Set. 1992. <2 8 continue to focus on the I.S. conte%t in what follows for these reasons, as well as the fact that the two other most rominent e%tant written constitutions, the >rench and Derman, include emergency owers ro#isions. !esides the fact that these constitutions are not *Bnlightenment roducts,+ i.e., they were written after the eighteenth century, Schmitt and others would argue that they e%hibit emergency ower ro#isions to some e%tent ue to the in$uence of Schmitt himself. <0 ?le%ander "amilton, John Jay, and James Madison, The 1eeralist Papers 15ew Pork, 19:13. <9 See Schmitt, The Crisis of Parliamentary Democracy 119203, trans. Bllen Oennedy 1Cambridge, 194<3, 9E, 9<. << Manin, *Checks, !alances, and !oundaries,+ 91. ?lbert Licey e#en went as far as to de7ne the rule of law e%clusi#ely as the oosite, not only of *arbitrariness,+ but also *of rerogati#e, or e#en of wide discretionary authority on the art of the go#ernment.+ See ?. C. Licey, +ntrouction to the Stuy of the La( of the Constitution 1R191<S 8ndianaolis, 19423, 12E. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 210 undermine the o#erall legitimacy of liberal constitutionalism, an outcome clearly *incommensurable+ with its rinciles. >or instance, here is one way to #iew the crisis of full-scale olitical rebellion in the ?merican Ci#il 'ar@ 'ithout recourse to seci7cally enumerated, constitutionally legitimated emergency ro#isions, President ?braham Fincoln was forced to stretch the traditional means of susending habeas corus far beyond reasonable limits, utting himself in the osition of being called a tyrant in his sincere attemt to reser#e the reublic.<: Constitutional enabling ro#isions would re#ent a legitimately acting e%ecuti#e from running the risk of comromising his or her legitimacy at a time when it is most imortant. >urther alying the Schmittian criti&ue to the suosedly most de-discretioni=ed constitutional model@ I.S. President >ranklin /oose#elt)s well-known and erhas o#ere%tended aeal to the *general welfare+ clause of the reamble of the I.S. Constitution ser#ed as .usti7cation for dealing with the economic emergency of the Dreat Leression. Such a otentially far-fetched .usti7cation for emergency measures may in some resect comromise a constitution at the #ery moment when it is most threatened, should the aeal be successfully challenged as illegal and in fact illegitimate. (he *successes+ of the emergency actors in these two crises in I.S. constitutional history should not be taken at face #alue as roof of the eNcacy of not ha#ing constitutional emergency ro#isions. (he olitical ro7ciency of a Fincoln or an >L/ and the *rudence+ allegedly characteristic of the ?merican oulace surely cannot be counted uon in all circumstances of crisis. !lind faith in the ine#itable emergence of true *statesmen+ and the ac&uiescence to them by an understanding *eole+ in times of crisis is as unreasonable and nai#e as is comlete trust in urely constitutional means of addressing olitical emergencies consistently and rightfully derided by 3ealpolitiker. (his is the ersecti#e on liberal constitutionalism with which one is left after encountering Schmitt)s criti&ue, but one might disagree with it. Should this be the last word on the toicQ /ecently, !ruce ?ckerman has de#eloed an ambitious theory of olitical crisis and constitutional change that con7rms some, but challenges and reudiates many of Schmitt)s charges against liberal constitutionalism.<2 Some critics ha#e remarked uon certain ecstatic &ualities of ?ckerman)s account that might be reminiscent of Schmitt. (he fundamental diGerences <: See /. J. Share, The La( of 4abeas Corpus 1C%ford, 19913 and Mark B. 5eely, Jr., The 1ate of Liberty 1C%ford, 19913. <2 !ruce ?ckerman,6e the People ,: 1ounations 1Cambridge, 19913, and6e the People .: Transformations 1Cambridge, 19943, hereafter 6TP, or 6TP.. 219 %ohn P& 'cCormick between the two are manifested in@ 113 ?ckerman)s reclaiming for liberalism from Schmitt)s criti&ue the searation of owers as an indisensable means for constitutional change, 123 his reassertion, contra Schmitt, of the transformati#e $e%ibility of the I.S. Constitution, and 103 his argument that the constitutional resonses to the crises surrounding the Ci#il'ar and the 5ew Leal conform fully with the sirit of constitutionalism and do not #iolate it as Schmitt)s arguments would suggest. (here are certainly surface similarities between ?ckerman and Schmitt. !oth refer to olitical oulaces in &uasi-mystical ways@ ?ckerman has a roensity to caitali=e *the Peole+ in a reifying manner and e#en refers to them in *8 am who am+ fashion as *'e the Peole.+ ?ckerman, like Schmitt, concedes the illegality of constitutional foundings, a decision that creates a constitutional order is logically rior to, and can not be legally authori=ed by, that order. ?lso, ?ckerman)s distinction between normal and constitutional olitics has certain Schmittian o#ertones. "owe#er, the diGerences between the two will show these similarities to be suer7cial and actual distractions from the way in which I.S. constitutional e%erience de7es Schmitt)s arguments in fundamental ways.<4 ?ckerman may con7rm Schmitt)s charge that liberals do not gras the immeiate &uality of e%cetions. Crises, as ?ckerman understands them, de#elo o#er time and may be dealt with o#er e%tended eriods of time as well. ?n emergency or an e%cetion de7ned in a narrow sense that could be best addressed by commissarial dictatorshi in classical terms, resumably may be dealt with in ?ckerman)s scheme by the enumerated and ac&uired rerogati#e owers of the resident or e#en legislati#e measures. !ut ?ckerman)s model e%licitly addresses the kind of large- scale social change that Schmitt)s model only surretitiously sought to address under the guise of attention to an immediately ressing situation. ?n e%cetion, as Schmitt later de#elos the concet, means a changed socio-olitical landscae that the constitutional structure was not designed to address, but one that the *constitutional will+ does, in fact, want addressed. ?ckerman interrets the I.S. Constitution as being able to confront these changes through elaborate rocedural means. Schmitt con$ates the constitution to the one institution within its structure that could claim recent legitimation by the widest art of the oulation through the most direct means, the residency. <4 ?ckerman ne#er mentions Schmitt in either #olume of 6TP, but sharly distinguishes his concetions of democratic will and constitutional change from Schmitt)s in *(he Political Case for Constitutional Courts,+ in !ernard Pack, ed., Liberalism 6ithout +llusions: )ssays on Liberal Theory an the Political Vision of %uith ?& Shklar 1Chicago, 199:3, 2E<;19. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 21< (hus if Schmitt con@ates immediately ressing emergency e%cetions with long-term structurally transformati#e e%cetions, ?ckerman focuses e%clusi#ely on the latter. 8n so doing, ?ckerman de7es the Schmittian charge that liberalism is incaable of any kind of constitutional adatation or transformation. Schmitt certainly would ha#e claimed that ?ckerman)s liberal transformati#e constitutionalism was not suNciently dynamic to counter, for instance, !olshe#ism)s e%loitation of immediate crises. Since !olshe#ism no longer oses a threat to constitutional regimes, howe#er, ?ckerman)s ro.ect may be understood as demonstrating the $e%ibility of liberal constitutions in adating to large-scale and more gradual social change. ?ckerman)s descrition of constitutional change as *re#olutionary reform,+ as reudiation of the ast, as refounding<9 may sound like Schmitt to some e%tent. >or ?ckerman, howe#er, change must take lace o#er a duration of time measured in years, not months or days, and by channels not normally oen to lawmaking. 8t is not enacted through the momentary lightning bolt of a &uasi-di#ine e%ecuti#e authority. Moreo#er, all the branches of go#ernment are in#ol#ed in the transformation rocess, not .ust one. (his is, of course, the #ery oosite of Schmitt)s instantaneous resonse, which is .usti7ed only by the most recent residential election 1suosedly re-con7rming the reconstitutional so#ereign will3 and the acti#e discrediting and neutrali=ing of other go#ernmental branches. Bmergency owers as en#isioned by Schmitt, in short, amount to an intra- institutional cou that hides behind the sham of constitutionality. Schmitt)s distinction between normal and constitutional olitics eGecti#ely laces the latter outside the reach of oular articiation e#en though it is in#oked in the eole)s name. >or ?ckerman, on the contrary, it is the constitutional moment that is more oularly articiatory than normal moments. ?fter all, e#en Schmitt ays li ser#ice to the ossibility of con#entional electoral olitics in ordinary time.:E ?s ?ckerman describes the distinction, constitutional moments are those *rare moments when transformati#e mo#ements earn broad and dee suort for their initiati#es+, they are *moments of mobili=ed oular renewal.+:1 Cn the other hand, normal olitics is identi7ed with the routine olitical articiation that cometes with the acti#ities of eole)s ri#ate li#es for their attention. Constitutional moments are fundamentally diGerent because in them, olitics can take center stage with comelling force. (he e#ents cataly=ing a rise in olitical consciousness ha#e been as #arious as the country)s history ; war, economic <9 6TP,, 19. :E See Schmitt, The Crisis of Parliamentary Democracy. :1 6TP., 9;<. 21: %ohn P& 'cCormick catastrohe, or urgent aeals to the national conscience. >or whate#er reason, olitical talk and action begin to take on an urgency and breadth lacking most of the time. 5ormally assi#e citi=ens become more acti#e ; arguing, mobili=ing, and sacri7cing their other interests to a degree that seems to them e%traordinary.:2 8nherent in ?ckerman)s concetion of crises is an intensi7ed engagement by the eole with olitics, not, as in Schmitt)s, their stuefaction by olitics. 'hat searates ?ckerman from Schmitt then is, 7rst, a longer time frame for the resolution of crisis, as much as a whole generation of olitical foment and a decade de#oted to change itself. Second, and related, is an emhasis on the discursi#e, as oosed to acclamatory, &uality of oular articiation at these times. ?s ?ckerman uts it, theI.S. constitutional system *encourages an engaged citi=enry to focus on fundamental issues and determine whether any roosed solution deser#es its considered suort.+:0 (here is, in his own words, a *lebiscitary+ &uality to ?ckerman)s model, but constitutional change is ne#er legitimated on the basis of any one lebiscite but rather a *series+ of "ouse, Senate, and residential elections.:9 Iltimately, ?ckerman is most un-Schmittian institutionally in his understanding of the searation of owers as the enabling *central engine+ of ; not the obstacle to ; the resolution of a constitutional crisis. (he structural ri#alry among branches intensi7es deliberation and cometition for oular suort which clari7es issues, and e#entually initiates de7niti#e reference declarations by the eole.:< Schmitt)s /eichsrAasident can ha#e no clear idea of the substanti#e references of the eole deri#ed from one election, regardless of how recent it is. 8ssues can not be clari7ed for anyone in this framework e%cet to the e%tent that the olitical and economic elites around the resident deign to do so for him and the eole. Schmitt unashamedly calls such a scenario *democratic.+ (he schema shown in (able 9.1 comares and contrasts Schmitt and ?ckerman on these oints. ?ckerman artly con7rms and artly reudiates Schmitt)s 7rst criticism of liberalism)s resonse to unforeseen circumstances@ ?ckerman)s kind of liberalism will take too long and be too deliberati#e to address an immediate crisis. !ut this is not what ?ckerman)s framework is designed to resol#e. "owe#er, his framework is oen to the kind of dramatic constitutional change that Schmitt was doubtful liberalism could successfully undertake. 8s ?ckerman ne#ertheless suscetible to Schmitt)s second criticism that liberal attemts to address constitutional crises will be illiberalQ ?ckerman resorts to arguments that surely make more con#entional liberal constitutionalists :2 8bid., :. :0 8bid. :9 8bid., 21. :< 8bid., 21, 20. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 212
(able 9.1. Schmitt ?ckerman )*ceptional moment emergencyJtransformation transformation Political response so#ereign dictatorshi by constitutional emendation led by resident resident or legislature Popular (ill eole acclaiming through eole *deliberating+ through lebiscite residential and congressional
elections, .udicial decisions, and
state rati7cation rocess Time frame immediate e%tended uncomfortable.:: ?ckerman chamions the, shall we say, legally creati#e way in which olitical actors at times a#oided established modes of I.S. constitutional re#ision. >or instance, ?ckerman argues that it is a mistake to characteri=e the history of ?merican constitutional change as a faithful adherence to the *rules of the game.+:2 (he Constitution itself was illegal gi#en the lack of authori=ation from the ?rticles of Confederation go#ernment to refound the regime, and the ost;Ci#il 'ar /eublicans circum#ented rescribed methods to ratify the >ourteenth ?mendment. 8n general, ?ckerman may erhas dwell too long for some liberals) taste on the fact that ?rticle < of the I.S. Constitution is the described, but not necessarily e*clusi"e means of re#ising the Constitution.:4 "e lea#es oen the ossibility that there might in fact be a #ariety of such other means. ?ckerman certainly a#oids Schmittian Caesarism by taking the #ery constitutional mechanisms that Schmitt claimed would be incaable of addressing e%traordinary moments and interreting them as in fact being better at facilitating such redress and ha#ing more substanti#e oular legitimacy. Pet the ?ckerman model still retains certain Caesarist traces. >or one, it unaologetically acknowledges the imortance of *wartime triumhs+ in both the >ederalist founding and the /eublican refounding after the Ci#il'ar.:9 8t emhasi=es the use of *old institutions in new ways+2E that, according to :: 8n fact, ?ckerman)s understanding of how e%traordinary crises may be actually absorbed into the regime itself through constitutional adatation o#er time is closer to Machia#elli)s reublican theory than anything in the liberal or Bnlightenment tradition. >or Machia#elli, crises were absorbed directly into the institutions of reublican regimes rather than #ia rocedures as in ?ckerman)s theory. Cn this asect of Machia#elli, see John P. McCormick, *?ddressing the Political B%cetion@ Machia#elli)sT?ccidents) and the Mi%ed /egime,+ American Political Science 3e"ie( 42, no. 9 1Lecember 19903, 444;9EE. :2 6TP., 11. :4 8bid., 1<. :9 8bid, 22. 2E 8bid., 9. 214 %ohn P& 'cCormick cynical readings, is recisely what both Caesars and both !onaartes did with resect to the reublican orders they sulanted but retended to maintain. (he reeated emhasis on *uncon#entional adatation+21 may not need to be stretched too far to be understood as a euhemism for e%tra-legal action. (he obser#ation that each transformation in I.S. constitutional history further nationali=ed the federal go#ernment at the e%ense of state ower will not endear ?ckerman to (oc&ue#illian critics of the administrati#e state. Bach of these is an element of traditional Caesarism. Pet, ?ckerman uts them in the ser#ice of a deliberating oulace rather than a demagogic indi#idual or grou of elites. 8n contrast to the bogus oulism of the Caesarist case, the eole themsel#es ad#ance their claim to ower through rocedures that if followed can allow and facilitate *so#ereign+ change. ?ckerman is comfortable with the fact that the eole of the Inited States could reach any social goal desired, so long as they do so through the time-e%tended and institutionally arduous rocedures of constitutional change. 8t is recisely the elements of time and rocedure that searate liberal so#ereign dictatorshi, if that is what we should call it, and Jacobin or !onaartist so#ereign dictatorshi.22 conclusion Schmitt)s theory of dictatorshi ful7lls his own rohecy that the merging of so#ereign will and emergency circumstances would ser#e as the occasion for Caesarist cous against constitutional orders. 'hen an indi#idual like a Caesar or a !onaarte can claim both 113 to bring stability to a reublican order that has become ungo#ernable an 123 to reresent the whole eole when so doing, constitutional go#ernment is 7nished. Schmitt comes to the conclusion that history has decreed that increasingly economically egalitarian forces will make such mo#es in times of crisis to enact so#ereign dictatorshis that liberals would make no eGort to counter with commissarial emergency measures. (hus, he takes it uon himself to formulate a right-wing #ersion of so#ereign dictatorshi. 8t emhasi=es nationalism o#er egalitarianism and attemts to buy oG oulaces, not with straightforward social welfare measures, but those mediated through military ser#ice. (o e%clude any alternati#e other than his fascist theory of so#ereign dictatorshi 21 8bid., 22. 22 (hese &ualities are what searates ?ckerman)s #ersion of what ?ndrew ?rato calls *constitutional dictatorshi+ from the more athological ones that arise from easy access to the aaratus of constitutional emendation. See ?ndrew ?rato, *Blections, Coalitions and Constitutionalism in "ungary,+ )ast )uropean Constitutional 3e"ie( 0, nos. 0 and 9 1SummerJ>all 19993, 22;40. Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 219 and its !olshe#ist ad#ersary, Schmitt fashions a narrati#e about liberalism and olitical e%cetions that insures that liberals will be unable to intercede in the debate and that if they do, they will further .eoardi=e their olitics and rinciles. (wo challenges to Schmitt on these oints@ >irst, left-wing Caesarism did not ha#e a monooly on the ractice of dictatorshi in the years .ust receding and following the turn of the century, as shown by the oNcial regime of the second !onaarte in >rance and the de facto one of Deneral Brich FudendorG in Dermany during 'orld 'ar 8. Conse&uently, there was not the dire need for the concetually brilliant and historically cunning alternati#e theory of dictatorshi outlined by Schmitt. Second, the liberal tradition, from Focke to ?ckerman, while ob#iously not as reoccuied with constitutional crisis management as Schmitt, certainly has more to oGer on the matter than Schmitt and his historical logic suggest. (hrough both diagnosis and demonstration, Schmitt)s writings on dictatorshi con7rm the socio-olitical continuity from Caesarism to fascism in the twentieth century. 8ndeed it ser#es to remind us of the necessity of further theoretical analysis of the legacy of modern authoritarianism from absolutism to fascism.20 (here continues to be a need for scholarshi that challenges the comforting narrati#es which osit an o#ercoming of organi=ed domination since the end of the Middle ?ges, as a result of the wa#e of re#olutions that succeeded the o#erthrow of the ancien regime in >rance, or the subse&uent emergence of liberal and social democracy. ?ny account of modern olitical history and olitical hilosohy that #iews authoritarian mo#ements and regimes as *e%cetions+ in the *age of reason+ must be diselled, lest we let down our collecti#e guard ermanently. Moreo#er, work on authoritarianism should resist the temtation to suort the e&ually inaccurate and harmful counter-narrati#e 1one that combines a articular reading of (oc&ue#ille with neoconser#atism3 which asserts an inherent and una#oidable authoritarian strain in modern olitics and e%anding forms of mass democracy. Schmitt is a crucial 7gure for this kind of analysis recisely because his writings oint out the dangers of authoritarianism in mass democracy and, more imortantly, also ser#e as a model for how not to resond to such suosed athologies@ seci7cally, by concluding that some suosedly less e#il form of sham mass democracy is an aroriate solution to such dangers. 20 See the ioneering work of Mel#in /ichter, *(oward a Concet of Political 8llegitimacy@ !onaartist Lictatorshi and Lemocratic Fegitimacy,+ Political Theory 1E, no. 2 119423, 14<; 219, and !aehr, Caesar an the 1aing of the 3oman 6orl.