baehr_p_richter_m_dictatorship_in_history_and_theory_bonapar

Weimar, he makes no effort to search for an alternative check. In fact, precisely because the president is plebiscitarily elected by the people there is no need for checks because the unity of the people’s sovereign will is charismatically embodied within him and his emergency action is thus necessarily legitimate.39 By the conclusion of Guardian, Schmitt has formulated a popularly legitimated sovereign dictatorship of the nation in the person of a purportedly charismatic German president that in essence mirrors the popularly legitimated sovereign dictatorship of the Soviet communist party. Schmitt counters the “dictatorship of the proletariat” with a “dictatorship of the nation.” Presumably it is against the external enemy and its domestic partisans who champion the former dictatorship that Schmitt’s national dictatorship is ready to take “action.” The Weimar Constitution, concludes Schmitt,

presupposes the entire German people as a unity which is immediately ready for action and not first mediated through social-group organization. It can express its will and at the decisive moment find its way back to unity and bring its influence to bear over and beyond pluralistic divisions. The constitution seeks especially to give the authority of the Reichsprasident¨ the possibility of binding itself immediately with the political total will of the German people and precisely thereby to act as guardian and protector of the unity and totality of the German people.40

Schmitt emphasizes the partial, that is, democratically illegitimate quality of the de facto party dictatorship of Bolshevism. He hides the elitist, and hence equally partial and illegitimate, quality of his own formulation of a dictatorship of the president, which means in actuality, government of the aristocrats and corporate barons that surround Reichsprasident¨ Hindenburg.

In 1932, just as the crisis of the Weimar Republic was reaching its climax, and just before Schmitt would endorse a more radical form of fascism as the ultimate solution to that crisis, Schmitt published the book-length essay, Legality and Legitimacy. Schmitt caps off the line of thought that he had been developing over the last decade such that it is almost completely impossible to identify in the book when he is talking about normal constitutional operations and when he is talking about emergency ones. The tension that Schmitt sees inherent in the Weimar constitution and that serves as the source for the book’s title (“plebiscitary legitimacy” versus “statutory legality”)41 is definitively resolved in favor of the former. Schmitt resolves it on the basis of the historical necessity of a mass democratic moment, what Schmitt calls “the plebiscitary immediacy of the deciding people as

watchmaker God, who never interacts with the world after its creation, banished the miracle from religious thought; and liberalism, with its strict enumeration of governmental powers, rejected any political possibilities outside of those set forth within the parameters of its constitutions.46 Schmitt’s view of modern constitutionalism undergirded by the separation of powers is best reflected in his rather chilling remark, “The machine now runs by itself.”47

The second prong of Schmitt’s strategy becomes clearer in his discussion of John Locke: Schmitt remarks that the exception was “incommensurable” with Locke’s theory of constitutionalism.48 Locke’s famous “prerogative” power is perhaps the best example of the notion of political prudence within liberalism:

’tis fit that the laws themselves should in some cases give way to the executive power . . . that as much as may be, all the members of the society are to be preserved . . . since many accidents may happen, wherein a strict and rigid observation of the law may do harm . . . [I]t is impossible to foresee, and so by laws provide for, all accidents and necessities, that may concern the public . . . therefore there is a latitude left to the executive power, to do many things of choice, which the laws do not prescribe.49

Contra Schmitt’s account of the disappearance of the exception in modernity, Locke clearly does have an explicit notion of acting above or against the law in times of unforeseen occurrences. However, does this notion compromise his constitutionalism? The question of “commensurability,” as Schmitt puts it, is important. Liberals may in fact admit the existence of exceptional situations, but the particular sharpness of Schmitt’s point is whether they can address them without undermining constitutional principles.

The first and more historical part of Schmitt’s critique has real merit, notwithstanding the prominence of the example of Locke. The postLockean theory of the separation of powers, particularly in the form that Montesquieu made so influential, is, as Schmitt suggested, unequivocally culpable in a somewhat mechanistic de-discretionizing of politics.50 As Bernard Manin observes, “One of Montesquieu’s most important

48Ibid., 13.

49John Locke, “The Second Treatise on Government,” XIV, 159, 15–19, in Locke, Two Treatises on Government, ed. Peter Laslett (Cambridge, 1988), 375 (spelling updated). Or as he defines it more succinctly later in the text: “Prerogative being nothing, but a power in the hands of the prince to provide for the public good, in such cases, which depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct, whatsoever shall be done manifestly for the good of the people” (XIII, 158, 15–20, 373).

50See Baron de Charles de Secondat Montesquieu, The Spirit of the Laws, ed. and trans. A. M. Cohler, B. C. Miller, and H. S. Stone, XI (Cambridge, 1989), 6.

innovations was precisely to do away with any notion of a discretionary power in his definition of the three governmental functions.”51 The pinnacle of Enlightenment constitutional engineering, the U.S. Constitution, is both the exemplar of sophisticated separation of powers and the most famous constitution not to have clearly enumerated provisions for emergency situations.52 This is a powerful testament to liberalism’s neglect of the political exception. It is this liberalism that Schmitt was most concerned to criticize for attempting to systematize all of political phenomena. In the essays defending the U.S. Constitution collected as The Federalist Papers,53 it is interesting to observe the contrast between the papers written by principal framer, James Madison, the liberal technician who seeks to account for all possibilities by enumerating them or building them into the constitutional mechanism, and Alexander Hamilton, the proponent of political prerogative who seeks to keep open the possibility of exceptional circumstances. Schmitt, not surprisingly, criticizes the Madisonian Federalist Papers and praises the Hamiltonian ones.54

Liberalism’s denial of the exception and avoidance of the discretionary activity that was traditionally sanctioned to deal with it not only makes liberal regimes susceptible to emergencies but also leaves them vulnerable to the more profound criticism leveled by Schmitt. As Manin formulates the problem, “Once the notion of prerogative power was abandoned, no possibility of legitimately acting beside or against the law was left.”55 Hence, the first aspect of Schmitt’s critique coerces liberalism into entertaining the possibility of the second: that the only apparent recourse available to political actors confronted with a political exception is to act illegitimately and hope to pass off such action as legitimate. This is an outcome that would seriously

51Bernard Manin, “Checks, Balances, and Boundaries: The Separation of Powers in the Constitutional Debate of 1787,” in Biancamaria Fontana, ed., The Invention of the Modern Republic (Cambridge: Cambridge University Press, 1994), 41, n. 51. See also Manin, “Drawing a Veil over Liberty: The Language of Public Safety during the French Revolution.” Paper presented at the Colloquium on Political and Social Thought, Columbia University, Sept. 1997.

52I continue to focus on the U.S. context in what follows for these reasons, as well as the fact that the two other most prominent extant written constitutions, the French and German, include emergency powers provisions. Besides the fact that these constitutions are not “Enlightenment products,” i.e., they were written after the eighteenth century, Schmitt and others would argue that they exhibit emergency power provisions to some extent due to the influence of Schmitt himself.

53Alexander Hamilton, John Jay, and James Madison, The Federalist Papers (New York, 1961).

54See Schmitt, The Crisis of Parliamentary Democracy (1923), trans. Ellen Kennedy (Cambridge, 1985), 40, 45.

55Manin, “Checks, Balances, and Boundaries,” 41. Albert Dicey even went as far as to define the rule of law exclusively as the opposite, not only of “arbitrariness,” but also “of prerogative, or even of wide discretionary authority on the part of the government.” See A. C. Dicey, Introduction to the Study of the Law of the Constitution ([1915] Indianapolis, 1982), 120.

undermine the overall legitimacy of liberal constitutionalism, an outcome clearly “incommensurable” with its principles.

For instance, here is one way to view the crisis of full-scale political rebellion in the American Civil War: Without recourse to specifically enumerated, constitutionally legitimated emergency provisions, President Abraham Lincoln was forced to stretch the traditional means of suspending habeas corpus far beyond reasonable limits, putting himself in the position of being called a tyrant in his sincere attempt to preserve the republic.56 Constitutional enabling provisions would prevent a legitimately acting executive from running the risk of compromising his or her legitimacy at a time when it is most important. Further applying the Schmittian critique to the supposedly most de-discretionized constitutional model: U.S. President Franklin Roosevelt’s well-known and perhaps overextended appeal to the “general welfare” clause of the preamble of the U.S. Constitution served as justification for dealing with the economic emergency of the Great Depression. Such a potentially far-fetched justification for emergency measures may in some respect compromise a constitution at the very moment when it is most threatened, should the appeal be successfully challenged as illegal and in fact illegitimate.

The “successes” of the emergency actors in these two crises in U.S. constitutional history should not be taken at face value as proof of the efficacy of not having constitutional emergency provisions. The political proficiency of a Lincoln or an FDR and the “prudence” allegedly characteristic of the American populace surely cannot be counted upon in all circumstances of crisis. Blind faith in the inevitable emergence of true “statesmen” and the acquiescence to them by an understanding “people” in times of crisis is as unreasonable and naive as is complete trust in purely constitutional means of addressing political emergencies consistently and rightfully derided by Realpolitiker. This is the perspective on liberal constitutionalism with which one is left after encountering Schmitt’s critique, but one might disagree with it. Should this be the last word on the topic?

Recently, Bruce Ackerman has developed an ambitious theory of political crisis and constitutional change that confirms some, but challenges and repudiates many of Schmitt’s charges against liberal constitutionalism.57 Some critics have remarked upon certain ecstatic qualities of Ackerman’s account that might be reminiscent of Schmitt. The fundamental differences

56 See R. J. Sharpe, The Law of Habeas Corpus (Oxford, 1991) and Mark E. Neely, Jr., The Fate of Liberty (Oxford, 1991).

57Bruce Ackerman, We the People 1: Foundations (Cambridge, 1991); and We the People 2: Transformations

(Cambridge, 1998), hereafter WTP1 or WTP2.

between the two are manifested in: (1) Ackerman’s reclaiming for liberalism from Schmitt’s critique the separation of powers as an indispensable means for constitutional change; (2) his reassertion, contra Schmitt, of the transformative flexibility of the U.S. Constitution; and (3) his argument that the constitutional responses to the crises surrounding the Civil War and the New Deal conform fully with the spirit of constitutionalism and do not violate it as Schmitt’s arguments would suggest.

There are certainly surface similarities between Ackerman and Schmitt. Both refer to political populaces in quasi-mystical ways: Ackerman has a propensity to capitalize “the People” in a reifying manner and even refers to them in “I am who am” fashion as “We the People.” Ackerman, like Schmitt, concedes the illegality of constitutional foundings; a decision that creates a constitutional order is logically prior to, and can not be legally authorized by, that order. Also, Ackerman’s distinction between normal and constitutional politics has certain Schmittian overtones. However, the differences between the two will show these similarities to be superficial and actual distractions from the way in which U.S. constitutional experience defies Schmitt’s arguments in fundamental ways.58

Ackerman may confirm Schmitt’s charge that liberals do not grasp the immediate quality of exceptions. Crises, as Ackerman understands them, develop over time and may be dealt with over extended periods of time as well. An emergency or an exception defined in a narrow sense that could be best addressed by commissarial dictatorship in classical terms, presumably may be dealt with in Ackerman’s scheme by the enumerated and acquired prerogative powers of the president or even legislative measures. But Ackerman’s model explicitly addresses the kind of large-scale social change that Schmitt’s model only surreptitiously sought to address under the guise of attention to an immediately pressing situation. An exception, as Schmitt later develops the concept, means a changed socio-political landscape that the constitutional structure was not designed to address, but one that the “constitutional will” does, in fact, want addressed. Ackerman interprets the U.S. Constitution as being able to confront these changes through elaborate procedural means. Schmitt conflates the constitution to the one institution within its structure that could claim recent legitimation by the widest part of the population through the most direct means, the presidency.

58 Ackerman never mentions Schmitt in either volume of WTP, but sharply distinguishes his conceptions of democratic will and constitutional change from Schmitt’s in “The Political Case for Constitutional Courts,” in Bernard Yack, ed., Liberalism Without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar (Chicago, 1996), 205–19.

catastrophe, or urgent appeals to the national conscience. For whatever reason, political talk and action begin to take on an urgency and breadth lacking most of the time. Normally passive citizens become more active – arguing, mobilizing, and sacrificing their other interests to a degree that seems to them extraordinary.62

Inherent in Ackerman’s conception of crises is an intensified engagement by the people with politics, not, as in Schmitt’s, their stupefaction by politics.

What separates Ackerman from Schmitt then is, first, a longer time frame for the resolution of crisis; as much as a whole generation of political foment and a decade devoted to change itself. Second, and related, is an emphasis on the discursive, as opposed to acclamatory, quality of popular participation at these times. As Ackerman puts it, the U.S. constitutional system “encourages an engaged citizenry to focus on fundamental issues and determine whether any proposed solution deserves its considered support.”63 There is, in his own words, a “plebiscitary” quality to Ackerman’s model, but constitutional change is never legitimated on the basis of any one plebiscite but rather a “series” of House, Senate, and presidential elections.64 Ultimately, Ackerman is most un-Schmittian institutionally in his understanding of the separation of powers as the enabling “central engine” of – not the obstacle to – the resolution of a constitutional crisis. The structural rivalry among branches intensifies deliberation and competition for popular support which clarifies issues, and eventually initiates definitive preference declarations by the people.65 Schmitt’s Reichsprasident¨ can have no clear idea of the substantive preferences of the people derived from one election, regardless of how recent it is. Issues can not be clarified for anyone in this framework except to the extent that the political and economic elites around the president deign to do so for him and the people. Schmitt unashamedly calls such a scenario “democratic.” The schema shown in Table 9.1 compares and contrasts Schmitt and Ackerman on these points.

Ackerman partly confirms and partly repudiates Schmitt’s first criticism of liberalism’s response to unforeseen circumstances: Ackerman’s kind of liberalism will take too long and be too deliberative to address an immediate crisis. But this is not what Ackerman’s framework is designed to resolve. However, his framework is open to the kind of dramatic constitutional change that Schmitt was doubtful liberalism could successfully undertake. Is Ackerman nevertheless susceptible to Schmitt’s second criticism that liberal attempts to address constitutional crises will be illiberal? Ackerman resorts to arguments that surely make more conventional liberal constitutionalists

uncomfortable.66 Ackerman champions the, shall we say, legally creative way in which political actors at times avoided established modes of U.S. constitutional revision. For instance, Ackerman argues that it is a mistake to characterize the history of American constitutional change as a faithful adherence to the “rules of the game.”67 The Constitution itself was illegal given the lack of authorization from the Articles of Confederation government to refound the regime; and the post–Civil War Republicans circumvented prescribed methods to ratify the Fourteenth Amendment. In general, Ackerman may perhaps dwell too long for some liberals’ taste on the fact that Article 5 of the U.S. Constitution is the described, but not necessarily exclusive means of revising the Constitution.68 He leaves open the possibility that there might in fact be a variety of such other means.

Ackerman certainly avoids Schmittian Caesarism by taking the very constitutional mechanisms that Schmitt claimed would be incapable of addressing extraordinary moments and interpreting them as in fact being better at facilitating such redress and having more substantive popular legitimacy. Yet the Ackerman model still retains certain Caesarist traces. For one, it unapologetically acknowledges the importance of “wartime triumphs” in both the Federalist founding and the Republican refounding after the Civil War.69 It emphasizes the use of “old institutions in new ways”70 that, according to

66 In fact, Ackerman’s understanding of how extraordinary crises may be actually absorbed into the regime itself through constitutional adaptation over time is closer to Machiavelli’s republican theory than anything in the liberal or Enlightenment tradition. For Machiavelli, crises were absorbed directly into the institutions of republican regimes rather than via procedures as in Ackerman’s theory. On this aspect of Machiavelli, see John P. McCormick, “Addressing the Political Exception: Machiavelli’s ‘Accidents’ and the Mixed Regime,” American Political Science Review 87, no. 4 (December 1993), 888–900.

67 WTP2, 11.

69 Ibid, 22.