McCormick, John P.. From Constitutional Technique to Caesarist Ploy

8/11/2019 McCormick, John P.. From Constitutional Technique to Caesarist Ploy

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From Constitutional Technique to Caesarist Ploy Carl Schmitt on Dictatorship, Liberalism,and Emergency Powers

John P. Mccormick

Carl Schmitt begins Dictatorship ,1 his classic work of 1921, bydistinguishingthe olitical institution of the title from !ona artism andCaesarism."owe#er, Schmitt himself e#entually con$ates dictatorshiwith Caesarism,somewhat cry tically by the end of the book, more directly inhis ne%tbook, and une&ui#ocally o#er the course of his'eimar career.

(his cha tere% licates Schmitt)s theory of dictatorshi , es ecially hisdistinction between*commissarial+ and *so#ereign+ dictatorshi , and hisdiagnosis of the abuseor desuetude of the conce t in the twentieth centurye%amines the e%tentto which, and attem ts to e% lain the reasons why, Schmitt)sdoctrine of

dictatorshi e#entually colla ses into Caesarism ande#aluates the #alidityof Schmitt)s charge that liberal constitutionalism is inca ableof dealing withthe kind of olitical circumstances that call for dictatorshi .dictatorshi between mar%ism and liberalismSchmitt)s argument in Dictatorship hinges on the theoretical-historical distinctionbetween the traditional conce t of *commissarial+dictatorshi andthe modern one of *so#ereign+ dictatorshi . (he two arese arated by aconce tual distinction, on the one hand, but, on the other,

oined by thehistorical transformation of one into the other in modernity.Commissarial


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dictatorshi , as racticed in the /oman /e ublic andcham ioned byMachia#elli,2 was limited in its e%ercise during emergencycircumstances by

(his essay is an e%tensi#ely re#ised and considerablye% anded elaboration of Cha ter 0 of my CarlSchmitts Critique of Liberalism: Against Politics as Technology

Cambridge, 199 3.1 Schmitt, Die Diktatur: Von en Anf!angen es mo ernenSou"er!anit!atsge ankens bis #um proletarischen$lassenkampf !erlin, 19493, hereafter D.2 5iccol6o Machia#elli, The Discourses on Li"y , trans. "ar#eyC. Mans7eld and 5athan (arco#, 8, 0

Chicago, 199:3, 0;


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194 %ohn P& 'cCormick allotted time, s eci7ed task, and the fact that the dictator hadto restore the

re#iously standing olitical-legal order that had authori=edthe dictatorshi .So#ereign dictatorshi , as encouraged by both modernabsolutist and re#olutionary

olitical ractices, is unlimited in its arameters and may, andlikelywill, roceed to establish a com letely new order as a result of its e%ercise.0

Schmitt identi7es the /oman dictatorshi s of Caesar and Sullaas*so#ereign,+ because they used emergency owers to changethe constitutionalorder of /ome for their own ersonal olitical agendas."owe#er,it was not until the de#elo ment of the modern notion of so#ereignty thatindi#iduals like Cromwell and !ona arte or olitical bodies likethose of re#olutionary >rance could use military force and claims tore resent thewhole or the *real+ eo le to abrogate an old order andinstitute a new one.?s unlimited as the means a#ailable to a /oman dictator(ithin his commissionto address an emergency such as a rebellion, war, or faminewere, therewas a strict boundary in his re&uirement to return the olity toa situationof status quo ante . 8n other words, commissarial dictatorshimust seek to*make itself su er$uous.+ So#ereign dictatorshi , on theother hand, seeksto er etuate itself, e#en if it uses its ower under the

retense of merely


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*tem orary+ circumstances.8 will not reca itulate the details of Schmitt)s account of howcommissarialdictatorshi gi#es way to so#ereign dictatorshi , or e#entransmutesinto it. 'hat is more ertinent here is Schmitt)s understandingof whyhe takes u such a ro ect at this oint in the early twentiethcentury.

(here are ob#ious reasons of historical conte%t@ 8n the newolitical order of

the'eimar /e ublic, 7rst /eichs rAasident >riedrich Bbertmade e%tensi#euse of emergency owers at the time of the com osition of Dictatorship toaddress right-wing and communist rebellion as well as ano#erwhelmingeconomic crisis.< "owe#er, there are broader world historicalmoti#ationsat issue for Schmitt as well.?ccording to Schmitt, liberals, to the e%tent that they ayattention tothe conce t at all, com letely misa rehend dictatorshi .

'hat Schmitt0 n Schmitt)s a ro riation of the etymological-theoreticaldistinction of *commissarial+ and*so#ereign+ from Jean !odin, and a general discussion of thethesis, see Deorge Schwab, The Challengeof The )*ception: An +ntro uction to the Political + eas of CarlSchmitt bet(een ,-., an ,-/0 'est ort,19493, 0E;1.

D, %#i.< See >rederick Mundell 'atkins, The 1ailure of Constitutional)mergency Po(ers un er the 2erman3epublic Cambridge, 19093 Clinton /ossiter, ConstitutionalDictatorship: Crisis 2o"ernment in 'o ernDemocracies Princeton, 19 43 and "ans !oldt, *?rticle 4 of the'eimar Constitution, 8ts "istorical


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and Political 8m lications,+ in ?nthony 5icholls and BrichMatthias, eds., 2erman Democracy an theTriumph of 4itler Fondon, 19 13, 2;:0.


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 199calls the *bourgeois olitical literature+ either ignores theconce t of dictatorshialtogether or treats it as a slogan to be used against itso onents.:Fiberals ha#e com letely forgotten its classical meaning andassociate theidea and institution solely with *so#ereign+ dictatorshi @ *adistinction isno longer maintained between dictatorshi and Caesarism,and the essentialdetermination of the conce t is marginali=ed & & &dictatorshi )s

commissarialcharacter.+ Fiberals deem a dictator to be any singleindi#idual, oftendemocratically acclaimed, ruling through a centrali=edadministration withlittle olitical constraint, and they e&uate dictatorshiunre$ecti#ely withauthoritarianism, Caesarism, !ona artism, militarygo#ernment, and e#enthe Pa acy.4 (his inattention and misa rehension rules outan im ortantresource for constitutionalists, liberal or conser#ati#e, in the

resent time of crisis and allows dictatorshi to be misused by those whowould ut it toless than *classical+ ends.Schmitt is alarmed that the conce t of dictatorshi seems tobe taken seriouslyonly by the communists with their doctrine of the*dictatorshi of the roletariat.+9 (he communists ha#e the conce t artiallyright in classicalterms, according to Schmitt, for they recogni=e its urelytechnical andtem orary characteristics@ (he dictatorshi of the roletariatis *the means


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for the im lementation 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.+11Schmitt notes that one might then see the communist theoryof dictatorshias sim ly a modern incarnation of the classical institution. !utthis obscuresthe truly fundamental transformation of the essence of theclassical conce t@

(he communist institution em loys tem orary means tocreate a new situation,the classical institution em loyed them to restore a re#iouslye%istingone.12

(his diGerence has im ortant rami7cations for the &uestion of ust howlimited a dictatorshi can be if it is legitimated and bound by afuture situationas o osed to being legitimated by a pre"iously e*isting one.

(he communist

dictatorshi re resents for Schmitt the culmination of themodern historicaltrend toward totally unrestrained olitical action@ (he radicalorientation of modern olitics is dri#en by a fer#or to bring about somefuture good, whose&ualities are so #ague as to ustify unbounded means in theachie#ement

: D, %i;%ii. 8bid., %iii.4 8bid. 9 8bid.1E 8bid., %i#. 11 8bid.12 >or an e%cellent analysis of dictatorshi in Mar% andBngels, see Peter !aehr, Caesar an the 1a ingof the 3oman 6orl : A Stu y in 3epublicanism an Caesarism

Fondon, 19943, 101G.


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2EE %ohn P& 'cCormick of the end. Schmitt distrusts the general historicalde#elo ment by whichthe conce ts of so#ereignty, increasingly o ular so#ereignty,and emergencyaction are merged, culminating in the theorists of the >rench/e#olution,such as Mably and Siey6es. 8n Schmitt)s #iew, they ad#ocate aso#ereigndictatorshi that destroys an old order and creates a new onenot on theauthority of a s eci7c constitutional arrangement or legal

charge, but ratheras the agent of a #ague entity such as the * eo le.+108n the conclusion of Dictatorship , Schmitt returns to thecommunist use of the term dictatorshi , for he clearly sees the communists asthe heirs of the>rench /e#olution@ a radical elite that a3 will use #iolentmeans, b3 in stewith su osedly world-historical rocesses, c3 according tothe sanctionof an anointed o ulace to which it can ne#er really be heldaccountable.Schmitt writes,

(he conce t of dictatorshi & & &as taken u in theresentations of Mar% and Bngels

was reali=ed at 7rst as only a generally re&uisite oliticalslogan & & &!ut the succeedingtradition & & &infused a clear conce tion of 1 90 into the year14 4, and indeednot only as the sum of olitical e% erience and methods. ?sthe conce t de#elo edin systematic relationshi to the hiloso hy of the nineteenthcentury andin olitical relationshi with the e% erience of world war a

articular im ression


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must remain. & & &Hiewed from a general state theory,dictatorshi by a roletariatidenti7ed with the eo le as the o#ercoming of an economiccondition, in whichthe state *dies out,+ resu oses a so#ereign dictatorshi , asit underlies the theoryand ractice of the 5ational Con#ention. Bngels, in his s eechto the CommunistInion in March 14rance1 90.+ (hat is also #alid for the theory of the state which

osits the transition tostatelessness.18n other words, the dangerous s irit of >rance in 1 90, a s iritof so#ereigndictatorshi in the name of a newly so#ereign eo le, a s iritthat culminatesfor Schmitt only in domestic terror and continental war, wasradicali=ed inthe re#olutions of 14 4. 5ow it is embodied by the new So#iet

ower toDermany)s east and by the Derman re#olutionaryorgani=ations that, at the

#ery moment that Schmitt wrote Dictatorship , wereattem ting to sei=e theDerman state.

(he tone of Schmitt)s conclusion diGers signi7cantly enoughfrom thatof the reface and the body of the work such that we candetect a subtleyet distinct change in his strategy. Schmitt)s reface seemedto suggestthat his goal was@ 13 to make u for the scholarly de7ciencyin the*bourgeois literature+ on the sub ect of dictatorshi 23 torender it ossibleto deem the communist use of the term dictatorshi*so#ereign+ in


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10 D, 1


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E1essence, and hence somehow illegitimate and 03 to oGer amore legitimate,constitutional, *commissarial+ alternati#e with which the newre ublicmight tackle the barrage of emergencies with which it wasassaulted. ?gain,the communists understand the classical notion of dictatorshi but tam erwith it so as to eliminate the kinds of legal constitutionalorders that re&uiresuch an institution for their reser#ation. Fiberals ignore or

mischaracteri=eit and thus aid and abet the communists and their designs."owe#er, Schmittintimates toward the close of Dictatorship that erha s whatshould confrontthe so#ereign notion of dictatorshi , touted by domestic andforeign re#olutionaries,is not a notion of commissarial dictatorshi at all, but erha sa counter-theory of so#ereign dictatorshi . Since bothabsolutism and massdemocracy arise out of the same historical mo#ement,Schmitt suggests,gently and furti#ely, that erha s a radicali=ed notion of so#ereignty deri#edfrom absolute monarchy should meet the radicali=ed notion of so#ereigntyderi#ed from the >rench /e#olution.1inally, the o ulist So#iet state that canbedirected to do almost anything by an all- owerful,unaccountable, historicallylegitimated elite should be engaged by a similarly de7nedDerman statedirected by a charismatically, and lebiscitarily, legitimated

resident. (heseare conclusions im licitly suggested, not e% licitly argued, inthe closing

ages of Dictatorship . (hus, Schmitt gra les with the dilemma that the conce t of dictatorshiis being ulled radically leftward by the success of !olshe#ismand

the #acuum that liberals ha#e created with res ect toconstitutional dictatorshion their side of the s ectrum. Fiberals, those who are mostconcernedwith constitutionalism in the contem orary world, ha#eforsaken

1< n the relationshi between the theory of so#ereigntyduring the >rench /e#olution and Schmitt)sown D, 2E0; 3, see Stefan !reuer, *5ationalstaat und ou#oirconstituant bei Siey6es und CarlSchmitt,+ Archi" f!ur 3echts7 un So#ialphilosophie FKK

194 3, 1


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Drundlagen der modernen Lemokratietheorie,+ in "elmutuaritsch, ed., Comple*io 8ppositorum:

9! ber Carl Schmitt !erlin, 19443, 4;:2. 8 would argue thatSchmitt is trying to re-absoluti=e there#olutionary conce t of o ular so#ereignty as much asa ro riate it.


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2E2 %ohn P& 'cCormick this constitutionally crucial institution and allowed it to beabducted andre rogrammed by their enemies on the left. Communists are

ressing foremergency, o ulist constitutional change with #arious#ersions of thedictatorshi of the roletariat. Fiberals are neither able norwilling todefend a #iable theory and ractice of dictatorshi in itsclassical sensee#en in the midst of such crisis-ridden times. (hey refuse to

resort tothe time- and task-s eci7c tem orary measures necessitatedby the sameeconomic and olitical crises that the left uses as occasionand usti7cationto o#erhaul centuries-old dynasties and new re ublicanconstitutionalsystems.1:?s we e%amine Schmitt)s de#elo ing theory of dictatorshi inthene%t section, 8 argue that Schmitt seeks to ush liberalconstitutionalismde7niti#ely aside as olitically ineGectual and obstructionist inthe face of the leftist a ro riation of dictatorshi . (o do so, he de#elo sa rightwingCaesarism to combat the #itality of what he sees as the left-wingCaesarism of !olshe#ism, a counternotion of dictatorshi thatis as substanti#e,all-encom assing, misleadingly *tem orary+ yet ust asconstitutionallyabrogating as that of the communists. Schmitt eGecti#elyargues that sincethe liberal imagination can do no more than con$atedictatorshi with


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Caesarism, this con$ation is e%actly what the liberals deser#e,and Schmittwill be the one to gi#e it to them.8n his ne%t book, Political Theology , Schmitt es ouses a notionof so#ereignty embodied in the 3eichspr!asi ent , who is notencumbered byconstitutional restraints but only the demands of a oliticale%ce tion. (he

resident, as the ersonal embodiment of the o ular will thatcan not be

rocedurally ascertained in a time of crisis, has thedemocratically charismaticauthority to act ; unconstitutionally or e#enanticonstitutionally, withall the force and legitimacy of that originary o ular will.1Schmitt ad#ancesthe #ery fusing of o ular so#ereignty and emergency owersthathe showed to be otentially abusi#e in Dictatorship .

1: Schmitt rotests too much. "e makes it sound as if hiscase for dictatorshi against liberalism is

more diNcult than it actually is, as his rescri tions conformwith a owerful sociological reality@Schmitt)s call for Caesarism was likely to be recei#ed warmlyby a 'eimar bourgeoisie that was nolonger so readily inclined toward liberalism. See thede#astating analysis of Schmitt, his intellectualcircle, and the Derman bourgeoisie by Siegfried Oracauer@*/e#olt of the Middle Classes+ 19013,in Oracauer, The 'ass 8rnament: 6eimar )ssays , trans. anded. (homas . Fe#in Cambridge, 199


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of Caesarism and charisma in 'eber is !aehr, Caesar an the1a ing of the 3oman 6orl ,cha . .


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E0commissarial or caesarist dictatorshi Q

ne of the central aims of Schmitt)s 'eimar work is to ustifyso#ereigndictatorial owers for the 3eichspr!asi ent of the /e ublic.Loes Schmitt)sformulation of residential so#ereign dictatorshi conformwith CaesarismQ8f the latter conce t can be understood in terms of a singleleader whoclaims to re resent an entire eo le as a result of lebiscite,who maintains

his authority through owerful military authority ande%tensi#e bureaucraticmachinery, then the answer is, as this section demonstrates,yes.14

(he 7rst sentence of Political Theology , ublished the yearafter Dictatorship ,signals Schmitt)s endorsement of something much closer toso#ereign thancommissarial dictatorshi @ *So#ereign is he who decides onthe e%ce tion+Sou"er!an ist5 (er !uber en Ausnahme#ustan

entschei et 3.19 Schmitt celebratesthe #ery merging of the normal and e%ce tional moments thatin Dictatorshiphe analy=ed as a olitically athological element of so#ereigndictatorshi . "ee#en encourages it with the ambiguous use of the re osition*on+ !uber 3,which belies the distinction that he himself acknowledges inthe earlierbook between, on the one hand, the body that decides that ane%ce tionalsituation e%ists in the /oman case, the Senate through theconsuls3 and,on the other, the erson a ointed by that body to decidewhat to do in


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the concrete articulars of the emergency, the dictatorhimself. (he twose arate decisions, one taking lace in the moment of normalcy, the otherin the moment of e%ce tion, are lum ed together and thenhidden behindthe ostensible directness of Schmitt)s o ening statement inPolitical Theology .8ndeed, further on in the work Schmitt e% licitly anddeliberately con$atesthe two decisions@ (he so#ereign *decides whether there is ane%tremeemergency as (ell as what must be done to eliminate it.+2E

(here is also no attem t in Political Theology to rescribewhat fundamentaltime- or task-3 related limits might be im osed on aso#ereign)s actionin the e%ce tional situation Schmitt suggests that this is, infact, im ossiblebecause an e%ce tion *cannot be circumscribed factually andmade to conformto a reformed law & & & (he reconditions as well as thecontent of a

urisdictional com etence in such a case must necessarily beunlimited.+21/ather than restoring a re#ious order in an emergency, theemergency

14 8 draw somewhat loosely on the more re7ned tracing of !ona artism and Caesarism to fascism byFuisa Mangoni, *Per una de7ni=ione del fascismo@ 8 concetti dibona artismo e cesarismo,+ +taliaContemporanea 01 19 93, 1 ;


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2E %ohn P& 'cCormick actor is the order itself made dramatically manifest by a crisis@*8t is reciselythe e%ce tion that makes rele#ant the sub ect of so#ereignty,that is,the whole &uestion of so#ereignty.+22 ?ccording to thecommissarial notionof dictatorshi , the dictator was free to do whate#er wasnecessary in the

articular e%ce tional moment to address an unforeseen crisisthat is identi7edby a diGerent and regular institution. ?nd the dictator was

bound as a* recondition+ to return the go#ernment to that law within as eci7c eriodof time. Schmitt occludes these crucial distinctions in thesecond morefamous work and e% ands the unlimitedness of dictatorshiby renouncingthe #ery characteristics of the classical model he only recentlyadmired aswell as those of the liberal constitutionalism he nowconsistently derides@*8f measures undertaken in an e%ce tion could becircumscribed by mutualcontrol, by im osing a time limit, or 7nally, as in the liberalconstitutional

rocedure go#erning a state of siege, by enumeratinge%traordinary owers,the &uestion of so#ereignty would then be considered lesssigni7cant.+208ndeed, his use of the term *so#ereign+ im lies some kind of lawmakingor lawgi#ing ower that could change the re#ious order ore#en createa new one.

(he conclusion that one is com elled to draw from PoliticalTheology is


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that a regime with institutional di#ersity, with aconstitutionally enumerated*di#ision and mutual control of com etences+2 ; or what ismore generallyknown as se aration of owers ; ine#itably araly=es a statein the face of an e%ce tion because it obscures who is so#ereign, who mustdecide andact at that moment.2< ?ccording to Schmitt)s formulation, inall cases of emergency it would seem necessary to ha#e recourse to aunitary institutionwith a mono oly on decisions so that no such confusion orcon$ict occurs.

(hus, in #iolation of the main rinci les of classicaldictatorshi , normalcyand e%ce tion are colla sed, and ordinary rule of law andconstitutionalstructure are dangerously encroached u on by e%ce tionalabsolutism.

22 8bid.20 8n Dictatorship Schmitt obser#es that the military state of

siege is the closest thing to commissarialdictatorshi allowed by liberal theory, but e#en this iscon$ated with so#ereign dictatorshi D, %i#3.Schmitt distinguishes between dictatorshi and a militarystate of siege most e%tensi#ely in *Liktaturund !elagerungs=ustand@ Bine staatsrechtliche Studie,+

eitschrift f!ur ie gesamte Strafrechts(issenschaft 04 191 3, 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 anPractice of6eimar Constitutionalism Lurham,199 3, < ;4. Caldwell)s inter retation of this essay suggeststhat Schmitt turned to the notion of commissarial dictatorshi after it became clear that the stateof siege had been irre#ocably linked with


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dictatorshi in a so#ereign sense. ?s 8 argue abo#e, Schmittabandons commissarial dictatorshi aswell once he reali=es that it too can no longer be e%tricatedfrom *so#ereign+ connotations. Schmitt)sown ca itulation to so#ereign dictatorshi hence ser#es toradicali=e his theory from conser#atismto fascism. ?lso, PT , 12.2 PT , 11. 2< 8bid., .


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2Eor a detailed account of this strategy, see 8ngeborg Maus,>!urgerliche 3echtstheorie un 1aschismus:

ur so#ialen 1unktion un aktuellen 6irkung er Theorie CarlSchmitts MAunchen, 194E3, 12 ;01.


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2Ecountermo#ement.+0< "owe#er, this articular socio-economic situationthat the resident must address necessarily calls for acti#itythat is substantiallybeyond commissarial action and restitution. 8n fact, it entailsthewholesale redirecting of structural historical transformation ona macroeconomic,social, and olitical scale a redirecting that could ne#er bemetin the time- and task-3 bound fashion of commissarial

dictatorshi , but thatmust rather be met by the constitution amending of so#ereigndictatorshi .0:Loes Schmitt e% ect that he can address the wholesalereconstruction of thestate society relationshi that he describes in 2uar ian andnot be ercei#edas simultaneously calling for the wholesale reconstruction of the 'eimarconstitutionQ 5o. Schmitt does not rely on the earlier e%am leof PresidentBbert)s tem orary economic measures in the new re ublic,but rather s eaksin terms of much more com rehensi#e change.

(hus, gi#en the scale of the necessary state control of theeconomy, the

resu osed doling out of social transfers through militaryser#ice bene7tsrather than uni#ersal welfare ro#isions, the romotion of nationalismthrough mass media, and the achie#ement of culturalconformitythrough bureaucratic administration, Schmitt can be said totheori=e thesocially transformati#e as ects of Caesarism to another le#el.

(he redistributi#e


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military ro ects of Julius Caesar, the Jacobins, and the!ona artesare smaller scale and &ualitati#ely less intrusi#e oliticallythan Schmitt)s reformulationof the state society di#ide in his works of the early thirties.Schmitt disa ro#es of socially generated state inter#ention,whether liberal,social democratic, or !olshe#istic, but encourages state self-generatedinter#ention characteristic of Mussolini)s >ascism.08n s eci7c constitutional terms, this socio-economic agenda isto beachie#ed by dismantling or neutrali=ing the se aration of

owers. !ymarginali=ing the other branches of go#ernment in 2uar ian ,Schmitt cle#erlyremo#es any checks that could limit or sha e the resident)sdictatorialactions in such a way as to gi#e them any semblance of commissarial character.Schmitt admits that a working /eichstag would be ana ro riatecheck on residential emergency owers.04 Since such a

situation of arliamentaryeNcacy does not obtain in the socially tumultuous conditionsof

0< 4V , 11 .0: n the radically dynamic as o osed to staticallyconser#ati#e character of Schmitt)s socio-economic

ro osals, see Maus, >!urgerliche 3echtstheorie un1aschismus , 1E9, 12: on the constitutionally abrogatingrami7cations of his olitical economy, see Jean Cohen and?ndrew ?rato, Ci"il Society anPolitical Theory Cambridge, 19923, 201; 1.0 See McCormick, Carl Schmitts Critique of Liberalism , 19 ,229; , 2 9;4E.04 4V , 10E;1.


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2E4 %ohn P& 'cCormick 'eimar, he makes no eGort to search for an alternati#e check.8n fact, reciselybecause the resident is lebiscitarily elected by the eo lethere is noneed for checks because the unity of the eo le)s so#ereignwill is charismaticallyembodied within him and his emergency action is thusnecessarilylegitimate.09 !y the conclusion of 2uar ian , Schmitt hasformulated a o ularlylegitimated so#ereign dictatorshi of the nation in the erson

of a ur ortedlycharismatic Derman resident that in essence mirrors theo ularly

legitimated so#ereign dictatorshi of the So#iet communistarty. Schmitt

counters the *dictatorshi of the roletariat+ with a*dictatorshi of the nation.+Presumably it is against the e%ternal enemy and its domestic

artisanswho cham ion the former dictatorshi that Schmitt)s nationaldictatorshiis ready to take *action.+ (he 'eimar Constitution, concludesSchmitt,

resu oses the entire Derman eo le as a unity which isimmediately ready foraction and not 7rst mediated through social-grouorgani=ation. 8t can e% ress itswill and at the decisi#e moment 7nd its way back to unity andbring its in$uenceto bear o#er and beyond luralistic di#isions. (he constitutionseeks es ecially togi#e the authority of the 3eichspr!asi ent the ossibility of binding itself immediatelywith the olitical total will of the Derman eo le and reciselythereby to act as


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guardian and rotector of the unity and totality of the Dermaneo le. E

Schmitt em hasi=es the artial, that is, democraticallyillegitimate &ualityof the de facto arty dictatorshi of !olshe#ism. "e hides theelitist, andhence e&ually artial and illegitimate, &uality of his ownformulation of adictatorshi of the resident, which means in actuality,go#ernment of thearistocrats and cor orate barons that surround3eichspr!asi ent "indenburg.8n 1902, ust as the crisis of the 'eimar /e ublic was reachingits clima%,and ust before Schmitt would endorse a more radical form of fascismas the ultimate solution to that crisis, Schmitt ublished thebook-lengthessay, Legality an Legitimacy . Schmitt ca s oG the line of thought that hehad been de#elo ing o#er the last decade such that it isalmost com letelyim ossible to identify in the book when he is talking about

normal constitutionalo erations and when he is talking about emergency ones. (hetension that Schmitt sees inherent in the'eimar constitutionand that ser#esas the source for the book)s title * lebiscitary legitimacy +#ersus *statutorylegality +3 1 is de7niti#ely resol#ed in fa#or of the former.Schmitt resol#esit on the basis of the historical necessity of a mass democraticmoment,what Schmitt calls *the lebiscitary immediacy of the deciding

eo le as

09 8bid., 11:, 1


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 2E9legislator.+ 2 (he resident, as conduit for such *immediacy,+takes on authoritysimilar to that of the traditional *e%tra-ordinary legislator+who mayact *against the law.+ 0 (he ossibility of a commissarialdictatorshi is nolonger mentioned either as it was for substanti#e ur oses in1921 or as it wasfor cosmetic ur oses in the mid-twenties. (he unlimitede%tent of owerthat was re#iously reser#ed for e%traordinary moments is

now in#oked asthe ordinary com etence of an e%ecuti#e answerable only tothe acclamationof lebiscitary moments. 8n May 1900, Schmitt oined the5ationalSocialist arty.>or the ur oses of this #olume, Schmitt)s theory is clearlyim ortantfor better understanding the continuity and ru tures withinthe legacy of modern authoritarianism. "owe#er, Schmitt)s writings osesomething of a

u==le for those who wish to see the historical s eci7city of fascism withinthis legacy. ?fter all, at the most abstract le#el, at the le#el of te%tual analysisalone, it is diNcult to in oint what makes Schmitt)s thoughtfascist, as o osedto absolutist or !ona artist. "is writings call for the rule of one

ersonwho embodies the o ular will to maintain social order and todefend againste%ternal enemies. "is ersistent rhetoric insists on the state)sse aration fromsociety so as to better maintain order within it. (hesearguments can be


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read in assi#e as o osed to aggressi#e terms. Students of Schmitt withan without neoconser#ati#e olitical agendas ha#e read himin this way.8 would submit that were it not for our historical knowledge of Schmitt)scom licity with the olitical strategies of, successi#ely,Prussian militaryelites, Catholic aristocrats, and, 7nally, 5ational Socialism, itwould be diNcultto deci her the s eci7cities of Schmitt)s ractical rogramfrom his workalone. (he case of Schmitt highlights the necessity of usingsociological andhistorical methods along with those of te%tual olitical theory.

nce wetake into account Schmitt)s olitical aNliations and racticalengagements,we can begin to make some ro#isional com arisons. 'hat isinterestingabout Schmitt)s own brand of fascism is its combination of absolutist and!ona artist Caesarist elements. Schmitt)s theory diGers from

Caesarism inits fundamentally reactionary &uality. Caesar and 5a oleoncould claim tosol#e olitical crises while at the same time ad#ancing the

o ulist s irit of the regimes they o#erthrew. (he more or less genuinelyegalitarian social

olicies of the 7rst Caesar and !ona arte notwithstandingthe stultifyingeGects of those olicies on the o ulace3 do not e%ist inSchmitt)s scheme.Inlike theorists of absolutism, Schmitt celebrates o ularso#ereignty,e#en democracy. "owe#er, the authentic e&uality of *allbefore the one+ in


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2 8bid., 01 . 0 8bid., 02E.


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21E %ohn P& 'cCormick Caesarism and !ona artism is a ro riated only rhetoricallyby Schmitt.

(he rograms that he endorses ser#e cli&ues ruling throughthe residencyand olicies that reinforce social hierarchy. Fike absolutismthen,Schmitt)s osition is far more tolerant in ractice than it is inthe theoryof *intermediary bodies+ that ser#e, rather than threaten, thestate. (hus,while Caesarism and !ona artism might be athologically

democratic,Schmitt)s olitical theory and ractice remind us that fascismis boguslydemocratic.liberalism, e%ce tions, and the so#ereign dictatorshiof rocedures8f we e%amine Schmitt)s criti&ue of liberalism with res ect todictatorshiat its most abstract, we obser#e these two rongs of hisassault@ 13 liberalsha#e no conce tion of the olitical e%ce tion because of scientistic delusion,a delusion that will lead to the colla se of constitutionalregimes and

23 if liberals concede that they do indeed ha#e such aconce tion, they willnecessarily resort to measures that are antiliberal to addresssuch circumstances,thereby also endangering constitutional regimes. 8n thissection, 8e#aluate these two as ects of Schmitt)s criti&ue of liberalismand oliticalcrisis. 8 conclude the section with Schmitt-informed re$ectionson !ruce?ckerman)s liberal theory of crisis and constitutional change.


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(he 7rst com onent of Schmitt)s criti&ue is grounded in hisunderstandingof modernity@ ?s Bnlightenment olitical thought fallsincreasinglyunder the thrall of modern natural science, it comes to regardnature,and hence olitical nature, as a more regular henomenon.Conse&uently,there is deemed less need for the discretionary and rudential

owers, longconferred u on udges and e%ecuti#es by traditional oliticaltheories, including?ristotelianism and Scholasticism ; discretion and rudencethatfound its e%treme e%am le in the case of classicaldictatorshi . ?s the functionalnecessity of such discretion a arently subsides in theBnlightenment,the normati#e assessment of it becomes increasinglynegati#e, and such rudencebecomes associated with arbitrariness and abuse of state

ower.Schmitt com ares the e%ce tion in constitutional theory to the

miraclein theology@ (he latter is the direct inter#ention of Dod into thenormalcourse of nature)s acti#ity, and the former is the occasion forthe inter#entionof the so#ereign into the normal legal order. "owe#er, the*rationalism of the Bnlightenment re ected the e%ce tion in e#ery form.+ or ?ckerman, on thecontrary, it isthe constitutional moment that is more o ularly artici atorythan normalmoments. ?fter all, e#en Schmitt ays li ser#ice to the

ossibility of con#entionalelectoral olitics in ordinary time.:E ?s ?ckerman describesthedistinction, constitutional moments are those *rare momentswhen transformati#emo#ements earn broad and dee su ort for their initiati#es+they

are *moments of mobili=ed o ular renewal.+:1 n the otherhand, normalolitics is identi7ed with the routine olitical artici ation that

com eteswith the acti#ities of eo le)s ri#ate li#es for their attention.Constitutionalmoments are fundamentally diGerent because in them,

olitics can take center stage with com elling force. (hee#ents cataly=ing a rise in

olitical consciousness ha#e been as #arious as the country)shistory ; war, economic


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21: %ohn P& 'cCormick catastro he, or urgent a eals to the national conscience. >orwhate#er reason,

olitical talk and action begin to take on an urgency andbreadth lacking most of the time. 5ormally assi#e citi=ens become more acti#e ;arguing, mobili=ing, andsacri7cing their other interests to a degree that seems tothem e%traordinary.:28nherent in ?ckerman)s conce tion of crises is an intensi7edengagement bythe eo le with olitics, not, as in Schmitt)s, their stu efaction

by olitics.'hat se arates ?ckerman from Schmitt then is, 7rst, a longertime framefor the resolution of crisis as much as a whole generation of

olitical fomentand a decade de#oted to change itself. Second, and related, isan em hasis onthe discursi#e, as o osed to acclamatory, &uality of o ular

artici ation atthese times. ?s ?ckerman uts it, theI.S. constitutionalsystem *encouragesan engaged citi=enry to focus on fundamental issues anddetermine whetherany ro osed solution deser#es its considered su ort.+:0

(here is, in hisown words, a * lebiscitary+ &uality to ?ckerman)s model, butconstitutionalchange is ne#er legitimated on the basis of any one lebiscitebut rathera *series+ of "ouse, Senate, and residential elections.:Iltimately,?ckerman is most un-Schmittian institutionally in hisunderstanding of the se aration of owers as the enabling *central engine+ of ;not the obstacle


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to ; the resolution of a constitutional crisis. (he structuralri#alry amongbranches intensi7es deliberation and com etition for o ularsu ort whichclari7es issues, and e#entually initiates de7niti#e referencedeclarations bythe eo le.:< Schmitt)s /eichs rAasident can ha#e no clearidea of the substanti#e

references of the eo le deri#ed from one election,regardless of how recent it is. 8ssues can not be clari7ed for anyone in thisframeworke%ce t to the e%tent that the olitical and economic elitesaround the residentdeign to do so for him and the eo le. Schmitt unashamedlycallssuch a scenario *democratic.+ (he schema shown in (able 9.1com aresand contrasts Schmitt and ?ckerman on these oints.?ckerman artly con7rms and artly re udiates Schmitt)s 7rstcriticismof liberalism)s res onse to unforeseen circumstances@?ckerman)s kind of

liberalism will take too long and be too deliberati#e to addressan immediatecrisis. !ut this is not what ?ckerman)s framework is designedto resol#e."owe#er, his framework is o en to the kind of dramaticconstitutionalchange that Schmitt was doubtful liberalism could successfullyundertake. 8s?ckerman ne#ertheless susce tible to Schmitt)s secondcriticism that liberalattem ts to address constitutional crises will be illiberalQ?ckerman resortsto arguments that surely make more con#entional liberalconstitutionalists

:2 8bid., :. :0 8bid.


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: 8bid., 21. :< 8bid., 21, 20.


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 21

(able 9.1. Schmitt?ckerman

)*ceptional moment emergency transformationtransformation

Political response so#ereign dictatorshi byconstitutional emendation led by resident

resident or legislature

Popular (ill eo le acclaiming througheo le *deliberating+ through

lebisciteresidential and congressional

elections, udicial decisions, and state rati7cation rocess

Time frame immediatee%tended

uncomfortable.:: ?ckerman cham ions the, shall we say,legally creati#eway in which olitical actors at times a#oided establishedmodes of I.S.

constitutional re#ision. >or instance, ?ckerman argues that itis a mistaketo characteri=e the history of ?merican constitutional changeas a faithfuladherence to the *rules of the game.+: (he Constitutionitself was


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illegal gi#en the lack of authori=ation from the ?rticles of Confederationgo#ernment to refound the regime and the ost;Ci#il 'ar/e ublicanscircum#ented rescribed methods to ratify the >ourteenth?mendment. 8ngeneral, ?ckerman may erha s dwell too long for someliberals) taste onthe fact that ?rticle < of the I.S. Constitution is the described,but notnecessarily e*clusi"e means of re#ising the Constitution.:4 "elea#es o enthe ossibility that there might in fact be a #ariety of suchother means.?ckerman certainly a#oids Schmittian Caesarism by taking the#ery constitutionalmechanisms that Schmitt claimed would be inca able of addressinge%traordinary moments and inter reting them as in fact beingbetterat facilitating such redress and ha#ing more substanti#e

o ular legitimacy. et the ?ckerman model still retains certain Caesarist traces.

>or one, it una ologeticallyacknowledges the im ortance of *wartime trium hs+ in boththe >ederalist founding and the /e ublican refounding afterthe Ci#il'ar.:98t em hasi=es the use of *old institutions in new ways+ E that,according to

:: 8n fact, ?ckerman)s understanding of how e%traordinarycrises may be actually absorbed into theregime itself through constitutional ada tation o#er time iscloser to Machia#elli)s re ublican theorythan anything in the liberal or Bnlightenment tradition. >orMachia#elli, crises were absorbed directlyinto the institutions of re ublican regimes rather than #ia

rocedures as in ?ckerman)s theory. n this as ect of Machia#elli, see John P. McCormick, *?ddressing the Political


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B%ce tion@ Machia#elli)sT?ccidents) and the Mi%ed /egime,+ American Political Science 3e"ie( 4 , no. Lecember 19903,444;9EE.: 6TP. , 11. :4 8bid., 1


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214 %ohn P& 'cCormick cynical readings, is recisely what both Caesars and both!ona artes did withres ect to the re ublican orders they su lanted but

retended to maintain. (he re eated em hasis on *uncon#entional ada tation+ 1may not need tobe stretched too far to be understood as a eu hemism fore%tra-legal action.

(he obser#ation that each transformation in I.S.constitutional history furthernationali=ed the federal go#ernment at the e% ense of state

ower willnot endear ?ckerman to (oc&ue#illian critics of theadministrati#e state.Bach of these is an element of traditional Caesarism. et,?ckerman utsthem in the ser#ice of a deliberating o ulace rather than ademagogic indi#idualor grou of elites. 8n contrast to the bogus o ulism of theCaesaristcase, the eo le themsel#es ad#ance their claim to owerthrough roceduresthat if followed can allow and facilitate *so#ereign+ change.?ckermanis comfortable with the fact that the eo le of the InitedStates could reachany social goal desired, so long as they do so through thetime-e%tendedand institutionally arduous rocedures of constitutionalchange. 8t is reciselythe elements of time and rocedure that se arate liberalso#ereigndictatorshi , if that is what we should call it, and Jacobin or!ona artistso#ereign dictatorshi . 2conclusion


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Schmitt)s theory of dictatorshi ful7lls his own ro hecy thatthe mergingof so#ereign will and emergency circumstances would ser#eas the occasionfor Caesarist cou s against constitutional orders. 'hen anindi#idual like aCaesar or a !ona arte can claim both 13 to bring stability to are ublicanorder that has become ungo#ernable an 23 to re resent thewhole eo lewhen so doing, constitutional go#ernment is 7nished. Schmittcomesto the conclusion that history has decreed that increasinglyeconomicallyegalitarian forces will make such mo#es in times of crisis toenact so#ereigndictatorshi s that liberals would make no eGort to counterwith commissarialemergency measures. (hus, he takes it u on himself toformulate aright-wing #ersion of so#ereign dictatorshi . 8t em hasi=esnationalism o#eregalitarianism and attem ts to buy oG o ulaces, not with

straightforwardsocial welfare measures, but those mediated through militaryser#ice. (o e%cludeany alternati#e other than his fascist theory of so#ereigndictatorshi

1 8bid., 22.2 (hese &ualities are what se arates ?ckerman)s #ersion of

what ?ndrew ?rato calls *constitutionaldictatorshi + from the more athological ones that arise fromeasy access to the a aratus of constitutionalemendation. See ?ndrew ?rato, *Blections, Coalitions andConstitutionalism in "ungary,+)ast )uropean Constitutional 3e"ie( 0, nos. 0 and

Summer >all 199 3, 2;40.


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Schmitt on Dictatorship5 Liberalism5 )mergency Po(ers 219and its !olshe#ist ad#ersary, Schmitt fashions a narrati#eabout liberalismand olitical e%ce tions that insures that liberals will beunable to intercedein the debate and that if they do, they will further eo ardi=etheir oliticsand rinci les.

(wo challenges to Schmitt on these oints@ >irst, left-wingCaesarismdid not ha#e a mono oly on the ractice of dictatorshi in theyears ust

receding and following the turn of the century, as shown bythe oNcialregime of the second !ona arte in >rance and the de factoone of DeneralBrich FudendorG in Dermany during 'orld 'ar 8.Conse&uently, therewas not the dire need for the conce tually brilliant andhistorically cunningalternati#e theory of dictatorshi outlined by Schmitt. Second,the liberaltradition, from Focke to ?ckerman, while ob#iously not as

reoccu iedwith constitutional crisis management as Schmitt, certainlyhas more tooGer on the matter than Schmitt and his historical logicsuggest.

(hrough both diagnosis and demonstration, Schmitt)s writingson dictatorshicon7rm the socio- olitical continuity from Caesarism tofascismin the twentieth century. 8ndeed it ser#es to remind us of thenecessity of further theoretical analysis of the legacy of modernauthoritarianism fromabsolutism to fascism. 0 (here continues to be a need forscholarshi that


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challenges the comforting narrati#es which osit ano#ercoming of organi=eddomination since the end of the Middle ?ges, as a result of thewa#eof re#olutions that succeeded the o#erthrow of the ancienregime in >rance,or the subse&uent emergence of liberal and social democracy.?ny accountof modern olitical history and olitical hiloso hy that #iewsauthoritarianmo#ements and regimes as *e%ce tions+ in the *age of reason+ mustbe dis elled, lest we let down our collecti#e guard

ermanently. Moreo#er,work on authoritarianism should resist the tem tation tosu ort the e&uallyinaccurate and harmful counter-narrati#e one that combinesa articularreading of (oc&ue#ille with neoconser#atism3 which asserts aninherent anduna#oidable authoritarian strain in modern olitics ande% anding formsof mass democracy. Schmitt is a crucial 7gure for this kind of

analysis reciselybecause his writings oint out the dangers of authoritarianismin massdemocracy and, more im ortantly, also ser#e as a model forhow not tores ond to such su osed athologies@ s eci7cally, byconcluding that somesu osedly less e#il form of sham mass democracy is ana ro riate solutionto such dangers.

0 See the ioneering work of Mel#in /ichter, *(oward aConce t of Political 8llegitimacy@ !ona artistLictatorshi and Lemocratic Fegitimacy,+ Political Theory 1E,no. 2 19423, 14


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McCormick, John P.. From Constitutional Technique to Caesarist Ploy