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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, 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.