Justice Oliver Wendell Holmes' two-paragraph dissent in Lochner v. New York does not grapple with the question: what does the 14th Amendment enact?
Jeremy Rabkin has captured a good sense of Carl Schmitt in his Liberty Forum essay. Like him, I agree that it is difficult to grapple with the author’s exceedingly abstract prose. But there is a certain urgency that requires us to try, if only because, as Rabkin has also shown, the allure is proving all too powerful for a certain set of intellectuals for whom Schmitt, precisely because of the taboo quality of his oeuvre, projects an “enduring fascination.” As much then as we might like to ignore him, that won’t do. We have to unpack the arguments and their implications.
In that spirit, I want to expand on a particular aspect of Schmitt’s thought that has not been mentioned, an aspect that is proving particularly nettlesome for the interpretation of political and legal history. In particular, I think it imperative to understand that even in the area Rabkin sees as dominated by “ ‘cultural theorists,’ with their fixation on ephemeral ‘signifiers,’” Schmitt has had a profound impact—perhaps his deepest.
For all of his realism, for all his focus on “the exercise of political power,” Schmitt’s mode of operation was to apply, among other things, the instruments of German linguistic hermeneutics in an effort to “understand” the very processes of political concept formation. It is here that his appeal for the Left has been well nigh irresistible.
We can begin by situating Schmitt in the context of certain lines of German historical and philosophical thought since the beginning of the modern era. When Germans first encountered Humean skepticism, it shook an otherwise religious country to its foundations and directed attention to the vagaries of history. For many, the ensuing doubts and uncertainty could only be alleviated by focusing on the one constant that seemed to be left standing: the processes of change themselves.
If everything changes, is there something in the process of history itself that can still be known and grasped? Dualities of various sorts became a favored mode of analysis: Object and perception; “Ich” and “Nicht-Ich”; theses and antitheses; capitalists and proletarians; community and society. Schmitt’s all too famous friend and enemy distinction followed in this long train, as he himself recognized. It is here that his critique of a liberal political order ultimately rested, and it is here that engagement is necessary. It is also the key to understanding the perplexing combination of abstractness and seeming realism to which Rabkin refers.
Niccolo Machiavelli and Thomas Hobbes are often regarded as the paragons of modernity because of their readiness to see human behavior in its most unflattering light. Who could doubt that mankind is capable of the worst in thought and deed? Planting one’s political stakes in such base soil appears secure enough, and is often characterized as a kind of bracing realism. Schmitt plays off of this same association, and by adding a pinch of identity conflict a la the dialectic of friend and foe, he reinforces his intellectual allure by suggesting the necessity of historical struggle. In its abstractness, The Concept of the Political, very clinically, very matter-of-factly, asserts the inescapably coercive quality of all social order.
One is almost taken unawares. Us versus them moves quite matter-of-factly into Hobbes’ bellum omnium contra omnes as though the categories and ends of both are the same. All relations thus become power relations all the way down, and man’s natural state remains his permanent condition, as Rabkin also recognizes. The political becomes the only basis of order because it is the perpetual relation not among persons, but groups.
We need to pause, however, and consider this a bit further. As Leo Strauss noted in his comment on Schmitt, Hobbes began with the war of every individual against every other. It was this that made the creation of the state a necessity, but the object was to preserve individual lives and to set the preconditions for the associations of commerce, culture, and society to form—in other words, all those sorts of associations that comprise civil society in its fuller, and liberal, sense.
But in Schmitt’s case, the war of all groups against all groups affirmed the opposite polarity, with war, or perhaps more accurately, struggle as the end, and not peace. One might suggest that he has given a new spin to Carl von Clausewitz—war as a continuation of politics—in this case, politics as just another means of war.
The temptation when encountering this level of pessimism can be, and has been, to credit the author with even greater realism than Machiavelli and Hobbes. And certainly in his day, the Weimar Republic seemed to confirm Schmitt’s particular sociology. Radical workers demonstrating in Berlin, a “soviet” in control of Bavaria, Rightist militia marches, violent clashes on the streets—all underscored the futility of Weimar. That said, does his argument transcend the chaotic time and place to pose a fundamental critique of liberalism? Strauss thought not, contending that Schmitt’s opposite polarity remained entrapped in the liberal paradigm. Schmitt “remains trapped in the view that he is attacking,” wrote Strauss, and so merely affirmed what liberalism sought to negate.
Curiously, Schmitt thought well enough of Strauss’s notes to include them in the 1931 edition of his essay. He might have agreed with the articulation of the problem. He certainly thought Strauss had understood him better than most anyone else. But I doubt he thought Strauss correct in his concluding assessment. Here is the real significance of Schmitt’s focus on the conflict of groups as the principal form of human struggle: identity rooted in language.
Thinking in terms of concept and language formation was a common and developing aspect of social thought in Europe at the time. Language was held to be the key to the creation of group identity. There were no persons separate from the collectivities defined by language. And for Schmitt, language captured the very essence of the primal need among persons to define themselves against others. Political concepts were the most basic instruments of conflict, arising, said Schmitt, “out of a concrete polarity [konkrete Gegensätzlichkeit] of foreign or domestic politics and without these oppositions, are only misunderstood, meaningless abstractions.” (This is the translation of Timo Pankakoski, who has brought these issues into sharper focus in a recent contribution to the literature.)
It is interesting, however, that this point has frequently been missed by so many critical reviews of Schmitt. John P. McCormick, for example, in his Carl Schmitt’s Critique of Liberalism (1997), mentions the use being made of Schmitt’s thought by those drawn to the “postmodernism of Jacque Derrida, Michael Foucault, and many of their devotees,” but he says virtually nothing about why this is so. It is postmodern discourse theory! For such theorists, political concepts are the concrete embodiment of actual conflict, as Schmitt said even in his original essay. To those who understand speech as expressive of power relations, the object becomes the creation of counter-narratives to challenge dominant linguistic structures. This is deconstructionism.
Schmitt encamped himself squarely on this ground. It was the base from which he launched his critical forays against the liberal theorists of his day, liberals like Hugo Krabbe, Hans Kelsen and Hugo Preuss. Each epitomized what Schmitt thought was wrong with liberalism. They were either unwittingly covering up the real sources of political power, or doing so knowingly. Either way, the liberals’ terms supposedly flirted with anarchy and social decay. Why?
The oldest forms of liberalism tended initially to be neutral with regard to the form of the state. Old Whigs in England, for example, could be found to support king or lords or commons in nearly any proportion so long as the government upheld the laws of the land and the basic guarantees of life, liberty, and estates. That began to change late in the 18th century and, on the Continent, quite dramatically after Napoleon.
That a strong state might be necessary for defense was an especially important point after 1806-1807. Yet how does one fight Napoleon without inadvertently creating another strong state at home? German liberals in the middle part of the 19th century would come to argue for a state that would itself be neutral with respect to civil society. A neutral Rechtstaat would tolerate social disagreement and a great variety of parties, so long as all members of society complied with the laws as duly constituted through broadly representative institutions. Positive law, produced by society’s representatives and enforced neutrally on all members, was the essential condition for the rule of law properly understood for both Kelsen and Preuss.
In Political Theology, Schmitt insisted that this vision was at odds with itself. Tolerating even intolerant parties so long as they abided by legal forms was merely an invitation to its own undoing. The political would not go away, and a liberal state made itself vulnerable to the contest among groups to seize power. Each would apply concepts to redefine and recast their particular purposes to the end of exploiting political power.
The liberal bourgeoisie, he went on to argue, were the only ones who could even want to imagine living without the political. Hating the pretensions of monarchs and aristocrats, they would run leftward—only to discover the Left waiting for them with socialism and radical democracy. Where, then, to run for the protection of their property? The bourgeois liberal, Schmitt wrote in Political Theology (borrowing an argument from the Junker conservative F. J. Stahl), “thus oscillated between his two enemies and wanted to fool both.” That was his assessment of constitutional liberalism—a game of bait-and-switch doomed ultimately to ruin.
Was he right? Those who want to reconstruct new discourses to deconstruct old paradigms think he was. They imagine that new narratives in the form of new histories will galvanize groups to make new claims on the power of the state. As the producers of these new concepts and ideas, however, they forget one important point of Schmitt’s argument. They all believe they will be able to control the outcomes but, as Schmitt knew, “State and politics cannot be exterminated.”
Not too long ago, Hayden White wrote a forward to Reinhart Koselleck’s The Practice of Conceptual History (2001). In it White wrote:
Historical reality is social reality, an internally differentiated structure of functional relationships in which the rights and interests of one group collide with those of other groups [Where have we heard this before?] and lead to the kinds of conflicts in which defeat is experienced as an ethical failure requiring refection on ‘what went wrong’ in order to determine the historical significance of the conflict itself.
And so what is the role of history?
Every “historical account,” White went on, “is a construction in discourse of past reality rather than simply a translation of the facts contained in the evidence into contemporary language.” But not to fear, writes he, for “as historical knowledge dissolves the myths, lies, and falsifications of history, it secures a stable base from which to assess and augment that ‘space of experience’ in which men build a notion of human reality that is both changing and ever more becoming itself.”
Schmitt is smiling. Whose history? Whose lies? Whose stable base?
He understood the implications, even if White won’t fully acknowledge them. Government, as the instrument of power, as the purveyor of final decisions, is the stable political eternal, because there will always be other claims to be constructed. Those claims might be couched in terms of abstract justice, of constitutional neutrality, of the rights of the downtrodden. The reality, though, will always be someone’s defined sense of self goring the ox of someone else’s identity. It’s not really different from an “interest,” save for the fact that it is shorn of any mere materialist connotation.
It’s a point that should resonate with Public Choice economists. So let me ask again: Was Schmitt right?
I’m a sad sort of constitutional liberal. Not very good at fooling others, Left or Right, I know only too well how often I fool myself. So I’ll refrain from further comment to hear what others have to say.
 Carl Schmitt, The Concept of the Political, translated by George Schwab (University of Chicago Press, 2007), p. 74.
 As he writes, “The rule of a higher order, according to Hobbes, is an empty phrase if it does not signify politically that certain men of this higher order rule over men of a lower order. The independence and completeness of political thought is here irrefutable. There always are concrete human groupings which fight other concrete human groupings in the name of justice, humanity, order, or peace.” Ibid., 67.
 Ibid., see Strauss’s comment number 12 at 106.
 Paul Gottfried, “On Straussian Teachings,” Modern Age (Winter 2007), 77-78.
 Timo Pankakoski, “Conflict, Context, Concreteness: Koselleck and Schmitt on Concepts,” Political Theory 38 (December 2010), 749-779.
 John P. McCormick, Carl Schmitt’s Critique of Liberalism (Cambridge University Press, 1997), p. 10.
 Schmitt, Concept of the Political, pp. 30-31.
 “That the legal idea cannot translate itself independently is evident from the fact that it says nothing about who should apply it. In every transformation there is present an auctoritatis interposition.” Carl Schmitt, Political Theology, translated by George Schwab (University of Chicago Press, 2005), pp. 29-30, 31.
 Klaus Sschreiner, “Toleranz,” in Geschichtliche Grundbegriffe, Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, edited by Otto Brunner, Werner Conze, and Reinhart Koselleck, 5 (Stuttgart, 1990), 588-594.
 Schmitt, Concept of the Political, p. 78.
 Hayden White, foreword to Reinhart Koselleck, The Practice of Conceptual History (Stanford University Press, 2002), pp. xii, xiii, and xiv.