Meditations on Carl Schmitt

Authors

Mark Tushnet, Georgetown University Law Center

Publication Date

2006

Abstract

A spectre is haunting Professor Levinson - the spectre of Carl Schmitt. The German--or should it be Nazi? - constitutional theorist flits in and out of Professor Levinson's discussion. Professor Levinson has done yeoman work in bringing Schmitt's perspective to the attention of constitutional theorists. My comments offer my own reaction to what I take to be Schmitt's points, and in doing so may confirm Professor Levinson's assessment of Schmitt's importance today. I start with the sentence Professor Levinson quotes: "Sovereign is he who decides on the exception. Professor Levinson focuses on the first part of the sentence, because, in his view, the Bush Administration's claims about presidential authority amount to claims that the President is sovereign. And that, Professor Levinson believes, is in severe tension with the idea that "[here, the People rule." I wonder, though, whether what is truly disturbing is not the first but the second part of the sentence, that is, the very idea that there can be "states of exception," in which the rule of law is simply inoperative. Schmitt apparently derived the concept of states of exception from his analysis of the liberal rule of law, which led him to identify as a problem with that concept its indeterminacy in real-world situations. So, Schmitt may have concluded, the liberal rule of law means that liberal or constitutional nations are always in states of exception. That fact goes unnoticed until crises occur.

Recommended Citation

Tushnet, Mark (2006) "Meditations on Carl Schmitt," Georgia Law Review: Vol. 40: No. 3, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol40/iss3/8