On his October 7 Fox News show, Ben Domenech used the formation of the Western States Pact in the Spring of 2020 and its various attempts to mimic the constitutional powers of the federal government such as, as Domenech put it, trying to negotiate with Congress on a peer-to-peer basis and creating its own version of the FDA/CDC to provide Covid vaccine approvals that mean essentially nothing, to launch a monologue on the impotence of the U.S. government. In the rest of the clip, which is below, Domenech makes observation after observation about the inability of the United States government to “do anything but nothing.” This includes an inability to protect the seat of government, secure the southern border, win wars, ensure the domestic tranquility of the nation, or as everyone should be aware by now, present a coherent and consistent public health policy in response to the Covid-19 pandemic.
It wasn’t just interstate pacts–the Western States weren’t the only ones to do so–it has also been individual states that have been stepping up, or not, to fill in the gaps. Florida governor Ron Desantis took rhetorical fire from Progressives but has had success implementing a consistent Covid-19 response that looks more and more like Sweden’s success. Greg Abbott, the governor of Texas, began securing the border with Mexico using state law enforcement and National Guard troops in September. On the opposite end of the spectrum, Seattle city and Washington state officials allowed ANTIFA and its affiliates to take over an entire section of the city’s capitol hill precinct in the summer of 2020. In the “occupied zone” known variously as CHAZ or CHOP, state and local officials complied with demands that no police or other government officials come into the zone, which ultimately led to growing violence and the death of two teenagers. At the federal level, officials dissuaded then-president Trump from taking action under the Insurrection Act although Antifa had barricaded federal employees inside a U.S. courthouse in Portland and attempted repeatedly to set it on fire and attacked federal agents with things like commercial-grade fireworks. Most recently, the Biden administration has nominated Suffolk County (MA) District Attorney Rachael Rollins to be the next U.S. Attorney for the District of Massachusetts. When she was elected as DA, Mrs. Rollins immediately began implementing a policy of non-prosecution for a number of crimes based on a racialized theory of “social justice.” One can only assume that she will attempt to import this policy into the U.S. Attorney’s office.
What’s going on with all this? What does it mean when states are forced to step in and take over what normally would be roles for the federal government? Or worse, what happens when states–like Washington and Oregon–or cities–like Portland, Seattle, and Boston–agree with the feds and also decline to do the basic job of government: keeping the peace and ensuring an orderly public square?
Two German authors, men who most people would call obscure, might have answers.
The first of these authors is Carl Schmitt. He was a legal and political theorist who began writing during the Weimar Republic, who went along with the Nazi program, and later repudiated his cooperation with the Nazis. In 1922, he published a small book, Political Theology, that explored the meaning of the concept of sovereignty. In the first sentence of the first chapter, Schmitt gives a brief but useful definition of sovereignty: “Sovereign is he who decides on the exception.”
Much has been written on the topic of Schmitt’s “state of exception.” I encourage you to do some reading of your own–beginning with Schmitt himself–and think about these issues for yourself. I will try to do the term its due justice here.
On the surface, Schmitt seems to be referring to something we all inherently understand. The sovereign is the one who gets to decide when a particular case is an exception to the rule. Again, superficially, this would appear to mean exceptions like, perhaps, protecting a friend from being punished or perhaps issuing a pardon or commuting someone’s prison sentence. But this is not the meaning Schmitt is driving at. Rather, he’s using exception not in the sense of “I’m making an exception this time,” but rather in the sense of an exception that proves the rule. In an American context, perhaps the most iconic and recognizable example of this was Abraham Lincoln’s assumption of extraordinary executive powers that allowed him to violate the Constitution in order to preserve it. In that instance, Abraham Lincoln acted as the sovereign in terms of both identifying the exception (the Confederate rebellion) and assuming the powers necessary for overcoming it (various extra-constitutional powers). What is key is knowing when something constitutes an exception to established legal and constitutional norms and then acting appropriately. In Schmitt’s thought, there are two possible appropriate responses: the sovereign either acts (1) to restore the normative constitutional order or (2) in those cases where the exception has caused the normative order to be unrecoverable, the sovereign oversees the creation of a new constitutional order.
Things become problematic when either (a) the sovereign does not recognize an exception as an exception or (b) the sovereign fails to act appropriately to the extent that the exception becomes more prevalent than the normal.
I think there’s a case that can be made that what Ben Domenech identifies in his brief monologue is a sovereign that has failed to recognize the exception and, therefore, refuses to act. When states, or groups of states, begin overtaking the powers and responsibilities of the U.S. government–not out of rebellion but out of necessity–then a fair case can be made that the United States is not behaving like a sovereign ought to behave. In effect, what that means is that the United States is functionally no longer a nation-state. This state of affairs is problematic for several reasons.
For one, it invites a strong-man type to come in and, in the presence of impotent weakness, deliver strong leadership in a vacuum. This is essentially what Machiavelli’s Prince does when read in conjunction with his Discourses. Arthur Herman presents this exegesis of Machiavelli in his intellectual history of the West, The Cave and the Light. Basically, good republics ultimately destroy themselves and require a strong-man to come along and rescue them. The issue becomes, of course, how can we know that the strong-man, Machiavelli’s Prince, will do the right thing?
We don’t. But, as society and its norms decay, people will be willing to take the risk.
This is the point made briefly in the work of another German, Oswald Spengler. Spengler developed his own “organic” model of history that viewed societies and cultures as a sort of living organism that has its own life cycle. Cultures and societies are born, they live and flourish, they grow old, and then they die. He distilled this theory down into a very brief book, Man and Technics. In that brief book, he proved himself to be what one reviewer called “pessimism’s prophet.” Spengler predicted that as human technology developed, we would watch as it destroyed both our natural and social ecosystems while being caught in an unavoidable cycle of constant innovation. Like others, Spengler foresaw that we would become slaves to the technology that we try to fool ourselves into believing is only tools. For the West, Spengler predicted that a new class of Caesars would arise to dictatorially rule our declining and increasingly impotent civilization.
In his closing paragraph to Man and Technics, Spengler makes an astonishing claim: “Only dreamers believe in ways out. Optimism is cowardice.”
On one hand, as a Christian, I have a hard time accepting that as true. But then again, I don’t place my ultimate faith in government. Of course, ultimately there is a way out or, perhaps more appropriately, a way back in, but it’s never going to be supplied by a human government.
It’s okay, I think, to be pessimistic about the decline not only of the U.S. but the West generally. If I read Spengler and Schmitt with my Bible open to the book of Daniel, then I can see that empires rise and fall. People get hurt. Fortunes are lost and won. But God is still sovereign over all of it.
But what do I do with that pessimism?
I’m honestly weary of the idea that Donald Trump is the One–the one who will unite Republicans, the one who will restore the republic. That’s the wrong path to take. For one, in the context of Schmitt and Spengler, there’s a certain element that makes him the Democrats’ own self-fulfilling prophecy. I think there are folks on the Right who would welcome a Caesar Trump. As for me, I don’t welcome a Caesar at all. That I might one day have to reckon with that fact is another point altogether. But then again, might someone come along that would be the good prince? The one who recognizes the state of exception and restores the constitutional norms? I can’t say I’d be opposed to that state of affairs, but I’m also skeptical that I or anyone else would truly be able to recognize this person in the present. That, like Lincoln, would become a judgment for future generations.
In the meantime, the lack of sovereignty–or at least sovereign-like behavior–on the part of the U.S. government has much more practical consequences. Not the least of them being the danger that Taiwan and Australia are in from China’s aggressive policy in the region. As China increases its naval capacity, there appears to be a policy position of downsizing U.S. capacity. As Domenech pointed out, winning wars is something we ought to expect our government to be able to do. But the situation appears to be more dire. We cannot expect the United States to win a war that it isn’t even prepared to fight.
The major reason why the U.S. is not prepared to fight any war is because it’s too busy fighting ideological wars domestically. The paralysis of both national and state government in securing order and peace at home is the result of elected and bureaucratic leaders’ commitment to radical ideologies that are stripping the nation of any moral or philosophical credibility it had. Our national security establishment is now more focused on parents’ exercise of their rights as voters to influence local government than it is about Chinese influence over policy.
It’s also a good time to point out that the U.S. Department of Justice denies that Antifa is organized and subject to monitoring by law enforcement. This despite the existence of tools to counter Antifa and the willingness of the DOJ to label parents and conservatives as domestic terrorists. In fact, “white Christian nationalism,” which hasn’t been taken seriously in the U.S. for decades, is now considered the top national security threat.
It would seem that our government is not only incapable of recognizing a true “state of exception” but is also intent on inventing its own exceptions to justify going after people who are either no threat or merely a political threat.
So much for democracy, I guess.
But don’t bring on Caesar just yet.