Trump, the Ballot, and the State of Exception
Applying Carl Schmitt's political theory
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From the Stanford Encyclopedia of Philosophy (footnotes omitted):
No legal norm, in Schmitt’s view, can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency. If the applicability of material legal norms presupposes a condition of normality, Schmitt assumes, a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal. Hence Schmitt’s famous definition of sovereignty, according to which the sovereign is he who decides on the state of exception: If there is some person or institution, in a given polity, capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation, then that person or institution is the sovereign in that polity.
Ordinarily in the United States, there would be no question that the leading Presidential contender of one party would be eligible to appear on the ballot, both in the primary and in the general election. But many people believe that former President Trump’s post-election conduct in 2020 creates a “completely abnormal situation,” or what political theorist Carl Schmitt called a “state of exception.”
“Application of the law through the normal administrative and judiciary channels could lead to haphazard and unpredictable results,” namely a Trump Presidency. Hence, the Colorado Supreme Court and the Maine Secretary of State have ruled that Mr. Trump cannot be on the primary ballot in their respective states. Presumably, this also applies to the November ballot as well.
Supporters of the officials in those two states would say that they are acting in a manner compelled by the U.S. Constitution. But comparable officials in other states (and three of the seven justices in Colorado) have decided that the law does not compel them to remove Mr. Trump from the ballot. Therefore, I think a reasonable person could say that the officials in Colorado and Maine have declared a “state of exception.”
The degree of polarization in the U.S. is high. The Stanford encyclopedia entry on Schmitt says,
if there is no unanimity among social groups as to what situation to perceive as normal or exceptional, the sovereign decision will inevitably have to side with one group’s conception of normality against that of another.
By Schmitt’s definition, the officials in Colorado and Maine are currently sovereign in the United States. But the Supreme Court is likely to assert its sovereignty, especially if it rules against the decision to bar Mr. Trump from the ballot.
Regardless of what one believes about Mr. Trump, I do not think that we want sovereignty in this country to reside with a few officials in Colorado and Maine. I think that we are better off if elections in 2024 proceed as elections have in the past. But the officials of Colorado and Maine, and their supporters, seem to view this as a state of exception in Schmitt’s terms.
I think that the question of sovereignty in the United States was also murky during the COVID crisis, another “state of exception.” I forget which governor, but I recall that one county ordered a lockdown but was over-ruled by the governor of the state. In other places, health officials asserted that they had the authority to order lockdowns. I think it is fair to say that many executives asserted authority to issue orders without following processes sanctioned by law.
Incidentally, Carl Schmitt is a controversial political theorist. He is regarded by some as having sought to justify Nazi dictatorship.
This isn't a good application of Schmitt because neither the CO court nor the Maine SoS have the final say. They are also not couching their argument in the emergency/state of exception terms, but in terms of obedience to the ordinary textual meaning of existing constitutional law.
In Schmitt's terms within Political Theology, a "general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm." So in this 14th Amendment case, the officer and the CO Supreme Court were claiming to act within a preexisting judicial norm in the form of the ordinary textual meaning of § 3 the 14th Amendment (the bit about participating in insurrections or giving aid and comfort to enemies barring one from office). They were not claiming to act as Schmittian sovereigns, departing from legally defined norms in the pursuit of their own definition of public safety or the public interest.
The split nature of sovereignty under a liberal constitution was part of what Schmitt critiqued in Political Theology (PT). "If such an [emergency] action is not subject to controls, if it is not hampered in some way by checks and balances, as in the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety. All tendencies of modern constitutional development point toward eliminating the sovereign in this sense."
So straightforwardly applying this to our situation, the liberal constitutional order is working as intended, because the sovereignty football is always being snatched away by various Lucys before the would-be sovereign could kick it.
A State of Exception would be a hidden council of Tyrants declaring that the normal constitutional processes had to be suspended without reference to preexisting constitutional norms. As Schmitt writes in PT referring to an analysis of the post-WWI German Constitution, the division of emergency powers between parliament and the Reich president "[corresponded] to the development and practice of the liberal constitutional state, which [attempted] to repress the question of sovereignty by a division and mutual control of competences." However, unlike in our system, he points out that Art. 48 of the German constitution potentially provides unlimited power without check. Our system doesn't do that, so any would-be tyrant would not find an easy textual justification.
Our elites in government, media, academia, and elsewhere, frightened at the prospect of rising popular rejection of their incompetent and corrupt dominion, are trying to turn everything into a "crisis" that demands normal constraint of law, custom and even morality be discarded so as to allow perpetuation of their rule of grift.
They do this by exaggerating to absurd levels any and all possible dangers. They have exemplify H.L. Mencken's statement that "The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." Even better for these purposes are hobgoblins that are not entirely imaginary, but which offer risks that can be greatly exaggerated,