"Sovereign is he who decides on the exception" opens Carl Schmitt in his bombshell Political Theology. Rather than treating, as modern university scientific structuring had done, "religion" as a discrete category, Schmitt strongly reasserted theology as crucial for understanding both modern politics and jurisprudence. Liberal political theory was not something that had escaped its medieval origins, but had secularized various theological concepts and voided their origin. But Schmitt's archaeology would restore the medieval theological origins of these categories and how they had developed into and through the early modern period. Liberals and the constitutional-state were living off the borrowed time of a regime that was incapable of solving the political crisis of the 20th c., which was torn between various revolutionary parties (whether Soviet-adjacent Communists or the National Socialists, with whom Schmitt would temporarily align). The sovereign, the one who straddled the constitutional order and the void of anarchy, was the only one who could defend the legal order through its suspension. The exception, the dispensing power of the Weimar president, alone could save the norm, just as the miracle established God's natural order. But Schmitt damned liberal jurists, like Hans Kelsen, as a product of this inept turn towards legality as legitimacy, making an idol of constitutional texts which restrained human action (rather than empowering it).
Thus, Schmitt offered his mixed analysis of the early modern disaggregation between sovereignty and government through the mechanization of the state. In The Leviathan in the State Theory of Thomas Hobbes, Schmitt lamented how this turn towards sovereignty actually inverted it into slavery for an idol. Like Bodin during the French Wars of Religion, Hobbes had advocated a radical distinction between sovereignty and government so as to explain the origins of the state. In a state of nature (which is not exactly a myth of historic origin, but more on that later), sovereignty exists in the individual who is threatened on all sides. Life becomes nasty, brutish, and short in a war of all against all. To prevent the psychological distress of fear and jealousy, a people is formed in an act of covenant formation. The people then give their authority to a representative (a monarch, aristocratic council, or democratic assembly) which then becomes "the people" and the covenantal assembly disperses as the masses. It's historically plausible that Hobbes wrote Levianthan to justify (even celebrate) Cromwell's defeat of the presbyterians and London merchants, reforging the state through the Instrument of Government. It's very likely Hobbes (a strict monarchist, even if a heterodox Cavalier) wanted to make peace with the republic and go home. 'Hobbist' became a slur equivalent to 'Machiavel', and Hobbes was hounded the rest of his life as a traitor to the crown.
However, according to Schmitt, Hobbes had made a fatal flaw. While his attempt to assert the authority of the sovereign was key, it had done so through a gesture towards a distinction between outer conformity and inner freedom. Hobbes is often considered a totalitarian, but (as Schmitt rightly noted) this accusation is insane. The entire point of the Hobbist sovereign is to escape a state of total fear for security and peace: what would the point be of a covenantal transference of sovereignty if the average subject was in a state of fear of the state robbing and murdering them? Hobbes was quite clear that the internal court of conscience was not something subject to anyone, since in his quasi-mystical materialism, even spirit is a body. It might be the case that Hobbes' gesture to conscience was a kind of rhetorical ploy, since he didn't really believe internality was radically distinct to exterior conscience. In other words, if you externally conform your inner life will eventually change to fit external-bodily conditions. However, Hobbes rejected (as ultimately evil because it disturbs the peace) attempts to bludgeon the scruples of conscience into a particular belief. Like many in his day, Hobbes saw the presbyterians (whether the clerisy of Scots covenanters or the erastianism of the English) as Protestant Jesuits. Their bid to form a godly state would destroy the fabric of society and ignite civil war (as they did against the king in 1641/42). However, by introducing this category, Schmitt saw Hobbes as the accidental father of the liberal constitution-state. By recognizing a sacrosanct category which the state cannot legislate, forbidden by the dehumanized and abstracted constitution, this fundamental juridical cancer would spread to forbid the state to act to prevent its destruction by revolutionary assailants. It's the classic trope that a liberal will take his opponent's side in a debate, so open minded that his brain falls out. Now it may very well be the case that Schmitt was unjust in his caricature of Kelsen, and that liberals had already begun to develop an account of intolerant tolerance to prevent such a collapse (the Popperian doctrine of aggression towards the anti-liberal in order to defend an open society). But an inviolable realm of rights would lead to the dissolution of the society which could protect all rights whatsoever.
For Schmitt, only the sovereign's intervention could prevent such a collapse. However, this view came into contrast with a contemporary theorist, Walter Benjamin, who argued that historically it was the opposite. In his conceptual work on the Trauerspiel (the early-modern tragedy), Benjamin sees the exception as fundamentally a moment of defeat for the sovereign. Ironically, the early-modern attempt to defend authority through the myth of divine-right of kings ended up ruining sovereign governance. To attack was to threaten collapse, since the act of the sovereign was extra-legal and too powerful for any constitutional order to bear. Benjamin sketches the generally German context for these plays. Lutheranism created a pessimism of all human works (since all were tainted with sin and were useless towards salvation), as well as a secularization of political ethics. Since God's civil rule pertained to God's left-hand and was discernible through the light of nature, Lutheran princes were quite susceptible to the neo-stoic revival of the 17th c. Thus the average trauerspiel, in Benjamin's telling, is a story of damnation and collapse. Its stilted plot was not a failure to follow ancient models, but a product of very different Baroque view of the world. The tragedy is that the prince must act to save his kingdom, but this act contains the seeds of the prince's own destruction. Trapped in the prison of his own indecision, the glory of the Baroque is a testament to its own sinful frailty. The prince cannot choose, and thus his fate is sealed. The stoic valorization of apatheia, along with the dumping of transcendental grace into the common life (through the Lutheran focus on vocation), meant the aetherial would not come to the rescue. The prince would thus conclude tragically as doomed, unable to choose, yet at peace with the imperfection of the sinful world. It was only Hamlet, according to Benjamin, that escaped this fatalism through its rich use of English neoplatonism. The doom of Hamlet is opened to a heavenly transcendental intervention, the allegorical and symbolic as a Jacob's Ladder for God to reverse and redeem. Politics had not ceased to be part of explicitly divine interest. But Trauerspiel held interest for Benjamin because it reflected the radical fragmentation of the liberal constitutional-order. Jurists struggled to defend the increasing rights of man as they came under increasingly extreme attacks. The constitutional order which defended bourgeois property relations were thrown into chaos. Rather than a static hold, this state was to give way to revolutionary politics, whether a dictatorship of the proletariat or the avant-garde strongman who would forge a new future. Intellectuals, especially jurists, became increasingly alienated from the mass politics that surrounded them. The sovereign (as Hindenberg would prove) sealed his own fate through inactivity and elite apatheia, resulting in the dissolution of all earthly things.
Schmitt offered a modification of Benjamin's Hamlet thesis in Hamlet or Hecuba. Historicizing the plot, Shakespeare (whoever he was) offered an analysis of James Stuart's divided consciousness. Refusing both puritan reforms as well as his Catholic mother's ancestry, his defense of de jure episcopacy ("no bishops, no king" at 1604 Hampton conference) angered all sides. However, Hamlet does not allow itself to be decoded, even as its audience is in on the joke. Thus Hamlet, as a trauerspiel, preserves the historic person even as it transcends into myth. It is not explicitly Christian, not allowing the divine intervention in Spencerian allegory of angels and sprites, but simply unique among European powers. According to Schmitt, England's place as a sea-power and its avoidance of confessional civil war gave it a different trajectory. Schmitt's analysis lacks at this point, precisely because England was not truly a sea-power and was undergoing a confessional war on the spectrum of the 30 Years War. Rightly historicizing the context of the play (both James' accession and the attempted Essex rebellion during Elizabeth Tudor's reign), Schmitt grasps the unique failure to exercise sovereignty. But Benjamin is right to see this keyhole for divine hope in Shakespeare's play because it did not fully absorb this turn towards fatalism. Often times, this fact is chalked up to Shakespeare's "crypto-catholicism" or to "Anglicanism" (which did not exist at this point) as a compromise mishmash of catholicism and protestanism (whatever those concepts are defined as). Neither is the case, but shows the diversity of the Reformation (particularly among the Reformed). It is a later historic judgement that Geneva (defined less by Calvin but by Calvin's legacy in his many successors) is more purely Protestant, dropping Reformers like Bucer, Bullinger, or Vermigli into a black hole. Not all puritans were Genevan purists like Thomas Cartwright, but the movement becomes identified increasingly with this ethos and its militancy (especially in Scotland and among the Dutch patriots in the Netherlands). Rather, the adaptation of neoplatonism to calvinist biblicism (especially the focus on covenant and predestinating providence), mixed with an interest in patristics, formed the basis of Spencerian allegory and the Metaphysical Poets (Herbert, Donne, et al.). Shakespeare was not a mixed or critical protestant to lampoon the "precisionists", anymore than a Dominican or Jansenist attacking Jesuits made him a crypto-protestant (both judgements were given by historic contemporaries).
The relevance to the question of sovereignty is that the keyhole for the divine-through-history subsisted juridically through the importance of English common law. Unique among European powers (but by not radically so), English common lawyers operated in a parallel system to the adaptation of Roman law, parliamentary statute, and ecclesiastical canon law. The importance of common law (especially when historically placed, truthfully or falsely, in England's historic origin among the Gothic Anglo-Saxons) framed the importance of an unwritten constitution. Thus the parameters of a constitutional-order was never the ultimate straitjacket that the German prince had to overcome through his sovereign act, a decision undecidable and thus his doom. Benjamin was right to see the rickety wooden frame of divine-right, it was a human construction that bore divine potency but would dissolve itself, like a nuclear reactor melting down. Regardless of Luther's particular mysticism or later Lutheran turns towards mystical transformation (e.g. Boehme), the general context of Lutheran principalities did not operate on these terms (or were not conceptualized to be so in Trauerspiel). The human order would simply be destroyed through inability, which was itself a providential decree which man was to bear solemnly and silently. But in Hamlet, the prince gains self-consciousness of this precise order, which allows him a transcendental hope. He dies, but he sees the order and can enter into the divine mind. The historical self-awareness possible through the emphasis on common law allowed a transcendental hope, where history can resist the creeping pagan fatalism of the stars through an eschatological vision. Man ceases to be a play thing of the gods (damned to bear his providence through tears and groans), but enters into his glory of knowing his death. Such was Pascal's great analysis of man as monster: damned to die as a beast, but gloriously capable to reflect on this fact and rail against injustice. The conclusion of Job, contrary to popular interpretation, is not broken submission to divine fiat, but entrance to the divine council. Job does not know how the cosmos works in its mundane form (rain, snow, animal life), so how can he know justice? The submission to God is a welcoming into the divine councils, to learn wisdom through fear of the Lord.
The unwritten constitution allows a historical awareness of man's contingency, not simply bound to inscrutable divine dictates inscribed in a constitutional order of natural justice. Such is not to create a dichotomy, but to adumbrate a distinction which, dialectically, opens the threshold for the Messianic. Man was not made for the Sabbath, but the Sabbath for Man; providence itself changes as God engages with man (which itself is part of the divine decree). Moses saves Israel through intercession and God relents. Anthropomorphic yes, but it reveals God's divine presence in and through historic phenomena, not ruling silently over them as their inscrutable conductor. And thus the divine order of justice is not an inflexible stated set which itself must be overcome through suspension, but its seeming contradiction is itself a fulfillment. To draw on CS Lewis' Narnia: Aslan did not suspend the laws of magic when he resurrected, but operated to older and deeper laws. The witch's knowledge only reached so far. Unlike the rabbis who defeat God at Torah litigation in Talmudic legend, God is the supreme sovereign operating precisely through a divine order. It's the fragmentation, the sovereign empowering a government, which allows the peculiar reversal that Schmitt condemns. Most pointedly, Agamben sees this as a nightmare situation emerging from the unsolved contradiction of Aristotelian philosophy: the bureaucracy assumes supremacy & anonymity through an appeal to a dead or non-existent supremacy. In other words, the sovereignty of "The People" can't speak except through its governing representative. Robespierre can claim the Rousseauan General Will to massacre thousands of French citizens, a will only discernible to the revolutionary Jacobin vanguard. But in Lewis' conception, the neoplatonic order of law simply runs deeper, an attempt to metaphysically hold together legitimacy and legality without division.
None of this analysis is to valorize the many governments of England/Britain (either then or now), but its ideal potential that many political theorists recognized. It was, in short, an attempt to reckon time: neither negating it nor submitting to it. It was messianic in the sense of leaving an open through self-consciousness, the birth of human freedom. And it was from this awareness that a number of American revolutionaries sought to embody English liberty in America. Such was the aspiration (no matter individual failings) of the Federalists, of Washington, Hamilton, and Adams. The revolution was not to reject Europe (which was effectively a rejection of temporality), but to fulfill England's potential. Both Hamilton and Adams (who had severe personal animosity and diverged in vision) agreed that Britain was a republic and America's happiness depended on preserving this constitution for itself. The Revolution was defined in classical terms: the overcoming of one government by another to preserve the constitutional-spirit at its heart. Hence these figures condemned Jefferson's party as rabid Jacobinism, and were themselves condemned as British tyrants. Instead, America was ripe to reckon with the forces of time and emerge through history.
The alternative, which became a dominant spirit in American political history, is to opt for a rational utopia. Much is made of Jefferson's strict constitutionalism, which meant that the Congress and the executive could only do as much as the law prescribed. Jeffersonians broadly rejected the Hamiltonian vision of constitutional monarchy, giving the written constitution a wide berth of interpretation through an acknowledgement of America's history through an unwritten constitution. Thus the necessary and proper clause empowered the president with unstated constitutional privileges (e.g. forming and contracting the first Bank of the United States). However, contrary to critics, these were not arbitrary dictates of political necessity, but formed from English heritage and American experience. The idea of a national bank was itself modeled on the Bank of England. Even modern Chinese jurists (one of the few places of contemporary political creativity and vibrancy) recognize Hamilton as an adherent to a coinhering written and unwritten constitution. Jiang Shigong (a jurist who adheres to Schmittian political analysis and Xi Jiping Thought) argued the important of a written constitution and unwritten constitution to form the coinherence of legality with legitimacy. The Chinese elected congress and the CCP party congress are both necessary, even as the former is often derided as a rubber-stamp for the latter. They hold together a stated legal order with the historic reality of the CCP as the successor of Chinese history stretching back to the Qin. Yet tradition does not bind creative developments. The PRC is the heir to the Republic of China and the Qing, but it's not simply a biological child. Vespasian did not overthrow the Augustinian dynastic principate, but claimed it for himself. A general completely alien to the Julio-Claudians now bore the name Caesar. The Federalists sought to keep history open, America as an empire of time.
But in contrast to an empire of time, Jeffersonians offered the vision of an empire of space (both terms from McCoy's Elusive Republic). The means to overcome the degeneracy and corruption of England was the boundless, seemingly infinite, borders of America. Whereas post-Federalists, like John Quincy Adams, may seek territorial expansion, it was within the realm of European geopolitics, where the need to secure American safety from scheming in the Floridas. Rather, the Jeffersonian idea was expansion as to relieve the pressures of American society. Such was formulated in radically different modes, but united by similar vision. James Madison didn't expect the government to usher in a novus ordo seclorum, but "expanding the realm" would help democratic interest politics to balance any tyrannical monopolization. Thomas Paine, in stark contrast, saw America as a historical novum, able to eject the shackles of princes and priest to found a completely future oriented republic. Rational principles, not archaic traditions, would become the basis for an agrarian republic of philosopher farmers. Popular sovereignty, in a vague and misty libertarian sense, would prevent the growth of tyranny and any new court of flatterers. Hence Paine rankled many when railing against Christianity as part of this decayed priestcraft, opting for an unmoored nature religion of Deism. John Adams damned this "black guard" as corrupter of morals, seeking to unmoor the people from their own history for vanity. But even as Paine's radicalism never received complete receptivity among the Jeffersonians (even as Jefferson remained friends with him through his several exiles), the utopic hope of endless growth remained. But this endless growth was not simply a product of Paine's unbound optimism for the human race. Rather, Scottish political economy and the inevitability of time turned many Jeffersonian conservatives towards expansion to prevent the shadow of Time. Fate could be cheated if its schemes could be discerned. The Trauerspiel of the unreflective stoic prince bound to his indecision entered into a Faustian pact to escape. Territorial expansion became a necessity to overcome what seemed to be a fast approaching catastrophe.
It was for this reason that Jefferson pursued the prima facia hypocritical Louisiana Purchase. Could the president buy land from another country without Congress' approval? What did the constitution say? Often historians see this as Jefferson staggering at the challenge of executive government, backsliding into an implicit Hamiltonian politics to undergird his hope for an agrarian republic. But Bailey's Thomas Jefferson and Executive Power is one of the first academic monographs to examine Jefferson's view of executive government. While it's true Jefferson was a strict constitutionalist, he also radicalized the presidency as the primary democratic organ for popular action. According to Bailey, Jefferson knew the Louisiana Purchase was unconstitutional, but did it anyway because the legitimacy of the act exceeded its legality in a time of necessity. In contrast to the Nixonian "it's not illegal if the president does it", Jefferson appealed to a law beyond the law, the popular will, the salus populi suprema lex esto. The people would judge whether Jefferson acted legitimately, even though it was illegal. Jefferson hoped to rectify this ex post facto through a constitutional amendment to allow the president a constitutional authority to act. But as the representative of the people, Jefferson acted as them beyond the law. The executive was the sovereign who could decide, and yet this did not tragically end in indecision because the amor fati was overcome through space. The president could not buy land from Napoleon, but Jefferson the Man of the People could. Hundreds of biographies and analyses of Jefferson, pouring over his letters and papers, failed to see the truth of Jefferson that Ezra Pound recognized. Per his brief essay Jefferson and/or Mussolini, both great men recognized the power of a legitimacy which exceeded the law. It was the sovereign who stood over the polity to hold it together, overcoming through sheer will the ravages of time. Mussolini's iron will could summon the glory of Rome back into Italy; Jefferson could forge the empire of liberty, riding upon the constitution as a surfboard upon the surge of popular energy. It was a phenomenon which Schmitt could both admire and dread, a primal energy which ordered and yet itself was radically unstable. As he wrote to a colleague after World War 2, Schmitt compared himself to Melville's Benito Cereno, held captive and justifying his captivity to Babo. Schmitt's defense of sovereign action had ended up destroying the constitutional order it was intended to protect, with the consolation that the Fuhrer still played the part of a decadent katechon holding back Soviet barbarism. But I will not further comment on Schmitt, as my knowledge has reached its limits.
The Jeffersonian sovereignty of an empire against time would forge the American effort to absorb the continent, leading to the turn-of-the-century crisis when the frontier "closed". The turn moved towards European-style colonization, global markets, and eventually the endless growth of welfare-warfare New Deal Keynsian economics. The Kennedy "New Frontier" channeled the same aspirations towards the heavens, conjuring the imaginary of Jetson-style cosmic suburbanism. The collapse of the New Deal coalition fueled further untethering of American capital from the bounds of industry-labor to seek new markets. But the end result was fundamentally a concern to overcome the pressures of time that, seemingly, would force America to reckon with its social-historical constitution. This analysis exceeds this essay, and the development of the post-war American state will be for another time. Suffice to say that all of this expansion depended on an extra-legality of the will of the American people. The constitution was not the bearer of its will, neither as working in conjunction with the unwritten constitution of historical experience (Hamiltonian politics shriveled to a rearguard of curmudgeonly conservatives) nor as strict construction (the purview of some paleo-Jeffersonians who, as far back as Jefferson's day, attacked their champion as the Tertium Quid). Instead, FDR truly saw himself as the heir of Jefferson, creating an empire of space to globalize the American utopic aspiration, whether in trying to fully Americanize the Soviet Union as a partner in this global market vision or in trying to dissolve the British Empire at the same time as fusing with its financial empire. And like his political idol, Woodrow Wilson, this empire of space exceeded continental boundaries to encompass the whole world. Global liberal democracy would shatter all powers and envelop them all, forging a true Pax Americana in an aggressively Paine-esque key. As Bailey noted, in an undeveloped and cryptic way, if Hamiltonian sovereignty led to Nixon, then Jeffersonian sovereignty led to Oliver North. It's not simply a wide-definition of executive power, but rejection for a parallel shadow government doing as it wanted.
As Schmitt noted, the limitation of sovereignty can easily lead to a void at the heart of a constitution-state. For him, as he was becoming a Nazi jurist at the time of publication, this failure becomes the materiel for "Jewish philosophy", producing both bloodless liberalism and its successor Bolshevism. One does not need to fall into the rabbithole of this antisemitic racialization to understand Schmitt's point. However, perhaps the solution was not the vaunting of sovereign, but its coinhering return, the divine keyhole of historical contingency and human self-consciousness manifest in a monarch robed in law. That was, to a certain degree, Hegel's vision of constitutional-monarchy, something that adherents like Jiang see in Xi Jinping Thought as the completing the revolution. It would be high-handed to simply consider this analysis as mere court-flattery. Like Hobbes, though through a very different philosophic understanding of history, peace is restored through the law-bound & law-constituting sovereign-in-government, king-in-parliament, premier-in-congress. Power is both capable, but bound to time, self-aware in its limitation which allows them to be overcome. Providence, neither fate nor anarchy, governs the world. Angels still descend down Jacob's ladder.
