CARL SCHMITT AND SEX OFFENSE MANIA

MORE AND DEEPER

(I’ll start this Post by reprinting what I had put up as Addendum 2 to my previous Post, “The Death of Common Sense”. Then I’ll develop a bit more of some trends in political philosophy that deepen the understanding of the roots of not only the Regulatory and Preventive approach to statecraft but also to the matrix of SO laws, so often touted defensively by politicians and jurists as “merely regulatory”.)

I also point out the connection between all this Regulatory/Preventive theory and the dynamics underlying the Bill entitled the International Violence Against Women and Girls Act, about which I Posted earlier this month on both this and my other site.

If ‘more government means more liberation’, then naturally – in Lenin’s sense: we have the absolute Truth, so naturally we want to see the whole world accept it – the Identity advocacies want to see that other peoples and cultures ‘get it’ just the way they do and just the way they have (however imperfectly) gotten the government to impose it here.

As always, I point out one of the politically most lethal ramifications of Identity Politics, and especially of the subset called Gender Politics: one’s selected ‘identity’ – in this case ‘gender’ – overrides all other roles and identities that an individual might have. This includes being ‘human’ – which fractures the sense of common humanity, and being a Citizen of one’s country – which fractures the sense of the polity.

You can see how quickly lethal trouble would arise for any society whose government for whatever reasons embraced full-blown Identity and Gender Politics.

I also mentioned that the ‘progressive’ and Left desire to impose the ‘liberation’ of Gender Politics upon developing nations by piggy-backing the plan on the authority of the US government would dovetail with the intensifying US tendency to expand its control over as much of the under-developed world as possible in order to maintain a place at the Great Table and remain a player in the Great Game. And that in this regard, the quite possibly destabilizing effects upon any under-developed government that tried to comply with the US vision (as the Bill would have it): a revolt by its own people who would see, far more clearly than Americans have, just how much of an assault on the warp and woof of their culture such a vision constitutes.

You know, in a way we’re back to the late 1800s: this is Great Power politics and Great Power imperialism all over again. Except that where in the 19th century such imperialistic impositions were done under the auspices of a superior Truth as embodied in religion (Christianity, most often), now in the early 21st the superior Truth is purportedly embodied in the theories of Identity and Gender Politics and those adherents and cadres who ‘get it’.

But also as in the 19th century, there are more material and murkier objectives: back then it was ‘resources and markets’, and now it’s ‘resources’ more than markets. Because America is running out of resources and also out of the productive capabilities and even the productive ethos that forms the work force that can sustain the massive efforts necessary to utilize those resources.

The imposition of Superior Truth works for the purposes of state whether it fails or succeeds. Even if it fails and is rejected by the target culture and population, and even if the target government is destabilized or even delegitimized, it works because then the US can step in with its increasingly imperial-gendarme military – which affords secure access to whatever resources (oil and natural gas especially, but also something as simple as geographic location on the Board of the Great Game) that ‘country’ controlled.

Neat.

And all under the guise of bringing to those who ‘just don’t get it’ the light of Progress and Truth. Just as imperial gambits of earlier centuries were secure in their good-intention of bringing the benefits of ‘civilization’ to the ‘benighted natives’.

You can see how these Perfect Storms and monster wildfires form.

In the SO mania, the imposition of such ‘superior Truth’ (about sex offenses and the incorrigible sexual violence of ‘men’) and the permanent emergency - that ominous term, that ominous claim – that such ‘superior Truth’ creates, have resulted in the government’s attempts to control a huge segment of the population* retroactively and preventively.

But while I have often been trying to raise the clear role of the pressure toward Regulation and Prevention, and the consequent dangers to the Constitutional ethos, from the Left over the past 45 years, I want to point out here the ominous developments from the Right, especially in the era of the so-called neocon Ascendancy, building up during the Reagan years but really bursting into florid power during the two Administrations of George W. Bush.

There were ideas fuelling it; it was not a mere ‘power grab’ by uneducated and ruthless characters.

And one of the most significant streams of ideas stemmed from a German political thinker who first made his mark coming up with justifications for Hitler’s governance (you can’t make this stuff up).

Carl Schmitt (who lived a long life, from 1888 to 1985) had made his mark as a Nazi Party member and enjoyed the special favor of Herman Goring in the 1930s, when Goring functioned as second only to Hitler in the governance of Germany.

It was Schmitt’s self-appointed task to justify the “Fuhrer” state and the “Fuhrerprinzip”, the principle that the sovereign power of the government, and of its Leader**, must not be allowed to be obstructed in its vital work by the slow, obstructive processes of participatory and parliamentary democracy. (While this impatience with the slow and obstructive aspects of democratic governance was also a hallmark of the more ‘revolutionary’ approach – Leninist, Stalinist and Maoist – that so soused the Sixties’ Left in this country, Schmitt was much more directly concerned not with widespread societal and cultural change but rather with the highly focused dynamics of actual governance at the highest levels.)

Schmitt’s claim to notoriety and ‘cutting edge’ thought was that his theories overturned Hegel’s late 18th-century espousal of the Beamtenstaat, the enlightened State administered by a corps of long-serving and dedicated civil servants. In Hegel’s view, the basing of the State only on the person of an “enlightened and benevolent despot” such as Frederick the Great was not reliable; you couldn’t always be sure that the monarchical despot would be a wise man (or, in such as Maria-Theresa of Austria and Catherine the Great of Russia, a woman), and in any case no single human being, no matter how enlightened and competent, could see to the thorough administration of policies, no matter how enlightened those policies might be.

So, thought Hegel, the enlightened State would need a dense layer of competent administrators dedicated, through generations, to the implementation of the State’s policies and laws. Hegel provided the philosophical underpinning for a realm of civil servants and for a Civil Service.

To Schmitt, by the early 1920s, this resulted in a layer of ‘obstruction’ that prevented The Leader from doing whatever it took to shape and rule (and ‘save’) the country. His thought clearly supported Hitler’s visions, as Hitler began his rise in the 1920s, making mockery of the Weimar Republic and the Weimar Constitution that grounded it.

The obstructive capacity of the German civil servants became ever clearer as Hitler’s views became more widely publicized in Germany and the brutality and barbarity of those views caused the civil servants to object to what was looming up in the midst of Germany’s efforts to make its nascent democracy work in the post-World War 1 era.

Schmitt tried to be the new Hegel who would sweep away Hegel’s outmoded theories and replace them with the Leadership Principle that would provide Germany with the force, drive, and focus by which the Leader would pull it together and take it forward. Hegel, it might be said in today’s terms, ‘just didn’t get it’ and Schmitt was going to provide the intellectual and ideological thinking that should be entertained by all those who ‘did get it’. Ach.

In 1934 he went so far as to start up his own newspaper, ominously entitled ‘The German Jurists’ Newspaper”, in which he opined for the nation’s legal classes and professionals that Hitler’s Night of the Long Knives, that bloody June night in 1934 when Nazi killing squads fanned out all over Germany to kill known opponents and ‘obstructors’ against the regime. Hitler had become Chancellor in January 1933 so this was an ‘act of state’.

This act, said Schmitt, was really “the highest form of administrative law”, because in the end law is the power of the State, and the most powerful expression of the State’s power is the power to kill in order to protect the State (and, of course, the Volk, the People).

This was not against the law because the Leader himself embodies the law and is ultimately responsible for saying what the law was; his mantra was “Der Fuhrer schutzt das Recht”, the Leader (and only the Leader) defends the law.

Schmitt was captured by the Allies after the war, but refused de-nazification. Consequently, he was ineligible for academic positions but kept writing (and he would live another 40 years).

He kept hammering at the ideas he had published as early as 1921 (even before Hitler had begun his rise): the only good thing about the Weimar Republic, Schmitt opined, was that it gave the President the power to declare a state of emergency. Because, he continued, this was the very core and essence of sovereign power: the authority to say when the law was in effect and when to declare “an exception”, some period of time or area of public life where the law, by order of the sovereign power, was no longer in effect. (And you might start to see where Bush-Cheney got the idea that ultimately it is the President who says what’s right and what’s wrong, and when a law applies and when it doesn’t.)

You can see here a seed of the idea underlying the sex-offense mania: that there are times of such ‘emergency’ that the government (still the Congress here, but this was in the 1990s before Bush-Cheney) could declare ‘exceptions’ due to the ‘emergency’.

But of course, Schmitt insisted, whenever the Leader stepped outside the law, he did it for the sake of the nation – and anyway, the Leader was the law. Whatever the Leader said, was technically Law whether written down or not.

In such a situation, the sovereign authority could declare not only a state of emergency, but also what is in effect a ‘state of exception’: declaring that in this area of public affairs, the law does not apply in its usual way.

And against certain persons or groups of persons among the Citizenry. And history records what use Hitler’s Reich made of this idea.

As a current Italian political thinker, Giorgio Agamben, has noted, this leads not only to a throwback and a regression to the dynamics of ‘divine right monarchy’ and despotism, but also creates a stunning regression back to one of the more primitive elements of ancient Roman law: the homo sacer (pronounced satch-air).

In Latin the term translates simply into ‘sacred man’ (or person), but in Roman law it had a very specific meaning. A person could be declared sacer and this meant that he was no longer protected by the law, although he was still subject to obeying it. Such a person could not make sacrifices, was indeed a form of scapegoat or black-sheep within the general flock of the Roman citizenry; he could be killed, but killing him would not be ‘murder’ because he no longer enjoyed the status of Citizen or even of human. He would live (for however long he could manage it) as a sublime and solemn living example of the power of the State to withdraw its protection while retaining its authority over any individual.

It was a truly awesome display of State power, to a people who had become used to the protections of law as they had evolved in the Roman ethos.

You can see where such ideas, imported into the Beltway by neo-conservatives as they made their own climb throughout the 1980s and 1990s, could easily start to infect not only legislators (who might imagine that Congress would be ‘the sovereign power’ that could ‘declare exceptions’) but also the Executive Branch (where, in the person of the President, Schmitt would have imagined it to be).

You can see how this idea of ‘exception’ would appeal to a get-tough-on-crime mentality, giving prosecutors as well as legislators the idea that some persons and groups could be, in effect if not formally, declared to be ‘exceptions’, to be in effect if not formally, sacer.

And of course, all this bubbling brew could also be attractive to elements on the Left who were already convinced that ‘men’ were primarily nothing more than incorrigible sexual victimizers. In a sense, radical feminist thought had already declared ‘men’ to be sacer, incorrigible exceptions to the common humanity.

And the rise of ‘victimology’ and ‘victimism’, stemming from as far back as Reagan’s first administration, combined both Right and Left in those heady 1990s when the Left’s President and the Right’s Congress both eagerly sought to be-tough-on-crime.

And we all know where that went.

And Schmitt gets even worse. The sovereign authority to declare exception must be permitted to the government because it must be able to deal with ‘enemies’. The ‘enemy’, said Schmitt, is determined “existentially”; whoever is “in a specially intense way, existentially something different and alien”. Surely, the ‘sex offender’ is only a pen-stroke away from such a vision: ‘man’ and ‘incorrigibly sexually violent predator’ and insidious hunter of ‘the children’, an existential enemy of women, children, families, and public order and decency.

Government exists to wage war on such ‘enemies’. No wonder Congress is so ‘immune’ to genuine truth and facts about ‘sex offenders’; they are not a problem perhaps mistakenly construed by an overzealous legislative authority. They are, I think, creatures created by that legislative authority precisely to function as ‘existential enemies’. Sometimes I wonder: when we present legislators with truth about sex offender recidivism, are we really trying to suggest that a monster is loose to Dr. Frankenstein himself? Are we saying that the monster of Untruth is loose, and telling it to the very power that stayed up late in its mountaintop castle, stitched the thing together and turned it loose?

In his essay “The Concept of the Political”, Schmitt declares that it is primarily in its opposition to the “existential enemy” that the state and citizenry bond and remain united.

Worse, that “politics” itself is a matter of identifying your “enemy” as whoever disagrees with what you want to have or to see happen, and doing what you have to in order to reduce or eliminate the threat that such an ‘enemy’ poses to you.

An ‘enemy’ politics is death to the Constitutional vision of politics, and indeed is lethal to the Constitutional vision of the government’s relation to its Citizens.

The entire concept of homo sacer, of course, is equally lethal to the Constitutional vision of the Citizens as human beings with “inalienable rights” granted not by the government but by their very status as having been born as human beings.

But it plays right into the hands of Identity Politics and police-state government by ‘emergency’ and ‘exception’.

You don’t see much political philosophy mentioned in the media, but ideas do get around and when espoused by this or that group, whether a pressure group outside of government or a political group within government, they can wield awesome power. Especially if they are not fully understood by the Citizens.

Just so we understand.

NOTES

*I speak here not only of the 600,000-plus already on SO registries nor only of the untold hundreds of thousands who are now theoretically ‘eligible’ under the Adam Walsh Act. I also speak of the shadow group of 9 times that number that are inferred to exist since – as the mantra goes – only 1 out of 10 sex crimes are reported and so there are huge numbers of un-caught ‘sex offenders’ roaming the plains and streets like the fabled buffalo. And I speak also of the entire half of the Citizenry of the male gender, since the SO mania is clearly aimed at maleness, and presumes that male sexual violence is the most significant characteristic of the entire bunch (which is a hell of a way to try to run a democracy … which may be part of the reason why the country no longer really is one in the strict and ideal sense).

**As you may well know, the German word Fuhrer translates into the English ‘Leader’. It should have been a stark warning to all Americans when after 9-11 Beltway and White House staffers began to refer to Bush as “the Leader” informally but publicly. The mainstream media, alas, chose not to notice.