00:03:14.360It means that they don't really understand their own project
00:03:16.620and you understand it better than they understand it themselves.
00:03:20.080And it kind of frees you of the, you know,
00:03:23.640You were so busy pointing out the hypocrisy of the other side that you kind of don't ever have to put meat on the bones of your particular objections.
00:03:31.000You don't have to say like, well, what would this politics really look like?
00:03:33.560Right. You can just kind of gesture at it as dishonest.
00:03:36.060But like substantively, what do Schmidt and his imitators say that liberalism is avoiding?
00:03:42.800Is it about like a confrontation with violence and domination?
00:03:45.960Is it about these quasi-mystical animal forces?
00:03:50.340What does he say that liberalism denies or looks away from?
00:03:52.880Yeah, it's surprisingly capacious. And I think it kind of does shift throughout his life. And it shifts depending on who he's talking to. His work as a jurist seems to suggest that the prime thing that liberalism represses is really the fact that a constitution has to have a sovereign, that someone has to be in charge.
00:04:13.080He thinks, well, they all try to dissipate or defray that fundamental truth, but it's all just shirking responsibility.
00:04:19.940Ultimately, you do need to kind of come down hard on some people and deciding on that is what sovereignty is.
00:04:26.300So that's the specific sort of legal case.
00:04:28.620What would we today associate with the theory of the unitary executive in the United States?
00:04:32.500Within these feckless, talky, constitutional structures slumber something far more steely, far more hard-nosed.
00:04:40.080and liberals, by and large, don't want to acknowledge that
00:05:42.240Or also just strength and dominance, right?
00:05:45.080This is supposed to be a life and death struggle,
00:05:47.600and instead they've turned it into a debate society, right?
00:05:50.180If you read the writing of Curtis Yarwin, it's all this, right?
00:05:53.520Yeah, this is a frequent far-right critique of liberalism is that it's bloodless, that it's legalistic, that it's interested in rules more than interested in power, and therefore it sort of abnegates or circumvents what they understand as this like more authentic and quasi-mystical drive of dominance and force.
00:06:19.080So there is this kind of like ersatz thing going on there where like he has these fantasies of omnipotence and of dominance.
00:06:26.880And in the end, like all he does is write pretty good essays.
00:06:29.480You know, there is a kind of element of displacement going on here too.
00:06:33.520But yet he thinks it's namby-pamby, it's feckless, and it's kind of effeminate to sit in meetings with people who properly ought to be your enemy, right?
00:06:42.600He puts it as follows in political theology, and I'll quote again,
00:06:46.420And the liberal state's nature is, quote, a negotiation, a hesitant half measure born of the hope that the definitive confrontation, the bloody decisive battle might yet be transformed into a parliamentary debate and indefinitely deferred through endless discussion, right?
00:07:02.420This is a guy who's very much frustrated by the Weimar Republic.
00:07:05.680He's like, you're avoiding the ultimate questions, the ultimate confrontations.0.56
00:07:10.720So as an alternative, he's really into, like, making a decision, taking action, making these very clear distinctions between friend and enemy.
00:07:20.440That sounds like something that would appeal to the sort of, like, move fast and break things crowd from Silicon Valley, right?
00:07:28.260Like the sort of people who themselves probably spend a lot of time at desks and in chairs, but have these fantasies of domination and force.
00:07:36.760Where they also spend some time at the climbing gym, so.
00:07:40.720A place of furious contestation and vicious friend-enemy distinctions.
00:07:47.020And a lot of the political theories such as they are subtending the Trumpist takeover,
00:07:52.380the sidelining of Congress, the use of executive orders, the fixation on unelected bureaucrats,
00:08:00.500and at the same time the idea that certain bureaucrats, you know, like Doge or Stephen Miller,
00:08:06.480are somehow empowered by the Volk, by the will of the people,
00:08:09.460Even though, like, none of us can ever remember voting for any of them, right?
00:08:13.400Like, the way that sovereignty sort of transfers itself, as you say, in this quasi-mystical way, this clearly all bespeaks the influence of Carl Schmitt.
00:08:20.600Or that's just how they feel, and Carl Schmitt gives them the buzzwords to pretty that up a little bit.
00:08:27.520So, Schmitt having sort of carved out this intellectual niche for himself by 1933, when the Nazis rise to power at the end of January, I imagine he's, you know, quite excited.
00:08:48.100How does he respond throughout the year?
00:08:50.560By 1933, Schmitt had made a career of being, let's say, an internal critic of the Weimar Constitution.0.99
00:08:55.380Really, what he's doing is like, here's how you dismantle this fucking thing.0.77
00:08:58.540And I think it's important to note that the way he accommodates himself to what eventually emerges from the collapse of the Weimar Republic shows why it's so dangerous that our conservative elites worship at the altar of this guy.0.94
00:09:12.100Like, you can see, this is when it goes from an intellectual exercise of internal critique to a proactive politics and, like, it ain't pretty.
00:09:21.320So one reason why today's authoritarians like him so much, I'd say, is that he wasn't saying throughout 1933 that Germany should break with the Weimar Constitution.
00:09:32.680He does say it's all a mistake, but he doesn't think let's all chuck it to the dust heap.
00:09:36.940Rather, he claims that the Constitution of Weimar had the tools and elements of a far more authoritarian state in it, almost sort of like what we sometimes think of as like framer's intent in the United States.
00:09:49.060And he's saying like, you can excavate that. So that's the other reason I think our conservative elites like him, because in the end, the proposition, let's get rid of the US Constitution is a highly minoritarian position in the United States. But being like, oh, maybe we can reinterpret it slightly in such a way that it basically becomes its opposite.
00:10:05.840That's something that has a great deal of appeal to the authors of Project 2025, to people at various institutes and think tanks.
00:10:14.880And I think their Schmidt, again, is like a really scary influence, but also someone that we can learn from where this journey goes.
00:10:23.180So this is in some way a rehash of Project 1933, but we're speedrunning it today.
00:10:31.020So, as you know, Hitler comes to power on January 30th, 1933.
00:10:35.760But maybe we'll rewind the tape a little bit to Wednesday, January 25th, 1933.
00:10:41.140And I'm going to be quoting here from his diaries.
00:10:43.880What I'm going to do here is basically draw on his own diaries, which are weird.
00:10:48.860I imagine they're freaking creepy as hell.0.96
00:10:51.080Because wasn't he also like kind of a sex addict?0.99
00:11:09.380So, we're going to intersperse it with his writings.
00:11:12.900Because one thing Schmidt does in this moment when Germany sort of reconfigures around him is to write himself into that process.
00:11:22.880He publishes an enormous amount, switches publishers, all that stuff, rewrites some of his older works.
00:11:29.620I mean, he's really furiously engaged in this process of writing himself into this process and interpreting that process in ways that the new rulers would like.
00:11:39.380And I think looking at his essays from that year is super, super helpful.
00:11:44.060Yeah, so I have here in our doc the entry from January 25th, 1933, just to give people kind of a sense.
00:13:36.380But yes, revulsion, paranoia, disgust around Jewish people is a truly shocking through line in these diaries.0.99
00:13:48.280You know that R. Crumb drawing where R. Crumb's avatar is this miserable, hunched over little like gremlin of a man and he's muttering to himself, I fucking hate everybody.1.00
00:13:59.760Like, look at you, you're all idiots, you're disgusting.1.00
00:14:02.340And then there's just somebody walking past him and it's just labeled like a normal guy.1.00
00:14:05.460Like, that's how I think of a lot of this kind of creep masculinity.
00:14:10.460And I do think we have to qualify Schmidt as a creep here.
00:14:14.060Because there's a sort of, like, needfulness, this, like, searing resentment and contempt that makes them socially just incapable and kind of, like, rotten.0.98
00:14:26.740It is worth noting, though, that he hates everyone a little bit, but the most physical reactions he reserves for Jewish people.0.90
00:14:35.400And, like, they'll later show up in his nightmares.0.96
00:14:38.720Like, he has nightmares about them, like, hounding him at a time when people are literally getting shot from being Jewish, right?0.87
00:15:14.700So July 20th is the moment, is the date of the coup the previous year in Prussia, which is where Schmidt helped von Papen take over a federal state that basically was run by Social Democrats and replaced it with a right-wing government.
00:18:18.240So much for decisiveness and the friend-enemy distinction.
00:18:21.780He can't make up his mind about getting everything he wants.
00:18:24.580Yeah, the whole thing, this is a term that I think Sam Adler-Bell often uses about these guys that I like, is this is cosplay, right?
00:18:30.960Like, he cosplays as this decisive person.
00:18:34.100Like, he's worried that the wrong group of right-wing creeps will take over his ministry and he therefore will no longer have a job, right?
00:18:42.040He's high up in the administration, doesn't want to lose that job.0.94
00:18:45.620You can fucking varnish that all you want with, like, friend-enemy distinction.0.93
00:18:49.100Like, in the end, like, you're like, this is a nice paycheck.0.99
00:19:35.020He is writing a letter to Ludwig Kass, head of the Center Party, who basically had called him out in print and had said, like, this guy wants to destroy the Constitution and he needs to be stopped.
00:19:49.560You say destroy the Constitution like it's a bad thing, yeah.
00:19:52.720And so he writes this letter, kind of an open letter, knowing, I think he writes the letter and sends copies to von Papen and others, sort of defending himself, but also exactly saying like, hey, maybe it's not such a bad thing.0.53
00:20:06.540And then he goes to a café, Café Cuchera, finds out that Hitler has become Reich Chancellor and Papen Vice Chancellor, excited, happy and high spirit, sent off the letter to Kass.
00:20:18.180So his feelings about Hitler in those early days are interesting.
00:20:21.940Like he later heavily retconned this stuff.
00:20:25.860And so it was like, I was always against this.
00:20:54.440Now, a lot of this may have to do with worries about his own future, right?
00:20:57.200The Nazis come with their own legal war machine in tow, many of whom, let's say, were about Schmidt's age, but had a change in career fortunes right around 1945.
00:21:07.9401945, and the fact that a lot of them were war criminals and did get hanged at Nuremberg.
00:21:12.960But they come with their own legal war machine, meaning it's very unclear what Poppins' legal
00:21:37.220In February, we see the first publication of Schmitz after Hitler is named chancellor.
00:21:43.060It's, of course, it was written before, it was written sometime in mid-January, and it's about developing the total state in Germany.
00:21:49.840And this is the idea that Hill sees on as 1933 grinds on, which is to say, what I did with Prussia in 1932 is really the blueprint for how Hitler can establish, or someone, he's still thinking someone.
00:22:04.700In January 33, someone can establish a total state in Germany.
00:22:09.380And he's probably thinking it could be Schleicher, it could be Papen.
00:22:12.300He's probably not thinking Hitler then, but he's probably not unhappy this thing's out.0.91
00:22:17.100Now he just has to make clear that he meant Hitler all along.
00:22:20.320Yeah, it occurs to me that there are several people, I don't think Schmidt is especially unique here.
00:22:25.040There are several people in the German right who were kind of interested in this authoritarian project0.98
00:22:30.940And in sort of moving beyond the Weimar Constitution into a more politically restrictive model of governance, who also thought that Hitler was kind of an idiot or like a clown.0.96
00:22:43.140You know, he seems to have not commanded a ton of personal respects.0.96
00:22:47.240There's a lot of people who are like, OK, we don't like the person, but maybe we can get on board with the project.
00:22:51.560Exactly. And I think that's exactly what's happening.
00:22:53.340It's very much about the project and the person of Hitler will become more important as 33 grinds on.0.97
00:23:00.940Yeah, but at the outset, there's a lot of people who are like, okay, this guy's a clown. I can use him for my own ends, which sounds to me kind of familiar from our own era, right?0.91
00:23:08.720There's a lot of people who are like, I can use Trump. I can like ride the Trump wave and manipulate him to get what I want. And that just like basically never works out for any of them.
00:23:18.120I mean, it worked out for Carl Schmitt for a little bit, three years.
00:23:22.000The other thing, of course, is that this is still about a kind of constitutional refashioning of Germany.
00:23:26.860And he's not particularly interested yet in the concept of the folk.
00:23:31.840And that's going to become way more important in the later spring for him.
00:23:35.700This kind of idea that the movement, the Nazi movement and the state and the folk are all merging now.0.80
00:23:43.420That is something that he gets more interested in as the Nazi project takes shape.
00:23:48.120I just briefly want to read to you from his diary on Tuesday, February 8th, just because it's funny.
00:23:53.320Friendly confirmation from Papen regarding my letter to Kaz.
00:24:50.320He concludes this note by saying, escape plan.
00:24:52.780I thought Switzerland, then Italy, going underground, vanishing into nothingness.
00:24:56.860All right, so he's thinking, like, oh, this is going to be bad for me.
00:24:59.180Yeah, he's really thinking about leaving, like, in a way that people like Thomas Mann and Bertolt Brecht at this point are not, right?
00:25:05.540And by February 8th, even, like, confirmed communists are like, eh, let's see where this goes.
00:25:10.420I mean, there are a few people who sort of, like, rush off Erich Maria Remark among them, who, like, really just, like, run immediately and are like, this is going to be bad, y'all.
00:25:19.580But everyone else is like, well, they can't do all of this for sure, so let's not run quite yet.
00:25:26.880And Schmidt's like, oh, no, no, no, I'm on kayak.com Googling, like, Prague, how to get to, you know.
00:25:32.540And I think that that's really important here.
00:26:43.280Anyway, but so it's not clear how effective he thinks the Nazis are being at this point.
00:26:48.360On Monday, February 27th, 1933, he notes in the evening, quote, a pleasant, lively conversation about the futility of the one-party system in Germany.
00:26:57.200So he's saying, like, it's not going to happen, right?
00:26:59.040He's like, I like where their head's at.
00:27:21.480And there are people, Rudolf Dius among them, the later head of the Gestapo, who are very clear that the Nazis had all these arrest orders in the drawer ready to go.0.65
00:27:32.600And that like basically the Reichstag fire is the occasion they need.
00:27:35.880And again, Schmidt, knowing whom he knows in the government, probably knew that.
00:27:40.500But still, like, he's able to feel so set upon.0.99
00:27:43.360And he's like, oh, we're just not going to get our beautiful one-party state, like, 27 days into this fucking thing.0.99
00:27:49.340He's, like, decided to be a victim.0.98
00:28:04.540Why are you so committed to a notion of your own defeat?
00:28:08.800And it also doesn't seem like he's particularly active right now.
00:28:11.880Like, everything is happening without him even having to make much of an effort.
00:28:15.480And I think that is his ultimate source of frustration, right?
00:28:18.200He at some point talks about, like, oh, they're trying to destroy the myth of Carl Schmitt.
00:28:21.080He was happy when people thought of him as, like, this éminence grise behind Papen.
00:28:25.600And he was kind of pissed that, like, now it's all happening without him.
00:28:29.120I also want to point out that this attitude of like being pre-disappointed is something that is so common among especially sort of Silicon Valley elites.
00:28:38.480We can already tell they're setting themselves up for like, I was pro-Trump and then I just felt so disappointed by.
00:28:46.060And I didn't think it was going to be like this.0.98
00:28:48.940It's like, what fucking made you think that?0.96
00:28:50.720It's the same as like, I wanted to be woke, but you made me, you pushed me to the right with it.0.99
00:28:55.840Yeah, there's a, I don't know, there's a way in which, like, a posture of, like, preemptive knowing cynicism is supposed to, like, signal your own sophistication.
00:29:05.320But it also is just, I just find it so whiny.
00:29:08.660Yeah, I think he's basically keeping his options open here, right?
00:29:11.400If this all collapses after the March 5th election, he can sort of say, like, look, did I agree with some of this stuff?
00:29:18.380But in practice, it was just, he was an imperfect messenger for a very good idea, right?
00:29:22.500Like, exactly the kind of thing that Peter Thiel can then say about Trump every time, like, after he's made him president again, right?
00:29:28.400Now, let's skip ahead a little bit now.
00:29:30.040So, we have the elections in March, and after that, serious Gleichschaltung, serious coordination measures kind of bringing the state into line.0.80
00:29:38.340That's when the local and municipal governments have to have Nazi control the same way that the federal government does, right?0.84
00:29:48.500It starts with the administrative state and then becomes just something that happens in schools, in universities, at the post office, at the rail company, et cetera, et cetera.
00:30:01.520And it really becomes a purge, very much like the purges that we see under someone like Hegseth or we saw under Doge.
00:30:08.480And it tends to target people who are, quote unquote, unreliable, which usually means social democrats, although eventually it'll also mean center party people.
00:30:18.280And it means Jews, mostly, at this point.0.82
00:30:21.520This is where Schmidt finally gets to do stuff.0.65
00:30:24.140Because he helps write one of the coordination measures, the law of April 7th, about bringing the local municipalities into line with the federal government.
00:30:34.100And he writes a commentary on that law.
00:30:38.220And this is where he starts building his own myth.
00:30:41.240And we should say, like, Schmidt knows his way around a constitution.
00:30:44.220So, like, he's not wrong about this, but he's starting to sort of emphasize and underline, right?
00:30:48.040Like, he now reads his interpretation of the Preussenschlag, of the coup from above, where basically Hindenburg and von Papen conspired to take over the federal state of Prussia, right?
00:30:58.280It's as though Trump were to remove Gavin Newsom and install someone as the governor of California.
00:31:05.660And he basically reads that as a first step towards the total state, which I think is accurate.
00:31:10.960The Nazis looked at that and were like, okay, cool, we can do that, right?0.86
00:31:13.580Yeah. And as essentially presaging the ascent of Hitler. And I think that that part's a little bit more doubtful. But he writes in the notes to the law, the Prussian coup, in heavy quotation marks, I'm guessing on his part of July 20th, 1932, represented the first attempt to assert the Reich's right to unified internal political governance.0.62
00:31:34.600Okay, so now the Reich, by which I assume he's meaning like the Nazi regime de facto, has its own rights that can be enforced by the law over the rights of municipalities or states.
00:31:50.500What he's saying here is that Germany as a whole, the Reich as a whole, has rights.
00:31:56.640Right, but he doesn't mean like, he doesn't mean like any of the opposition parties.
00:32:01.080This is not something that was going to come up if, say, the Reichstag had been under SPD control.
00:32:07.260Exactly. And in fact, it's very clear that the Reich for him at this point is very much not an institutional entity, right?
00:32:14.400Like what we say when like something VUS, right?
00:32:16.780Like that's the institutional framework of the United States that is on trial there, right?
00:32:21.700Oh, so he means like kind of like the essence of Germany, like the German spirit.
00:32:26.080Yeah. Oh, my God. That's the other thing is these guys talk, it's like define your terms and they can't because they're talking about a vibe.
00:32:33.080They're trying to grant legal rights to a vibe here.
00:32:35.400Yeah, exactly. Right. This is not an institutional entity.
00:32:38.360It's not even a political entity in the way we would traditionally understand that.
00:32:41.860It's political in the sense that he uses the political. Right.
00:32:46.240It's vitalist, as I was mentioning last time.
00:32:49.220It's a subject that is able to make the friend enemy distinction for itself.
00:33:15.220As the structures of the Weimar Republic totter and collapse around him, the Volk sort of reemerges as a central category in Schmidt's thinking.
00:33:27.060He sort of pushed this line since the late 20s, but he now can sort of emphasize that.
00:33:33.760And just to give you a sense of like how that shifts your legal categories, to me it's fascinating as a, you know, in a way a child of liberal democracy myself.
00:33:41.760It really helps to envision the kinds of examples he has in mind, because while Carl Smit is, as we mentioned, very good at the sort of big claim, he is also a practiced lawyer.
00:33:52.700So he can sort of then drill down and be like, this is an example of this.
00:33:55.860Here is one example that really clarified this for me.
00:33:58.740And this is from a 1929 essay, Essence and Genesis of the Fascist State.
00:34:09.540Right? Like my first reaction exactly. I'm like, okay, wow, we're really far down the rabbit hole, Carl, aren't we?
00:34:17.040His claim is that the secret ballot actually thwarts the will of the Volk by unduly individualizing, privatizing, and most importantly, depoliticizing it.
00:34:29.060I'll just quote from this essay, that today's methods of secret individual voting jeopardize the entire realm of the state and the political through complete privatization, entirely displacing the people as a unified entity from the public sphere.
00:34:45.120The sovereign, da-da-da, vanishes into the voting booth, and degrading the process of forming the state's will to a mere aggregation of secret private individual wills, or in reality of uncontrollable mass desires and resentments.
00:35:10.200And this necessarily has to override the individual wills of anybody I happen to deem inconvenient.
00:35:17.120And it strikes me that this, like, sets up a no-truth-Gossman fallacy, right?
00:35:20.920Because if you have, like, a section of the Volk that does not agree with this supposed expression of the collective will, then they're not a true member of the Volk, right?
00:35:31.920It's a concept that is sort of morphologically exclusive, right?
00:35:36.940It's, like, able to, like, keep changing.
00:35:38.620There is definitely an element of that. If I had to steel man his argument here, I would say he's probably thinking of public acclamation as a counterexample. The way maybe at a march, if someone starts shouting something that the rest of the group doesn't share, you might shout them down and be like, just get in line and like shout along with us.
00:35:58.020That is a form of like collective will finding that is public and is open, right?
00:36:02.760Like two groups might shout at each other.
00:36:04.760I think that's the sort of thing he thinks.
00:36:06.840He's like, you can be in the minority here, of course, but the collective will impress
00:36:53.000But I think that a lot of constitutionalists would defend that and say like, well, no, especially in the situation where mass media can generate the impression of widespread popular support, something that Josef Goebbels was developing as a technique, right as Schmidt is, you know, saying all this stuff, right?
00:37:14.080It's actually much better to sequester people forever briefly from the clamor outside and be like, wait, does this actually make sense?
00:37:23.620Anyway, I think that's a pretty clear example of like how, where he thinks there's this undue liberalization, this undue individualization and privatization of what ought to be a public consensus finding of the folk.
00:37:39.820But as you point out, this also kind of requires saying, well, you guys don't belong.
00:37:44.880And not just like because the others shout louder, but because there's something wrong with you, right?
00:37:49.240Like this becomes a kind of biologistic and vitalistic conception.
00:37:52.760And basically his claim in May, in a May essay that he writes the good right of the German revolution, May 12th, he points out like right now what you've seen out of Hitler is mostly stuff coming out of the administrative state.
00:39:01.840It's like, wait, is this fucking essay about us and how we don't belong to the Volk?0.66
00:39:06.760So he says, from now on, German law and the German state are not based on an empty and formal equality of all before the law, but rather on the substantive and essential homogeneity of the entire German people, a people united and uniform within itself.0.90
00:39:48.380The fact that you and I share a biological destiny and a biological identity, and that should be the kind of jumping off point for our political decisions, not the goal for our constitution.
00:40:02.220Right. Well, this is always the double-edged sword of what we call populism, right?
00:40:06.120Because the notion that the people are sovereign means that you have to deal with the fact that the people don't all agree with each other, right?
00:40:14.400And one very popular way to do it by the likes of Schmidt is to sort of identify a very specific group of people that you mean and only sort of permit their perspectives to be legitimated or, like, recognized.
00:40:27.600Exactly. Four out of five German dentists agree, and the fifth German dentist is no longer working as a dentist at this point, right?
00:40:34.160Schmidt's very clear that this is not about changing constitutional structures and bringing things into alignment with the central government.
00:40:41.480That's also what's happening, but it's about the sovereignty of the Volk, one that excludes many people, right, who have German passports, who have the right to vote.
00:40:52.020So this Volk concept, something that he has come to as a source of democratic legitimacy or like governance legitimacy, it does seem to be like a kind of rapid return of this idea.0.57
00:41:00.560Is he just like post hoc trying to form a justification for what he sees the Nazis doing?0.64
00:41:04.800Is he trying to guide them in their future consolidation of the German state?
00:41:10.600What's the object of all this thinking about the Volk?
00:41:40.060every authoritarian does that. You guys have to go further. You have to explain that Gleichschaltung,
00:41:46.820right, that the equalization of these institutions is not about making things the same. It is about
00:41:52.800recognizing what is already the same and what is not the same, what doesn't belong, right? And
00:41:58.920again, I mean, I don't want to hand it to Carl Schmitt, but as a diagnosis, he's of course right.
00:42:03.740In some ways, people thought like, oh, this is an authoritarian government removing its political
00:42:08.040enemies from positions of power. And he's like, no, this is about who biologically belongs to a
00:42:13.380category. And I think historically, like, yes, that's what it was about. Carl Schmitt likes it,
00:42:18.800which is a problem. But as a diagnosis, it's definitely more right than anyone who would
00:42:24.100have said in April or May. It's like, well, look, dictators always do this. They're just going to
00:42:28.160get their buddies in a couple of positions of power, and then it'll all run its course, right?
00:42:32.260He's like, no, no, no, no. This is a biological project.
00:42:35.180Yeah, it's occurred to me a couple times, and I don't want to get too derailed here,0.81
00:42:37.580But it's occurred to me a couple of times as we've talked about Schmidt that he has a much clearer vision of the Nazi project than somebody like Thomas Mann does at this point.
00:42:45.960He understands exactly what they're doing, whereas other people are still sort of confused and thinking about it under sort of perhaps older or less comprehensive models of like corruption.
00:42:57.200You would think about it as corruption or you think about it as populism.
00:43:00.020This is a point that I think Frederico Finkelstein makes in one of his books, that populists and fascists both love talking about the enemies of the people, but one group does something about that, right?
00:43:11.060Whereas the other one is just does that when a judge is like, oh, that's corruption, by the way.
00:43:15.080Like, that's an enemy of the people, right?
00:43:16.840I don't know if that entirely holds any more as a distinction, but it's very noticeable that, again, Schmidt here has a decisionistic agenda.
00:43:24.000He's like, these distinctions between friend and enemy do not matter as a matter of rhetoric.
00:43:28.980It only matters if you make them matter, right?
00:43:32.180If you make them part of people's lived reality,
00:43:34.600that has to be part of what's happening here.
00:43:37.240Otherwise, fine, you're like Andrew Jackson.
00:43:53.320Just to give you a sense of like what that can sound like
00:43:55.400in terms of like who belongs and who doesn't to this Volk,
00:43:58.400On May 31st, you mentioned Thomas Mann, Schmidt writes an article about people like Thomas Mann, though Mann at the time would not have been in his crosshairs necessarily, because if you recall, Mann sort of kept a little mum early in 1933.
00:44:11.700But he writes this brief article in the Westdeutscher Beobachter.
00:44:14.760We should also mention that for a law professor at the time and a government worker, Schmidt is like very present in newspapers.
00:44:22.560A lot of these are newspaper articles.
00:44:24.920And this one is called the German Intellectuals.
00:44:27.660So basically here we get to a group that is definitely not part of the Volk.
00:44:32.320And I would invite our listeners to think if this sounds like any people they could find on Twitter today.
00:44:42.240I'm going to read the first paragraph here.
00:44:44.140Today, hundreds of quote-unquote German intellectuals sit abroad inciting war against the German people.0.62
00:44:49.880The treason against state and nation that they practiced secretly and under a cloak of concealment for decades,
00:44:54.820they now perpetrate openly before the entire world.0.92
00:44:58.540Most of them still hold German citizenship and can, in that sense, still call themselves Germans.0.60
00:45:03.540Whether it would be expedient to strip them of their citizenship by law is a separate question,
00:45:08.380and perhaps not even an important one.
00:45:10.400For those of you keeping track at home, this would take until August.
00:45:13.840They would make Carl Schmitt's suggestion here a reality within less than three months.0.81
00:45:18.260The fact that they use the German language no more makes them Germans0.88
00:45:22.260then the counterfeiting of German money makes the counterfeiter German.0.67
00:45:26.780They have never belonged to the German Volk.
00:45:29.460So there's also a sense of German identity as something that's being stolen and cheapened
00:45:33.540by people who are outside of this, like, you know, sovereign popular will.
00:45:38.200Yeah, people who speak good German, people who claim German-ness,
00:45:43.900people who've been secretly infusing corrosive ideas into the Volk,0.79
00:45:48.520but who never can quite belong, who can only create a mimicry of German culture.0.97
00:47:13.440It was really much more about, like, you know, all these idiots have to, like, shit out these pamphlets.1.00
00:47:18.640And then, like, they make all their party-faithful suck-ups who are trying to, like, become something in the Ministry of Propaganda by them.1.00
00:47:25.880So this is a really good grift for someone, right?
00:47:28.820And by May, for instance, he's revising the concept of the political for this new publisher.
00:47:33.500He makes changes to it to make it more predictive of the Nazi state.
00:47:38.640He's also applying for NSDAP membership right before the party closes the door.
00:47:43.440This is mostly throughout April. So while he's not technically what was called the fallen of March, right, the people who rushed into the Nazi party the moment the votes had been cast on the March 5th election, he's basically a guy who fell one month later. Good job. Real moral high ground there, Karl.
00:48:01.340So by April 29th, he has bought a Nazified cap and gown.0.75
00:48:05.740By May 1st, Labor Day, he is elated by the, quote, grand celebration, wearing my new academic gown.
00:48:12.200And then reports on this big rally they have for May 1st, which the Nazis sort of tried to turn into this big performance to sort of like show solidarity with the working class.
00:48:24.740Then Winkelkampner and a young SA man, the latter insolent and overly arrogant.
00:48:29.740Then we sang the Horst Wessel song with great enthusiasm, often felt a sense of dread at its chthonic brutality and elemental force.0.75
00:48:37.520So, like, here he is, not three months after, like, I hate this Hitler guy being like, what are the lyrics to the Horst Wessel lead again?0.88
00:48:44.700I used to be terrified of it, but now I'm into it.0.98
00:48:50.080Well, now let's jump forward a little bit.
00:48:52.080In October, there's a big meeting of the Reich's jurists in Leipzig.
00:48:56.760And it's a really kind of interesting conclave because, of course, while coordination measures are slowly purging Jews from legal academia and from the justice system, not all of them were purged.
00:49:10.400Meaning if someone was a front fighter, for instance, in World War I, they probably still could be a judge.
00:51:40.540So just get fucking creative with it.0.99
00:51:42.420So there's all this stuff that sort of has to be turned on its head.0.98
00:51:45.080And at the same time, the question becomes like,
00:51:47.280well, how is this still a state of laws, right?
00:51:49.720Like, it feels like it's a state of vibes, you and I might say.
00:51:52.980And there's this real debate and this real question about like, well, how exactly do we justify this?
00:51:57.920And here I think we can see Schmidt's intervention again, because I think his justification of this or his critique of this fixation on the state of laws goes back, A, to a pattern we've seen from him before.
00:52:11.260And B, gives us, again, a very nice exemplification of how his thinking really works once you put it into the service of a government.
00:52:19.600What it resembles is that once again, Schmidt is saying, well, yes, this is a problem if you have an overly liberal understanding of what a state of law means.
00:52:27.540Same way that he's like, yes, yes, yes, I'm not against democracy, but not that kind of democracy, right?
00:52:33.020Like he's saying, I'm for the state of law, but I don't mean by it what you mean by it.
00:52:37.560This idea that the liberal state has basically either degraded our understanding of what the state of laws should be or has in fact repressed what it really is.
00:52:47.040So, he says, in State Movement People, the liberal applies the term Rechtsstaat, a state governed by the rule of law, only to a state structured in two parts.
00:52:56.820A state structured differently has, quote, no constitution, is not a, quote, constitutional state, and naturally not a state of law either.
00:53:04.960It is not free, but rather an autocracy, a dictatorship, a despotism, etc.
00:53:10.440Again, like, this is one of those Schmittian diagnoses where you're like, yeah, I would kind of say that, right?
00:53:16.120Yeah, like I sort of know what you mean, but then he goes on.
00:53:20.820This two-part structure is based on the antithesis between state and free individual,
00:53:26.800between state power and individual liberty,
00:53:29.240between state and a society free from state control,
00:53:32.080and between politics and a private sphere that is apolitical
00:53:35.060and therefore unaccountable and uncontrolled.
00:53:37.860So this is a vision of the state extending into every aspect of private life,
00:53:43.960which is not just sort of like the family life, but really like into like the mind itself, right?
00:53:48.280The state becomes synonymous or like supersedes the individual or comes to encompass the individual
00:53:53.140so that like a set of individual rights becomes kind of moot
00:53:56.940because there's not a distinction between the state and the person.
00:54:00.140Exactly. So he thinks it is central to the liberal state as it emerges in the 18th century
00:54:05.980that there is a sphere which the government has no business interfering with, right?
00:54:10.260And, like, it is the job of the Constitution to create limits between those two spheres.
00:54:16.540If you look at the Bill of Rights in the United States, right, like, you have a right to trial by jury.
00:54:20.940There cannot be any bills of attainder.
00:54:22.460There cannot be a quartering of troops.
00:54:24.680There cannot be searches and seizures, et cetera, et cetera, right?
00:54:26.940I mean, this is also a feminist criticism of liberalism, right, is that it leaves vast swaths of private life in a, like, Rousseauian state of nature where only the strong rule, or I should say a Hobbesian state of nature where the strong rule.
00:54:40.260And where, you know, women are therefore sort of unable to guarantee their own, like, safety or dignity.
00:54:46.900Yeah, one should say that Schmidt, he thinks this is superannuated, but his critique is not really that it is in itself bad, although he probably does think that.
00:54:59.260This two-part structure, he thinks, becomes increasingly illusory as states modernize, right?
00:55:05.160He says, quote, behind the veil of liberal democratic freedom and the bourgeois rule of law, the pluralistic system of a multi-party state merged, as was characteristic of the 14 years of the Weimar Constitution.
00:55:16.000What Schmidt means is that basically the picture of the individual versus the state is outmoded in a mass society.
00:55:23.980There are non-governmental but also super individual political institutions that interpose themselves between individual people and power.
00:55:31.600That might be like a corporation or a union or even, I think, a church, you know, like a lot of these institutions exist.
00:55:38.240Yeah, he says these are often self-contained organizations of national denominational and other kinds.
00:55:44.620He's saying, look, that is an overly idealistic picture of how a society operates.
00:55:51.500Really, there's a mediating influence there, meaning that there is really a tripartite structure here.
00:55:56.740The bipartite structure on which the modern liberal constitution depends doesn't exist in any of the actual liberal democracies anymore, he thinks.
00:56:04.720Behind the bipartite structure of the liberal democratic constitutional framework, an anarchic pluralism of social forces proliferated.
00:56:11.900A chaotic amalgam of the state and the non-state, the public and the private, the political and the ostensibly apolitical.
00:56:18.740Right. So he's saying that these things are neither fish nor foul.
00:56:21.700You get this thing that's like a kind of mashup of both.
00:56:24.780But how will we control civil society?
00:56:29.640But the argument he makes is to sort of say, like, well, there's like a moment when your pastor talks to you about, like, how important it is to be faithful or to, like, be nice to your children.
00:56:39.960And then the next Sunday, he might sort of give you a hint of how to vote.
00:56:44.020Like, this is where the Kulturkampf once again raises its head, right?
00:56:47.040The fact that Schmidt was raised Catholic and understands the kind of difficulty that Catholic Germans sort of were in, you know, after unification.
00:56:55.960But note that he's basically saying, like, the Catholic Church is not sort of a leftover of a prior state of affairs, this kind of medieval remnant sticking out into 19th and 20th century Germany.
00:57:06.780He's saying it's actually indicative of aporia of the modern liberal state.
00:57:13.280It's not only that the Catholic church isn't going to go away in a liberal state.
00:57:17.660Actually, this stuff's proliferating, right?
00:57:19.660Even if you leave the church, you're going to belong to a union.0.99
00:57:22.540You might belong to a fucking bunny breeders club or whatever.0.93
00:57:25.460Like things are going to interpose themselves and they're going to collectivize you in ways that are neither fully political nor fully apolitical.0.99
00:57:32.420He's so mad at the idea that people have friends.
00:58:47.720All these Schmittians will revert to being...1.00
00:58:50.300Separation of powers, like sticklers for a liberal order.0.98
00:58:54.460Right-wing anarchists the moment, you know, President AOC has picked out the drapes on the Oval Office.
00:59:02.180It's important to stress that Schmidt is not necessarily saying that this pluralism,
00:59:06.760this chaotic pluralism you mentioned, is a bad thing, though, honestly, like, probably.
00:59:11.760Like, he really is impatient with this stuff.
00:59:14.400But you could take him to say, this is just another place where liberalism is deluded or dishonest about its own reality.
00:59:20.980At the same time, I do think the point about the deep state here is a pretty important one.
00:59:24.840And I do want to point to the fact that Schmidt can be quite astute in discovering contradictions and repressions within liberal constitutions.
00:59:35.680At the same time, I think that this statement has an empirical problem.
00:59:39.880I don't want to fact check a work of political philosophy that feels kind of weird.
00:59:43.540But as someone who has just read through a ton of texts about and from 1933, I do feel like I need to point out that this is kind of a strange argument to make in late 1933.
00:59:57.860He's writing this in October, publishes the book in November.
01:00:00.700It makes sense to say that bureaucrats actually have a lot of power and that they could wield that power sort of independently of popular will.
01:00:52.260They fully understood themselves to be an apparatus, right?
01:00:55.640So there's something that feels really off about Schmidt's diagnosis and that feels particularly off at the time that he writes it, which I think gives you kind of sense that this is really a guy trying to backfill the empirical evidence for the state that he sees emerging.
01:01:11.820The total, the Führerstadt, the state focused on the leader figure of Adolf Hitler.
01:01:17.480It seems like he's really trying to make things rhyme that don't really want to rhyme.
01:01:21.500And he has all these noxious tropes he operates with that really don't work particularly well for the way that year actually unfolded.
01:01:29.840He's just seen empirically what it looks like when a liberal constitution gets destroyed from within and taken over by a total state.
01:01:39.440The total state's not quite there yet, but I mean, it's pretty darn close.
01:01:43.060And yet, he basically, he has the same friend-enemy distinction he had in January 1933.
01:02:45.420Yeah. In my book, I argue that jurists in the Third Reich just found themselves in a really difficult bind.
01:02:52.160They had to pretend like it was business as usual, like Schmidt being like, oh, actually, the Prussian coup to the, you know, various enabling laws to the synchronization or coordination laws actually are one single process.
01:03:09.920And really what we are seeing here are revisions of the Constitution.
01:03:12.860and then you have the fact that this is a obviously law-breaking
01:03:17.620and obviously illegal seizure of power in many cases, right?
01:03:22.780And so sometimes he succeeds in creating these kinds of justifications0.89
01:03:26.980but as time goes on, it's very clear that the Nazis are happy
01:03:31.780for certain things to be a breach of the legal status.
01:03:35.040Yeah, to be inconsistent, to be a violation
01:03:36.960that just soars up their own position of domination.
01:03:40.060This does remind me a little bit of how Trump has a really hard time
01:03:42.800hiring lawyers now because a bunch of his old ones got disbarred, right? Like the legal arguments
01:03:49.500that representing that guy requires you to make is often just like incompatible with, you know,
01:03:56.120professional standards, let alone your personal dignity. And I can see that as being an ongoing
01:04:01.100contradiction that's very difficult. The people who are resolving it really are the people on
01:04:05.940the Supreme Court who are like kind of just happy to have, as you mentioned, inconsistencies,
01:04:11.300glaring opportunism, because they can neither be promoted nor fired, right? There's no ambition
01:04:17.000nor any consequence to sort of rein in their impulse to degrade themselves that way.
01:04:24.600And if Schmidt wasn't there, I could see him getting kind of cornered. And it's the way that,
01:04:28.680you know, revolutions eat their own. We're definitely seeing this as the manga right now,
01:04:32.060right? These movements demand things of their adherents and of their intellectual and popular
01:04:38.820foot soldiers that are actually not sustainable over the long term.
01:04:43.400And people wind up being backed into these weird corners from which they can't really
01:06:03.200He's going to be like, well, you know, again, like, it's the sovereign who decides the state of exception.
01:06:07.940Like, that is both the central insight that Carl Schmitt brings to the Nazi state and is also, I think, what undoes a lot of people like him.
01:06:16.180That, like, that state of exception, we talked about it in the last episode, has its analogy in the divine miracle.
01:06:23.580And just like that, it tends to come like a bolt out of a blue sky.
01:06:26.820And so, like, making that predictable, making it universalizable, making it so that people can live their lives by it is inherently difficult and inherently contradictory.
01:06:36.340And it's particularly difficult and particularly contradictory for those whose job it is to then explain why Dear Leader never actually was inconsistent.
01:06:45.440Not a job I envy. Not a job anybody can succeed at. And one that everybody will laugh at you when you inevitably fail doing and nobody will feel bad for you ever at all.
01:06:59.500Exactly. Don't feel bad for Carl Schmitt.