Popular Sovereignty and Private Ordering in the State of Exception

Abstract

Carl Schmitt, how trite for a paper from 2011. This paper unpacks some of the implications of the then-recent Schmittian turn, which raised important implications for our theories of public law, sovereignty, and punishment. Scholars have long made strong claims about unconstrained executive power during emergencies as being consistent with the claim that the republican system in the United States is one of laws, and not of men. In this paper I describe the Schmittian theory of sovereignty (via Benjamin, Agamben, and the secondary literature that has addressed these thinkers), then explain how limits have evolved on popular sovereignty, in turn shifting power to a model of centralized government power to decide on the exception. In so doing, I evaluate the claim offered by Schmittian constitutionalists that the sovereign exception is an inherent feature of western political institutions. It is necessary to look beyond the simple application of Schmittian ideas in the “emergency powers” context, and to evaluate how his concept of sovereignty maps onto our own understanding of “who decides” the law and its exceptions more generally. I then outline a conception of sovereignty that draws upon a close reading of these thinkers’ work. This conception stands in opposition to the older liberal understanding of popular sovereignty, as well as to the newer legal-pluralist understanding of private ordering. Next, I try to reconcile this conception of sovereignty with our understanding of private ordering, decisionism in public law, and jurisgenerative power. The paper ends with observations about the decline of private ordering, centralization of power, and concerns about potentiality and decisionism in American public law.