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States of Exception in American History$
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Gary Gerstle and Joel Isaac

Print publication date: 2020

Print ISBN-13: 9780226712291

Published to Chicago Scholarship Online: May 2021

DOI: 10.7208/chicago/9780226712468.001.0001

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Constitutional Dictatorship in Twentieth-Century American Political Thought

Constitutional Dictatorship in Twentieth-Century American Political Thought

(p.225) 9 Constitutional Dictatorship in Twentieth-Century American Political Thought
States of Exception in American History

Joel Isaac

University of Chicago Press

There is a very important fork in the road in the contemporary political and legal theory of emergency: one following Schmitt’s path toward a theology of sovereignty, the other leading toward a liberal-pragmatic account of derogations from the rule of law in constitutional regimes. The purpose of this chapter is to show that the present split between Schmittians and liberals occurred much earlier than hitherto supposed, and on grounds that, while not identical to those cited in the current literature, resonate powerfully with more recent attempts by liberals to rethink the discretionary power of the executive without adopting Schmitt’s analytics. The chapter connects aspects of the present non-Schmittian theory of emergency with an earlier liberal account of constitutional dictatorship. This latter theory was developed by a group of political scientists working at North American universities from the late 1930s to the early 1950s. One of them, Carl J. Friedrich, was a German émigré who had encountered Schmitt’s teaching at first hand. The others were connected to Friedrich in one way or another. Their thought represents a vital resource in the effort to construct an American theory of emergency powers.

Keywords:   constitutional dictatorship, legislative emergency powers, administrative law, Carl Schmitt

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