The Nazi Philosopher Behind the Postliberal Right

In Part I of this series, we examined postliberalism’s war on economics—how its proponents blame free markets for every social ill while demonstrating little grasp of the discipline they attack. But postliberalism’s ambitions are ultimately Constitutional; its deeper project is dismantling the Madisonian order (the separation of powers and checks and balances within the federal government created to prevent anyone from accumulating too much power).

The entire intellectual apparatus for this anti-constitutional attack is built on borrowed Nazi jurisprudence and historical fabrication. To understand this history, we need to follow a single intellectual thread: from Carl Schmitt to 9/11 to the White House.

The fading political memories of the George W. Bush administration have become something of a stand-in for postliberalism’s broader assault against pre-Trump conservative politics. The “neoconservative” blunders during the Iraq and Afghanistan Wars are a recurring postliberal complaint—a symbol of the wing of the Republican Party that it aims to bury once and for all under Trump and Vance, their favored successor in 2028.

Yet for all its posturing as a conservative sea change, postliberal theory has more in common with Bush-era foreign policy than it cares to admit (as we are now seeing in Iran).

The main intellectual link comes in the person of Carl Schmitt, an eccentric German legal theorist from the early 20th century. Once a leading conservative academic figure in the Weimar Republic, Schmitt fell into disrepute after 1933 when he joined the Nazi Party and wrote the legal justifications for Hitler’s seizure of power. Schmitt’s involvement with Nazism rightfully wrecked his postwar academic career, yet he managed to retain a stream of academic interlocutors who saw flashes of brilliance, or at least provocative insight, in his writings on constitutional theory.[1]

The terrorist attacks of 9/11 spawned a flurry of Schmitt scholarship on both the left and right. While taking care to distance themselves from his Nazi-era baggage, these scholars sought insight in Schmitt’s voluminous Weimar-era writings on the limits of liberal constitutionalism in times of emergency.

Bush’s inner circle did not have any overt Schmittians in its ranks, but similarities in their arguments spawned a flurry of comparisons. Dick Cheney, Alberto Gonzales, and other Bush Administration officials often couched their legal arguments for extrajudicial terrorist detentions by appealing to the state of emergency after the attacks and the historical precedents of Abraham Lincoln during the American Civil War—itself a recurring fixation of Schmitt’s own writings.[2]

Schmitt entered this picture as conservative legal scholars discovered his theories and adapted them to the mid-2000s world of counterterrorism. The utility of Schmitt’s arguments came from his willingness to test the limits of constitutionalism during existential events.

Schmitt laid out an intellectual case for decisive and unilateral executive action during the “state of siege”—the moment of exception where the survival of a government was, allegedly, at stake:

Rigid adherence to constitutional norms could imperil the government’s ability to address the emergency by hamstringing it with judicial interference. Only the nation’s leader, its sovereign, possessed the vantage point from which to decisively act and navigate the situation, or so he argued.

Schmitt developed these concepts into a broader indictment of liberal constitutionalism, which he charged with obscuring the essential political distinction of any society: that between friend and enemy. To Schmitt and his intellectual descendants on the postliberal right, liberal constitutionalism is a lie because it pretends politics can be neutral, procedural, and governed by rules that apply equally to everyone. Schmitt believed that was a fiction, one that obscured the true nature of power and inhibited decisive action during the “Ausnahmezustand,” or a state of exception where the survival of the government was at stake.

In 1934, Schmitt would take this line of reasoning to its logical extreme by penning a grotesque defense of Hitler’s actions on the Night of the Long Knives—when Hitler had dozens of his political rivals murdered to consolidate power. If politics is fundamentally about identifying and destroying your enemies, and the sovereign is whoever gets to decide when normal rules don’t apply, then it’s just a hop, skip, and a jump to murdering your rivals in the dead of night.

In certain conservative legal circles, Schmitt’s framework seemed to fit the most extreme extensions of the Bush administration’s antiterrorism agenda. Terrorist attacks created a “state of exception” involving a well-defined enemy. The peacetime formalities of a jury trial, due process, and even normal warfare conventions against torture collided headfirst with the Guantanamo Bay detention center, with secret renditions of Al Qaeda leaders to CIA black sites, and with information extraction through waterboarding and similar techniques.

And on the academic periphery of the discussion, a handful of legal scholars began to pull together Schmittian emergency theory and the War on Terror into an explicit doctrine.

The respectable case for despotism

In 2006, Harvard University hired a young law professor named Adrian Vermeule. He came with a mainstream conservative pedigree, having previously clerked for Supreme Court Justice Antonin Scalia. Shortly after taking his new position, Vermeule (along with co-author Eric Posner) published Terror in the Balance, a legal treatise on presidential powers in the post-9/11 context.

The book argued that there is a fundamental tension between preserving civil liberties and providing security. During ordinary circumstances, civil libertarian norms operated with little controversy, but in times of crisis, the balance tilted sharply toward security.

Regular courts, the two authors reasoned, are ill-suited to navigate such crises. Instead, judges should defer to the president in emergencies. Indeed, most judicial resistance to this proposition would amount to an exercise in futility.

But notice what that claim assumes: Courts are only futile against an executive that has already decided he won’t comply. This circularity is central to the Vermeule argument: The courts are futile because the president won’t be bound, and the president is justified in not being bound because the courts are futile.

Under this logic, the two academics brushed aside a series of Supreme Court rulings, which asserted the rights of Guantanamo detainees, as little more than symbolism.

To develop their arguments, Vermeule and Posner alluded to the opening proposition of Schmitt’s 1922 treatise Political Theology: “Sovereign is he who decides on the exception” and invoked Schmitt’s writings on dictatorship to press the boundaries of presidential power.[3]

They recognized the controversy of this move given Schmitt’s connections to the Third Reich, although they cloaked the resume of Hitler’s crown jurist in intentional euphemism. Schmitt was simply a “Weimar academic and Nazi fellow-traveler” who “articulated some famous ideas about emergency powers.”

After conceding this baggage, the two law professors announced their intention “to extract the marrow from Schmitt and then throw away the bones for the professional exegetes to gnaw.” They aimed to salvage Schmitt’s “useful points,” the “most important” of which held that “emergencies must be governed by ex post standards, rather than by ex ante rules, and that liberal legalists are addicted to process” without accounting for its costs, including the cost of “forgone government action in emergencies.”

This conceptual framework empowers despotism under the cover of unilateral emergency actions that no court or congress could challenge. Vermeule and Posner acknowledged as much, noting “civil libertarians invoke the shadow of Weimar” to warn about the dangers of expanding executive power in times of emergency.

They answered that in two ways: First, they claimed that historical analogies don’t apply because we can only understand emergencies in hindsight. And second, they insisted that emergency power would not “produce another Hitler … in today’s liberal democracies anyway; and if it did, there would be nothing that civil libertarian judges could do about it.”

So, essentially, you’re silly to worry about dictators because even if they were to come about, what could a judge even do to stop them?

Ultimately, they have no real answer to the problem of Hitler.

The War on Terror faded from the public’s consciousness and the Great Recession put domestic policies in the front seat. Vermeule and Posner’s initially cautious foray into Schmitt’s theories of emergency, forged in the context of 9/11, soon morphed into a sweeping legal philosophy.

When the pair published a follow-up book in 2011, The Executive Unbound,constitutional scholar Sanford Levinson called it the “most full-throated embrace in recent years of the very important (and always controversial) jurisprudential theories associated with Carl Schmitt.”[4]

Vermeule and Posner’s argument now developed into a rejection of the U.S. Constitution. The Madisonian framework, with its coequal branches of government and checks and balances, could no longer handle the tasks of governing.

“Long-term economic and institutional forces – most generally as Schmitt observed, the rapidity of change in the policymaking environment and the institutional incapacity of legislatures and courts to supply the necessary policy adjustments – make executive governance inevitable,” they wrote.

The founding era’s liberal constitutionalism was at once obsolete to the modern world, and also, they subtly implied, the original mistake that birthed its own obsolescence. As legal scholars, Vermeule and Posner saw themselves as not only explaining this constitutional evolution but as “help[ing] make it more so – to act as midwives to the postliberal order of executive government.”[5]

The path from that time to the present reveals the adaptability of Schmittian logic to almost any constitutional exigency. Even in Vermeule’s own writings, the “state of exception” posed by terrorism in the post-9/11 environment transitions seamlessly to a pandemic emergency of COVID lockdowns or almost any other emergency thereafter.

“[O]riginalism has now outlived its utility,” he wrote in early 2020, and the latest crisis only proved it. “In this time of global pandemic … it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being.”

This logic has found its natural home in the Trump White House. The president has declared “states of exception” for comically absurd pretexts: tariff “emergencies” involving the existence of common trade deficits, a judicial ruling he disliked against a political ally in Brazil, and a Canadian television advertisement about his economic policies.

Schmitt argued that the sovereign decides when normal rules don’t apply. Vermeule dressed that argument in the veneer of crimson respectability. Trump has simply dispensed with the pretense that emergencies have to be serious.

Postliberals insist that liberal constitutionalism has failed—allegedly undone by its own internal contradictions that Schmitt claimed to have exposed. Like Marx’s faulty claims about the internal contradictions of capitalism, they convince themselves that their illiberal prescriptions are simple recognitions of reality, hard baked into politics by the friend-enemy distinction that they claim to have uncovered.

But liberalism, be it a right-leaning classical iteration or a left-leaning progressive variant, emerges as a preferable option when the alternative paths have a track record of Enabling Acts, Holocausts, and the Nights of the Long Knives; or of October Revolutions, Holodomors, and Great Purges.

Tearing down the American system of separation of powers requires more than a legal argument. It requires delegitimizing the founding that produced it and convincing Americans that what they venerate was always a mistake.

In short, it requires rewriting history.

A postliberal 1619 project

Postliberals have spent years denouncing the 1619 Project as a radical assault on American identity—so have I. They were right that it was radical; the 1619 Project declared America’s founding irreparably tainted by slavery.

Patrick Deneen, the subject of the first installment of this series, makes an identical move. He just has a different original sin: not slavery, but individual liberty itself.

Both are refounding projects. Both treat 1776 as a problem. Both have serious historical errors. And both reject political liberalism.

At this point, Vermeule, Deneen, and other postliberals run into a practical branding problem for their ideology. Tearing down the Madisonian constitutional order and recasting it as a relic of past errors smacks of Critical Race Theory, or the 1619 Project, “Cultural Marxism,” or any number of similar political bugbears to the American right. Founder-bashing has never had a particularly receptive audience among conservatives.

Consider originalism, the judicial philosophy rooted in either the founders’ intentions or the original public meaning of the Constitution, which has provided the intellectual foundations of the conservative judicial revival from the 1980s to the present. Vermeule has emerged as the most vocal critic of originalism from the far-right, proposing in its place an alternative that he calls “common good constitutionalism” rooted in an allegedly “classical” legal tradition.

Of course, as always, who gets to decide what the common good is is the problem. Justice Amy Coney Barrett recently took aim at the doctrine’s fluid political positions in an interview with National Review. She indicted its tendency to rationalize backward from a political position, calling it a “kind of results-oriented jurisprudence from the right.”

Vermeule responded with a stream of sneering tweets and Substack posts denouncing originalism as a stale “dogma,” while implying that Barrett was insufficiently educated in obscure postliberal manifestos and therefore could not understand his positions.

Deneen takes a similarly contemptuous view of the revolutionary era in his books, turning his sights on the founding itself.

The United States, he wrote in a less-known 2016 book, was built upon a mistake by 17th-century liberal philosopher John Locke. In Deneen’s telling, the idea that human beings are born free and independent, with natural rights that precede their obligations to anyone else, is absurd.

“No human being anywhere has ever come into the world … as [a] ‘free and independent’ creature,” Deneen argued, instead contending that we’re born into families, communities, and traditions that shape and obligate us before we’ve consented to anything. Before you are yourself, a person with thoughts, feelings, preferences, ideas, hopes, and dreams, Deneen thinks you are a white, Christian Anglo-Saxon or a Chinese, rural Buddhist.

For Deneen, the problem isn’t that we’ve strayed from our founding ideals, but the ideals themselves.

“We live in a thoroughgoing liberal society – the first nation founded by the explicit embrace of liberal philosophy,” he continued. And every aspect of liberalism seems to offend his sensibilities. As a guiding philosophy it even compares unfavorably to the horrors of fascism and communism, for “liberalism is far more humane, and thus also far more insidious.”

Liberalism, Deneen argued, isn’t neutral, it shapes the people living under it, luring them toward economic consumption and individual pleasure and away from the communal obligations that make a society worth living in.

Freedom and wealth aren’t just goods. They’re corrupting invitations.

Translation: It would be better if you were poorer. Don’t move to the city for a better job—stay in your hometown and sustain the community. Don’t go to college, just follow in your mother’s footsteps.

Your desires as an individual are subordinate to those of your community. You are not a person, you are a member of a collective that has power over you.

Postliberals appear to have recognized of late that cantankerous raging against freedom and prosperity, let alone the entire American Revolution, is unlikely to win them votes. Deneen has accordingly amended some of his rhetoric, at least in public appearances where overt Founder-bashing could cause trouble with his audiences.

In a 2022 event at Harvard, Deneen abstained from indicting the “Spirit of ‘76” directly for its Lockean temptations, as his academic tracts have long suggested. Instead, he floated the claim that the “true” founding had been corrupted at some later point and, once again, the libertarians were to blame.

Americans, he declared, needed to “undo the destruction of a highly tendentious and abstract understanding of America that rests on libertarian wish-casting about the Founding.”

The “true” founding, by implication, was rooted in that nebulous “common good,” or basically his own personal ideation of a desirable society.

The story behind this pivot reveals a scholar way out of his depth. In early 2021, Deneen was playing around with Google’s Ngram viewer tool and ran a search for the phrase “founding fathers.” He noticed an interesting pattern in its evolution over time. The phrase had few if any uses before the early 20th century, then surged in use after World War II.

In a series of tweets, Deneen settled on a theory for what he saw: a recent libertarian invention, funded by Koch money to mythologize the founding in service of a free market agenda.

There’s a problem with this story though: The phrase “founding fathers” wasn’t contrived by free marketers but famously popularized in an acclaimed 1916 speech by future president Warren G. Harding, and entered into the political lexicon shortly thereafter, almost perfectly coinciding with the Ngram pattern.

Deneen quietly deleted his Twitter thread after Dan McLaughlin of National Reviewexposed its mistaken history. But, reminiscent of the Peak Oil episode, Deneen still clung to his conclusion.

In the 2022 Harvard lecture, he repeated his mistaken claims about the Ngram pattern for “founding fathers” while denouncing the “ahistorical” and “airbrushed” tradition of an individualistic founding. To flesh out his theory, he turned to a narrative more commonly associated with the “Dark Money” conspiracy theories of far-left academic figures such as Nancy MacLean and Kevin M. Kruse.

In Deneen’s new story, the push to venerate the American Founding “was attractive to several key constituencies, especially economic libertarians and businessmen.” He then rattled off a list of the families that were “paying the piper” to sustain this habit and inject it into conservative institutions: Coors, Scaife, and Koch families.

Deneen’s new narrative, born of basic unfamiliarity with Harding’s speech and the accompanying history, offered a workaround to the postliberals’ PR conundrum: They could attack the ideas of the founding by calling them a billionaire-funded mythology without having to denounce Washington, Madison, and Jefferson themselves.

Meanwhile, Deneen’s academic writings retain their disdain for Jefferson, Madison, Washington, and the rest of the founders’ ideas, making it clear that he objects to the entire episode—provided he is speaking to fellow postliberals.

And what, exactly, is to be done? As Deneen explained in the 2016 book, “If there is to be an America worth conserving, it must be founded again, now explicitly in departure from the philosophic principles that animated its liberal founding.”

Postliberals should not hesitate to borrow the “structures and even language of liberty and rights to build anew a civilization worthy of preservation.” But America, in his mind, needs a restart—a “second sailing” resulting in “the re-founding of an America worth conserving.”

The paradoxical strategy of “conserving” through intentional destruction is an old theme among far-right romanticists, and today’s postliberals may be its unwitting inheritors. An inability to control the course of the revolution, once initiated, has long plagued illiberal ideologies, whether on the far-left or far-right.

Once you tear down the constitutional order, the only question left is who gets to rule the rubble.

 

Notes:

[1] Schmitt was more obscure in the English-speaking world, though, until the 1990s, when translations of European academics who rediscovered his writings—most of them, ironically, on the left—started to appear.

[2] Much like Cheney and the neoconservatives during the post-9/11 state of emergency, Schmitt pondered at length about Abraham Lincoln’s unilateral suspension of the writ of habeas corpus in 1861 and his subsequent rationalization of this action to Congress, the body with constitutional jurisdiction over the writ. As Lincoln argued before Congress, “are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Lincoln was no Schmitt, nor was Cheney a Lincolnian, let alone a Schmittian, legal theorist. Yet the post-9/11 surge in constitutional scholarship around the scope and nature of emergency power spawned a flurry of attention to both.

A 2003 piece in the New York Times quoted one Schmitt scholar warning that conservatives had “found in Bush Junior what Carl Schmitt ultimately sought in vain: ‘access to the ruler.’”

Legal scholar Peter Lindseth expressed alarm at the “troublingly Schmittian tone” of a memorandum from the Bush Pentagon, arguing that the president was not legally bound by anti-torture laws in foreign affairs.

Another scholarly assessment from that era noted a “cottage industry” of academic works that sought to document the parallels “between Schmitt’s legal and political thought and the Bush administration’s conduct and justification of its wars.”

[3] Terror in the Balance appears to be the earliest scholarly work where Vermeule mentions Schmitt in any detail. Curiously, this work does not draw upon Schmitt’s original treatises and instead bases its applications on a secondary academic literature about Schmitt in the context of 9/11 by political scientist William E. Scheuerman. His direct engagement with Schmitt’s original works is of more recent origin, and reflects a more aggressive conversion to Schmittian ideology in recent years.

[4] David Dyzenhaus, a law professor at the University of Toronto who watched this evolution play out, recently recounted a shift in his thinking: “I noticed that Adrian had moved away from just being interested in Schmitt to actually embracing all dimensions of Schmitt’s theory: both the political dimension and the legal dimension.”

[5] Vermeule’s 2011 endorsement of Schmitt is the earliest known example of him using the term “postliberal” as a self-description. Other postliberal academics such as Patrick Deneen and Gladden Pappin did not adopt the term until the mid-to-late 2010s.