A “Catholic Layman of German Nationality and Citizenship”?: Carl Schmitt and the Religiosity of Life
Carl Schmitt positioned his constitutional theory in the context of a “political theology” and referred to himself repeatedly as a Catholic. Schmitt scholarship has long pursued this self-depiction without establishing a convincing “Catholic” doctrine, political position, or life praxis. This chapter provides an overview and critical interrogation of Schmitt’s self-description. By emphasizing his political and theological distance from his early background and from the political Catholicism of the interwar period, the chapter analyzes his systematic connection of theism, personalism, and decisionism, and considers Schmitt as a “religious” author and person. Schmitt’s apocalyptically dramatized perception and stylization of life as a permanent “state of exception” can be seen as a religious practice of testing contingency and sovereignty and self-assigning to “salvation.” Schmitt must thus be understood not as a part of majority Catholicism, but beyond it, among the religious movements in the history of modern secular faith.
Donald R. Songer and Susan B. Haire
The formal organization of court systems and jurisdictional rules established by legislatures often determine which litigants will have their cases reviewed by an appellate court. While some procedural obstacles are straightforward in their application, others require judicial interpretation with research findings suggesting that judges’ policy goals are related to decision-making on threshold issues. Even if there are no jurisdictional constraints, some losing litigants weigh the costs and benefits of pursuing an appeal. Still, filing an appeal does not guarantee full consideration of the issues raised by an appellant. Caseload pressures have contributed to screening procedures that result in only a minority of cases being closely scrutinized by an appellate panel. This chapter examines research on this winnowing process that characterizes litigant access to intermediate appellate courts.
Daniel B. Rodriguez
The central objective of administrative law is to reconcile two major aims: the successful exercise of regulatory power by the bureaucracy and the tethering of administrative agencies to the rule of law. The first goal is concerned fundamentally with regulatory governance; the second is concerned with legality. Administrative regulation through specialized agencies is a ubiquitous and rather permanent characteristic of modern policy making. These agencies wield enormous power and, although their respective architectures are arguably in tension with our bedrock constitutional principles of separation of powers and representative democracy, the administrative state seems rather entrenched. This article deals with administrative law and describes the leading effort to tie together the law and politics of administration through the use of positive political theory. It also discusses the dilemmas of regulatory administration and, therefore, of administrative law: delegation, discretion, fairness, and regulatory unreasonableness.
Claude Steele and Jennifer Richeson
There are multiple possible views of the Black American psyche. But in the science that focuses on the psyche, the science of psychology, there has really been only variants of one view: the Black psyche is “damaged” to use Daryl Scott's term, in deficit, dominated by self-hatred, infected with self-destructive values and habits of mind, a double consciousness divided against itself, replete with cognitive, linguistic, and emotional deficiencies, and so on. This narrowness of perspective, as reflected in this article, is not restricted to psychology. It is a long evolved cultural framework. Much of the research that has focused squarely on blacks' experiences has examined the potential psychological toll that membership in a socially devalued group may take on black Americans. Although this research is undoubtedly important and informative, it is a perspective that is overrepresented compared with work examining the resilience and strength of blacks and members of other socially devalued groups in the face of group-level devaluation.
Ryan J. Owens and James Sieja
Understanding the conditions under which the Supreme Court sets its agenda is crucial to understanding Supreme Court behavior. After all, before the justices make any decision on the merits of a case, they must first decide whether to hear it at all. This chapter analyzes Supreme Court agenda-setting. It begins by describing the process justices employ to select cases to review. It examines how parties file certiorari petitions, the certiorari pool used to provide guidance to the justices, and the conferences in which justices vote to grant or deny review to cert petitions. The chapter then discusses four explanations political scientists have provided to explain the conditions under which justices set the agenda. The article concludes by examining limitations of existing scholarship and providing suggestions for future scholarship.
Lawrence D. Bobo
The question of race lies at the heart of one of the great debates of American ideas and scholarly discourse. At one end of this debate we can find those who argue for the American Liberal Tradition. At its core this position maintains that American institutions, values, and culture are deeply liberal. As such, the nation is destined to adopt a broadly expansive and inclusive sense of who belongs and is worthy of respect. Under this perspective, the United States will eventually and inevitably transcend the divisions of race and black–white inequality that marred the nation's founding, arriving ultimately at a place of full comity between blacks and whites. Several variants and exemplars of the argument exist. For example, sociologist Nathan Glazer made the case for one prominent version of this argument that he termed “the American ethnic pattern.” This view has three core claims. First, that people from the world over would be allowed to enter the United States. And, furthermore, that “all citizens would have equal rights. No group would be considered subordinate to another.” Second, that the government would not extend formal and distinctive political recognition and rights to separate ethnic groups. Third, however, that no ethnic group would be compelled to give up its distinctive cultural traditions and practices.
Michael A. Bailey, Forrest Maltzman, and Charles R. Shipan
The relationship between Congress and the judiciary is a complex one that is poorly defined or understood. This ambiguity in the relationship is the result of the failure of the Constitution to define what legal doctrines must shape judicial decision-making or whether the judiciary has the authority to strike the acts of Congress. Whereas the relationship between Congress and the executive is well-defined in the Constitution, the relationship between Congress and the courts was left by the founders to be defined by history. In addition to the Constitution's ambiguity in defining the relationship of Congress and the judiciary, the ambiguity also stems from several factors: the relationship has changed over time; modern accounts of the relationship have produced theoretical claims that are difficult to validate; and the multiple dimensions of the interdependence of the two institutions makes it hard to determine whether Congress is constrained by law and whether the Court is constrained by Congress. This article discusses the evolution of constitutional interpretation. It discusses Congress's abandonment of its role as an interpreter of the Constitution and the emergence of the federal judiciary as a venue for policymaking. The article also discusses congressional response to the Court. It discusses legislative anticipation of judicial review, congressional assertiveness in the nomination process, and congressional reaction to hostile Court activity. The article also discusses judicial anticipation of congressional review.
Lewis A. Kornhauser
Many analyses of courts within the economic analysis of law are indistinguishable from those produced by positive political theorists; they consider how judges control, exploit, or resolve conflicts of interest among judges. This article considers three contributions by economic analysts of law outside this common, positive, political theoretic model but which still exploit the tools of rational-choice theory. These contributions either integrate appellate decisio -making within a more comprehensive model of litigant and trial behavior; assume that judges constitute a team with shared preferences; or assume that judges decide cases rather than announce or implement policies. These three elements yield a substantively different understanding of courts than the standard model of positive political theory (PPT). The assumption of shared preferences explicitly rejects the principal-agent model that is standard in PPT. The integration of appellate decision making with other aspects of the disputing process and the shift from policies to cases are consistent with, but potentially transformative of, the standard principal-agent models of adjudication.
Peter M. Shane
This article looks at constitutions. The status and function of constitutions are discussed in the first section of the chapter. It then discusses implementing key founding bargains and structuring the exercise of power. The next sections talk about creating affirmative government obligations, constitutional interpretation and change, the modes of argument, and interpretation and legitimacy. The article ends with several directions for future research on the subject.
The chapter addresses the topic of animals as scientific objects by drawing on recent literature that emphasizes the heterogeneous construction—or eventuation—of the object. As such, the animal object is understood to emerge from a version of biomedical science that encompasses various elements that derive from within and beyond the laboratory and the experimental system. The chapter thus traces a number of ways the animal is eventuated as an object, including the processes of animal supply and scientist self-selection, the procedures of animal care and ethical assessment, and the prospects of collaboration and clinical translation. Along the way, the chapter points to the complex and conjoint eventuation of animals as subjects and of humans as objects. The chapter ends with a brief reflection on how we might better engage with the complex ethics of the co-becomings of human and animal, objects and subjects.
Stephen R. L. Clark
Both “animals” and “religion” are contentious concepts, with many possible meanings and associations. This chapter takes animals to be eukaryotes distinct from protists, plants and fungi, and “religion” as the attempt to “live a dream.” I describe four principal ways of dreaming animals: triumphalist humanism (for which only “human” beings are of any interest); traditional notions of good husbandry (which requires “human” beings to care for the non-human, within limits set by human interests); notions of metempsychosis and transformation (where “human” and “non-human” are constantly shifting characters); and awakening to the real presence of others, and so—paradoxically—evacuating them of merely “religious” meaning.
This chapter discusses the historical development of the modern-day lower court appointment process. When lower court judgeships were used as patronage, the process ran smoothly from nomination by the president through confirmation by the Senate. Today, however, these judgeships are used for other political purposes by the president and senators. This is because elites (party leaders and interest groups) associated with each of the two major parties follow the process closely, and they demand that the “right” kind of judges be appointed to the lower federal courts. In turn, presidents and senators now use the lower court appointment process to “score points” with these key party-affiliated elites. Thus, as the two parties cater to interest groups and party bases on the opposite ends of the ideological spectrum, and presidents and senators follow suit, the lower court appointment process has become highly partisan and contentious.
Christine L. Nemacheck
This chapter assesses the literature on Supreme Court appointments and considers directions for future research. Early work on appointments tended to be in the form of broad political histories or more narrow historical accounts of individual appointments. But as the field developed, much of the work on appointments centered on the confirmation process, including the determinants of senators’ confirmation votes and presidents’ success in getting their Supreme Court nominees confirmed. Was this success due to congressional deference to the president’s appointment power? Or, did presidents’ success result from an active and anticipatory selection stage in which presidents strategically consulted with members of Congress in order to pave the way toward a smooth confirmation? To answer these questions, recent work on appointments has focused on the selection stage. The evidence seems to support the latter—presidents anticipate problems and work with members to garner support for a confirmable nominee.
Jerry L. Mashaw
This article describes how the limitations on managerial and political control of administration yield an almost necessary demand for legal control through judicial review. Judicial review of administrative action is the carrying out of a democratic political project: the reinforcement of democratic control of official behaviour. Attention then shifts to the operation of judicial review in three major domains of administrative action: adjudication, rulemaking, and execution. The article then reflects on the institutional design problems produced by these inherent tensions among accountability regimes. It also speculates about the types of research and analysis that might be most useful to the crafting of appropriate systems of judicial review of bureaucratic action. For judicial review, both support political accountability and impair it, demands administrative competence and undermine bureaucratic capacities. Moreover, the ways that judicial review will interact with other accountability mechanisms, the political and the managerial, are often unanticipated and unpredictable.
Amy E. Lerman and Vesla M. Weaver
Since mid-century, the capacity of the United States to punish and surveil its citizenry has undergone tremendous expansion. Yet this phenomenal transformation and its repercussions for citizens has engendered surprisingly little discussion among scholars of American political development (APD). Nor have criminal justice scholars been sufficiently attentive to the intersection between democratic development and the carceral state. In this essay, we highlight how several well-worn tools and concepts in APD have begun to pave new understandings in criminal justice. Many of the studies we describe here have profound consequences for how we see American democracy and citizenship today. They require us to attend to the fact that criminal justice is not just one more slice of the American institutional landscape, but is in fact central to the development of the modern American state, its political order, and how the state interacts with its citizens.
Carl Schmitt’s political and juridical thought is anchored in a specific diagnosis of modernity. He develops the concept of the political because of how the location and address of the political become fundamentally questionable under modern conditions. Romanticism disempowers the state, the government, indeed all political-public structures and processes, turning them into mere “scenery” or simulacrums that hide an actual or substantial reality. This chapter traces the continued effects of Schmitt’s thought on various diagnoses of a political dialectic of modernity. Each has the changing form and function of sovereign power at its center. The work of Michel Foucault, Giorgio Agamben, Judith Butler, and Zygmunt Bauman shows that Schmitt’s thought is applicable to the paradox by which sovereign power of decision continues to have a latent effect under the conditions of a constitutional state.
Ulrich K. Preuß
This chapter explores Carl Schmitt’s response as a political, legal, and constitutional theorist to the permanent crisis of the Weimar Republic during its short-lived existence between 1919 and 1933. On the foundation of his conceptual edifice, it shows why Schmitt came to the conclusion that the Weimar Constitution did not provide an appropriate political system for the German people in their “natural” form. While the founders of Weimar sought to protect the polity’s diversity and contradictions, Schmitt regarded their constitution as inherently nondemocratic. A focal point of the analysis is Schmitt’s claim that democracy and dictatorship are by no means mutually exclusive. The chapter demonstrates why Schmitt’s faith in the constituent power of a homogenous German people invariably led to his preference for “democratic dictatorship” and a rejection of the Weimar constitution’s system of parliamentary democracy.
This chapter focuses on Carl Schmitt’s years in post–World War II Germany. After being released from the Nuremberg prison for war criminals, Schmitt returned to his birthplace, Plettenberg, and named his house “San Casciano,” invoking a village in Tuscany where Machiavelli spent his final years. Like Schmitt, Machiavelli too was deprived of public office, in the Florentine city-state. While other intellectuals who had sympathized with the Nazis—Martin Heidegger, Gottfried Benn, and Ernst Jünger, among others—returned to the public sphere soon after 1945, Schmitt’s fate was different. This chapter reconstructs Schmitt’s Plettenberg years in letters, journals, and reports from companions and shows how his reputation changed from a “monster” to a myth. Even in his private years, Schmitt remained a public figure, fascinating to friends and foes. The controversies with his fiercest enemies in particular renewed his fame.
Carl Schmitt accommodated himself to the ascendency of democratic thinking in the post–World War I world of the 1920s. No sovereign authority, he argued, could fail to acknowledge “the people” as the constituent power of an established political order. Consequently, democracy and “the political” become synonymous in his Constitutional Theory (1928). To champion democracy, however, Schmitt emphasized the historical distinction between democracy, based on equality and homogeneity of the collective, and liberalism, which features the primacy of the private individual’s liberty. This chapter shows that key to understanding Schmitt’s defense of democracy against liberalism are his notions of representation, acclamation, and plebiscitary leadership, as well as a strong sense of the public persona of the citizen. The chapter argues that even though we shun his reading of democracy today, a full understanding of the liberal-democratic compromise that we now call democracy benefits from a close reading of Schmitt.
Steven K. Green
The nineteenth century is tagged as the “forgotten century” for traditional reviews of American church–state relations. Most of the case books and historical studies of the church and state in America focus on the Puritan theocratic experiment in New England; the struggles of religious freedom in Virginia; the drafting of the First Amendment; and the cases of the twentieth century. This article hence focuses on this “forgotten century,” as it illuminates the tremendous ideological, cultural, and demographic changes in America. This period is marked by many factors and events that influenced church–state relations. Some of the many changes that took place during it were: the inclusion of religious free exercise in the First Amendment, which paved the way for religious experimentation and pluralism; the introduction of secularization, which separated church and state; and the introduction of an amoral law, which abolished its religious functions and focused on the economic demands of the time. In this article, particular attention is devoted to the three controversies that defined church–state relations during the nineteenth century. These are: the controversy over Protestant religious exercises in the nation's public schools and the issue of public funding of Catholic parochial schools; the government-sponsored Christianization of American Indians; and the government's attempt to eradicate Mormon polygamy.