Saturday, October 20, 2007

The Wall Street Jerbil 

RETORTS: The (so-called) Wall Street Journal throws a robust and refreshing wink the way of the fuhrer - i mean unitary executive! - unitary executive theory.

Richard Nixon: August, 1974 - Approve 24%
George W. Bush: October, 2007 - Approve 24%

Mukasey's Constitution
October 20, 2007; Page A10

While nothing emerged from the confirmation hearings this week to prevent Judge Michael Mukasey from becoming Attorney General, the questioning did show that he will be his own man and won't let himself be intimidated into adopting any Senator's personal interpretation of the Constitution.


On the issue of executive authority for warrantless eavesdropping, Judge Mukasey was also robust, and refreshing. The President, he said, "does not stand above the law. But the law emphatically includes the Constitution." And that Constitutional authority, he said, includes the President's power to defend the country.

This was not what Senator Pat Leahy and his colleagues wanted to hear, and they groused publicly, as is their habit. But aren't these the same Members who had said going in to the hearings that they didn't want a yes-man as Attorney General? We would hope that includes not taking dictation on Constitutional interpretation from individual Members of Congress.

Ah yes... the new, reformed, modernized, and FOXified - Wall Street Jerbil. You can almost hear the martial music and clapping of gooseboots on the avenues.


[Carl Schmitt] ...articulated a theory based entirely upon the will of the sovereign and articulated a new basis for authoritarian democracy that paved the way for and justified the National Socialist assertion that the will of the Fuehrer represented the will of the Volk and thus that his pronouncements, formally promulgated, became thereby "law." --- Peter C. Caldwell and William E. Scheuerman, eds. From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic. - Peter C. Caldwell and William E. Scheuerman, eds. From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic. Studies in Central European Histories Series. Boston and Leiden: Humanities Press

Ernst Fraenkel was the first to analyze the multi-dimensionality of the National Socialist political order and to characterize it with the terms normative state and prerogative state. Fraenkel’s analysis of the Dual State - conceptualized as a permanent state of emergency, aimed not only at destroying the civil legal order, but civil society as well - can be extended to describe the transformation of German society into a racist Volksgemeinschaft, as a genuinely National Socialist political order of inequality. --- Michael Wildt, The political order of the Volksgemeinschaft: Ernst Fraenkel’s Dual state revisited

[ Fraenkel, Ernst. The Dual State: A Contribution to the Theory of Dictatorship.Translated From the German by E.A. Shils, in Collaboration with Edith Lowenstein and Klaus Knorr. New York: Oxford University Press, 1941 ]:
This classic study is one of the standard works on constitutional law, jurisprudence and judicial administration in Nazi Germany. Also considered one of the finest analyses of totalitarianism, it was written in Germany in the late 1930s and completed in the United States in 1940, where Fraenkel [1898-1975] lived after fleeing the Nazis in 1938. The title derives from Fraenkel's thesis that National Socialism divided the law into two co-existing areas. The first of these, The Normative State, protects the legal order as expressed in statutes, decisions of courts and the activities of administrative agencies. Its counterpart is the Prerogative State, which is governed by the party. It exercised "unlimited arbitrariness and violence unchecked by any legal guarantees". "As a detailed record of what has happened to the Rechtstaat under totalitarian auspices, this book is without rival." --- Fritz Morstein Marx, Harvard Law Review

Sounds familiar. Google: "Ernst Fraenkel" and "Dual State".


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