The wall isn’t a state of emergency but a state of exception

The German legal scholar and Nazi ideologue Carl Schmitt described a ‘State of Exception’ as the process by which a sovereign leader can transcend the rule of law in the name of the public good. 

Julian de Medeiros
16 February 2019

Demonstrators form a human border wall with quotes from President Trump during the Women's March in New York, January 20, 2018. Erin Lefevre/ Press Association. All rights reserved.

When President Trump declared a national emergency for ‘virtual invasion purposes’, he gave new meaning to the Latin maxim ‘necessitas legem non habet’ (necessity has no law). There is only one sense in which Trump was speaking truthfully when he declared a national emergency to combat a ‘foreign invasion of our Southern border’. Many other Presidents before him have issued emergency decrees. President Obama signed one to fight the Swine Flu epidemic. So did President Carter during the Iran Hostage Crisis. And President Bush was reacting to a very ‘real’ crisis when he issued a national emergency following 9/11.

Yet when Trump declared the border crisis a national emergency, even he seemed aware that he was putting the cart in front of the horse. In order to run for President, he created a solution to a non-existing problem; a wall to keep ‘rapists’ from entering the United States. To do so he wanted a wall. And now as President, he required funding in order to build the wall, which meant that he must manufacture a national emergency in order to transcend the rule of law.

In that sense, Trump is fulfilling a campaign promise, not by constructing a border wall, so much as by constructing a border crisis: the rhetorical legitimization of extra-legal measures in order to enact the politics of an illegitimate Presidency. This power to determine between what constitutes a ‘real’ or an ‘imagined’ threat echoes the Napoleonic decree of 1811, in which only the Emperor could determine which cities were ‘legally’ at siege, and hence worth defending.  

So it matters little at this point whether or not there is a ‘real’ crisis at the border. The xenophobic phantasmagoria of ‘gang-monsters’ ‘invaders’ or ‘hordes’, allows Trump to circumvent the political process altogether and commit the United States to the slaying of a giant windmill. 

But there is more at stake here than just a fool’s errand. In the interim, a domestic and partisan battle will ensue, equally destructive and factitious in nature. This form of politics, in which there is no tangible threat, but the paranoid illusion of existential foes constitutes not just a state of emergency, but also a state of exception; in other words, the true goal of the state of emergency is not to build a wall, but to render the ‘building of the wall’ into a perpetual state of political antagonism and reactionary infighting. 

In order to make sense of this we can look to the German legal theorist, and later legal ideologue of the Nazi regime, Carl Schmitt. 

Schmitt and the ‘essence of the political’

In recent years there has been a resurgent interest in the writings of the Nazi legal scholar Carl Schmitt. In particular he sought to provide a legal foundation for the Nazi regime, and was known as the ‘crown-jurist of the Third Reich’. While we distill the relevance of his work for political theory, we must consider the various ways in which Nazism shaped his views, and acknowledge how his views in turn were constitutive to Nazism. 

Based on lectures written for the Deutsche Hochschulein Berlin, his most well-known work is ‘The Concept of the Political’. In it he seeks to determine an‘essence’ of the political. Schmitt argued that the political is the primordial sphere upon which all other domains are based (religion, economics etc.) The reason that it influenced all other spheres was its capacity to distinguish between friends and enemies, or, in other words, that all spheres become ‘political’ once they have to face the problem of distinguishing between friend and foe. Since the political realm is the one most essential to identity-formation (being that by which the State determines friends and enemies), all other spheres must ultimately fall within its sphere. In a broader sense –and this is where the authoritarian element of his argument is most apparent – the central function of the State, and thereby of the democratic process, is that of identifying existential threats. Schmitt believed not only that strongmen leaders could thrive on the rhetorical figment of the enemy, but that the very essence of the political rests on the powers required to detect such a foe. He called this a ‘state of exception’. 

The state of exception functions along the lines of a simple paradox: in order to identify the existential threat to a society, one must first be rid of one’s internal and domestic opponents. Only then can the true threat of a foreign enemy be neutralized. This means that a state of emergency can only be fulfilled by implementing a state of exception whose purpose is to silence or neutralize domestic opponents and mobilize nationalist reactionary forces. The logic is simple: the real threat can only be combated once the internal agitators are rooted out. 

In the Nazi regime, this took the form of the invention of ‘The Jew’ and the subsequent arrest and vilification of all those as conspiratorial accomplices who dismissed the existence of any such plot. Only then could an entirely fictive anti-semitic conspiracy theory be manipulated into a genuine genocidal counter-conspiracy. The state of exception was vital to this horrific process. In the pursuit of domestic opponents, the Nazi regime could convince itself of its own necessity. As soon as Hitler came into power, he signed the ‘Decree for the Protection of the People and the State’, essentially suspending the constitution as well as personal civil liberties. 

This is why the Italian scholar Giorgio Agamben defines totalitarianism as “the establishment, by means of a State of exception, of a legal civil war that allows for the elimination not only of political adversaries, but of entire categories of citizens who for some reason cannot be integrated into our political system.” Only then, and for this purpose, can a genuine state of emergency be imposed. The state of exception functions to normalize and integrate the necessary legal framework to enact a wholesale reactionary conspiratorial politics. This is more than just mere scape-goating, it is the internalization of extra-legal processes into the legitimization of the regime itself. 

The key point for Schmitt is then that the friend/enemy distinction can constitute the political regardless of the manifestation of a ‘genuine’ or existing crisis. The process of distinguishing between friend/enemy never has to be completed. When one swings at windmills, it’s always those next to you who have to watch their heads. The saying goes that in any authoritarian society ‘the leader can never be trusted, but he must always be believed’. Schmitt knew as well as anyone that ‘the political’ rests on faith, and not on truth. This, for him, was the essence of the political – the perpetual pursuit of fictive enemies to root out genuine hidden foes. 

Plutarch already recognized this when he wrote that the wise man ‘can profit from his enemies’. (De capienda former inimicis utilitate). The idea of the foreigner, the outsider, and the enemy can be translated into any one-size-fits-all form of authoritarianism, in which one’s ‘love of country’ becomes determined by the extent to which one follows the leader in his paranoid pursuit. In order to cast out the leader’s opponents, legal processes can be swept away like so much flotsam, into the ether of paranoid rhetoric.

The paranoid style

In Trump’s rambling declaration of a State of Emergency, he seemed to take a paradoxical attitude to the crisis itself. He began by declaring ‘an invasion’ of ‘monstrous gangs’, but then quickly moved into a defensive position, stating that such emergency measures were in fact ‘very common’ and had been signed for ‘far less important things.’ But “why hadn’t they been important?”, he stated rhetorically. “They hadn’t been very exciting”. 

In this he was inadvertently obeying the American historian Richard Hofstadter, who theorized the so-called ‘paranoid style in American politics’. In the paranoid style, the truth content of any given statement is at best secondary to the mobilizing function of paranoia as a political shibboleth. In other words, friends are those who follow the paranoid leader in his obsession, whereas anyone who argues against becomes an extension of the perceived enemy. This is the true danger of a state of emergency; that it creates an ongoing state of exception, in which all political acts are interpreted as part and parcel to this battle. The paranoid ‘style’ is therefore, similarly to the state of exception, a process in which the normal political experience is deliberately suspended, in order to achieve the perception of a sort of clean slate.

Hofstadter’s insight is that the paranoid style requires not only conspiratorial rhetoric (i.e. the identification of an enemy), but that it elevates all politics into a paranoid modus operandi; in other words, the suggestion that all politics is inherently conspiratorial, and that the only ‘truth’ of the political exists in obtaining the force to obstruct or eliminate one’s opponents. 

This means that the political leader who employs the paranoid style must always contradict himself. His nation is both the greatest on earth, and the most threatened: the strongest and the most vulnerable; his people both the most loyal and the most disloyal. Each of these contradictions was evident in Trump’s state of emergency announcement. America has the greatest military but fears invasion by a couple of thousand refugees. America has ‘the best people’ but the wall was not built because ‘some people did not step forward’. The statistics demonstrate a ‘massive crisis’ but are also all ‘fake’ and not to be trusted. 

The convoluted mass of paradoxical statements cuts right to the core of the state of exception; a politics in which nothing is as it seems and all speech bounces back aimlessly in the empty corridors of power. For the paranoid nationalist, America is always both the boldest and the weakest country, stronger than ever, yet about to crumble, perpetually triumphant yet always on the losing side. These contradictions are not merely the projections of a rambling President. They are the duplicitous doubling implicit in the paranoid style, and constitutive of the state of exception.

The border wall as America itself

Before we can even consider what makes the border crisis ‘real’ or ‘fake’, we must come to understand what the function of reality (or the accusation of a lack thereof) means in this context. The dark irony is that the paranoid individual always envisions a sort of absolute state that is somehow also more free since it will enforce the parameters by which to ‘see through’ the façade of the status quo. 

The process by which this dangerous form of reactionary thought becomes supposedly ‘democratic’ is an evolution of what Spinoza called the ‘absolutely absolute state’ (omnino absolutum); a strong State in which everything that is not forbidden becomes obligatory. In other words, a freedom that is so absolute that it requires a practically totalitarian enforcement against those who seek to restrict it. The totalitarian subject thereby always believes himself to be the immanently most free one, living in a system that imposes a strictly extra-legal system to first protect, and then enforce, the public good.

Trump’s stance towards the wall, which he has called ‘big and beautiful’ here takes on the very characteristics of that public good. The wall not only symbolizes the outer border of an ethno-nationalist American ‘conservation’ –  a nationwide gated community – but symbol of the sublime function of the nation itself. Similar to the proverbial Chinese Wall, which is used colloquially as everything from a trade barrier to an ethical dividing line, the relationship to the original façade becomes largely lost in the signifier of the wall itself. The same is true with Trump’s border wall. The more he speaks of it, the more it comes to signify a grander, more nationalist, more ethnically ‘pure’ vision of America itself. 

This is why the wall is fundamentally racist. It precludes the notion of a nation that has to be protected at all costs from the Latino taint. This is why the rightwing pundit Ann Coulter has called immigrants ‘culturally deficient’ and ‘worse than ISIS’. Terrorists want to eradicate American society. Immigrants, on the other hand, seek to integrate. The message is clear. The US must be purified along ethnic, racial, and cultural lines. The wall is not just a symbol, but a physical manifestation of this racist fantasy. 

This means that America does not really need the wall to keep foreigners out. Instead, having become estranged to itself, America now requires the wall as a symbol of national cohesion and as a false idol to a racially ‘pure’ conception of society that fits within the prejudices of the far-right and its corresponding media outlets. 

As Trump has gone to great lengths to explain, the wall is a real, physical, insurmountable barrier. The idea is that the wall is so ‘real’ that it too will bring about a return to a similarly corporal rediscovery of the white nationalist American ethic. This should not just be interpreted as Trump giving in to the demands of the far-right media establishment, but as further indication that the wall prefigures a state of exception rather than a state of emergency. The exception is in this case one in which the wall becomes the physical placeholder for an illusionary and deeply racist vision of American society. 

The real danger

Democracies are surprisingly brittle things. Like sandcastles facing the tide, they require careful management and constant vigilance to keep the waves from slowly eroding their foundations. It is a sad irony that most democracies crumble from within. And this occurs precisely when extra-legal measures are enforced to ‘protect’ the essence of the society. Carl Schmitt, for all his ideological shortcomings, recognized that the ‘essence’ of the political does not really exist, but is made manifest only in that energy invoked to protect an ideal politics from perceived enemies. 

The real danger of Trump’s border crisis is that it sets the conditions for a perpetual politics of paranoia. The real battle will not be at the border, but between those who see the border wall as an extra-legal manipulation, a manufactured crisis, and those who think it cuts to the core of what American society should stand for. In the dialectic between these two visions of legality, between that of the governing mechanisms of Congress and a President who believes Congress to be the enemy, a dangerous void is forming in the essence of American politics itself.  

The only way to begin countering this threat, and breaching the gap between the real and the imagined, the paranoid and the factual, is to identify ‘the Wall’ not as a state of emergency, but as a state of exception. This is a form of politics for which Trump requires no funding. It is a wall he can build without any bricks or mortar. The wall between ‘friend’ and ‘foe’, between ‘patriot’ and ‘traitor’ and between ‘American’ and ‘Other’, is one that is already being built. History teaches us that the effects of this state of exception can be disastrous. And in the totalitarian outcomes of a society in which no one really believes in anything any more, the truly unthinkable can be made manifest, until it materializes into an all too real, horrific, reality. 

No matter whether the wall is ever built, the façade of American democracy is already crumbling. 


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