06 May 2025
Trump 2.0 as ‘Dual State’?
Donald Trump’s radicalized efforts to transform US constitutional democracy into personalized executive-centered rule have again generated a predictable avalanche of invocations of Carl Schmitt. Less predictably, recent political commentators have turned to one of Schmitt’s contemporary critics, the mid-century socialist jurist and political scientist, Ernst Fraenkel, claiming that his account of the Nazi “dual state,” in which rule-based normative and discretionary prerogative legal spheres uneasily coexisted, provides a useful template for making sense of Trump 2.0’s highly selective rendition of legal fidelity. Continue reading >>
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13 February 2025
Trump’s Straussian Shysters: The Scary Sequel
Nearly three years ago I wrote here about the far-right constitutional theory behind Trump lawyer John Eastman’s role in the inept yet deadly January 6, 2021 coup attempt against then President-elect Joe Biden. I described the idiosyncratic reworking by Eastman and other so-called west-coast Straussians at California’s Claremont Institute of the ideas of the German-Jewish refugee Leo Strauss, an imposing, deeply conservative political theorist, into an apology for an executive-directed counterrevolution aimed ostensibly at restoring the original US constitutional order. Little did I imagine that Strauss’ Claremont disciples would soon enjoy a political comeback, and that they would once again be wreaking constitutional havoc. Continue reading >>24 January 2025
The US Supreme Court and Plutocracy
Populist authoritarianism is a global phenomenon. However, the US is the only so-called consolidated democracy where its ascent has been eased by the systematic dismantling of legal limits on campaign donations. US elections are now not only the world’s most costly, but they are also directly subject to the inordinate influence of wealthy individuals and corporations. The Supreme Court of the United States’ 2010 Citizens United v. Federal Election Commission ruling has paved the way for the emergence of so-called “super” PACS (political action committees) that, while formally barred from coordinating with candidates or parties, can accept unlimited corporate contributions. Continue reading >>22 January 2025
Trump and the Folklore of Capitalism
How can we make sense of the return of Donald Trump, who again convinced enough US voters of his populist bonafides? Populist authoritarianism has made inroads around the world. Only Trump’s version, however, probably brings together so much wealth and power, with super-rich business executives now at the helm. Here I tap a brilliant but neglected book, The Folklore of Capitalism (1937), by the legal scholar and New Deal trustbuster, Thurman Arnold (1891-1961), to understand this remarkable development. Folklore of Capitalism helps explain Trump’s wide appeal, despite the electorate’s disagreements with many of his policy preferences. Continue reading >>
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15 March 2022
Trump’s Straussian Shyster
Emails now available to US House of Representatives’ investigators suggest that John C. Eastman, the Trump lawyer behind the failed attempt to overturn the presidential election results, knew that his activities violated the US Electoral Count Act. Eastman’s activities shed light on ideological traits of Trumpism that have received little attention from legal scholars. He and other hardcore Trump disciples have relied on a highly selective interpretation of the ideas of Leo Strauss (1899-1973), the German Jewish refugee political thinker, to justify Trump’s authoritarian proclivities. Their ideological brew continues to threaten constitutional government in the United States. Continue reading >>
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20 April 2020
Schmittian Instincts at Odds with Neoliberalism
Carl Schmitt is now regularly referenced in discussions of President Trump’s extraordinary and probably unprecedented claims to unchecked executive power. The President’s knee-jerk hostility to the administrative state, however, has helped spare Americans the worst consequences of his Schmittian legal instincts. Yet that hostility has come with its own high price. Continue reading >>
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18 February 2019