1. Carl Schmitt says, "Sovereign is he who decides the exception." explain what he means.
2. Can the Constitution be used to change what it means to be a citizen? Answer using two court cases.
Carl Schmitt says, "Sovereign is he who decides the exception." explain what he means.
In his "Political Theology" (originally published in 1922) Schmitt uses this phrase to emphasize the crucial concept of sovereignty, or ultimate rule making and decision power. It is normally used to describe executive decisions. Sovereignty is a word that is chosen very carefully because, unlike "power" or "government," sovereignty is more inclusive, broad and powerful. It is the final ground of all decision.
In chapter I of Schmitt's book, he holds that sovereignty is the modern state and those authorized to have some influence over it. It is not some theoretical ground, but the state itself. Starting in the enlightenment, monarchies began a program of radical centralization. Old noble assemblies were eliminated, regional law revoked, and standing armies created. England and France led the way here, while Germany an Russia came a bit later.
In this case, the state became an absolute value. Contrary to myth, "divine right" was not a popular theory in the middle ages. It is a purely modern theory that justified the tremendous growth of the state, its officers and its massive expense. The state was removed from any bounds of ethics and was required to defend itself and its own interest - the state was autonomous.
Schmitt is explicitly referring to emergency situations. This is where the true concept of sovereignty is seen clearly. In the US, for example, the machinery of legislation is deliberately slow and careful. This is so no rash actions can be taken, and that all groups have a say in the development of the law. "Gridlock" is not a bad thing, and was deliberately designed to keep the federal government weak, confused and at each other's throats. This, however, is for normal legislative agendas.
In terms of warfare, invasion, terrorist attack or mass outbreak, the legislature is generally useless. Here, the President (or whoever the chief executive is) has a limited right to declare emergency powers. Abraham Lincoln did it and sent many of his opponents to prison. Woodrow Wilson did the same, and most radically, Franklin Roosevelt authorized the federal government to completely take over the economy for the sake of the war effort. When the Supreme Court stuck it down, he simply appointed his friends to the Court to vote his way (there is no constitutional number of judges on the court. He may as well have added 100 of his friends).
The "exception" refers to these extreme cases where the normal legislative process is far too slow to do much. In these limited areas, the executive can take more power than is normal for the sake of legitimately responding to some disaster. Politically, the significance here is that whoever has the power to do this is the final ground of sovereignty. Roosevelt proved that my stacking the Court and taking over the daily life of American factories and farms. This was necessitated by the doctrine of "total war" where every resource of a society is mobilized for the war effort. In the middle ages, of course, this was ...
Whether a constitution can be used to change what it means to be a citizen is determined. "Sovereign is he who decides the exception." is discussed.