Paul Kahn, in his rereading of Carl Schmitt by way of the American context, seeks to “depersonalize the sovereign.” As he states, “there is no reason to think that such a power must be exercised by a natural person, as opposed to a collective agent or institution.” Indeed, Kahn identifies “the sovereign” with the univocal expression of collective agency—that is to say, with “popular sovereignty.” It is possible that such a significant revision of Schmitt’s concept of sovereignty might make some of what Kahn says unrecognizable to a Schmittian analysis. But Kahn is less interested in, as it were, what Schmitt would think (a lack of interest that I share) than in drawing on political theology to grapple with some problems that confound liberal analyses of political interest.
Importantly, Kahn does not conflate popular sovereignty with democracy. The will of the popular sovereign is not identical to the statistical majority of people who happen to participate in the electoral process; it is a more elusive force, which Kahn locates in what he calls “the American political imaginary.” It is “the people” that authorizes the revolutionary violence that founds the state, and that then speaks through a constitutional legal framework that ensures that democratic institutions function only within the parameters set by an original sovereign decision outside of all ordinary law. One example of this phenomenon would be judicial review: “While the Court likes to appeal the rule of law to legitimate its exceptional role, political theology suggests that we look in a different direction: to the Court’s capacity to speak in the voice of the popular sovereign.” Ironically, then, the sovereign voice of “We the People” limits what the demos can decide.
Part of what makes this “political theology” is that the Constitution was produced and adopted in a state of exception and thus depends upon no prior legal norms. According to Kahn, the self-referential authority draws support from an imaginary that worships “‘self-evident truths’ set forth in the name of ‘We the People.’” It is an open question, however, how much this theological analysis tells us about American history. Jason Stevens, for instance, raises some important objections to Kahn’s use of historical evidence. As Stevens argues, “Kahn’s ‘genealogical’ technique yields no evidence persuading me that American political ideas originate in and are indebted to theological sources.” And I agree that, in his enthusiasm to explain so many aspects of the American political imaginary, Kahn occasionally lets slip historical claims that his methodology cannot support.
Genealogy, however, is not supposed to be a reliable method for getting to the facts of the matter of historical origins. Rather, a genealogical approach traces the selective reimaginings of the past that help to make self-evident the assumptions that pervade discursive or epistemic logics. For example, we know that the current vogue for Constitutionalism has little to do with reflection upon the actual historical circumstances that produced the document that is, perhaps, the quintessential text of bourgeois liberal democracy. For some reason, Tea Party revolutionary rhetoric has persuaded many Americans that it embodies a lost vitality that was present at the moment of foundational violence. One corollary of this view is that the ordinary political institutions established in the wake of the Revolution have a diminished authenticity. The fact that such a sentiment continues to play a strong role in the imagination of sovereignty testifies to its persistence as a matter of belief and, in this sense, might be an example of the kind of secularized theology that Kahn draws on Schmitt to discuss.
My own quibble with Kahn is that, given his focus on the forces that compel obedience to the law, he underestimates the prominence of persistent hostility to the government in the way in which Americans imagine their revolutionary past. Take, for instance, the following statement: “Americans―apart from the experience of the Confederacy―have not had to think much of capitulation, but they have never abandoned the idea of themselves as the inheritors of revolution. They intuitively understand that law is the product of revolution. Law and revolution together constitute the frame of our political imaginary.” Yes, though it may be that the experience of the Confederacy is more than just an aberration from the norm but, instead, a vigorous and persistent strain in American life that equates popular sovereignty with states’ rights, white supremacy, and the threat of armed insurrection against a tyrannical State. As Sanford Levinson has also noted, reserving the right to overthrow the government by force of arms draws on an implicit view of sovereignty whereby each householder decides on the state of exception. When Tea Party Patriots warn of “second amendment remedies” against an overreaching government, they insist that the final decision on when to suspend the law is made, not by the State, but by the armed American household. For this reason, threatening bloody violence against the State is seen, not as treasonous, but as a hyper-patriotic defense of popular sovereignty and a direct link to the authentic revolutionary violence that founded the nation. In this view, popular sovereignty refers, not to democratic policymaking, but to the right of the people—and not the government—to decide on the exception.
Asserting that the citizenry has the right to violently overthrow the government has nothing to do with any political or legal reality. As Kahn points out, “We no longer imagine violence among ourselves as a political possibility.” This is a fair point in that mere threats of violence would not necessarily be relevant to Kahn’s or Schmitt’s political theology, because rhetoric does not matter unless it has the genuine potential to become a decision that would then form the basis for real action. Following this logic, discussion of violent revolution absent the practical possibility of revolutionary violence might be interesting for some kinds of political analysis, but it would not extend to the question of sovereignty. And to the extent that it is hard to imagine an insurrection that could meaningfully threaten the armed forces of the United States, Tea Party rhetoric might simply be confused.
But it is nonetheless important not to underestimate the persistent preparation for armed insurrection in American life, inasmuch as it is deeply ingrained in the national narrative. For example, Kahn notes: “Popular history is shaped by a narrative of the successful use of violent force against enemies, within and without the nation. Much of this past remains vivid in our political imaginations, endlessly reinforced by both popular media and scholarly work. Americans take their families to Valley Forge and Gettysburg, and even to Omaha Beach.” Okay, but the message delivered at Gettysburg is decidedly different from that which one receives at Valley Forge and Omaha Beach. And Civil War battlefield memorials do not demonize the enemy so much as tell a story of “brother against brother.” In this narrative of an internally divided household, one army was defeated on the battlefield, but both sides nevertheless lay claim to the American heritage.
To take another example of how the legacy of the Confederacy participates in the national imaginary, D.W. Griffith’s 1915 film Birth of a Nation presents the period of Reconstruction after the Civil War as a crisis of democratic sovereignty in which a disenfranchised white minority struggles under the supposed tyranny of African American rule. In one scene, before avenging the death of a white woman who took her life rather than submitting to the amorous advances of a newly uniformed African American soldier, the film’s protagonist performs a sinister ritual involving a Confederate flag and a fiery cross. The title card that precedes the scene reads: “Brethren, this flag bears the red stain of a life of a southern woman, a priceless sacrifice on the altar of an outraged civilization.” After performing this ritual, Klansmen capture and lynch the African American soldier. In other words, extra-legal violence rectifies the crisis of sovereignty brought about by Reconstruction. Within the logic of the film, lynching, as the exemplary form of aestheticized racial violence that exists apart from the normal legal order, performs the signifying work of giving birth to a new nation. Seeking to recover democratic institutions tied to a white biopolitical subject, such violence drew its force from passions outside of the juridical legitimacy of the State. In a way, this relates to Kahn’s observation that: “The closest thing we have today to the sacral-monarch’s power to create the exception to law may not be the executive pardon but jury nullification, which is best seen as a localized expression of the popular sovereign willing the exception.” On this point, it is important to keep in mind that one of the most visible forms of jury nullification has been the refusal to find guilty perpetrators of extra-legal violence, which corroborates perpetrators’ own experience of lynching as the authentic exercise of popular sovereignty in the face of ineffectual legal due process.
As two examples of the willingness of white householders to “take the law into their own hands,” lynching and armed revolt both share in the belief that the suspension of ordinary legal institutions can be required for the sake of the direct exercise of popular sovereignty. This leads to a reading of the Second Amendment as a kind of self-destruct button that allows people guns as a check against tyranny. Of course, this interpretation is historically absurd in many ways. As Garry Wills points out, in his A Necessary Evil: A History of American Distrust of Government, this interpretation ignores that in attempting to form a “more perfect union”the Constitution is a set of democratic guidelines and procedures that was adopted by an already existing polity in the interest of better governing itself.
To address this problem, the vision espoused by current Constitutional fundamentalists is far better articulated in the Articles of Confederation that the Constitution was meant to replace. One increasingly prominent method of resolving the problem is to read the Tenth Amendment in such a way as to make the Constitution an only slightly revised version of the Articles. Thus, Tea Party Constitutionalism notes the similarity between the Tenth Amendment and Article Two of the Articles of Confederation, which states: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation, expressly delegated to the United States, in Congress assembled.” This reading essentially argues that, while the Constitution adopted a new set of procedures for democratic deliberation, it reaffirmed the same conception of sovereignty as enshrined in the Articles of Confederation. This then leads to the conclusion that any liberal jurisprudence that has ignored the Tenth Amendment has distorted the text of the Constitution. Following this reasoning, the Constitution prescribes the rules and framework for democratic institutions but restricts the decision-making scope of those same institutions to a narrow window of government action.
One obvious objection to what I’m saying is that many who strongly endorse Second Amendment rights also deify the American military and, in this way, show their loyalty to the State. One of the cornerstones of Kahn’s critique of liberal self-interest is his reminder that the State can demand the sacrifice of life. As he notes: “The popular sovereign can always demand a life; it can demand of all citizens that they kill and be killed for the state. The fundamental character of the relationship of citizen to sovereign is not contract—as in the social contract—but sacrifice.” But how are such sacrifices really understood? To remind Americans that they sacrifice their lives for the State sounds like a provocation, a deliberate profanation of a cherished ideal of American citizenship. Americans do not die for the State; they die for their fellow soldiers, their families, their communities, and their nation.
So what accounts for unquestioning loyalty to the military among the same people who also entertain the possibility of armed insurrection? One answer is that the rhetoric of the Confederacy that calls for cuts in government spending and ridicules the bureaucratic waste, inefficiency, and incompetence of public institutions does not direct this criticism at the defense budget because the military is not a part of the government. As odd as this might sound, it might be one of the few points of relative consensus in the current American political climate. While conservatives uncouple the military and the State in their calls to shrink the government, progressive liberals often see defense spending as a destructive and wasteful drain on resources that otherwise would be directed toward the public good.
To be clear, not all Americans who have defended the Second Amendment have understood it as a check against government tyranny. For that matter, I am not saying that the national imaginary of this country has historically been uniformly anti-government. At times, on the contrary, populist movements have sought to empower the people by expanding democratic institutions. However, such movements sometimes (although not always) imagine the people as an organically unified body politic and seek to shore up perceived sources of shared identity. Such populist sentiments, especially those that imagine America as a white, Christian nation, can quickly swell in the face of the perceived loss of national integrity perpetuated by liberal reform that extends the benefits of American citizenship beyond the scope of the white household. This in turn leads to nostalgia for a lost nation as the grounds for abandoning political loyalty to the State. The reason that the conceptual vocabulary of political theology might be helpful here is that such movements make extensive use of the language of popular sovereignty.
Within the narrative of American political decadence and lost revolutionary vitality, the 2008 election only confirmed for many what they felt to be decades of wresting government from the hands of the authentic American people in favor of a tyrannical welfare state that reappropriates resources and distributes them to parasitic others by way of inefficient and decadent bureaucrats who despise Christian freedom. What liberals see as differences over policy that can, so they hope, be resolved through discussion, reason, negotiation, and compromise are felt by many Americans to express a crisis of sovereignty that calls for resistance to all practical measures of federal governance in favor of states’ rights and a protection of the sanctity of the home as the ultimate source of national legitimacy.