Doppelstaat

This one fed by double talk

Memorial tablet in Berlin, at the house where Fraenkel lived before his forced emigration in 1938, via Wikimedia Commons.

wo or three weeks ago somebody pointed me to a wonderful piece in Mother Jones by Pema Levy, on the “dual state” theory of dictatorial government, created by the German-Jewish jurist, labor advocate, and political scientist Ernst Fraenkel, based on his observations of the Nazi state in Germany from its origins until his escape from Berlin in 1938, according to which authoritarian regimes can survive and even thrive for some period of time as they consolidate their control by maintaining in effect two distinct legal systems in a single Doppelstaat, a “normative state” covering most of the population, in which civil and criminal laws function in normal and predictable fashion, and a “prerogative state” for the unlucky people scapegoated by the regime—in 1930s Germany union members, members of leftist political parties, Jews and Romani of course, homosexuals and the disabled, and so on—where the dictator’s will overrides normal legal considerations and he can “do whatever I want” as Trump has put it on numerous occasions, usually applying to some claimed state of emergency.

In this way life in the normative state does not change much, at least at first, and its inhabitants were enabled to ignore much of what was happening, if they so chose: “I was silent, for I was not a socialist,” as Pastor Niemöller wrote. He himself was a national conservative and an antisemite, and when they finally “came for” him it wasn’t because there was nobody left to speak for him, it was because he had bravely changed his mind, I’m pleased to say, and helped start up a Lutheran resistance and got sent to Sachsenhausen and Dachau for that, and survived to die in the German Federal Republic at the age of 92, too, may his memory be a blessing.

Fraenkel became part of the discourse on Trump 2.0 in a footnote from Justice Ketanji Brown Jackson’s dissent in the matter of Trump v. CASA, arising from the birthright citizenship case, where the Court decided not to ask whether or not the 14th Amendment means what it says, but did say the judges ought to stop issuing universal injunctions, like maybe birthright citizenship is real in San Francisco (one of the parties in the original suit) but not across the bridge in Oakland and it’s none of a federal judge’s business to assume that the Constitution is the same all over the country, which is not what they thought during the 19 or 20 universal injunctions issued by federal judges during the Obama administration, the 20 under Trump 1.0, or the 14 in Biden’s single term, or at least that when the president is told there’s something he’s constitutionally forbidden to do in San Francisco that doesn’t mean he can’t do it in Oakland, as Jackson wrote:

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When the Government says ‘do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,’ what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution—please allow this. That is some solicitation. With its ruling today, the majority largely grants the government’s wish.

adding, in the footnote,

See E Fraenkel, The Dual State, pp xiii, 3, 71 (1941) (describing the way in which the creation of a ‘Prerogative State’ where the Executive ‘exercises unlimited arbitrariness … unchecked by any legal guarantees’ is incompatible with the rule of law)

It’s clear the Trumpers are working on something like this, insofar as they’re able to understand it, which is more instinctual than theoretical, based on their half-racial, half-ideological sense of being the normative people for whom the normative state exists, the Real Americans, the ones who don’t commit crimes or need food stamps, etc.—in a bubble of delusionality, that is to say (rural white Americans commit plenty of crimes and need SNAP the most), from which it’s impossible to really understand anything; but confident, anyway, that those on the other side in the prerogative state are only getting what’s coming to them. As you can see in Stephen Miller’s hysterical indignation whenever it’s suggested that his government might be doing something unfair to somebody.

So they tell a story of their work in which the lawlessness of the prerogative state is actually lawful, stern but justly applied, and some of the big media outlets, like Washington Post and CBS News, under threats from the White House to their corporate interests, reinforce that picture, and the Republican Congress and the reactionary Supreme Court do little or nothing to curb the disregard for the law into which the concepts of due process, voting rights, equal protection and protected classes, free speech and free assembly, the right not to have one’s state under federal military occupation, and so many others, have virtually disappeared in the last months—shoutout to the many brave federal judges who have refused to accept this as fait accompli, though.

And shoutout also to us, for what it’s worse, the seven million of us who marched against having an America king on October 18, the many who post videos of ICE agents kidnapping and tormenting or document the regime’s lies or whatever we do, because I’m convinced it’s starting to make a difference:

[Nate] Silver’s team compiles a polling average that draws on nearly all major national surveys, weighted by methodology and historical accuracy. Their latest model places Trump’s approval at 43.9% and disapproval at 52.3%, resulting in a net negative of 8.4 points. The breakdown reveals deeper trouble in specific policy areas: immigration (-4.7), the economy (-15.3), trade (-16), and inflation (-27.7). Those figures mark a sharp downturn from June 1, when Trump’s immigration approval was slightly positive at +2.5. Silver wrote, “Trump’s approval on immigration has been hovering around net -5 since late September, and he’s stuck around net -16 on both the economy and trade. To be clear, these are bad results for Trump.” He added that Trump’s handling of the economy “is substantially less popular than his term one approach.” Still, Silver noted that Trump’s overall net approval of -8.4 is better than the -16.7 recorded at the same stage in his first term.

Recent polls suggest widening gaps between income and age groups. A YouGov/The Economist poll found Trump’s approval among Americans earning less than $50,000 dropped nine points, to -24, while his rating among those making more than $100,000 improved to -4. Meanwhile, HarrisX data shows a 13-point decline in support among voters aged 65 and older, leaving Trump with just 43% approval in that demographic.

Yay Boomers! Yay poor people! We’re all starting to understand what’s going wrong. Not necessarily that randomly imposed tariffs are illegal, but that they bring on a rise in prices. Not necessarily that migrant asylum seekers aren’t breaking the law by being here, but that they’re overwhelmingly good people who are happy to pick our walnuts and build our houses and serve us tamales and halal rice bowls. Not necessarily that it’s against the law to fire civil servants without a reason, but that we need those food inspectors and cancer researchers and weather forecasters. Not necessarily that academic freedom is a core value of tertiary education, but that our college kids should be having challenging discussions while they’re there. The legal explanation will come when it comes; what’s important now is for folks to understand that it’s wrong, and harms us as well as its designated scapegoat victims. Health insurance is important! SNAP benefits are really important!

My hopeful feeling of the moment is that co-presidents Vought and Miller may have really blown it, by taking the Silicon Valley adage too seriously: they moved so fast and broke so many things that people started noticing that an awful lot of stuff was getting broken. Perhaps they were in a hurry, as true fanatics and knowing how unpopular their actions were going to be, to destroy as much as they could before they were stopped. But we never had, between January and now, that necessary initial period the German Nazis had in the mid-1930s, when most citizens of the normative state lived a reasonable kind of life, confident in the state and the law doing what they expected in their own personal lives, while the victims of the prerogative state stayed quiet, focused on getting safe out of the country. Things have been completely crazy from the inauguration, with the DOGE firings and foreign aid cancellations and insane ICE raids and Trump’s loony declarations, including the obnoxious tariffs. One way or another, the public is catching on.