One Nation Under a Dual State

Celebrating 4th of July in Trump's America

I was planning to take the week off from writing in order to enjoy some holiday time with family. But since one of the main goals of my blogging has always been to think in public about things that are bothering me, let me ask a question that seems especially pertinent heading into the Fourth of July:

How can I continue to enjoy life in America while seeing so much evidence of America losing its way?

I live at peace, while political violence threatens public servants. I love my job as a college professor and historian, even as I fret over the future of higher education. Our kids are thriving, even as I worry about the unsustainable economy and changed climate they’ll inherit. My spiritual needs are met, even amid my sense of existential dread. Our city, county, metro area, and state function well, even as good government erodes under our current president and Congress. I get along well with almost everyone I know in real life, despite all the deep-seated political, cultural, and other differences fragmenting this nation.

In some respects, my question isn’t all that hard to answer. It’s quite healthy to live congenially with neighbors with whom you share profound disagreements about policy matters as significant as taxation, trade, public education, health care, international relations, and environmental protection. It’s probably healthier to spend less time than I do thinking about such debates. In any event, it’s entirely ordinary to take delight, joy, and peace where you can find them — without wanting to linger too long on the complications, contradictions, and even hypocrisies of such goods.

And if I do start to interrogate my existence, I soon have to recognize that I’m a middle-class, highly-educated white American. As in most eras in U.S. history, that means that people like me are insulated from the most immediate effects of whatever is wrong with our nation — let alone in less affluent and less secure parts of the world.

But if Friday’s national holiday is to celebrate anything deeper about this nation than the ongoing comfort and stability of life for the likes of me — for example, the noble aspirations that Americans declared to the world 249 years ago and have been struggling to realize ever since — then I can’t help but think that something more complicated, more dangerous is going on. At the risk of sounding (again) like an alarmist, I’d put it this way:

Our democratically elected leaders are in the process of creating something profoundly illiberal, what Ernst Fraenkel called a “dual state.”

I remember reading Fraenkel’s book on military occupation after World War I while researching my dissertation on occupied Germany after WWII, but I had forgotten about his most famous publication until I read an article published this past March in The Atlantic. As Aziz Huq explained, Fraenkel was a Jewish attorney who fled Germany in September 1938 and took refuge at the University of Chicago (also Huq’s academic home). In 1940 he published The Dual State in order to explain “how the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.”

If you’ll bear with me, I think Fraenkel’s theory as summarized by Huq will actually help explain just why some of you just muttered, “Not another Nazi comparison.” Having wrestled with the analogy myself, I get it. But I beg you to consider Huq’s next three paragraphs:

As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.

The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers. Over time, the prerogative state would distort and slowly unravel the legal procedures of the normative state, leaving a smaller and smaller domain for ordinary law.

Yet, Fraenkel insisted, it was a mistake to think that even the Nazis would entirely dispense with normal laws. After all, they had a complex, broadly capitalist economy to maintain. “A nation of 80 million people,” he noted, needs stable rules. The trick was to find a way to keep the law going for Christian Germans who supported or at least tolerated the Nazis, while ruthlessly executing the führer’s directives against the state’s enemies, real and perceived. Capitalism could jog nicely alongside the brutal suppression of democracy, and even genocide.

As I’ve argued at least twice before, the key problem with Trump:America:: Hitler:Germany analogies lies in the last word in Huq’s warning. Whatever the role of white Christian nationalism in the broader MAGA movement, there is nothing genocidal about Trumpism.

But then Huq acknowledges that “building a dual state need not end in genocide: Vladimir Putin’s Russia and Lee Kuan Yew’s Singapore have followed the same model of the dual state that Fraenkel described, though neither has undertaken a mass-killing operation as the Nazis did.” So if we can bracket away that element of Fraenkel’s own experience as a German Jewish refugee, I think we have to admit that his “dual state” model is becoming easier to discern under Trump 2.0 — precisely because most of our lives seems so unchanged under a changing regime.

CC BY 2.0 (Daniel X. O’Neil)

On the one hand, people like me and most of you continue to live as citizens of a “normative state.” For example, how I work and how I invest my earnings, how I consume goods and services provided by companies and how I run my own small enterprises… such economic behaviors are sometimes made complicated by the reckless leadership of the real estate mogul we’ve twice elected president, but for better and worse, capitalism is basically functioning as normal. Likewise, for all the damage that the Trump administration is doing to the federal government, most of the bureaucracy at various levels mostly continues to provide the services and enforce the regulations that benefit citizens across the political spectrum. And should I ever have the need to take some person or organization to court or arbitration, I still trust that my case would receive a fair hearing under “stable rules” adjudicated by an independent judiciary.

Of course, I’ve never sued anyone and likely never will. The legal system in this half of Fraenkel’s model is rarely needed, since the functioning of the normative state rests on norms that most of us follow — even if our president doesn’t.

As far as my experience goes, most of us still do — even a decade into the extraordinarily divisive politics that both produced and resulted from the Age of Trump. However deep our differences, I can’t say I’ve known any Trump supporters who behave much like the man they keep voting for. However they’ve had to contort their conscience to fit their politics (“Trump doesn’t really mean it… I don’t pay attention to politics… You can’t believe the liberal media… But what about when Biden… Anyway, he gets things done”), those of my fellow Americans strive for honesty, kindness, and decorum in their own relationships with other citizens. Like me, the most Trumpian conservative would use the legal system of the normative state to resolve disputes if necessary, but he can mostly get along with even his most progressive neighbors because — unlike our president — he isn’t innately cruel and vindictive, can restrain those responses when they do flare up, has at least modest capacity for empathy and humility, and recognizes the existence of an objective reality even when he disagrees with me about how to interpret it. Unlike Trump, most Trump supporters are norm-al.

But then there’s Fraenkel’s “prerogative state,” whose norms contradict those of the normative state and reflect the priorities of our abnormal leader. It’s a realm where the land’s highest lawmaking and judicial bodies grant extraordinary deference to official lawlessness that doesn’t (yet? ever?) affect most of our lives. It’s the realm where political authority is already being monetized, with public officials engaging in corruption that’s as routine as it is brazen. It’s the realm where the executive branch refuses to execute programs enacted by the legislative. It’s the realm where law-abiding immigrants — undocumented aliens, legal residents, and naturalized citizens alike — have to fear sudden arrest by unidentified agents and deportation without due process. It’s the realm where the commander-in-chief politicizes the military to his personal and partisan ends. It’s the realm where the president bullies news media into avoiding critical coverage and commentary, law firms into working for rather than against him, and universities into compromising academic freedom.

So even if it stops well short of the murderous version we know from 20th century history, it’s also becomes the kind of realm where scholars start to find that the benefits of thinking in public aren’t worth the costs. We’re not there yet, but as Ernst Fraenkel learned, life in a nation governed by a dual state can ultimately become untenable even for people who love it deeply and enjoy most of its benefits.