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#GiftArticle

#America Is Watching the Rise of a #DualState
For most people, the #courts will continue to operate as usual—until they don’t.

On Sept 20, 1938, a man who had witnessed the rise of #fascism packed his suitcases & fled his home in Berlin. He arranged to have smuggled separately a manuscript that he had drafted in secret over the previous 2 yrs. This book was a remarkable one. It clarified what was unfolding in Berlin…, the catalyst for its author’s flight.

theatlantic.com/magazine/archi…


America Is Watching the Rise of a Dual State

For most people, the courts will continue to operate as usual—until they don’t.
Aziz Huq (The Atlantic)
#fascism #america #courts #giftarticle #dualstate

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Nonilex

The man…was a Jewish labor lawyer named Ernst Fraenkel.He completed his manuscript…at UC, publishing it as The #DualState, w/the modest subtitle A Contribution to the Theory of #Dictatorship.The book explains how the #Nazi regime managed to keep on track a #capitalist economy governed by stable #laws—& maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of #lawlessness & state #violence in order to realize its terrible vision of #EthnoNationalism.
#nazi #dictatorship #violence #laws #capitalist #dualstate #lawlessness #ethnonationalism
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Nonilex

Fraenkel offered a simple, yet powerful, picture of how the #constitutional & #legal foundations of the Weimar Republic eroded, & were replaced by #strongman-style rule in which the commands of the #Nazi Party & its leader became paramount. His perspective was not grounded in abstract political theory; it grew instead from his experience as a Jewish lawyer in Nazi Berlin representing #dissidents & other disfavored clients.
#nazi #legal #constitutional #strongman #dissidents
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Nonilex

Academic in tone, The #DualState sketches a template of emerging #tyranny distilled from bloody & horrifying experience.

As Fraenkel explained it, a #lawless #dictatorship does not arise simply by snuffing out the ordinary #legal system of rules, procedures, & 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.

#dictatorship #legal #tyranny #lawless #dualstate
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Nonilex

Rather than completely eliminating the normative state, the #Nazi regime slowly created a parallel zone in which “unlimited arbitrariness & #violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary #law didn’t apply. (A #PrerogativePower is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from #JohnLocke onward have offered various formulations of the idea.)
#nazi #law #violence #prerogativepower #johnlocke
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Nonilex

In this prerogative state, #judges & other legal actors deferred to the #racist hierarchies & ruthless expediencies of the #Nazi regime.

The key here is that this prerogative state does not immediately & completely overrun the normative state. Rather, Fraenkel argued, #dictatorships create a #lawless zone that runs alongside the normative state. The 2 states cohabit uneasily & unstably. On any given day, people or cases could be jerked out of the normative state & into the prerogative one.

#nazi #judges #racist #lawless #dictatorships
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Nonilex

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 & deposited it in the government’s coffers. Over time, the prerogative state would distort & slowly unravel the #legal procedures of the normative state, leaving a smaller & smaller domain for ordinary #law.
#nazis #law #legal #gestapo
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Nonilex

…it was a mistake to think that even the #Nazis would entirely dispense w/normal #laws.…They had a complex, broadly #capitalist economy to maintain. “A nation of 80M people,”…needs stable rules. The trick was to find a way to keep the #law going for #Christian Germans who supported or…tolerated the Nazis, while ruthlessly executing the #führer’s directives against the state’s enemies, real & perceived. #Capitalism could jog nicely alongside the brutal suppression of #democracy, & even #genocide.
#nazis #democracy #capitalism #law #fuhrer #laws #genocide #capitalist #christian
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Nonilex

…Today, we are witnessing the birth of a new #DualState. The #US has long had a normative state. That system was always imperfect. Our #criminal #justice system, for example, sweeps in far too many people, for far too little security in exchange. Even so, it is recognizably part of the normative state.

What the #Trump administration & its allies are trying to build now, however, is not.

#law #PerogativePower #ForTheeButNotForMe #tyranny #Dictatorship #autocracy #MafiaState #NaziState

#trump #us #law #MafiaState #justice #dictatorship #criminal #autocracy #tyranny #nazistate #dualstate #perogativepower #fortheebutnotforme
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Nonilex

The list of measures purpose-built to cleave off a domain in which the #law does not apply grows by the day: the #pardons that bless & invite #insurrectionary #violence; the #purges of career lawyers at the #DOJ & #SDNY, #InspectorsGeneral across the govt, & snr #FBI agents; the AG’s command that attys obey #Trump over their understanding of the #Constitution; the appointment of people such as #KashPatel & #DanBongino, who…view loyalty to Trump as more compelling than their constitutional oath;
#trump #law #doj #fbi #constitution #violence #KashPatel #danbongino #pardons #purges #insurrectionary #sdny #inspectorsgeneral
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Nonilex

#Trump’s declaration that he & the AG are the sole authoritative interpreters of federal #law for the executive branch; the transformation of ordinary spending responsibilities into discretionary tools to punish partisan foes; the stripping of #security clearances from perceived enemies & opponents; the threat of #criminal prosecutions for #speech deemed unfavorable by the president; & the verbal attacks on #judges for enforcing the law.
#trump #security #law #criminal #judges #speech
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Nonilex

The singular aim of these tactics is to construct a prerogative state where cruel caprice, not #law, rules. By no measure does the extent of law displaced in the first few months of the #Trump admin compare w/the huge tracts of the Weimar’s legal system eviscerated by the #Nazis. But it is striking how Trump’s EOs reject some basic tenets of American constitutionalism—such as #Congress’s power to impose binding rules on spending & regulation—w/o which the normative state cannot persist.
#trump #nazis #law #congress
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Nonilex

The CEOs who paid for & attended #Trump’s second inauguration can look forward to the courts being open for the ordinary business of #capitalism. So, too, can many citizens who pay little attention to politics expect to be unscarred by the #PrerogativeState. The normal criminal-justice system, if only in [Trump perceived] *nonpolitical* cases, will crank on. Outside the American prerogative state, much will remain as it was. The #NormativeState is too valuable to wholly dismantle.
#trump #capitalism #prerogativestate #normativestate
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Nonilex

For that reason, it shouldn’t come as a surprise that #Trump’s lawyers—despite running roughshod over #Congress, the #states, the #press, & the #CivilService—were somewhat slower to defy the federal courts, & have fast-tracked cases to #SCOTUS, seeking a judicial imprimatur for novel #PresidentialPowers. The #courts, unlike the legislature, remain useful to an #autocrat in a #DualState.
#trump #press #scotus #congress #courts #civilservice #dualstate #states #presidentialpowers #autocrat
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Nonilex

Building a #DualState need not end in #genocide: Vladimir #Putin’s #Russia & #LeeKuanYew’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 [Putin has, just not within Russian borders on a genocidal scale]. Their deepest similarity, rather, is that both are intolerant of #PoliticalDissent & leave the overwhelming majority of citizens alone.
#putin #russia #singapore #genocide #dualstate #leekuanyew #politicaldissent
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Nonilex

The peril of the #DualState lies precisely in this capacity for targeted suppression. [Many]…people can ignore the construction of the #PrerogativeState simply because it does not touch their lives. They can turn away while dissidents & scapegoats lose their political #liberty. But once the prerogative state is built, as Fraenkel’s writing & experience suggest, it can swallow anyone.
#liberty #dualstate #prerogativestate
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