In today’s episode of the Telos Press Podcast, Camelia Raghinaru talks with David Pan about his article “State, Movement, People: Representation and Race in the Construction of Political Identity,” from Telos 189 (Winter 2019). An excerpt of the article appears below. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Purchase a print copy of Telos 189 in our online store.
State, Movement, People: Representation and Race in the Construction of Political Identity
David Pan
At the beginning of his Constitutional Theory, Carl Schmitt lays out an understanding of a constitution in which it does not consist of a set of laws that would form a unified system of norms that govern state procedures. Rather, he insists that a state does not simply have a constitution but is the constitution in the sense that the constitution consists not just of the laws but of “the concrete manner of existence that is a given with every political unity.” Since the existence of political unity is the major achievement, any situation of such unity implies a corresponding constitution, and the task of a constitutional theory is to determine the characteristics of such unity, independent of the existence of any set of norms that define the way that the laws “should” work. In this sense, any people that can be characterized as such has an existing way of life and an implicit constitution that distinguishes it from another people. Every people has some kind of order, not to be equated with explicit laws, according to which one can distinguish this people from other peoples.
Because of its seemingly relativist stance with regard to political form, Schmitt’s conception is at odds with liberal assumptions about what a constitution is. He recognizes the possibility of cultural differences that would lead to alternative constructions of the political form of a people, outside of liberal principles. Consequently, his open-ended view of constitutions could be construed as a legitimation for repressive systems. The challenge in exploring Schmitt’s version of constitutional theory is to recognize the ways in which cultural variations affect constitutional form without losing sight of the potential for emancipation from repressive structures.
Schmitt’s constitutional theory addresses the problem of culture diversity through his idea of representation, by which he means a kind of aesthetic representation of authority. Even if representations seem to be arbitrary as compared with liberal principles treated as natural laws, they are in fact grounded in traditions of interpretation and decision-making that exercise defining constraints on conceptions of ethical and legal behavior. The experiences of nation-building in the Weimar Republic provided a key demonstration that a written constitution is only as valid as the customs and rituals upon which it is built, and therefore Schmitt turned his constitutional theory toward this representational realm in order to investigate the basis for how constitutions function in practice.
Schmitt begins this analysis with the idea that human existence is implicitly based on some type of symbolic order. Yet this order of the people cannot be wholly implicit if the people is to understand itself as a unity. Schmitt therefore recognizes that part of the way in which a people distinguishes itself from another people is the particular form of hierarchical order according to which it is organized, “because there is in social reality no order without supremacy and subordination.” The state form, whether, for instance, monarchy, aristocracy, or democracy, is a matter not just of the laws but of the existing representations, formal and informal, that define the state structure and its procedures. This state form is a representational structure because it involves the way in which the people sees itself as a unity. By seeing a representation of itself in the monarch, or in an aristocracy, or in the particular structures (such as parliament or councils or town meetings) that characterize its democracy, the people becomes a unity through the mediation of the state structure. Even if the people has a history, traditions, and relationships that are the raw material for defining it as a people, this definition cannot occur in the concrete case without a representational structure that brings all these things together into a unity. Without the representation, the people will not be able to see itself as a political unity, and the state form is the particular representational mechanism for establishing this unity out of the multiple and conflicting stories, opinions, customs, relationships, and goals that exist in the people. It is only through the establishment of the state form that the laws can have any legitimacy and meaning as that which guarantees the continuity through time of the people as a unity. Laws for Schmitt do not define the state, but the other way around. The representational aspect of the state shapes the laws and their development, and a change in the representation will result in a corresponding change in the laws.
Because it depends on representation, the unity of the people will always require a particular interpretation of what is included and excluded in the concept of the people. A key aspect of the state form is the way in which it must marginalize alternative interpretations of legitimate order in order to define political unity. This interpretive character of the establishment of state form in the representation means that there is an inherent instability of the state form in the face of shifts in interpretation. This process of transformation in state form creates for Schmitt the third concept of the constitution as a principle of dynamic becoming, in which “[p]olitical unity must form itself daily out of various opposing interests, opinions, and aspirations.” This aspect of the constitution is an acknowledgment of the circumstance that a people as a concrete existence cannot be thought of as static, but in a constant process of change, and that their changing states of mind must also be recognized by a constitutional theory.
These three aspects of a political unity for Schmitt—the concrete existence of a people, the representation of the people in a hierarchical ordering of relationships that constitute a state, and the ways in which this representation changes through movements—become the key aspects of a constitutional theory that seeks to understand a constitution as a description of an existing political unity in a particular time and place rather than a set of abstract laws. If we were to reduce the meaning of a constitution to its laws, we would be unable to account for the way in which different states implement laws differently and how the same state’s customs transform themselves in history.
Schmitt’s theory of constitutional form consequently depends upon a theory of representation, which is the mechanism by which the people sees itself as a people and which explains how this self-conception, by changing over time, also transforms the laws. If Schmitt has a fairly abstract account of this representational process in his 1928 Constitutional Theory, the rise of the Nazis gives Schmitt the opportunity in his 1933 State, Movement, People: The Tripartite Structure of Political Unity to explain a concrete instance of the transformation of a constitutional order. Written as a justification for the legitimacy of the Nazi government, this essay describes in detail the way in which state, movement, and people relate to each other to establish a political unity. In filling the lacuna of his Constitutional Theory, though, this essay marks a shift in Schmitt’s thinking away from a focus on the representational character of political transformation, adhering instead to the Nazis’ racial and static understanding of political identity. If we are to effectively oppose this fixation of political identity into racial categories, however, it would be insufficient to simply insist on rational debate, as such debate will contain certain boundaries that stifle new political movements. Rather, the alternative to the racial conception of political identity that can still take into account the effects of such movements is to return to Constitutional Theory‘s theorization of representations as the basis of political order.
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