POLITICS * 6 HOURS AGO

The “Dual State” Theory Was Invented to Describe Nazis. The Supreme Court Could Take Us There.

Authoritarianism—but make it look like the rule of law.

PEMA LEVY
Reporter


Mother Jones illustration; Tomasz Zielonka/Unsplash

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Perhaps the most brazenly illegal action of President Donald Trump’s second term so far took place on his first day in office: an order to deny birthright citizenship to thousands of newborns. Within months, the question had reached the Supreme Court. But rather than affirm the right to birthright citizenship, which is plainly enshrined in the Constitution, the high court used the case to strip lower courts of the ability to issue nationwide emergency relief in most cases—now only those who sue can get reprieve. Instead of halting the administration’s lawless action, the justices made it easier for Trump to get away with future illegal abuses.

The ‘dual state’ framework explains how a dictator can exercise power while life appears mostly ordinary.

In her dissent, Justice Ketanji Brown Jackson accused the majority of facilitating a two-track system of justice: One for those with the resources to challenge illegal actions, and a second where those without recourse are subjected to the president’s illegal whims. “The law-free zone that results from this Court’s near elimination of universal injunctions is not an unfamiliar archetype,” Jackson wrote. It is, she added, “eerily echoing history’s horrors” that “the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular.”

To eliminate any doubt about which historic “horrors” she had in mind, Jackson included a footnote citing Ernst Fraenkel, a Jewish labor lawyer who observed the transformation of the German legal system under Adolf Hitler. When Fraenkel fled Berlin in 1938, he smuggled out a manuscript on the legal mechanisms of Nazi authoritarianism. He eventually came to the University of Chicago and in 1941 published The Dual State: A Contribution to the Theory of Dictatorship. Fraenkel’s work has seen a resurgence of interest in the United States in recent months because it provides a framework for a phenomenon we are increasingly experiencing under the second Trump administration: How a dictator can exercise unfettered power while life appears ordinary for most people. Or, as Jackson observed, how a “zone of lawlessness” can swallow some, while the rest go about their lives under the protection of the law.

In the Third Reich, Hitler’s will replaced German law. Whatever he wanted, he did. If anyone was perceived to threaten the Nazi project of a fascist ethno-state, no legal protection could save them. Fraenkel called this realm the “prerogative state.” But the broader legal system didn’t immediately crumble under arbitrary rule. To the contrary, the Nazis purposefully left some of the existing legal system intact in the 1930s and courts were allowed to function, particularly in areas of contracts and other economic concerns. This parallel “normative state,” Fraenkel observed, enabled Germany’s capitalist system to continue against the backdrop of an uninhibited regime. Most Germans generally lived in the law-bound normative state, while Jews and other disfavored people were victims of the arbitrary and violent prerogative state. The dual state is thus two-faced twice over: it is characterized by a bifurcation in the law, but also by the facade of normalcy obscuring the fact of an authoritarian state.

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