Not long ago, I read with great interest a blog post over at the Volokh Conspiracy, which makes reference to recent comparisons between the administration of George W. Bush and the political philosophy of the Nazi-era law professor Carl Schmitt – a man whose principle argument supported that any effective government must contain a dictatorial element within the constitution, as best expressed through the seizure of “emergency” powers. Volokh cites a paper by Adrian Vermeule and a posting from Sandy Levinson – in addition Opinio Juris was all over this Schmitt stuff even earlier. Volokh writes:

The legalists in American law schools rage at the Bush administration for claiming constitutional authority to wage the war on terrorism rather than going to Congress but are indifferent when the Bush administration cites, as authority to address the current financial crisis, a statute enacted by Congress seventy years ago and a judge-made doctrine that permits agencies to interpret ambiguous statutes expansively. Is it really so difficult to see that these two cases are the same from the perspective of the rule-of-law values that the rule of law is supposed to advance: public debate and authorization of policy by a representative body for the purpose of addressing events that it is actually aware of? I say that you have to approve of both or neither.

Now that we have seen the Bush-Paulson package, which was filled with this kind of language, get shot down by mostly House Republicans, the Schmitterian legacy once again hangs predominantly over the Bush administration’s final days. But Bush isn’t the only one out there carrying the Schmitt torch. In my many years of reading and writing about Putin’s Russia, I too have developed a significant interest in this frightening brand of constitutionalism, not least because it seems that Vladimir Putin is, like Bush, an ardent believer in the Schmitt doctrine.