93 Pages Posted: 16 May 2017 Last revised: 18 Oct 2017
Date Written: September 30, 2017
The U.S. Presidential election of 2016 occurred amidst a disturbingly reminiscent coalescence of patterns — the economic displacement of the working class, the protracted paralysis of the legislative branch, the perception of widespread corruption, the neutralization of a vital left, and the festering wounds to national pride wrought of multiple lost wars. These patterns are familiar: Together, they comprise, albeit in much more attenuated form, the combustible mix that presaged the rise of National Socialism in 1930’s Germany.
Fast forward: With less than a year into his administration, Trump is constructing a political-legal world of alternative facts, casual mendacity, paranoid political conspiracies, free-form attacks on press, ethnic and racial vilification, and a routine disdain for democracy and the rule of law.
How did the U.S. get to such a place — politically-legally? Is the U.S. on the threshold of fascism or some other form of right-wing authoritarianism? This piece examines political-legal theory to show the ways in which the various cumulative governance regimes of the United States (the liberal-democratic state, the administrative state, and neoliberalism) by failing to recognize their internal as well as interactive contradictions have contributed to the advent of a decadent post-liberal state. This post-liberal state characterized by the dominance of a siloed technocratic rationality is unstable — its most obvious evolutionary paths being increased paralysis or increased authoritarianism (or some combination of the two).
Reconnaissance and awareness of the structural roots of this condition as well as a broadening of political-legal perspectives are now an urgent task. This is something that law schools could do. This article is but a first-step in that direction.
Keywords: Fascism, Liberalism, Neoliberalism, Post-liberal, Decadence, Marx, Schmitt, Neumann, Rule of Law, Democracy, Administrative state
JEL Classification: F62, H11, K10, P10, P50
Suggested Citation: Suggested Citation
Schlag, Pierre, The American Road to Fascism -- Law, Decadence and the Post-Liberal State (September 30, 2017). U of Colorado Law Legal Studies Research Paper No. 17-14. Available at SSRN: https://ssrn.com/abstract=2968059