The Weekly Sift

[I haven’t done an Expand Your Vocabulary post in several years, but “the Dual State” merits one. We should all become fluent in its use.]

It’s commonplace these days to compare the Trump regime’s behavior to what the Nazis did in Germany in the early-to-mid 1930s. (Comparisons to the Final Solution Germany of the 1940s are still over the top. We are not fighting a world war while maintaining a network of death camps.) But here’s a Nazi-era idea that doesn’t get nearly the attention it deserves. Aziz Huq was telling us about it in The Atlantic back in March, referencing a book Ernst Fraenkel wrote after escaping Germany in 1938. (You can read it online for free.)

As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and 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. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. … In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.

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

This week in the NYT, David French applied this idea to what we’re seeing in Minneapolis.

It’s the continued existence of the normative state that lulls a population to sleep. It makes you discount the warnings of others. “Surely,” you say to yourself, “things aren’t that bad. My life is pretty much what it was.”

But the prerogative state is always sitting there on the other side of the veil, and you never know when you might cross over into it.

One of the most heartbreaking aspects of the ICE agent’s video of the fatal encounter between Renee Good and ICE is that it’s plain that Good thinks she’s still in the normative state. She has no idea of the peril she’s in.

She seems relaxed. She even seems to have told the agent that she’s not mad at him. In the normative state, your life almost never depends on immediate and unconditional compliance with police commands.

But she wasn’t in the normative state. She had crossed over the border to the prerogative state, and in that state you can be shot dead recklessly, irresponsibly and perhaps even illegally, and no one will pay the price.

For the vast majority of Americans, everyday life goes on: You do your job, come home to your family, do your chores, run your errands, watch your favorite TV shows — nothing significant has changed in the year since Trump regained the presidency. It’s easy to imagine that nothing will change, and that the people who try to get you alarmed are all suffering from the “Trump Derangement Syndrome” you hear so much about.

Meanwhile, the prerogative state grows. Maybe it hasn’t arrived in your city yet. Maybe the friends you know who are affected by it did something to draw its attention. But your life goes on normally, until it doesn’t.