It was mere days before the final Congressional count and certification of the 2020 presidential election results. Donald Trump, who had been resisting the factual outcome of the race for two months and filing one losing lawsuit after another, called Georgia’s Secretary of State, Brad Raffensperger and—as was recorded for all the world to hear—asked Raffensperger to “find” enough votes for Trump to take the state. Never mind that the state had long since certified its own vote and appointed its slate of electors, who had already cast their electoral votes. During a “CBS Evening News” interview on January 4, 2021, anchor Norah O’Donnell inquired of Raffensperger what Trump wanted from the call. He responded, “Probably to see if he could influence me to change my decision. But in a way I'm not really making a decision. What I’m doing, I’m following the law and I’m following the facts.”
What does this have to do with political theology? For centuries, political theology has been narrowly construed as the relation between church and state or, where churches and states do not exist, between god(s) and government, between the supernatural and the political. However, almost exactly a century ago, Carl Schmitt reoriented and expanded political theology to the bedrock issue of sovereignty: where do laws and institutions—and more fundamentally, the authority to make laws and institutions—come from? He opened his famous treatise with the statement, “Sovereign is he who decides the exception.” He argued that the moment of exception, when laws and institutions do not apply or are literally set aside or negated, reveals the true source of politics. Power makes law, not vice versa: on the occasion of exception—for instance, the declaration of martial law or the suspension of constitutional rights—law no longer defines or constrains power, but rather power defines or constrains law or the lack thereof.
The exception is indeed the starkest illustration of power over law, but exception is not the essence of politics or sovereignty. Instead, the key to politics, and to political theology, is the other part of Schmitt’s dictum, the decision. Decision occurs at many times outside the exception. And this is why religion was so central to political theology for most of Western history. In thinking about political institutions, roles, or actions like a king or a declaration of war, the firmest ground on which to set them was the deity: a god chose that king—or chose the office of king itself—and a god wanted that war (deus lo volt, allegedly the humans behind the Crusades pronounced). That is to say, a particular king or dynasty, the very office of king, a war, or in modern times a constitution or the country it structures is the decision of the god. Such makes the king, the war, the constitution necessarily good and right and gives it the highest possible legitimation.
It goes without saying that divine sanction never settled any political problem. One king defeated and unseated another; factions quibbled or fought over the powers of rulers (e.g. do popes crown kings or do kings crown popes?); kingship itself was dethroned, with former occupants of the throne (Charles I of England, Louis XVI of France) executed. Constitutions were written, amended, replaced, or discarded, and laws were constantly changed. Along the way, other means of political justification were proposed—nature (natural law), reason, the will of the people, the interest of the race or nation or class, and sheer force. The basic question remained: who decides? It is a question that, to our consternation, also can never be settled once and for all.
But there is a deeper issue in political theology, which is the difference between constitutionalism and the rule of law on the one hand and Schmittian decision on the other. Raffensperger, who is probably no political theologian, put his finger on the debate when he said that, in performing his official duties and declaring Joe Biden the winner of Georgia, he was not “making a decision” at all. He was simply “following the law” and “following the facts.” As others have noted, the entire point of constitutionalism is “depoliticization” in Schmitt’s sense, that is, removing decision from the equation. Instead of decision, we have “procedure”: follow the (legally established) procedure, and no decision is necessary. Of course, it is still a decision to follow the procedure, as we have learned to our shock during Trump’s term, given his persistent and brazen refusal to follow procedure (and norm and tradition and, often enough, law).
And there is the rub and the inescapable Schmittian quality of political theology. Although commitment to constitutional and legal procedure is ordinarily rather automatic and unconscious, it still depends upon—and thus can be undone by—decision. Further, there is always an area of vagueness or incompleteness in the procedures; for instance, can a president pardon himself? And if he decides to pardon himself, can we decide to cancel that decision? Or consider the constitutional provision for designating electors to the Electoral College: Article II, Section 1 reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” (emphasis added). The Constitution grants wide latitude, indeed no real guidance, on how electors are chosen; there is not even an explicit requirement that a popular vote be held, let alone that state legislators must honor it. It would be entirely constitutional for a state legislature to decide to ignore the popular vote and pick any electors it wants. Only tradition, commitment to popular sovereignty, or fear of an uprising prevents legislators from using their perfectly constitutional power to select any elector—and thereby any president—they like. In the end, it is also true that a decision created the Constitution in the first place, and with it the institution of the Electoral College and the language about state legislatures, which means a decision can change it or, at a moment of exception, suspend it.
What this means is that, as horrified as most Americans were at Trump’s attempt to overturn Georgia’s presidential vote, what he was requesting may have been ultimately entirely legal and constitutional, even if it was unprecedented, disturbing, and disgusting. Of course, there are legal questions about whether Trump was attempting to engage specifically in the solicitation of election fraud, which would be both a state and federal crime. Regardless, a decider could intervene at every step of the election process—first, deciding what kind of votes are allowed to begin with (mail-in? in-person? paper? electronic?), what voter qualifications will be imposed (picture identification required?), how many polling places will be opened, etc., then deciding whether specific ballots are valid, then deciding to certify the results, then deciding which electors to seat, then the electors deciding how to vote (are they compelled to vote as the state’s citizens voted?), and finally deciding, at the joint session of Congress, to accept or object to those electoral votes. And if a president “decides” not to accept the final result and not to vacate the office?
But the political theological lesson that Trump has taught us is that even our procedural democracy still consists of, and is highly vulnerable to, the decision. Further, whether the decision flows from god(s), nature, reason, or the people, it can never close the question; there will always be another opportunity to make another, or a different, decision—and as we witnessed, a group or mob may reject a popular or official decision and seek to enforce its own, even by seizing the site of government itself. And finally, to rethink Schmitt, the exception may generate a decision, but a decision may also generate the exception.