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This chapter takes issue with the history and theory of exception along these three lines. The first section offers a critique of the idea of law at the heart of the theory of exception. By taking a closer look at the history and theory of law in early nineteenth-century America, it offers an alternative reading of the role of exception in Emerson’s America – a place and time in which the exception in law was anything but exceptional. The second section offers a critique of the idea of state and sovereignty at the heart of the theory of exception in the early twentieth century. In place of Schmitt’s concept of the political, it offers a reconsideration of John Dewey’s more democratic conception of “the public” and its problems, where again the exception is an unexceptional part of an everyday and agonistic democratic politics. The third section moves us further into the twentieth century, challenging the suzerainty of both liberal and neoliberal characterizations of exception and totalitarianism in that ideologically charged period. Here, Charles Merriam’s ideas about new democracy and new despotism provide an alternative reference point for thinking about the exception, its antidemocratic dangers, and its democratic possibilities.

In the context of a revitalized theory of the nature of power in democratic states, the exception does not appear so exceptional. Indeed, when viewed from the perspective of democratic state history, the exception may be one of the most common ways that democratic states exercise power every day. Evaluating the state of exception from the critical perspective of the modern democratic state exposes the limits of the notions of formal law, bureaucratic statecraft, and liberal politics that so frequently preoccupy discussions of exception and emergency governance. Those rather profound limitations suggest the need for an alternative genealogy of the political. In the theories of law, state, and politics in the writings of Emerson, Dewey, and Merriam, this essay proposes a tentative new genealogy of the modern American political – where democracy is not a problem but a solution and where the exception is not exceptional but one of the most quotidian ways of exercising power in agonistic modes of self-government.


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