America Is Watching the Rise of a Dual State
On September 20, 1938, a man who had witnessed the rise of fascism packed his suitcases and fled his home in Berlin. He arranged to have smuggled separately a manuscript that he had drafted in secret over the previous two years. This book was a remarkable one. It clarified what was unfolding in Berlin at the time, the catalyst for its author’s flight.
The man fleeing that day was a Jewish labor lawyer named Ernst Fraenkel. He completed his manuscript two years later at the University of Chicago (where I teach), publishing it as The Dual State, with the modest subtitle A Contribution to the Theory of Dictatorship. The book explains how the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.
Fraenkel offered a simple, yet powerful, picture of how the constitutional and legal foundations of the Weimar Republic eroded, and were replaced by strongman-style rule in which the commands of the Nazi Party and its leader became paramount. His perspective was not grounded in abstract political theory; it grew instead from his experience as a Jewish lawyer in Nazi Berlin representing dissidents and other disfavored clients. Academic in tone, The Dual State sketches a template of emerging tyranny distilled from bloody and horrifying experience.
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. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.
[Timothy W. Ryback: How Hitler dismantled a democracy in 53 days]
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. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers. Over time, the prerogative state would distort and slowly unravel the legal procedures of the normative state, leaving a smaller and smaller domain for ordinary law.
Yet, Fraenkel insisted, it was a mistake to think that even the Nazis would entirely dispense with normal laws. After all, they had a complex, broadly capitalist economy to maintain. “A nation of 80 million people,” he noted, needs stable rules. The trick was to find a way to keep the law going for Christian Germans who supported or at least tolerated the Nazis, while ruthlessly executing the führer’s directives against the state’s enemies, real and perceived. Capitalism could jog nicely alongside the brutal suppression of democracy, and even genocide.
Fraenkel was born in Cologne in December 1898 in the comfortable home of Georg Fraenkel, a merchant, and Therese Epstein. After his parents died, Ernst and his sister were taken in by their uncle in Frankfurt, where Ernst became interested in trade-union activism. Despite his socialist leanings, he joined the German army and was sent to Poland in April 1917. He later wrote that he’d hoped “the war would mean the end of antisemitism.” Fraenkel survived the trenches of the Western Front. After his discharge in 1919, he earned a law degree, and eventually secured work in Berlin as a labor lawyer.
The war did not, of course, end anti-Semitism, but his military service did save his livelihood, at least for a time. On May 9, 1933—only a few months after the Reichstag burned—Fraenkel and other Jewish lawyers received an official notice prohibiting them from appearing in German courts. But Nazi law made an exception for Jewish lawyers who had served in World War I. And so, while many fled, Fraenkel remained in Berlin, representing litigants such as members of the German Freethinkers Alliance, a leader of the Young Socialist Workers, and a man arrested for insulting a National Socialist newspaper as “old cheese.”
Often, he had to resort to unorthodox strategies. In the last of those three cases, Fraenkel persuaded his client to plead guilty, limiting his arguments to the sentence’s severity. This gambit worked: The man was duly convicted, and received a light sentence, avoiding the fate of others acquitted under similar circumstances. In at least one case, a Gestapo agent appeared as soon as the judge declared a not-guilty verdict, took the defendant into custody, and said, “Kommt nach Dachau” (“Come to Dachau”). Eventually, Fraenkel’s name made it onto a Gestapo list. He and his wife fled first to London, then to Chicago.
[From the February 1941 issue: A review of Ernst Fraenkel’s The Dual State]
Today, we are witnessing the birth of a new dual state. The U.S. has long had a normative state. That system was always imperfect. Our criminal-justice system, for example, sweeps in far too many people, for far too little security in exchange. Even so, it is recognizably part of the normative state.
What the Trump administration and its allies are trying to build now, however, is not. The list of measures purpose-built to cleave off a domain in which the law does not apply grows by the day: the pardons that bless and invite insurrectionary violence; the purges of career lawyers at the Justice Department and in the Southern District of New York, inspectors general across the government, and senior FBI agents; the attorney general’s command that lawyers obey the president over their own understanding of the Constitution; the appointment of people such as Kash Patel and Dan Bongino, who seem to view their loyalty to the president as more compelling than their constitutional oath; the president’s declaration that he and the attorney general are the sole authoritative interpreters of federal law for the executive branch; the transformation of ordinary spending responsibilities into discretionary tools to punish partisan foes; the stripping of security clearances from perceived enemies and opponents; the threat of criminal prosecutions for speech deemed unfavorable by the president; and the verbal attacks on judges for enforcing the law.
The singular aim of these tactics is to construct a prerogative state where cruel caprice, not law, rules. By no measure does the extent of federal law displaced in the first few months of the Trump administration compare with the huge tracts of the Weimar’s legal system eviscerated by the Nazis. But it is striking how Donald Trump’s executive orders reject some basic tenets of American constitutionalism—such as Congress’s power to impose binding rules on how spending and regulation unfold—without which the normative state cannot persist.
The CEOs who paid for and attended Trump’s second inauguration can look forward to the courts being open for the ordinary business of capitalism. So, too, can many citizens who pay little attention to politics expect to be unscarred by the prerogative state. The normal criminal-justice system, if only in nonpolitical cases, will crank on. Outside the American prerogative state, much will remain as it was. The normative state is too valuable to wholly dismantle.
For that reason, it shouldn’t come as a surprise that Trump’s lawyers—despite running roughshod over Congress, the states, the press, and the civil service—were somewhat slower to defy the federal courts, and have fast-tracked cases to the Supreme Court, seeking a judicial imprimatur for novel presidential powers. The courts, unlike the legislature, remain useful to an autocrat in a dual state.
Building a dual state need not end in genocide: Vladimir Putin’s Russia and Lee Kuan Yew’s Singapore have followed the same model of the dual state that Fraenkel described, though neither has undertaken a mass-killing operation as the Nazis did. Their deepest similarity, rather, is that both are intolerant of political dissent and leave the overwhelming majority of citizens alone. The peril of the dual state lies precisely in this capacity for targeted suppression. Most people can ignore the construction of the prerogative state simply because it does not touch their lives. They can turn away while dissidents and scapegoats lose their political liberty. But once the prerogative state is built, as Fraenkel’s writing and experience suggest, it can swallow anyone.
This article appears in the May 2025 print edition with the headline “A Warning Out of Time.”