Colloquia Germanica
cg
0010-1338
Francke Verlag Tübingen
121
2022
543-4
Debating Kant’s Constitutionalism: Law, Media, and the New Right
121
2022
Samuel Heidepriem
This essay argues that Kant’s constitutional thought provides a justification for written constitutions and written law generally. The question of written law in turn offers clarity on signature aspects of Kant’s political philosophy, from universalism to the program of perpetual peace. Critiques of Kant from various points on the political spectrum must ultimately engage his theory of writing and its relation to Enlightenment and political right. In addition, contemporary rightwing movements can be characterized in contradistinction to Kant’s constitutional principles. This includes these movements’ rejection of internationalism, pacifism, and the media conventions of Enlightenment print culture. Kant’s combination of written law and rational constitutionalism thus provides both a contrastive diagnosis and systematic alternative to the ideology of the new right.
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Debating Kant’s Constitutionalism: Law, Media, and the New Right 483 Debating Kant’s Constitutionalism: Law, Media, and the New Right Samuel Heidepriem Tsinghua University Abstract: This essay argues that Kant’s constitutional thought provides a justification for written constitutions and written law generally. The question of written law in turn offers clarity on signature aspects of Kant’s political philosophy, from universalism to the program of perpetual peace� Critiques of Kant from various points on the political spectrum must ultimately engage his theory of writing and its relation to Enlightenment and political right� In addition, contemporary rightwing movements can be characterized in contradistinction to Kant’s constitutional principles. This includes these movements’ rejection of internationalism, pacifism, and the media conventions of Enlightenment print culture. Kant’s combination of written law and rational constitutionalism thus provides both a contrastive diagnosis and systematic alternative to the ideology of the new right� Keywords: Kant, constitutional theory, media, political philosophy, new right At no point in the intellectual history of constitutionalism has there been consensus regarding whether the constitution is ideally—or even preferably—a written text� The end of the eighteenth century saw a victory for advocates of the written form not only in its explicit entrance into history with the U�S� Constitution (Vesting 364), but in terms of its theoretical foundation in the work of Kant. In Die Metaphysik der Sitten (1797), Kant situates the political constitution in the overall framework of public law, which he describes as “ein System von Gesetzen für ein Volk, d�i� eine Menge von Menschen, oder für eine Menge von Völkern, die, im wechselseitigen Einflusse gegen einander stehend, des rechtlichen Zustandes unter einem sie vereinigenden Willen, einer Verfassung ( constitutio ), bedürfen, um dessen, was Rechtens ist, theilhaftig zu werden” (6: 311)� 1 The individual components of this definition provide a roadmap of Kant’s con- 484 Samuel Heidepriem stitutional thought. We have the idea that “das öffentliche Recht” is properly conceived as a system or collection of laws; that these laws mediate between people as they come into contact and potential conflict; that this variegated people must be unified into a political community, which process of unification extends just as logically to the international sphere (“eine Menge von Völkern”); finally, that the constitution functions as the locus and ground of this structure, allowing the “Menge” to emerge as the collective subject of law� 2 My central argument here is that institutions of writing, including and especially the modern written constitution, have an essential place in Kant’s theory of constitutional law. This relatively overlooked area of the Kantian corpus helps illuminate the stakes of selecting a written constitution over one of the many oral or customary alternatives in which power is not fixed by an explicit textual code� 3 This is more than a matter of dry legalism� The issue of written law brings greater nuance to signature aspects of Kant’s political thought, from its inherently global character to the program of perpetual peace� This is also true of high-profile critiques of Kantian politics and the liberal framework of law it has helped inspire� Such attacks are multiform and originate from all positions on the political spectrum� The young Hegel, for instance, railed against the supposed weakness of Kant’s liberal internationalism in the aftermath of the French Revolution, a critique taken up a century later in Carl Schmitt’s attacks on the Weimar Constitution. According to Hegel and Schmitt, the Kantian approach to political constitutions, with its emphasis on written media and its norm-driven understanding of law, is too flimsy and idealistic to confront the realities of power. There are also those who argue the reverse, that Kant’s constitutional principles are too heavy-handed� A recent example is Ian Hunter’s intellectual history of the German religious constitution, a flexible treaty arrangement originating in the sixteenth century that, two hundred years later, clashed with the strong foundationalism of Kant’s legal thought. Below I describe these three positions—Kant’s constitutionalism and its relation to writing; the Hegelian-Schmittian critique of Kant as too weak; Ian Hunter’s critique of Kant as too strong—in hopes of establishing with greater precision the parameters of Kant’s constitutional thought and the importance of writing as a concept and category within that thought� The relationship between written media and politics is also helpful in mapping the broad spectrum of contemporary response to Kant’s constitutionalism. The latter part of the essay highlights some of these debates. Whether Kant is presented as indecisive or over-decisive, too universal, too European, or simply old-fashioned, we will see that the critique ultimately comes back to the question of written law� The stakes of understanding Kant’s constitutional thought and its reception are not simply academic. Kantian constitutional principles face their most ve- Debating Kant’s Constitutionalism: Law, Media, and the New Right 485 hement opposition today, not from jurists or philosophers, but the far-right movements proliferating around the world� Many of these movements advance an aggressive discourse of constitutionalism� 4 Understanding the antagonism between these discourses and Kant’s vision will provide a more distinct picture of the new right and its basic ideological parameters� 5 Contemporary rightwing populism, though a shifting phenomenon that varies with national context, nonetheless displays common themes which can be understood as the direct negation of Kantian principles. This is true regarding the international or universal character of Kantian politics, its emphasis on global peace, and the institution of written law itself� Are these principles strong enough to ground a political order? This question—fundamental in different ways to the critiques advanced by Hegel, Schmitt, and Hunter—may assume more urgent significance as the global community searches for a sustained, systematic response to the rising tide of rightwing extremism� Central to Kant’s political thought is the concept of communication. Die Metaphysik der Sitten proceeds from the axiom that the self-preservative solitude of the state of nature is temporary; we are at some inevitable point forced to interact and build institutions that allow us to coexist (6: 312)� Paul Guyer describes as the “fundamental empirical premise” of Kant’s “entire legal and political philosophy” the idea “that we live on the naturally undivided surface of a sphere any point of which can be reached by human beings from any other point” (294)� We cannot avoid contact with others, which also means colliding with their individual wills� Unable to resort to brute force—this is the lawlessness we wish to leave behind—we seek common ground via communication� For Kant, this situation is grounded not in experience but the nature of human reason� That is, we depart from the state of nature not because it is safer or advantageous, but because reason furnishes an a priori demand that we do so in order to build a lawful society (Kersting 353-54). Similarly, communication is not simply a helpful expedient for social beings, but essential to rationality itself� Kant argues in the 1786 essay “Was heißt: sich im Denken orientieren? ” that freedom of thought means not just thinking freely as an individual but developing one’s thoughts in public networks of written and spoken exchange (8: 144)� 6 Kant formulates this famously as “Freiheit der Feder”—the freedom of the pen (8: 304)� He contends that citizens must be free to express their views on government publicly and in writing; the state in fact has a duty to encourage this kind of critical appraisal among its people, which propels gradual improvement in social institutions, including the political constitution� 7 The centrality of written public debate in this process builds on Kant’s seminal 1784 essay on Enlightenment, in which Kant describes the public as the “Leserwelt” before which we 486 Samuel Heidepriem present ourselves as “Gelehrte,” a notion of the public sphere inseparable, Diane Morgan has observed, from the “technology of the printing press, the postal service and long-distance travel” (7)� The public sphere exists in networks of print communication; public reason is published reason. In this sense, Kant’s political essays from the 1780s very much unite theory and practice, appearing as they do in periodicals such as the Berlinische Monatsschrift now considered emblematic of Enlightenment print culture, which saw a boom in scholarly journals and magazines (Erlin 13—15)� Indeed, Birgit Tautz has argued that much media scholarship on the Enlightenment takes its cue from Kant’s conceptualization of Aufklärung as the progressive unfolding of reason across a reading and writing public; thus the moniker for Kant’s theory of Enlightenment: “Aufklärung durch Schriften” (Tautz 187—88). This conception of writing underlies Kant’s conviction that social change is best “advanced indirectly through a continual process of the exchange of ideas and experiences in the public sphere; that is, Enlightenment is to be promoted through the written word” (McCarthy 82)� Kant published “Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht” two months after the essay on Enlightenment, also in the Berlinische Monatsschrift � Illustrating the principle of Aufklärung durch Schriften , Kant explains at the outset of the piece that he is responding to an argument published in a different journal, the Gothaische Gelehrte Zeitungen , earlier that year (8: 15)� The essay on universal history brings together several themes essential to Kant’s political thought: the notion of a universal and cosmopolitan dimension of public life that supersedes all national and popular groupings, the commitment to instating global peace, and the centrality of political constitutions in this project. Kant defines the “höchste Aufgabe der Natur für die Menschengattung” as creation of a “vollkommen gerechte bürgerliche Verfassung” (8: 22), reconstructing the trajectory of universal history up to the present using political constitutions as a reference point. For Kant, the writing of universal history presupposes we can impute to historical events some element of rational progress—we need to see reason in history before we can devise historiography based on rational principles—which we do observe, Kant suggests, in the develop of European political constitutions from antiquity to the eighteenth century� Constitutional development displays a “regelmäßigen Gang der Verbesserung” and is thus a starting point for universal history (8: 29—30)� This claim is striking because Kant writes at a time when, as I mentioned before, constitutions undergo a fundamental transformation: the first modern written constitution was ratified four years after Kant published the essay on universal history, and if we adopt the analytical style of that text—looking at constitutional history as the progression of distinct epochs—one observation we could make about our own age is that Debating Kant’s Constitutionalism: Law, Media, and the New Right 487 the constitution frequently takes the form of a written document establishing the form of government, basic rights, and legal structure of a nation state� “Idee zu einer allgemeinen Geschichte” also contains Kant’s provocative claim that universal history is akin to writing a novel� From the way he outlines a rational historiography, Kant admits, “es scheint, in einer solchen Absicht könne nur ein Roman zu Stande kommen” (8: 29). This is because universal history does not simply describe empirical events as they have taken place; rather it looks inward, to reason, to determine the course of history that would correspond to rational principles. As Jane Kneller puts it, universal history is novelistic because it is “eine phantastische Geschichte über die Bestimmung der Menschheit a priori, die, wie Kant schreibt, nicht beabsichtigt, empirische historische Arbeit zu ersetzen” (147—48)� In Der Streit der Fakultäten (1798), Kant extends this idea to what he calls “vorhersagende” history, in which the historian’s task is to establish—based on reason, not experience alone—what will or should happen in the future (7: 79). When Kant likens the project of universal history to writing a novel, he draws attention to the fact that the material of this history is not present in the sense of observable experience, but exists hypothetically, imaginatively, and emerges in the act of writing� Universal history is first and foremost the texts that carry it out. In this sense, we might think of universal history as the script of social progress: it shows us in writing the outline of a rational future. It is striking here to consider Kant’s readiness to import external textual forms into philosophy: just as universal history resembles a novel in its projective imagination, Kant’s treatise Zum Ewigen Frieden (1795) adopts the layout and style of a treaty (or written constitution), divided as it is into different articles and laws. Similarly, as Frederick Beiser observes, the “a priori principles” attributed to the social contract in Kant’s 1793 theory-practice essay correspond closely to formulations in the French Constitution of 1791 (39). This fact lends additional force to Wolfgang Kersting’s remark that the “structural characteristics” of the contract compose the principles of the “valid rational constitution” (356)� This is no mythic contrat social , but law formalized as a contractual text� As we saw, Kant considers the development of political constitutions a site at which we can mark progress and therefore compose universal history, making this observation in the 1780s, when constitutions first take the form of written documents. The crucial status of writing in Kant’s vision becomes clearer when we recall that historical progress is driven by public, written exchange regarding the principles of civil right. From the standpoint of Kantian Enlightenment, events themselves are not so important as the attendant discussion of them in the literate public sphere. This idea underlies Kant’s conclusion that the French Revolution, though materially a failure due to its violent course—the execution 488 Samuel Heidepriem of Louis XVI above all—nonetheless suggested a moral improvement in humanity due to expressions of sympathy it aroused in onlookers outside of France� In debating and discussing the Revolution, this global audience established its own commitment to the principles—rather than the empirical trajectory—Kant attributes to the revolutionary cause, namely, pacifism and the right of every people “sich eine bürgerliche Verfassung zu geben” (7: 85—86)� The constitution is an indicator of political progress: the people, having given itself the constitution, improves it via free public discourse� This is the mechanism by which the existing constitution is brought closer to ideality� Howard Williams explains Kant’s position this way: “Not only do the people have the right to be heard, so that rulers should encourage them to speak their minds in order that defects in the political system can be remedied, but also the rulers have the duty to reform the constitution until it corresponds with its rational republican form�” That is, “representative government must always be open to complaints and advice” in the same way that the faculty of reason must never restrict its own freedom of critique (381). This is Kant’s Freiheit der Feder , “freedom” here assuming its precise Kantian weight: we are dealing with a matter of pure reason. The essence of political constitutions we find not in any existing political order but in the idea of the constitution, the “original contract”: the notion that a society’s law-making body is composed of representatives animated solely by the united will of all. Kant describes this original contract as a “bloße Idee der Vernunft, die aber ihre unbezweifelte (praktische) Realität hat,” in that it binds real legislators to create laws consistent with a united public will (8: 297). Kersting likewise describes the “norm” of this original contract as the “categorical imperative of political action” (355)� This means that, when Kant discusses the importance of the reading and writing public, he is not speaking chiefly in terms of social or cultural history, but the a priori conditions of rational government� The perfect civil constitution is an idea of reason: it defies empirical conditions to realize it. In Die Metaphysik der Sitten , Kant describes the “allmählich und continuirlich” process by which a given constitution is changed, “daß sie mit der einzig rechtmäßigen Verfassung, nämlich die einer Republik, ihrer Wirkung nach zusammenstimme,” transforming “alte empirische” features into their “unsprüngliche (rationale)” forms (6: 340)� At the point in Kritik der reinen Vernunft (1781) where Kant distinguishes categories of understanding from ideas of reason, he immediately mentions political constitutions in the context of the latter� “Eine Verfassung von der größten menschlichen Freiheit nach Gesetzen welche machen, daß jedes Freiheit mit der andern ihrer zusammen bestehen kann,” Kant writes, “ist doch wenigstens eine nothwendige Idee, die man nicht bloß im ersten Entwurfe einer Staatsverfassung, sondern auch bei allen Gesetzen zum Grunde legen muß” Debating Kant’s Constitutionalism: Law, Media, and the New Right 489 (3: 247—48). The perfect constitution is an illustrative idea of reason, for Kant, because it freely surpasses the limits of experience� We prioritize this idea— abstracting “von den gegenwärtigen Hindernissen”—and measure experience against it� It is worth reinforcing the context of this claim, namely the distinction between faculties of understanding and reason� Where the application of pure concepts of the understanding takes place in the world of experience, the idea of the constitution, as a pure concept of reason, is one for which “keine wirkliche Erfahrung jemals völlig zureicht, aber doch jederzeit dazu gehörig ist” (3: 244)� Every law should have the constitutional idea as its ground, yet no combination of empirical laws can ever exhaust or satisfy this idea� The act of writing, as Kant conceives it, has an analogous structure: whether a journal article demanding government reform, a treatise on the rational course of future events, or a novel, each text introduces a tension between an ideal, imagined condition and that which exists� Perhaps for this reason Garrett Wallace Brown has argued that a theory of written constitutions would provide “additional coherency” and fill a “gap” in Kant’s political thought (69). According to Brown, Kant’s understanding of politics and law makes unavoidable an explicit engagement with written constitutions, something Brown provides by actually drafting a proposed constitutional text based on Kant’s theory of perpetual peace (73—75)� One principle of this cosmopolitan constitution would be “freedom of communication and to engage in public reason,” which Brown describes as “not only necessary for Kant’s overall enlightenment project,” but also “a necessary element for a continued global dialogue and the possible movement toward understanding each other as mutual citizens of the world” (62)� Here we return to the centrality of communication in Kant’s political thought, now with greater appreciation for the connection between this precept and written constitutions. In adapting Kant’s ideas for the purposes of a global legal order, Brown highlights that the communication networks driving enlightened discussion and therefore progress are—or ideally should be—promoted by an institutional structure laid out in a governing document� For Brown, this is the unique power of written constitutions: to “formalize the normative principles of voluntary association” and political order (68)� Brown’s uncertainty—this makes his argument “reconstructionist” (69) with respect to Kant’s writings— concerns the extent to which Kant himself would embrace the constitutional text as a vessel of Enlightenment, given that Kant “seems to underestimate the contractarian benefits” stemming from an “objectified written constitution” as well as its power to codify political norms (68)� Brown is to be credited for bringing the question of written constitutions explicitly into Kant scholarship. I believe we can be more confident about this connection: the written constitution resonates with numerous aspects of Kant’s 490 Samuel Heidepriem philosophy, from universal history to Freiheit der Feder to the structure of rational ideas� Brown’s emphasis on the link between writing and norms is important to keep in mind as well� In the transition to written law, brute relations of force become principles enumerated, codified, formalized. Rather than reflecting an existing dispensation of power, norms, like ideas of reason, are aspirational: they tell us what should or must be the case if we are to call ourselves free or our society democratic� Inscribing these norms textually removes any arbitrariness in their pronouncement or application: we know the law because it is written and available for reference, not because a figurehead (or demagogue) declares it to be so� And of course, the constitutional document in which these norms are collected is itself, for Kant, a norm, in the sense that any given constitution is measured again the republican ideal� So we might restate Brown’s argument— drawing on Kant’s sequencing of political constitutions in the essay on universal history—by saying that the modern written constitution brings us one step closer to the norm� Herein, for some critics, lies the problem� One way of attacking Kant’s political thought is to invert its hierarchy of norm and reality. For Kant, the purpose of things as they are is to indicate, via their own inadequacy, our distance from the ideal� Existing governments, for instance, must always be brought into closer accordance with normative criteria of republican freedom and global peace� In his early text Über die Wissenschaftlichen Behandslungsarten des Naturrechts (1802—3), Hegel counters by railing against the “Gestaltlosigkeit des Kosmopolitismus,” the “Leerheit der Rechte der Menschheit und der gleichen Leerheit eines Völkerstaates und der Weltrepublik,” among other “Abstraktionen und Formalitäten” that he contrasts with the “Lebendigkeit” of a true ethical community (2: 528—29)� 8 His target here is clear enough. Hegel consistently denigrates the Kantian position as abstract and formal while associating his own absolute idealism with “Kraft,” objectivity, “Gestalt” (2: 529)� The oppositions—abstraction versus objectivity, shape versus shapelessness—suggest that the problem with cosmopolitanism and the world republic is that these concepts lack body or actuality� What gives them actuality is power—not theoretical or normative, but concrete, “die Gewalt eines Eroberers,” Hegel writes in the unpublished manuscript Die Verfassung Deutschlands � This conqueror unites by sheer force a political community that cannot organize itself through knowledge or understanding alone (1: 580—581)� Hegel is talking about consolidating the German-speaking peoples then scattered throughout the Holy Roman Empire, but we can see the more general thesis: political change happens through raw power, not principle, knowledge, or the progressive spread of ideals among the populace� Or as Hegel bluntly concludes Die Verfassung Deutschlands , “der Begriff und Einsicht führt etwas so Debating Kant’s Constitutionalism: Law, Media, and the New Right 491 Mißtrauisches gegen sich mit, daß er durch die Gewalt gerechtfertigt werden muß, dann unterwift sich ihm der Mensch” (1: 581)� Conspicuously given its title and theme, Die Verfassung Deutschlands , begun in 1798, makes no mention of the recent emergence of written constitutions in the United States and revolutionary France, as though to suggest these documents do not really approach the heart of the matter� During the constitutional debates of the Weimar period a century later, Carl Schmitt would reprise many of Hegel’s themes (and cite these early texts) in attacking the 1919 Weimar Constitution as overly norm-driven and not attuned to the real mechanics of power� 9 The 1919 text was Germany’s first modern written constitution, and Schmitt takes repeated aim at the idea—for him historically misguided and unnecessary—that a written text enumerating basic rights is the proper or essential form of a political constitution� 10 Schmitt’s rival in these debates was avowed Kantian and liberal Hans Kelsen, who advanced a normative approach to law, advocated written constitutions and, in the case of the 1920 Austrian constitutional text, wrote them himself. Kelsen in his Reine Rechtslehre (1960) describes the written constitution as “die Verfassung im formellen Sinne” that, unlike the “material” constitution, is a “bezeichnetes Dokument, das—als geschriebene Verfassung— nicht nur Normen enthält, die die Erzeugung genereller Rechtsnormen, das ist die Gesetzgebung regeln, sondern auch Normen, die sich auf andere, politisch wichtige Gegenstände beziehen” (228—29). This definition gives a basic sense of Kelsen’s constitutional thought, which elaborates a system of mutually implicated legal norms terminating in a foundational Grundnorm � The constitutional text, Kelsen suggests here, is a crucial site for organizing these norms. This precisely is Schmitt’s point of attack in his 1928 Verfassungslehre , where he dismisses the typical written constitution as little more than a list of political wishes or preferences, “eine Reihe verschiedenartig zusammengesetzter Normierungen” (15)� The protections and liberties recorded in such a text describe public life as some think it should be, not as it is, and what a constitution must above all do, for Schmitt, is acknowledge or in some way respond to a real, existing dispensation of power� The constitution is not itself the foundation of law, according to Schmitt; instead, it emanates from a more primary “verfassungsgebende Gewalt” that through an act of will generates the total political order (75)� Simply listing normative ideals as it tends historically to do, the written constitution, Schmitt suggests, cannot reach this foundational level of politics, or as Lars Vinx puts it, the “norms and procedures” of the written constitution “are to be regarded as binding only as long as they help realize and protect” this more primary manifestation of the constitution (10—11)� Schmitt sees in the written constitution—an example of the constitution qua “Idealbegriff”—chronic indecision at the essential level of power, bourgeois 492 Samuel Heidepriem self-interest, and a purely relativistic conception of law (36)� The last point is important here because it concerns writing specifically. From Schmitt’s perspective, the real purpose of writing out laws is to create a list of rights and norms that presumably embody the principles of the political community� But the relationship between these written laws is relativistic, meaning they are all equally valid, and the article determining whether the state is a democracy or monarchy, for instance, has the same legal weight as any trivial municipal provision, so long as the latter is included in the constitutional document� Schmitt mockingly gives examples from the 1919 Weimar text to show how facile this kind of legal relativism can become (12)� This brings the attack squarely back to Kelsen and what qualifies as a “politisch wichtiger Gegenstand.” Schmitt’s larger point is that, without a sufficiently “absolute” approach to constitutional law which would express the “Gesamtzustand politischer Einheit und Ordnung” (3), we are lost in the morass of legal relativism, with endlessly proliferating “collections” of laws lacking completeness or foundation� The modern written constitution is simply one such collection (13—16)� Schmitt poses a basic choice: between an absolute understanding of the constitution that engages the unity and order of political power, and the floating, foundationless relativism of written norms� For Hegel and Schmitt alike, the Kantian approach is guilty of the latter. But it is also possible to see Kant as presenting an “absolute” alternative to the constitutional tradition preceding it, namely that of the German religious constitution� Recent work by intellectual historian Ian Hunter is helpful in this respect, providing as it does a helpful prehistory to the late eighteenth-century burst of constitutional discourse in which Kant took part. The religious constitution—negotiated first under the auspices of the 1555 Treaty of Augsburg and renegotiated among the Westphalian peace accords of 1648—emerged as a “treaty-based political compromise” that mediated between rival confessional blocs by suspending any given confession’s claim to “absolute theological truth”; the result was a “relativistic judicial framework” that, by regarding all theological truth-claims as equally valid, would “maintain a plurality of confessional religions in perpetuity” (Hunter 528—29)� The overall result was a heterogenous, sometimes hostile but legally stable plurality of religious bodies� This framework has enjoyed a long life in German jurisprudence: it was codified—doubtless to Schmitt’s chagrin—in Article 137 of the Weimar Constitution, itself later incorporated into Article 140 of the 1949 Grundgesetz, the “current iteration of the post-Westphalian religious constitution” (Hunter 547—48)� For Hunter, the German religious constitution endures by refusing to do what Schmitt claims constitutions must do: it makes no claim on the absolute� On the contrary, this is a constitutional approach driven by improvisation, compromise, Debating Kant’s Constitutionalism: Law, Media, and the New Right 493 and the exclusion of foundational questions� As Hunter describes the Peace of Westphalia: Thirty years of confessional and political conflict were thus brought to a close through the enactment of a constitution founded neither in divine or natural law, nor in a norm of justice grounded in the agreement of rational beings or the good of a moral community� Instead, this occurred through the renegotiation of a political compromise between the opposed confessional blocs, and the improvisation of new juridical-political instruments and norms […] excluding theological truths and judgments from the constitutional courts� (536) Hunter contrasts the mutability of the religious constitution with two alternatives, each having a specific foundation: on the one hand, a legal order founded on an absolute theological or metaphysical truth-claim (“divine or natural law”), or one that derives from a shared conception of the rational or moral good� In either case, some principle absolutizes the constitutional framework� Confessions proffer competing theological truths, but the “norm of justice” comes from philosophy. This is the clash in the late eighteenth century, when Kant enters the debate: between the relativism of the religious constitution and the absolute demands of reason� Hunter boils Kant’s intervention down to two key ideas: first, the argument of Die Metaphysik der Sitten “that a constitutional order should be normatively founded in the rational agreement of the people to whom it applied,” and second, “that morality and religion should be grounded in a true principle or moral law […] accessible to pure philosophical reflection” (Hunter 538). In the theory-practice essay Kant uses these criteria to reject the foregoing religious constitution as insufficiently grounded on popular agreement and reason (8: 304—5). Hunter is careful to point out that Kant reaches this negative judgment “because such a constitution was not grounded in the will of the people as a universe of rational beings, hence in a priori right or justice,” but was based merely in “practical-prudential arrangements” (538). In other words, Kant assesses the history of the German religious constitution and sees nothing to suggest the agency of reason; in attempting to correct this—to give constitutionalism a rational basis—he engages the level of the absolute, making the foundational gesture it had been the essence of the religious constitution to avoid� This is Hunter’s critique: Kant uses reason to absolutize what should remain relative. Not only does Kant’s specific conception of metaphysical truth determine the structure of the constitutional order—meaning it replaces relativistic equality among religious associations with a hierarchy of priority between these groups and their rational foundation—it serves as a criterion with which to invalidate the truth-claims of competing philosophical and theological discourses (Hunter 538—39)� 494 Samuel Heidepriem I am interested less in the justice of Hunter’s critique than its premise: that Kant elevates a fundamentally “sectarian” (Hunter’s word) philosophy into an absolute determinant of, among other things, constitutional theory and practice� Hunter suggests that subsequent thinkers, including contemporary academics, have so deeply assimilated Kantian ideas that we are unable to recognize the essentially partisan nature of Kant’s enterprise (540). This is inseparable, for Hunter, from the normative dimension of Kantianism: the notion of theoretical ideals by which empirical history might be judged is not self-evident and “simply transposes the sectarian repudiation of the constitutional order into the register of philosophical method” (540). As we saw above, Kant’s constitutional thought goes still further: Verfassung itself is first and foremost a norm, a republican ideal which empirical Verfassungen can only imperfectly, but nonetheless progressively, approximate� This is surprising in light of Schmitt’s critique, which associates norm-driven liberalism with indecision and weakness� Again and again Schmitt emphasizes the choice between principle and reality, ideal and action; his reviled constitutional relativism is essentially the indifferent play of norms. But Kant’s confrontation with the German religious constitution may reveal another side of the normative: its capacity to decide and exclude, to assert the absolute� Where the demands of the religious constitution—the simple coexistence of rival confessions—could be satisfied by a strictly relativistic legal framework, Kant’s political constitution sets out to ground a social order (including religious associations); this requires introducing into constitutional discourse a republican ideal of reason that, as we saw, is inextricable from institutions of writing� The notion of a unified popular will requires a mechanism by which that will can coalesce and articulate itself. Kant sees such a medium in the burgeoning print culture of the late eighteenth century� Debates taking place in these organs of print are essentially normative in that they pit existing institutions (or opponents’ arguments) against a social ideal. This brings Kant into somewhat complicated relation to Schmitt’s concept of the constitutional absolute� For Schmitt, a constitution should express the Gesamtzustand , the total order of the state, which written lists of norms (modern written constitutions) apparently fail to do. Yet Kant makes a similar absolutizing gesture with respect to grounding the German religious constitution in a comprehensive and rational order of law—all the while championing written law and normative procedure� There is in each case an attempt to give constitutional law a foundation—a ground not subject to the vacillations of individual laws—but Kant and Schmitt disagree as to whether it can be built on writing and norms. For Hunter, Kant’s legacy on this point extends to the Verfassungspatriotismus of Habermas (Hunter 528), in which constitutionalism is determined by faith in a norm-driven legal process, Debating Kant’s Constitutionalism: Law, Media, and the New Right 495 rather than ethno-national identification. Constitutional patriotism thus embodies the Kantian principle that political justice is fundamentally “procedural” in nature (Kersting 355). Fixing this procedure is one of the basic purposes of the modern written constitution, and its products—positive law—compose the branching network of written law emanating from the constitutional text� Let us now take a step back and consider what this means for understanding other dimensions of Kant’s thought. Kant’s constitutionalism may be “absolute” in Ian Hunter’s sense, but this does not mean Kant opposes the reformist tendency of the preceding religious constitution—quite the reverse� “The philosophy of compromise and reform” is for Kant the means of realizing the “metaphysics of right,” these being the pragmatic and theoretical sides of the “twofold task” defining Kantian politics (Kersting 358). The commitment to reform is exclusive, not preferential: Kant proscribes all forms of rebellion or violent revolution� Even a successful revolution only destroys the social order and restores the lawless state of nature, for which reason “progressive violence is unthinkable for Kant” (Kersting 360). There can likewise be no constitutional rebellion: Kant argues in Die Metaphysik der Sitten that universalizing any maxim of resistance would not only create chaos—any personal grievance could become grounds for revolution—but obliterate the basis of the civil constitution, and therefore a constitutional right to resistance would be nonsensical (6: 320)� The only legitimate avenue of social change is reform, gradually improving existing institutions within the parameters of the civil constitution, both as an ideal (the future republican constitution to which reform should be oriented) and as a guiding legal framework for reform in the present� Print culture and written communication have a role to play on each side of Kant’s “twofold task.” As we saw above, writing displays a structure common to ideas of reason and norms, that of contrasting an ideal that surpasses presentation in experience with efforts in the experiential world to align with that ideal. Kant’s comparison of writing universal history to composition of a novel brings into play several elements characteristic of the metaphysics of right: empirical conditions’ asymptotic approach to a rational criterion, their disagreement as an ongoing engine of progress, and the realization of this progress in an act, not of historical observation, but projection via writing� Enacting this set of ideals is the task of Enlightenment print culture, institutions of debate in writing, and public criticism as the motor of reform� A recent critique of this paradigm by media and legal theorist Thomas Vesting provides an opportunity to bring out more nuances of the Kantian position. Vesting argues that Kant represents a “top-down” framework combining print culture and political philosophy, the “stable conceptual hierarchies” and “one- 496 Samuel Heidepriem point perspective” of which are becoming obsolete (18—19)� As the integrity of print culture breaks down, so too do familiar categories of law and politics� “Modern democracy,” writes Vesting, “rests on a strained cultural architecture connected with the epistemology of printing� Printing motivates a sense for closure and completeness” that “finds expression in the philosophy of the subject from Descartes to Kant,” the purpose of which is to “exert complete control over knowledge through orderly, “enlightened” reason” (399—400)� Enlightenment print culture is here conceived as a project of cultural domination and literal thought-control. This is linked to a particular conception of “knowledge unified in a subject,” common to both print culture and the philosophy of reason, in which the subject is simultaneously author (source, origin) and authority over knowledge (Vesting 6)� But as Vesting acknowledges, this framework is emancipatory relative to what precedes it� Here we can understand the modern written constitution as the legal and political expression of Enlightenment print culture� It is not incidental that the United States and France, the revolutionary republics of the late eighteenth century, were the first states to adopt written constitutions. According to Vesting, the print medium of these documents, as much as their democratic content, was a rejection of monarchy� Vesting’s expression is that, whereas previously sovereignty was “incarnated” in the figure of the monarch, with the advent of print culture, constitutional texts, and the wider infrastructure of written law, sovereignty became “excarnated” in this system of written rules (355)� An illustration of this is the referential relationship we have with the modern constitution, and in fact any law, which we know by looking it up� This referentiality is a convention of print culture� The emergence of the printed constitution emphasizes in legal form the multiplicity of the reading public versus the previous unity of monarchial power� This is because, as a text carrying meaning, it must be interpreted, and in principle, anyone with access to the text can do this� As Vesting puts it, “The printed constitution establishes a new kind of access to reality in the form of mutually independent interpretations that defy both the control of a totalizing viewpoint and the foundational power of a sovereign consciousness” (355)� This “common exegesis” by a “network of interpreting entities,” as he calls it elsewhere, is effectively Aufklärung durch Schriften , focused in this case on questions of law� In fact, according to Vesting, the political universality Kant advocates is itself a product of print culture particularly evident in written constitutions: With its printed text, the performative force of a constitution—the public declaration and dissemination of its authority—is to a certain extent rooted in the technology of printing itself […] The emergence of the typographic space of printing thus brings Debating Kant’s Constitutionalism: Law, Media, and the New Right 497 with it a greater capacity for abstraction and universality that in turn facilitates the spread of knowledge of the values, rights, and rules contained in constitutions beyond the borders of local relationships and communication networks� (363; original emphasis) The capacity to print and distribute a constitutional text extends the area over which its provisions are or can be valid� Printing overcomes the locality of oral and handwritten communication networks by putting the “infinitely reproducible” constitutional text everywhere (Vesting 364)� This reproducibility, the capacity for imitation, is something distinctive about the constitution in printed form� Print made the U�S� Constitution widely accessible in the late 1780s, giving the French revolutionaries a model, a form to imitate or build on in their constitutions throughout the subsequent decade� The basic features of this form— determination of the type of government, enumeration of basic rights—have no necessary connection to a specific national experience or tradition. They are formal, in that sense, rather than substantive� This also makes the written form universal, according to Vesting, because the formal shape of the constitution is not limited to a given national context� Following Vesting, we can observe that, over the last two centuries, a global process of imitation, a proliferation of this particular constitutional form in the medium of print has taken place, such that most modern nation states have a constitutional text of this kind; this ongoing process of translation, reproduction, and imitation belongs, after all, to the medial nature of the printed constitution (Vesting 368)� 11 Kant would likely grant much of Vesting’s critique, which confirms polemically the link between formality, universality, and the media politics of Aufklärung � Regarding the issue of hierarchy, Kant himself avers in Der Streit der Fakultäten that social progress proceeds “nicht durch den Gang von unter hinauf, sondern den von oben herab” (7: 92). Kant never conceals his belief that the people, lacking Enlightenment, must be educated by freethinking philosophers� This is one reason that institutions of public discourse—networks of print and exchange— must be strengthened. Because we do not yet live in an enlightened age, as Kant claims, but one in which Enlightenment is ongoing (8: 40), the organs by which reason enters the general populous play an urgent social role� The function of politics and law in this situation is to safeguard each person’s freedom of thought while promoting its development along the arc of Enlightenment� A striking passage from Kersting on this point recalls the communicative origins of Kant’s concept of right while suggesting a response to Vesting: Because human beings live with others of their kind in space and time, enter into external relations with others of their kind, and influence the actions of others through their own, they are subject to reason's law of right. Kant's concept of right concerns 498 Samuel Heidepriem only the external sphere of the freedom of action. Only the effects of actions on the freedom of action of others are of interest to it� Inner intentions and convictions are excluded from the sphere of justice just like interests and needs […] The inner world of thoughts, intentions, convictions, and dispositions does not fall under the authority of rational norms of right, and consequently can never be a legitimate realm for control by positive laws� A state that employs the instruments of right for purposes of a politics of virtue and moral education, which punishes unpopular political and ethical convictions and seeks to form people and their thoughts with its laws, oversteps the boundaries of legitimate lawful regulation to which every governmental legislation is confined by the intrinsic meaning of the rational concept of right itself. (344 — 45; emphasis added) Kant advances a strictly intersubjective model of law and right that makes no claim on the inner life of its members. According to Kersting, because it is grounded in reason—rather than tradition, group identity, or notions of virtue or utility—Kant’s framework is essentially external; as soon as we seek to police “unpopular political and ethical convictions,” we are outside the bounds of rational legislation� The task of constructing a civil state marked by republican freedom and a united common will pertains only to the “external sphere of the freedom of action.” Or as Guyer remarks in this context: the goal for Kant is to outline a civil condition that aligns with rational right—not one that makes people happy (285)� As soon as politics takes on that responsibility, we have the invasive scenario just described by Kersting (and Vesting), in addition to the ever-present possibility that individual citizens will determine that their personal unhappiness justifies overturning the social order. For the latter reason, Kant remarks in the essay on Enlightenment that revolution typically amounts to “ein Abfall von persönlichem Despotism und gewinnsüschtiger oder herrschsüchtiger Bedrückung,” but never real progress (8: 36)� Kant’s detractors—especially critics of his stance on radical social change— often confuse internal and external regions of his thought in this way� The instinctive belief in a right to revolution is so strong that even Kant’s defenders are inclined to apologize for the “unfortunate philosophical slipup,” quoting Katrin Flikschuh, and “excessively legalistic understanding of constitutionalism” that leads him to deny this right; instead, they “turn to his ethical writings from which an alternative basis for a right to revolution” might be derived (375)� The remedy for an apparent political failure—a weakness in Kant’s theory of institutions—is thus sought in the inner life of morality� For Flikschuh, this solution misses the point: “Kant’s is a public, not a natural morality of Right, and the denial of a right to revolution is a corollary of the public character of Kantian Right” (376)� The move from external public law (between subjects) to inter- Debating Kant’s Constitutionalism: Law, Media, and the New Right 499 nal moral law (within subjects) is nonsensical in a legal system that emerges through the former alone� This does not mean Kantian law has no connection to morality; instead, this morality relates to the normative foundations of public institutions (rather than individual decisions). As Flikschuh argues, Kant’s rejection of a constitutional right to revolution is morally grounded: “Revolution, conceived as the deliberate act of violent resistance against the sovereign as necessary head of a civil union, is morally wrong because the existence of the civil condition under the idea of the general united will is a necessary condition of any possible rights” (382; original emphasis)� The civil condition together with a united popular will is the normative foundation of public law and all rights� This move of asserting a normative ground for the legal order was Kant’s response to the relativism of the German religious constitution� Also important here is that “absent a condition of public Right there are no individual rights”: there is no transcendent or “suprapositive”—in the sense of standing above positive law—position from which individuals can legally justify violent resistance (Flikschuh 382)� All legality—including the legal status of the people and the individual rights of its members—emerges first with public law. Rebelling with force denies the public order of right and, because it therefore relinquishes all individual rights, can only represent and result in lawlessness� Again, victory does nothing to change this: a successful rebellion simply brings the political order back to square one� The division between internal and external dimensions of politics is instructive when considering the far right, which makes political determinations based on an identitarian sense of grievance rather than general norms� This distinction also helps address the critiques of Vesting and Hunter, both of whom advance an overly tyrannical image of Kantian legal principles. Kant’s constitutionalism does globalize a republican form, but this pertains to the external conditions of law, the establishment of a civil framework for expressing the public will and safeguarding individual freedom of thought; it does not dictate the content of those individuals’ thoughts� This is not to dismiss Vesting’s argument entirely, which is not only critical but historical: in describing the alignment of print culture, Kantian philosophy, and the modern written constitution, Vesting sketches a discursive formation that congeals in the late 1700s and subsists for two centuries, when its hold is weakened by digital media, computer networks, post-rationalist theoretical paradigms ranging from deconstruction to Luhmann, and a new understanding of media and law separate from the basic assumptions of print culture (Vesting 5—21)� 12 This transition from print to digital culture, from readers and writers to online networks, is crucial for understanding the new right� 500 Samuel Heidepriem Media and mass communication figure prominently in recent scholarship on far-right politics. Ruth Wodak and Majid Khosravinik describe contemporary rightwing extremism as “overtly reliant on charismatic personalities and media-savvy populism” (xviii)� Antonis Ellinas has likewise drawn attention to the element of mass media in allowing extremists to “become part of the mainstream debate, legitimate their views and become known” (218)� This can refer, on the one hand, to the relative skill with which recent far-right leaders—Trump, Bolsonaro, Le Pen, Orban—avail themselves of both traditional and contemporary media� But the overall media conditions of these movements’ rank-andfile membership are just as significant. Here the role of “new media”—online networks and social media—is decisive in offering unprecedented opportunity for coordination and dissemination of ideological content� 13 Conspiracy theories and propaganda are shared and distributed absent the editorial barriers of traditional magazines, journals, and publishers; this content can thus skirt the print “mainstream”—in terms of its branding as peripheral to corrupt institutional power—while reaching a vast global audience, which is now not simply the Kantian Leserwelt but, in principle, anyone with an internet connection� The trend among rightwing terrorists to livestream their attacks on social media— the March 2019 mass shooting in Christchurch, New Zealand, for example— testifies to the power and role of internet communication in these actors’ very conception of political violence� When the attackers’ manifestos subsequently circulate online, the radicalization process comes full circle� It is possible for this phenomenon to unfold, start to finish, outside the parameters of print culture� This is likewise the case for notions of constitutionalism animating the contemporary right� The written constitution that became a global mainstay over the last two centuries derived from the concurrence of Enlightenment ideas and the technology and paradigm of print� The constitutional text, so conceived, is an explicit, referentially available legal code that establishes boundaries for political conduct� For the new right, in contrast, “constitution” is closer to a metonym for national identity� Amy Cooter’s ethnographic work on American patriotic militias is illustrative in this respect� For these groups, the U�S� Constitution is less a legal structure that stands outside or—in Kantian terms—analytically prior to the people than a key symbolic marker of “Americanness” (Cooter 69)� In this case, we are dealing with a “mythic American identity” that aligns itself with the U�S� Constitution, both of which are understood to be threatened by social change and especially “gendered and raced equality” (Cooter xii)� Note the order of priority here: where the Kantian constitution establishes a legal framework that allows the popular will to emerge and determines the process by which law is made, the far right approaches the constitution as synonymous with an original popular identity Debating Kant’s Constitutionalism: Law, Media, and the New Right 501 which precedes any specific legal or political system. American militias invoke the U�S� Constitution against the governing legal order as though these were qualitatively different things (Cooter 69). This systematic suspicion of “official” legal process in favor of the ethno-national Volk reverses the priority-scheme of Kant and Verfassungspatriotismus alike� We see moreover the precise gesture that leads Kant to reject a right to rebellion: in identifying as representatives of a threatened, original national identity, members of the new right invoke the constitution to self-authorize resistance on the basis of their own sense of grievance—outside the parameters of existing laws� This understanding of the constitution elevates the national at the expense of the global, reversing the basic internationalizing tendency of Kant’s constitutionalism and written law itself� As Vesting argues, there is more to this internationalism than the link between liberalism and models of “new world order”— the proliferation and universalization of legal forms is inherent to the medium of print, paralleling the global spread of republican constitutions envisioned by Kant. Diane Morgan captures the medial dimension of Kantian international politics when she refers to the “inter-communicating world” of perpetual peace (6)� The new right responds by re-localizing politics in what Richard Falk calls a “shift of preferred worldview from globalist to nationalist centers of political gravity”—the result being an “ultra-nationalist, anti-immigrant, anti-globalist, militarist” rejection of “international law, the UN, human rights, constitutionalism, the rule of law,” and so on (2; 4)� These are much the same Formalitäten decried by Hegel in his essay on natural law. Where Kant’s vision of a global republic calls for a rigorous code of hospitality—“das Recht eines Fremdlings, seiner Ankunft auf dem Boden eines andern wegen von diesem nicht feindselig behandelt zu werden” (8: 358)—the contemporary right has cultivated a speciously constitutional xenophobia that, equating the political constitution with the identity and self-interest of the ethno-national community, rejects social heterogeneity as an existential threat to both. Kant’s constitutionalism requires us to orient legal institutions toward the rational idea of a future global community; contemporary rightwing populism responds by wrenching the Volk out of this process to preserve its national uniqueness� This brings us to the question of political means. Again, Kant rejects all forms of violence as inherently disposed to a lawless natural condition� Institutions of writing, among them the periodicals characteristic of Enlightenment print culture, serve as an important alternative to the use of force� Debate, discussion, the exchange of views in writing—these things drive social progress� Insurrection does the reverse� But for the far right, violence is a legitimate and potentially heroic means of ethno-national exertion� In Falk’s words, contemporary farright leaders seek to “project destructive power” rather than consolidate peace- 502 Samuel Heidepriem ful alliances (1)� This form of militarism rejects any external constraints on the use of force—recall that the peace treaty has been a template of written law for centuries—in favor of a nation-versus-world mentality that leaves the door open for acts of aggression in ostensible defense of the national community� And in terms of the broader ranks of the movement, the drastic increase in far-right terror attacks in the last decade—and the attendant internet-driven celebrity of the attackers, from Anders Behring Breivik to Brenton Tarrant—speaks for itself. For Kant, pacifism is a commandment of reason, an unassailable principle; the extreme right rejects the inherent value of peace while embracing glory in violence� 14 How then to counter the new right? Kant’s response to the German religious constitution suggests the possibility of grounding a positive legal order in normative principles of reason� These are not relativistic or simply desirable values, but precepts establishing an absolute foundation for law� In determining the total form of legal order, reason excludes what is incompatible with its a priori principles� The program of rightwing populism, transgressing exactly these rational criteria, reads like a package-rejection of Kant’s constitutional ideal: it elevates group-based discontent over universal law and thus contradicts the necessarily external nature of rational right, meanwhile anathematizing the global community on behalf of the ethno-national Volk , the unique vitality of which trumps the interests of international peace� Finally, this ideology advances itself outside and opposed to the communicative framework Kant views as essential to Aufklärung � Such a point-for-point reversal could indicate a roadmap for those who wish to understand and address contemporary rightwing extremism� If this phenomenon is comprehensible in terms of the rejection of Kant’s constitutional politics, it may be exactly these Kantian principles that provide the clearest systematic response� Notes 1 I cite Kant throughout using volume and page number of the Akademie Ausgabe � 2 See Beiser 33—34 for influences on Kant’s constitutional thought and Kant’s conception of the ideal constitution in the pre-critical period� 3 The predominant pre-revolutionary understanding of Verfassung was that a state simply had to exist in order for there to be a constitution, with no element of written law presumed� See Grimm 6: 864� 4 A common rhetorical move of the contemporary right is to denounce liberal democracy and its policies as unconstitutional. Conflict over government response to COVID-19, swiftly politicized in countries like the United States Debating Kant’s Constitutionalism: Law, Media, and the New Right 503 and Germany, offers a vivid example. A protest sign at a May 2020 demonstration in Cologne, referring ironically to the practice of social distancing, called for “Abstand aber nicht vom Grundgesetz�” A Munich protester the same month bore the motto “Ich bin total (ver)fassungslos�” The idea is clear: restrictions such as the compulsory wearing of facemasks and mandated social distancing violate basic constitutional rights� It is not unusual for so-called Querdenker to brandish physical copies of the Grundgesetz at their demonstrations (See Müller-Neuhof and “Politik disputiert”)� Sociologist Amy Cooter has observed a similar practice of carrying the constitutional text on one’s person among American rightwing militias (31)� These groups share the Querdenker attitude toward the virus while giving it more bellicose expression� In late 2020, members of a militia were arrested after plotting to kidnap Gretchen Whitmer, the Democratic governor of Michigan, for her allegedly unconstitutional lockdown orders� The plot came after months of armed demonstrations by rightwing groups at the Michigan State Capitol, protests stoked by Donald Trump on Twitter and very much emblematic of larger political alignments surrounding COVID-19 (See Witsil)� 5 When I refer in this essay to the “new” or “contemporary” right, I mean the phenomenon, emergent over roughly the last decade, characterized by charismatic populist leaders such as Trump and Bolsonaro and internet-facilitated movements centered on ethno-national popular identity� 6 Anne Barron argues that the 1786 text refines key concepts from Kant’s 1784 essay on Enlightenment, including the “normative criterion of publicity” underlying Kant’s notion of public reason (21—24). 7 As Onora O’Neill glosses this idea, the process of bringing principles of reason into politics must “be seen as a practical and collective task ” borne by a community of rational agents, “like that of constituting political authority” (18; original emphasis)� 8 Citations from Hegel give volume and page number from the Suhrkamp edition of Hegel’s Werke � 9 See Heidepriem for more detail on Hegel’s critique of written law and its legacy in Schmitt� 10 A few years earlier, Schmitt had sketched alternatives to the written constitution in Die Diktatur (1921). See for example the first chapter of that text, in which Schmitt describes a form of commissary power ( commissio ) that proceeds from situational orders rather than legal precedent� Die Diktatur , writes Peter Caldwell, is part of Schmitt’s effort to write a critical history of the “emergence of the written constitution” (98)� 504 Samuel Heidepriem 11 William Rasch, from a left Schmittian perspective, captures the proliferous effect of this liberal framework after the end of the Cold War: “the final solution of the problem of social organization had shown itself to be the self-determination of peoples in the form of liberal parliamentary structures of government and a liberal market economy, which were rapidly and relentlessly replicating themselves across the globe” (177)� 12 Similarly, Timothy Clark has criticized the canonical media theories of Mc- Luhan and Ong for their indebtedness to the intellectual parameters of Enlightenment print culture; the next step, he argues, is a form of thought that responds to contemporary media technology (57—58; 67—68)� 13 See von Moltke’s essay for a helpful overview� For longer studies on the new right and online media, see Nagle and Wendling� 14 Hegel and Schmitt likewise affirm the nation-preservative effects of political violence� See Heidepriem 267� Works Cited Barron, Anne. “Kant, Copyright and Communicative Freedom.” Law and Philosophy 31: 1 ( January 2012): 1—48� Beiser, Frederick C� Enlightenment, Revolution, and Romanticism: The Genesis of Modern German Political Thought, 1790 — 1800 � Cambridge, MA: Harvard UP, 1992� Brown, Garrett Wallace� Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution � Edinburgh: Edinburgh UP, 2009� Caldwell, Peter� Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism. 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