In the wake of Nazi legal casuistries, states of exception, and policies of mass repression, deportation, and genocide, past German efforts to target specific populations with exceptional legislation and to expel them beyond state boundaries have been abiding historiographical themes. Attention to these themes has intensified during the last fifteen years in response to recent world events and the revival of interest in the political-constitutional theories of the radical-right legal theorist Carl Schmitt, whose critique of liberal jurisprudence, which helped dismantle the Weimar Republic, has informed numerous studies of exceptional legislation, international law, population deportation, and justifications for war in the twentieth century. This is the context in which Matthew Fitzpatrick has produced a superb history of exceptional laws and measures used during the imperial era to expel unwanted populations from German territory. Looking back to the Kaiserreich, Fitzpatrick challenges present-day interpretations of the theories of sovereign power and states of exception that prevailed at that time—interpretations that are ahistorical because they have been derived from the work of Schmitt. He does this by demonstrating that exceptional laws and population expulsions during the Kaiserreich—even those that appear shocking today—were framed and executed within the terms of formal legality and the normative procedural framework of the liberal Rechtsstaat, rather than the kind of indivisible, discretionary, and “metajuridical” sovereign power that later propelled Nazi programs of racialized biopolitics.

Fitzpatrick makes his case by examining imperial-era public and legislative debates about exceptional laws that targeted specific populations. He also looks at the concrete political dynamics of the associated expulsions, which he divides into three forms: democratic expulsions, state-based expulsions, and extra-constitutional expulsions. In the category of democratic expulsions, so designated because they were set in motion by the dispersed and “democratic” authority of the public sphere and Reichstag, Fitzpatrick first examines debates over the desirability of transporting prisoners to overseas penal colonies—debates that neither raised concerns about constitutionality nor ultimately produced legislation. He then analyzes the Reichstag debates over, and the implementation of, the 1872 Jesuit Law, which authorized the expulsion of non-citizen members of the Society of Jesus and the internal exile of German Jesuits as part of the Kulturkampf against political Catholicism. Next, he examines the 1878 Socialist Law, which included provisions for expelling Social Democrats from jurisdictions within Germany as a means of destroying the socialist movement. Critics and supporters of both these measures explicitly recognized them as “exceptional.” But almost no party to these debates described these laws as exceptional in the way that Schmitt defined the term (i.e., as extra-constitutional); rather, most understood them to be exceptional only in the sense that they criminalized a specific segment of the population and “particular forms of associational life” (13).

The architects of state-based expulsions, initiated at the level of the federal states, also considered deportation measures to be constitutional. Within the category of state-based expulsions, Fitzpatrick first explores the treatment of Poles and other peoples targeted as cultural-national threats to “Germandom” in the Prussian East. Here, it was local nationalists and authorities who convinced high-level Prussian ministers, Robert von Puttkamer and Otto von Bismarck, to order the expulsions. If Reichstag critics denounced the mass deportation of 32,000 Poles in 1885–86 as “an act of barbarism” in violation of international law, they could not prevent it because the authority to enact such a measure was constitutionally invested in the federal states. Moreover, it applied only to non-citizen Poles and other non-citizens, including Jews, from Russia and Austria-Hungary. Similarly, the impetus behind the 1898 expulsion of over 1,000 Danes—Fitzpatrick's next focus—came from German nationalists and officials in North Schleswig before it was turned into policy by the Prussian governor and approved by the Prussian interior minister in Berlin. This policy, too, only applied to non-citizens in accordance with existing laws and treaties. Finally, Fitzpatrick demonstrates that state officials and police were responsible for targeting and expelling “Gypsies,” people defined by their itinerancy and alleged vagrancy and criminality. In this case, however, rather than introducing exceptional legislation, officials in different states, led by the example set in Bavaria, deported non-citizen “Gypsies” and, for those with citizenship, instituted a series of repressive police measures, ranging from continual surveillance to the forced removal of “Gypsy” children from their families, in order to eliminate what they called the “Gypsy plague.”

Perhaps most surprising, Fitzpatrick argues that the extra-constitutional expulsions carried out during the Kaiserreich, which targeted populations in territories lying outside the remit of the federal constitution (i.e., Alsace-Lorraine and Southwest Africa), also do not qualify as actions emanating from a “metajuridical” sovereign. In the case of Alsace-Lorraine, where the governor ruled as the kaiser's representative, local authorities could expel French citizens if the latter were convicted of a criminal or “moral” offense, or if they were deemed politically subversive and a military threat. But Fitzpatrick maintains that these expulsions were not expressions of extralegal sovereign power because the “Kaiser's ‘dictatorship’” (210) in Alsace-Lorraine was granted in 1871 by a law passed by the Reichstag. In a similar way, Southwest Africa constituted a legally “anomalous,” rather than exceptional, zone as a protectorate of Germany. Here, colonial governors and military officials could pass discretionary measures, ranging from bans on “mixed” marriages to the deportation of putatively refractory German colonists to the expulsion of indegenes from the colony. Moreover, in the midst of the genocidal Herero War of 1904–07, General Lothar von Trotha's extralegal decisions to declare a state of exception in the colony, revoke the status of the Herero people as “imperial adjunct-dependents” (240), and expel them to the desert to die, were ultimately overturned by the kaiser after the intervention of Reichstag opponents, missionaries, the colonial governor, colonial officials in Berlin, and the chancellor.

Fitzpatrick has provided a theoretically sophisticated analysis and compelling portrait of the intactness of the rule of law in the Kaiserreich, the curbs placed on centralized sovereign power, and the agency of ordinary citizens and civic organizations in determining the scope and limits of imperial-era exceptional laws, none of which succeeded in achieving their aims. But if in providing this portrait Fitzpatrick sides with those Marcus Kreuzer calls “optimists” in debates about the extent to which the Kaiserreich should be understood as at least a partial “democracy” governed by the rule of law (“Parliamentarization and the Question of German Exceptionalism, 1867–1918,” CEH (2003): 327–57), he also notes the disturbing implications of his research: namely, that the liberal Rechtsstaat of the Kaiserreich facilitated population expulsions as much as it constrained them. This is a thought-provoking and important book.