This paper investigates the exception and its paradoxically illiberal role in liberal democratic values. Although Agamben claims that all state action constitutes a general exception, this paper focuses on how the particular actions of the warranted search, property takings, and prosecutorial discretion constitute illiberal exceptions in addition to the exception justifying martial law. Carl Schmitt’s political realist conception of sovereignty countenances these, but his interlocutor – the Constitutional rights theorist who is wary of Schmitt’s illiberalism – can minimize the exceptions’ threat to rights by justifying a jurisprudence based on the strict scrutiny standard of constitutional review reserved for fundamental rights (e.g., speech), resulting in an ultra-liberal state that protects rights by restricting the state’s ability to criminalize, punish, and surveil, all of which have become conspicuous features of the modern ‘liberal’ state.
