arcana

On the Highest Office. by Gerardo Muñoz

The Supreme Court of Colorado has recently upheld the constitutional argument developed by two constitutional scholars, William Baude & Michael Paulsen, that disqualifies former President Trump from a presidential nomination under section 3 of the Fourteenth Amendment of the US Constitution. According to this legal argument by one of the nation’s renowned legal originalists, any former public official who has taken an “oath” to the Constitution and engages in a rebellion or insurrection is disqualified from returning to public office as expressed in the letter of the Reconstruction Amendment. What is more, section three is ‘self-executing’, which means that it applies through adjudication by the courts without having to pass by legislative majority from Congress. Regardless of the future outcome of the contentious case, what is remarkable is how the development of American democracy – centered on the republicanist innovation of electoral power and voting, if we are to believe Sanford Levinson’s hypothesis – bends towards an executive constitutionalism that sits way above the political representation mediated by constituent power (Congressional authority) [1].

And insofar as to the normative nuances of the case are concerned, the application of section 3 of the Fourteenth Amendment does not express a constitutional crisis as much as it reveals the system of the constitution‘s arcana of power: “the officer” and the ‘highest office’. In fact, as many legal scholars have already noted, the center of the applicability of section 3 will be waged on whether the Presidential office qualifies as an “officer of the United States” or not [2]. Implicitly it should not be noted that this is the constitutional standard through which the case already presents itself. In other words, what is at stake in section is not only the betrayal of an oath, democratic legitimation, constitutional public meaning, or a violation of separations of power; what is at issue is the enduring force of an office and the command of the officer in a concrete institutional reality. 

And not just any office, but according to the opinion of the Colorado Supreme Court, it pertains to the “highest office” of the land, which is not lex scripta in Constitution but implicitly derived: “President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3″ [3]. As in the allegorical ‘Commandant’ in Franz Kafka’s “In the Penal Colony”, the highest office follows the unwritten Executive office tradition in order to bar a former president (involved to some degree in an insurrection) for its own endurance: the being of command that must self-execute itself in order to be what it is, that is, the highest office [4]. The paradox, then, it is not just at the level of interpretative enterprises of a specific legal culture – in other words, what legal theory will allow judges to accept Trump as officer or non-officer of the executive branch, as Vermeule suggests – but rather, the fact that in order to preserve the veneer of democratic legitimation between the different conflicting public powers and its potential rise to “authoritarianism”, the highest office must rank at the center of the executive force of either general economy of deference and public legitimation [5]. This also speaks to the ‘royal’ tailoring of American republicanism (the monarchical force in the executive) in which the unbound dimension of the “highest office” also entails a constrained, impersonal, and thus anti-constituent dimension that shows its relief upsetting the modernist liberal forms of the separation of powers [6].

 From this picture it follows that the so-called post-liberal and virtuous calls for a neoclassical regime change perhaps have failed to grasp that this regime has always been beneath their own noses: the ‘highest office’ dispenses the soulcraft that subsumes civil society to the functions of the administrative state bypassing practical spheres of separation. If the arguments and debates about section 3 matter, it is precisely because it reveals the esoteric arcana (the highest office) of American structure of government runs parallel to its exoteric liturgical arcana (voting rights) – and, precisely, it it comes to no surprise that executive immunity under section 3 comes into full tension with voting rights in an unprecedented theater of active operations in which both levels of the arcanni convergence and collapse. In a way, this validates Carl Schmitt’s assumption that decision over exception is constitutive of every legal system, and that every legal system (insofar as it does not want to crumble under the abstraction of a general norm) arms itself with a sovereign decision. The highest office in the American constitutional system is the institution for the self-executing force of sovereign immunity. 

In this legal landscape, a recently published book, Of Rule and Office: Plato’s Ideas of the Political (2023), by classicist Melissa Lane aptly analyzes the binding notion of political rule with the public office in Plato’s Republic. In another epoch, the publication of such book would have been taken as a theoretical touchstone for either side of the constitutional crisis, since Lane’s intricate argument illuminates the original tension between political rule and office in a democratic polis; a highpoint of intensity that fractures office-holding (anarchos) as in the account of the “democratic man”  in the parabola of the young lotus-eater goes: “intolerance good breeding, anarchy freedom, extravagance magnificence, and shamelessness courage”  [7]. Thus, as Lane observes, the attitude of the anarchos is not merely achieving the erasure of power or government, but more specifically the destruction of the proper constitution of the office. It is also telling that the energy of the anarchos is not against the state or a “leader” (archontes), but oriented towards the civil magistrates and bureaucratic power; or, to put it in the language of modern American public law, against the administrative state. At the end of the day, the elemental unit of administrative law is the autonomy of the command of an agency / office of regulatory power dispensed from the Executive branch. And is not in the modern opposition of movement – institution the very friction between office and anarchos? If politics is reduced to this polarity, then there is no longer any paradoteon, a complex term that Plato in his late work associated with restraint and prudence when regulating music for the fulfillment of the kallipolis through the generations [8]. The highest office constitutes, in this way, an ur-officium, the arcana that binds the political system when all there is a system of commands.  

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Notes 

1. Sanford Levinson. An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press, 2015). 

2. “Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump”, The Volokh Conspiracy, August 2023: https://reason.com/volokh/2023/08/12/prof-michael-mcconnell-responding-about-the-fourteenth-amendment-insurrection-and-trump/ 

3. Supreme Court Case of Colorado, No.23S A300, 2023, page 84: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf 

4. Giorgio Agamben. Opus Dei: An Archeology of Duty (Stanford University Press, 2013), 84.

5. Adrian Vermeule. “The Non-Originalist Decision That May Save Trump”, The New Digest, December 2023: https://thenewdigest.substack.com/p/the-non-originalist-decision-that 

6. Adrian Vermeule & Eric Posner. The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2011), 5.

7. Melissa Lane. Of Rule and Office: Plato’s Ideas of the Political (Princeton University Press, 2023), 304-305.

8. Plato. The Laws (Penguin Books, 1970), 291, 802d.

The unknown song. On Giorgio Agamben’s La voce umana (2023). by Gerardo Muñoz

Giorgio Agamben’s most recent La voce umana (Quodlibet, 2023) sets the scene with an elemental question: what is to call on something, and what is it to be called upon? The exploration around the notion of the voice (a sort of chorâ that falls between the different antinomies of human language, as we will soon learn) is far from new in Agamben’s work, who from the the early period of Il linguaggio e la morte (1982) directly confronted the negative foundation of phonê in relation to the closure of metaphysics. In a certain way, the perimeter of La voce umana (2023) is now deliberately limited to how the ‘mystery of the language’ is to be found in the unending event of the voice as the arcanum of anthropogenesis itself. At this stage of his investigations, the problem of the voice for Agamben designates a double movement of inflection and recapitulation: the voice proves the internal division of political life in the West; at the same time, it is also the most intense experience that a form of life can bestow the disclosure of the world. The attentive reader might recall the last pages of L’aperto: l’uomo e l’animale (2002) where the impasse of the anthropological machine was assigned by caesuras between human and animal, the semiotic and the semantic, the word and the name, redemption and the end of time, writing (gramma) and sound. But it is now with the voice that a clear way out becomes apparent. In the analytics of the voice klesis no longe stands as a political-theological category of the West; but, on the contrary, a call of language unto itself, the vocative that resists linguistic denomination and the free-standing outside the case and even language itself (“fuori lingua”) as suggested by Gustave Guillaume.

The vocative dimension of language is shown as pure means of the human experience: the apostrophe that calls something – as in Moby Dick’s majestic beginning “Call me Ishmael” – is already the call through the act of naming, and naming falling into the voice becomes the originary place of language in the denomination of speech (21). Irreductible to the antinomy of langue and parole, the semantic and the semiotic, the vocative texture of the voice emerges as the third figure that neither linguistics, philosophy of language, phonology, analytical linguistics, and biological cybernetics are capable of truly grasping. And this is so – Agamben does not says it in this brutish way – because there cannot be any theory of the voice and the vocative denomination; there can only be a poetics of the voice in which the transformative and self-generative experience with reality is staged: “Ma è possibile pensare il linguaggio prescindendo dal suo rifermenta lla realtà? La voce – il vocabolo – non designa soltanto un significant, chiama piuttosto un ente reale…non si limite a elencare segni in un lessico, ma annuncai ed encunia realtà” (36).

In my respects – and this is not the place to bring into focus Emile Benveniste’s last seminar on language and writing – Agamben’s treatment of the voice is nourished by pushing beyond the limits of the great twentieth century linguist who, for the most part, remained silent on the place of the voice. Not that there is a need for another substantive treatment of the vocative; in fact, one of the great achievements of La voce umana (2023) is precisely the archeological reconstruction of the Aristotelean “what is in the voice” (ta en té phonē) formula in which the classical metaphysical inception of language comes closest to the voice only to render it “articulate” and thus subordinated to the legibility of gramma or the written sign (42-44). And whatever one thinks of what constitutes the “primacy” of metaphysics in West (phone or gramma), what is important is the fact that domestication of language has been auxiliary by the “fundamental discipline of the West” (grammar) that sets off the immediate point of dialectical force between speech and the alphabetical inscription in the voice (45-46). Civilization is nothing more than the historical process of taming one’s voice.

At this point, it becomes clear that Agamben remains faithful to his old friend, the Spanish poet José Bergamín, whose bewildering essay from 1933 “La decadencia del analfabetismo” (“The decline of illiteracy”), argued precisely that the upwards movement of civilization of grammar and writing undermined the living voice and imagination of concrete and localized people (“pueblos minorías”) livelihood [1]. Indeed, it does not take much to see how the grammaticalization of human experience was a fundamental infrastructure for the consolidation of civil society grounded in the articulation of internal recognition of rules, normative directives, and binding statutory enforcement. The triumph of the order of grammar will only intensify the movement towards the total integration of every form of life into the fictive rhetorical space on behalf of what has already been stated without having to persuade, to put in Carlo Michaelstaedter’s terms that I do not think contradict the terms that Agamben extracts from his exegesis of the voice.

The political problems emerging from the confrontation with the voice are multiple. One can recall how in modernity, when “words have been liberated from their sacred denomination” (something pondered by Joseph De Maistre in his The Generative Principle of Political Constitutions as political revolution sets through universal recognition), the closure of the rhetoric embedded in “social life” captures the event of the voice into a stable communicative dimension of language (“suoni della lengua”), which for Agamben resembles the etymology of the word phònos: murder, that is, the self-conscious assassination of the voice at the altar of free-floating rhetoric and the order of discourse (50-51). By the same token, in our epoch every living being has the malleable equalizer and “amplifier” (a word used, indeed, by the Supreme Court of the United States when deciding the case that granted equity between finance campaign and ‘public use of language’) of words, but it is only rare to see anyone truly possessing a voice. If every entity in the world has been previously assigned and grammatically ordered, what is absent is precisely the chōra as the “invisible and formeless place” (‘invisibile e senza forma”) in which the intelligible pure state of the language in the voice. In this strict sense, whoever possesses a voice is one who dissolves the axiomatic arrangement of discourse only to transform the world as inhabited. This is why the voice remains not a threshold to semantic register or the written technology, but rather an unknown song (“canto ignoto”), as it was called by Benedictine monk Guido d’Arezzo. And this song, the voice, can be followed and deciphered but never truly mastered as absolute transparent knowledge (45).

And if music is an index of prophecy, as Gianni Carchia once suggested, then this means that the voice, like the mythic harmony of the spheres, is what exceeds the proper human as indivisible and non-exchangeable realized only here and now. The political consequences are immense, Agamben is right. This means that we need to restate the medial and geographical distances of the chorā over the orderly cultural exchange of the polis. As it has been noted, the rise of the city state is waged against the orphic poetic myth; in the same way that the Roman imperium was possible by the erasure of the Etruscan musical underworld. Agamben reminds us that the birth of biopolitics coincides with the historical invention of the science of language leading to the impoverishment of the intangible and expressive communication between souls. This is Agamben’s rendition that the task of philosophy – not historical benchmarks or epistemological categorizations – resides in the attunement to the highest hymn of expressive form as it has been studied by Nicoletta De Vita’s erudite monograph Il nome e la voce (2022). There is no philosophical or theological closure as long as the song remains.

We can say that wherever there is a chorā of the voice something like this minor transcendence of the original human being that retracts from the soteriological false exits that have devastated the anthropogenic event. And it occurs to me that we could thematize three areas of what this closure means for us today: first, the technification of politics in epoch has been reduced, precisely, to a discursive theory of articulation (of social demands) to craft the fictive totalization of hegemony; second, the collapse of the political representation within contemporary democracies has turned into the optimal organization of containing willful self-expression in light of the contingency of values of the dominant aesthetic regime; and finally, the very understanding of legal culture and constitutionalism in the West has shuffled different modalities of the written authorial intention to generate the internal rules of institutional and statutory norms only to expand police powers and codification of conducts. At the expense of the unknown song, all sorts of prosthetic contraptions have been erected to douse the prehistoric voice that nevertheless keeps overflowing and reemerging like the unnerving cracking squick of Kafka’s Josephine. It is this watershed mystery of the anthropogenesis with its philo-poetological density that calls on humanity by the highest superlative imaginable: its voice.