Constitution

The Independent State Legislature Doctrine as indirect power. by Gerardo Muñoz

This Wednesday the Supreme Court of the United States will consider arguments in Moore v. Harper, coming out of the North Carolina State Legislature, which revolves around a specific doctrine: the Independent State Legislature. When the legislature of North Carolina tried to pass a new redrawing district boundaries for electoral purposes, the state supreme court decided against it, concluding that the map violated provisions of the constitution affecting free elections and the equal protection clause of the federal constitution. On other hand, the sponsors of the Independent State doctrine claim that state legislatures enjoy unsubordinated independence from the state supreme court, acting freely from the structure of state constitutions. The defenders of ISL doctrine “interpret” the term legislature as free-floating affirmation of constituent power when it comes to matters of voting under Election Clause of Article I in which legislatures decide on “the times, places, and manner of holding elections for senators and representatives”. Hence, ISL doctrine is fundamentally about political-theological question of ‘who decides?’ (quis judicabit) in the structure of federalism. But insofar as it is the question of ‘who decides’ it is also about what orients application today: ‘who interprets?’

When legal practice becomes open to interpretation each word immediately becomes a door. Each term becomes contested meaning as a free-floating signifier where balancing will ultimately serve particular political purposes. It is no coincide this ISL doctrine has come to the surface at this precise moment – after the 2020 election results – when, in fact, for most of the history it has been rarely used [1]. What does a floating and independent legislature power entail for electoral ends? What is of interest here is precisely how, in the name of a direct justification of constituent power (‘The People’), ISL represents a truly indirect power within the structure of federalism and state-constitutions. By name and function, indirect powers are understood as external interreference within a structure of stable organized powers. Now, the novelty of the ISL doctrine is that this indirect power emerges from within as it were, capable of upending judicial review and constitutional authority. The stability of ‘who will decide’ becomes an indirect power that, potentially, could even override state elections wherever political asymmetries exist between the legislature, governorship, and judges at the courts.

We know from the history of political thought that indirect powers (the undecidability of who will decide) leads to a stasiazon or internal civil war between the constituted powers. In other words, it is with the ISL doctrine that we can now see the true nature of what I called in the beginning of 2021 a legal civil war in Trump’s efforts to overturn the election results. A legal civil war is far more intense than the political partisan struggle of the movement – even if, at times, they can both cooperate as joint partners – since indirect force tries to ambush the constitutional organization of powers. The legal civil war of direct democracy comes full circle: unmitigated legislative force will constitute itself as the unstrained guardian of the question ‘who will decide’. For the champions of ISL doctrine legislature has no penumbra: it is always “We”. And it is no coincide that, as it has been shown by one of the great scholars of American federalism, a legislative supremacy once defended by Madison could allow for the “raising of every conflict to a constitutional crisis and civil war” [2].

In other words, what at first sight appears as total independence at state level actually facilitates its oppositum: the production of “standing” for higher courts litigation. Contrary to common opinion, the function of constitutional interpretation is full of cracks due to its brittle fabric: it allows for the indirect powers to be justified vis-à-vis the naturalism of the People as ‘original electors’ without mediations [3]. The historical irony cannot escape us at this point, since the American Revolution was waged against a legislature (the British Parliament) and legitimized through broad voting. This was the great innovation of Atlantic republican political theory. The question is whether a constitutional ‘interpretation’ could wage a battle against indirect powers facilitated by the revolutionary penumbra of ‘who will decide?’.

.

.

Notes 

1. “Brief of Amici Curiae Professors Akhil Amar, Vikram Amar, and Steven Calabresi in Support of Respondents”, October 24, 2022: https://www.supremecourt.gov/DocketPDF/21/21-1271/243761/20221024133404048_21-1271%20Amicus%20Brief.pdf  

2. Alison LaCroix. “What If Madison Had Won? Imagining a Constitutional World of Legislative Supremacy,” Indiana Law Review 45 (2012):

3. Carl Schmitt. The Value of the State and the Significance of the Individual, Vinx & Zeitlin eds, (Cambridge U Press, 2021), 231. 

Retreating from the Politics of Eternity: on Timothy Snyder’s On Tyranny: Twenty Lessons from the Twentieth Century. By Gerardo Muñoz.

snyder-on-tyrannyWe often cite James Madison’s acute observation from Federalist 10: “Enlightened statesmen will not always be at the helm”. Timothy Snyder’s On Tyranny: Twenty Lessons from the Twentieth Century (2017), is written keeping this political conviction in sight, so indispensable to the democratic aspiration of the framers more than two centuries ago. Snyder, however, is no messenger of good news. In line with those that have taken seriously the rise of presidentalism, and the expansive politization of the executive branch in recent decades, Snyder is making the case for a timely warning against a potential threat for tyranny in the wake of Donald J. Trump victory at the end of last year.

On Tyranny is informed by Snyder’s expertise and research as a historian of Eastern Europe and the Holocaust, which have resulted in landmark contributions such as Bloodlands: Europe between Hitler and Stalin (2012), and Black Earth: The Holocaust as History and Warning (2015). In both of these books, Snyder has shown quite convincingly, how the erosion of institutions and the rule of law, due to both communist and fascist planning and dismantling over the control of the eastern region, paved the way for absolute anarchy and systematic destruction that made the Holocaust a juridical and political reality. Snyder does not mean to say, by way of an easy equivalence, that Trumpism amounts to a repetition of this historical period. Rather, On Tyranny is a precise warning on two levels: on one hand, it is a plea to rethink the necessity of institutions in the times of the rise of what Arthur Schlesinger Jr. called the imperial presidency; and secondly, to learn as much as we can from History, particularly from the historical evidence that confirms that every republic has always combated and affirmed itself against a latent imperial drift. Snyder’s thesis, presumably informed from a historiographical position, also suggests a political anthropology. In other words, the battle against an empire solicits an abandonment of the voluntary servitude that only feeds the incremental force of reaction. Our present shall not be indifferent to this.

After the 2016 election what is really at stake is whether the Federalist warning against the rise of factions is enough to contain an unprecedented alignment of vertical hegemonic power. There have been scholars, such as constitutional lawyer Eric Posner in The Executive Unbounded (2013), who have said farewell to Madisonian democracy in light of the exceptional upsurge of the executive branch [1]. On Tyranny does not go this far, but it is obvious that its purpose is not to engage in the aporias and intricate developments of constitutional law in order to render feasible an argument in favor of a retreat from hegemonic politics. Non-hegemonic politics always entail breaking the spell of a given set of coordinates that have produced an impasse. Snyder provides an array of historical examples: Rosa Parks in 1955 or Winston Churchill in the darkest moment when Hitler materializes his territorial expansion. It is in these perilous moments that the retreat from hegemonic politics does not mean renouncing political action. It means, first and foremost, abandoning the hyper-political consistency that defines the eternity and enmity of the political. But I do not want to get ahead of myself while briefing Snyder’s book. Havel, Parks, Churchill, Arendt, these are names that metonymically index Snyder’s plea for a politics of vocation in a time when rhinoceros are roaming through the landscape. The reference here is, of course, Ionesco’s well-known 1959 play Rhinoceros, which Snyder introduces when discussing the submission to politics of untruth:

“Ionesco’s aim was to help us see just how bizarre propaganda actually is, but how normal it seems to those who yield to it. By using the absurd image of the rhinoceros, Ionesco was trying to shock people into noticing the strangles of what was actually happening. The Rhinoceri are roaming through our neurological savannahs….And now, as then, many people confused faith in a hugely flawed leader with the truth about the world we all share. Post-truth is pre-fascism” (Snyder 70-71).

The rhinoceros are the political converts, which are always one step too close to the work of hegemony and its delirious power. It is then entirely consistent that Snyder also makes the claim for the protection of a new sense of privacy (sic) that could contain the boundaries between oikos (private) and the polis (public) against the drift towards totalitarianism (Snyder 88). Tyrannical politics is also a politics without secrets. It does not necessarily emanate from this position that a new egotist sense of privacy will act as a modality in an existence that is now beyond risk, guarding its own skin from the wild beasts. Snyder recognizes that there is no politics without factions, as Madison would have also said. Hence, there is no real politics without a minimal corporeal investment (Snyder 83-85).

But we have moved away from the level of hegemonic thirst for domination, conceiving a relation with politics that is not exhausted in the singular existence. Or put in different terms, only in existence could a politics of lesser domination be allowed to emerge against the threat of factions. Politics should not be oriented towards the end of the administration of life, which always amounts to a biopolitics. A republicanist politics is the orgazanition of public and social life that prevents both, the intensification and nullification of life in the polis.

What becomes troublesome, as Snyder makes clear, is that the administration of politics is today justified under the name of terror. In fact, Snyder states: “Modern tyranny is terror management” (Snyder 103). This is, indeed, an actualization of the schmittian withholding of the state of exception now normalized at the heart of democratic systems. Hence, the new danger is not just juridical, although it is also that. Snyder presses on the fact that current governments and parties – from Putin’s Russia to Le Pen’s Front National to Trump’s populist rallies in Florida or North Carolina – are borrowing props and gestures from the 1930s, a decade that Steve Bannon has labeled “exciting”. It is no surprise to anyone that we are currently living in times justified by exception in the name of the “crisis”. It is this time of excitement that provides a grammar of historical teleology and inevitability, and further, of judgment. However, the passage from inevitability to something darker is what Snyder calls the politics of eternity, which is really the core of his book, and the sign under which neo-fascism abides:

“…the politics of eternity performs a masquerade of history, though a different one. It is concerned with the past, but in a self-absorbed way, freed from with any real concern with facts….Eternity politicians bring us the past as a vast misty courtyard of illegible monuments to national victimhood, all of them equally distant from the present.” (Snyder 121).

If there is no real concern with facts, it is because all politics of untruth are politics to cover the Real, or what Jaime Rodriguez Matos has recently called the formless thing [2]. And for Snyder, national populists of the far right are eternity politicians providing a form that at the end of the day is just sending signs of smoke (Snyder 122). What is being covered is the void that leads to a point of no return: mainly, that there is no “greatest moment to return to”, since it is impossible to resurrect Empire. This inevitable untruth provides illusory grounds to radical right rhetoric in Europe. Although, we must infer that this is also the moment where Trump appears in its maximum existential danger to us.

It is uncertain if the institutions of the West will withstand this immanent threat. Although it is in this conjuncture that the rule of law becomes as central as ever before, and to discard it, is perhaps one of the greatest acts of moral decrepitude. It is here where we awake from the sleepwalking of eternal politics, as we are confronted with the historical sense that gives us the phantasmatic company of those who have perished, and that have suffered more than us (Snyder 125). It is in this affirmation, we agree with Snyder, that we find a substantial push against all tyrannies.

 

 

 

 

Notes

  1. Eric Posner & Adrian Vermeule. The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press, 2013.
  2. Jaime Rodriguez Matos. “Politics, Trace, Ethics: Disciplinary Delirium—On Trump and Consequences”. Paper Read at USC Conference, November, 2016. https://infrapolitica.wordpress.com/2016/11/14/politics-trace-ethics-disciplinary-delirium-on-trump-and-consequences/