indirect power – Infrapolitical Reflections

The central contribution of American republican political thought is arguably the way it found a solution to the problem of factions, a legendary difficulty that not only has not disappeared but rather intensified in our present. For the enlightened republicans of the eighteenth century, well versed in the classical tradition and the histories of Florentine medieval strife, factionalism was the cardinal difficulty of social order; how to best deal with conflicting loyalties and the perpetuation of violence for virtuous and at times times even springing from “idleness and courage of the youth”, as told by Carol Lansing’s scholarship [1]. The existence of differences and cleavages in the society ultimately meant the brewing of an ephemeral coalitions and private masters, which, in turn, often resulted in the thorough expulsion of the enemies from the polis. These unregulated clashes of authorities and private actors was called by the fourteenth century jurist Bartolus of Saxoferrato a seventh form of government mixture: a “monstrous government”. The problem of faction will emerge for the moderns as the condition that prompts the articulation of a governmental rationality capable of constructing the homogeneity of social living. In other words, the modern classical homogeneity of the civil society is the creation of the domestication of factions as social grouping units to be obtained and arranged as an indirect power from within to transform ‘barbarism’ to civilization. David Hume’s political writings – and in particular his “Idea of a Perfect Commonwealth” (1752), which was highly influential to the Federalists, understood that the threat is of “factions” required a new framework: politics had to be reduced to a science [2]. What could politics as science entail? We are not yet in the administrative rationality and professional political vocation of Max Weber’s sociology. The scientific reduction meant a paradigmatic transformation of classical politics properly understood (virtuous, moral, and just) into an economic determination in which interests took the center stage over the combustion of the passions. The new science of politics implied a retooling of the problem of factions by decompressing the clustered interests of unaccounted and disloyal factional expansion under governmental action. For Hume the passage from passions to interests entailed a descaling of factionalism on one hand, while an expansion of a robust form of government over a large territory on the other.

However, if for Hume factions are still an impolitical unit of association that must be minimized, it is James Madison in “Federalist 10” who achieves the complete “scientific” aspiration of political construction over factions as inseparable from the Social ahead of the industrial modern economic division of labor. In fact, as Douglass Adair reminds us, this particular essay of the Federalist Papers only became important towards the end of the nineteenth century in the wake of industrialization and economic power groups; that is, at a moment when indirect economic powers began to exert their influence into the institutional and regulatory composition of the state [3]. One could say that it is only at the outset of the triumph of economic “Americanism” that the Madisonian framework on factions is situated in its proper tripartite structure: factions are conditioned by positive liberty and make up the totality of the economic interests that make up civil society. Indeed, for Madison factions as expressions of the nature of man, and their existence detail degrees of activities in civil society [4]. In a way there is no civil society without factions, and there are only factions because there is civic Liberty.

Madison even constructs a naturalist analogy: what unrestrained Liberty is to faction, air is to a propagating fire. The activity and energy of factionalism is exclusively understood as one of economic interests which, insofar as it is conditioned by positive, differentiated, and unregulated liberty that expresses the unequal distribution of property that characterizes the essence of the social. The new science of government in this framework becomes clear: the end of government is neither properly about political enmity in relation to the state nor about suppressing and limiting factions, but rather about the optimization of the effects of factions. Madison writes in the groundbreaking moment of “Federalist 10”: “The interference to which we are brought is that the causes of faction cannot be removed from that relief is only to be sought in the means of controlling its effects” [5]. The optimized logistics of factionalism displaces the modern hobbesian picture of the sovereign state to a minimalist and compensatory nature to attenuate public order against “local and particular state legislatures” [6]. The optimization of factions now appears as the dominant aspect of a fundamental cybernetics that seeks to isolate, fragment, and juxtapose the conflagration of factions without losing the barring of state energetic durability. The faction difficulty lays bare the arcanum at the center of the res publica politics: the administration and reproduction of civil conflict.

The consolidation of the cybernetic solution to the faction difficulty emerges as an upgraded version of state auctoritas whose aim is to establish a balance between public opinion as distrust over “dispute”: “communication is always checked by distrust in proportion to the number whose concurrence is necessary” [7]. If communication becomes a strict science of regulating the means of expression (itself a medium), political authority is superseded over a constant war over words and force of exchange. This means that rather than putting an end to the stasiological tension through a political mediation of the state, the problem of faction reveals that stasis becomes an instrument to manage effects, produce legislative, and translate interests in the struggle of social differences. It goes without saying that perhaps the modernist differentiation between state and civil society in light of the problem of faction loses its predominance, as an entirely new framework emerges: a monstrous socialization that takes the form of a productive stasiology given that if “men were angels no government would be necessary” [8]. The irony is that the auxiliary precautions of factions is a secularized form (or at least one could trace it to) of the ministry of the angels. This reality demands a new ethic of the passions against both the vigorous indirect struggle of factionalism (and its modern rendition in the party form) and the axiological arrangement of interests that made the foundation of the social community possible.

Notes

1. Carol Lansing. “Violence and Faction”, in The Florentine Magnates: Lineage and Faction in a Medieval Commune (Princeton U Press, 2014), 181.

2. David Hume. “Idea of a Perfect Commonwealth”, in Political Writings (Hackett Publishing, 1994), 240-252.

3. Douglass Adair. “The Tenth Federalist Revisited”, The William and Mary Quarterly, Vol. 8, No. 1, 1951, 48-67.

4. Alexander Hamilton, James Madison, & John Jay. “Federalist 10”, in The Federalist Papers (Mentor, 1961). 79.

5. Ibid., 80.

6. Ibid., 83.

7. Ibid., 83.

8. “Federalist 51”, in The Federalist Papers (Mentor, 1961), 322.

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.