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?’.

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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. 

De Maistre’s modern politonomy. by Gerardo Muñoz

The conservative Spanish political theorist Jesus Fueyo used to say that given that politics is not strictly a science, it always requires an attitude to vest the political. This holds true especially for the reactionary tradition given their sharp and distinctive rhetorical style, which at times it can outweigh the substantive orientation of its principles, doctrines, and immediate commitments. The attitude towards the political defines and frames the energy of the political, and it helps to define a politonomy, or the laws of its political conception. This is particularly relevant in Joseph De Maistre’s work, who doctrinally was a monarchist, legitimist, and, if we are to take Isaiah Berlin’s words, also a dogmatic precursor of fascism [1]. For a classical liberal like Berlin, De Maistre’s critique of liberalism all things considered (contractualism, deism, separation of powers, public deliberation, and individual civil liberties) amounted to a fascist threat. This reading crosses the line towards doctrinal and substance but it says little about its politonomy. On the contrary, what surprises (even today, as I was rereading some of his works) about De Maistre is the recurrent emphases on political autonomy, which automatically puts him in the modernist camp against doctrinal theologians and otherworldly moralists who do not truly classify as counterrevolutionaries. But insofar as the counterrevolution presupposes the revolutionary event, we are inhabiting the modern epoch. Furthermore, and as Francis Oakley has shown, even De Maistre’s classical ultramontane book The Pope (1819) emphases the authority of the pope against history, tradition, and the conciliarist structure of the Church [2]. In this sense, De Maistre taken politonomically is no different from Hamilton’s energetic executive or the sovereign decisionism that put an end to the confessional state.

In fact, De Maistre’ conception of politics measures itself against a “metaphysics of politics” which he links to German universality of the modern subject and Protestantism. Against all ideal types, for De Maistre politics is always best understood as politonomy; that is, a second order political authority that validates itself against the insecurity, unpredictability, and radical disorder of the modern revolutionary times [3]. For the counterrevolutionary position to take hold, the volatile modern reality of the political needs first to be accepted as well as the positivist emergence of modern constitutionalism. Indeed, De Maistre’s critique of written constitutions in the “Essay on the Generative Principle of Political Constitutions” is leveled against the assumption that text is all there is to preserve order and institutional arrangement.

De Maistre argues that there is also an unwritten dimension that functions to preserve authority and genealogical force of the political regarding who has the last word in all matters of public decisions (something not too strange in contemporary jurisprudence). Of course the function of the unwritten for De Maistre has a divine origine but its assignment is to control the proliferation of discussion that weakens institutional authority, thus pouring a war over the meaning of words (this was the same problem that Hobbes confronted regarding interpretation). De Maistre’s attack against textualism and incredulity of the written text of positive law was exerted in the name of a defense of a sovereign transcendence as the sole guardian of the institutional stability [4]. This is why De Maistre defends a combination of traditional unwritten Common Law with sovereign rule guarding institutional continuity. The politonomic condition elucidates that institutional arrangement is proper to a concrete order, and not doctrinally about the Church regarding secular temporal matters. This is why the Pope enjoys sovereign immunity from the doctrinal production of the Church that allows for the emerge of politonomy.

In a way this becomes even more obvious from what at first appears as De Maistre’s most controversial and antimodern treatise Letters on the Spanish Inquisition, where he takes neither the role of the theologian nor of Hispanic monarchic providence, but rather that of modern autonomy of the political conditioned by civil power: “…any great political disorder – any attack against the body of the state – be prevented or repelled by the adoption of energetic means” [5]. Notwithstanding the different ends, this is not very different from The Federalist’s conception of executive power as energetic for second order of institutional threats. What’s more, emptying all christological substances of the Inquisition, De Maistre defines its practice from a politonomical viewpoint: “The Inquisition in its origin was an institution demanded and reestablished by the King of Spain, under very difficult and extraordinary circumstances…under control, not of the priesthood, but of the civil and royal authority” [6]. For De Maistre even a religious and clearly antimodern institution like the Inquisition was a first a political institution that was required to obey the “lawful and written will of the Sovereign” [7].

This polarity also attests to De Maistre’s politonomy: in a context where positive sola scriptura triumphed, he recommended the internal genealogical control and sovereign decisionism; whereas in monarchical Spain where no revolution had taken place, the Inquisition had to respond to norms, written laws, and civil power. This could explain at least two things: on the one hand, why De Maistre’s political philosophy was discarded and regarded with suspicious by Hispanic royalists and Carlists; and secondly, why De Maistre understood political economy in his text on commerce and state regulation regarding grain trade in Geneva [8]. Here one can see how the structure of politonomy aims at regulating the constant friction of norm and the exception in a specific institutional arrangements. To return to our starting point: the reactive attitude towards subjective politics was also modern insofar as it breaks radically with the classical view of politics that understood itself as oriented towards the good, the virtuous, and equity balancing (epikeia). If modern politics opens as an abyssal fracture, then politonomy is always the management of a catastrophic, fallen, and demonic dimension of politics. Thoroughly consistent with the dialectic of the modern epoch and its oppositorum, politics becomes destiny precisely because religious sacrifice has ceased to guarantee social order in the temporal kingdom. Politonomy emergences as the formal science of the second-best; that is, an effective way, by all means necessary, of administrating aversion given that “sovereignty is always taken and never given” [9].

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Notes

1. Isaiah Berlin. “Joseph De Maistre and the Origins of Fascism”, in The Crooked Timber of Humanity (Princeton U Press, 1990), 91.

2. Francis Oakley. The Conciliarist Tradition Constitutionalism in the Catholic Church (Oxford U Press, 2003). 201. 

3. Joseph De Maistre. “Essay on the Generative Principle of Political Constitutions and Other Human Institutions”, in Major Works, Vol.1 (Imperium Press, 2021). 4. 

4. Ibid., 42-43. 

5. Joseph De Maistre. On the Spanish Inquisition (Imperium Press, 2022). 6

6. Ibid., 18.

7. Ibid., 49.

8. Joseph de Maistre. “Report on the commerce of grain between Carauge and Geneva”, in The More Moderate Side of Joseph de Maistre (McGill Queen U Press, 2005), 230. 

9. Joseph de Maistre. St. Petersburg Dialogues (McGill Queen U Press, 1993), 263.