legal order

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.

Name and Liberty. by Gerardo Muñoz

Back in the fall of 2020, we discussed a book entitled Intifada: una topología de la imaginación popular (2020), written by Rodrigo Karmy, which considered the implications between the forms of contemporary revolts for the common imagination. It has been said with good reasons that the health-administrative controls deployed during the COVID-19 brought to a halt the high tides of revolts against the experiential discontent in the social fabric. The wearing out and domestication of experience has proved, at least for now, its stealth efficacy and unilateral success. However, what some of us did not see at the time was that this energy over protracted containment was also being waged at the very substance of language. This has now come forth in the wake of recent events at university campuses where administrative authorities, opinion writers, and legal analysts have suggested that a particular word, “intifada”, should be proscribed and effaced from campus life. One should not waste time considering the etymology, semantic reach, and political deployment of this term – for this there is already Karmy’s elegant and dense articulation of the term.

What has completely gone unnoticed in the current chatter about “intifada” is the fact that the full realization of a “rhetorical society” entails, necessarily, an ongoing preventive civil war over what is perceived as “sayable”. This means that containment does not only reach to the moment the realization of action (and its reason or justification of an act); but rather that it fully extends about what might be said potentially. The various calls – on the left and right, from the legal analysts to the pundits and some of the academic administrations – against “intifada” is not merely substantive (or at least it does not stop at this specific threshold); it is a preventive reaction against the very possibility of the name and naming. The act of naming is intimately related to the exterior events in the world; therefore, the proscription of naming is one more step in the domestication process in which the human specie is tore not only from establishing a contact with the world, but also incapable of accessing it through the specific density of naming.  

The paradoxical situation of this interregnum is that, on one hand, the collapse of modern political authority that founds the Liberal State (non veritas facit legem) as an overcoming of language and truths, has led straight into the rhetoric inflation where naming is sacrificed and language codified into a second order normativity that imposes arbitrary obligations on what is licit and illicit. This is why the First Amendment of the United States Constitution – and total constitutionalism writ large – becomes the construction zone that allows the contingent justification of “time, place, and manner” under the civil right of “freedom of speech”, which turns naming into an ominous and terrible shadow; an unwarranted apostrophe. The almost anecdotal proscription over “intifada” reveals the heteronomic dominion over interiority; that is, over the possibility of saying.

I can recall how Quentin Skinner told some of us at Princeton years ago that a fundamental characteristic of unfreedom, broadly considered, begins when you think twice about whether it is convenient or prudent to say what you think. Of course, I do not think he favored a position of imprudence and generalized cacophony. I take it that he meant that the end of liberty begins when the possibility of naming disappears: “Between the motion and the act falls the shadow”. Fixation and transparency is the evolving grammar of the day. Can language subsist in such an impoverished minimum overseen by the general governmental logistics? As a preamble, one can say that in the current moment any conception of liberty begins with the opaque exercise of naming.