Supreme Court – Infrapolitical Reflections

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.

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.

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.