POST-CONSTITUTIONAL AMERICA

WELCOME (BACK) TO SCHMITT’S WORLD

Your regularly scheduled programming, on Walker’s history of the German hometowns, is interrupted for this important message. Well, importantish. Regular readers here know that I tend to avoid commenting on current affairs, but the Texas border situation seems to be too on the nose of some of the issues which are the mother’s milk of this substack for me to entirely avoid commenting on these events. Much of what I’ll have to say points to a larger discussion, which I’ve only occasionally brushed against: the inherent relationship between the right and nationalism. It’s not I think what many assume; but we’ll leave that larger discussion for another time. I’ll irritate more than enough people with what I have to say here already.

My reading of the situation is that Abbott's action is likely “unconstitutional.” Or to be more accurate, it may well be “constitutional,” while almost certainly being “un-Constitutional.” There’s room for dispute, certainly, but I think it’s more than plausible that an honest and rigorously originalist interpretation come to such a conclusion. The Supreme Court of course was correct to rule that the Constitution establishes international borders within the jurisdiction of the federal government. In their defense, Abbott and his supporters cite two passages from the Constitution: Article 1, sec. 10 and Article 4, sec 4. Have you looked at the wording of these?

The latter says that the federation “shall protect” each of the states “against Invasion.” It provides though no definition of invasion. Perhaps because the matter is expanded upon further in the former section, where it says that no State shall: “enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” So, while again, there’s no explicit definition of invasion, the prospect is raised directly in relation to “another state” or a “foreign Power.” I’ll concede that that wording isn’t a hundred percent clearcut. But it’s also perfectly plausible that the most originalist Supreme Court justice would interpret the concept of “Invasion” or “invaded” as being intended by the framers to refer to “another state” or a “foreign Power.” In other words, it refers to an invasion by a sovereign entity, as such would be conceived in the late 18^th century.

If your rebuttal is that the framers couldn’t have imagined a situation in which millions of people were flooding across the border: yes, I agree. And that’s kind of my main point, here. The interpretative gaming of a piece of paper has for too long been the go-to legitimacy shelter of the American political. And while I don’t always do so, in this context I am very much using “political” in Carl Schmitt’s definition of that term. That piece of paper has long been imagined as the means of papering over the friend-enemy conflict as it increasingly unfolded during the history of the United States. Though of course the Constitution has long been conceived very differently by each side. And, in a certain sense, the left (i.e., spatialists, the managerial class) have had a more realistic interpretation of “the Constitution,” even if that interpretation has consistently been self-serving and leveraged for gemeinschaft destroying purposes.  

The fact is, there has always been a fundamental flaw in American rightwing/conservative thought about “the Constitution.” So much of political language has been distorted by the American experience. Liberal, conservative, right, left, federalism, pluralism are among the terms that have suffered serious semantic damage as a result of being run through the political meaning distortion field of U.S. political history. “Constitution” is another such victim of that field. Going back, at least, to the Middle Ages, it has been understood that a society's constitution is the aggregate of its norms and customs, what it considers moral and effective. This is why scholars use phrases like “the Medieval constitution” and “the English constitution.” It though is precisely living tradition that sustains those norms and customs. The notion of attempting to imbed them eternally through written documentation was only ever folly at best.

Societies change; traditions ever so subtly enact those changes. Attempting to escape change through written entrenchment of the constitution was all too likely to blind too many to empirical social processes through a deluded sense of false security. But more fundamentally, codified law is always an attempt to escape, suppress, or control the real source of law: the customs and norms of organic communities. I'm currently reading Paolo Grossi's brilliant book, A History of European Law. I'll have much more to say about this fascinating book in future posts. For now, it suffices to observe a running theme through his discussion of modernity on how aspiring sovereigns – initially monarchs, later nation states – enacted their goals of gaining greater power through the codification of the societies' constitution: turning traditional and communal norms and customs into the written word authorized by the aspiring sovereign. In this way the sovereign aspired to take control of the law, with all the potential power that entailed.

The U.S. Constitution was always a datum in that historical current. Among the sovereign facts the Constitution established was a very particular, centralist definition of federalism. I'm on record as lamenting the direction that the 1787-89 Constitution took American federalism (see part three of my new book, A Plea for Time in the Phenotype Wars). However, no written document, no attempt to freeze a constitution in time, however revered, can halt the march of the phenotype wars. The current contradiction was always inevitable. No doubt all sides will continue for some time, as they long have, to appeal for legitimacy to their own interpretation of the sclerotic document. In reality, though, we're now back in Schmitt's world.

In my always humble opinion, it is time for rightwing America (such as it is) to face the fact that a written constitution is only as good as the social consensus that created and sustained it. That consensus is long over. You're now back into Schmitt's political situation where power and will determine the resolution of the political. Abbott’s success ultimately will not hinge on his Constitutional claims (though those may be tactically relevant), but upon the ability of the coalition of State’s supporting Texas to impose their will upon the federal government.

I hope that the current U.S. battleground of the phenotype wars will not result in a comparable degree of violence and misery as occurred at the battlefield upon which Schmitt developed his analysis of the political. That legacy is a stain upon the memory of the 20th century. I have children and a grandchild. For their sake I maintain optimism of the will. Pessimism of the intellect though quietly gnaws away at such optimism.

However the current Texas border conflict is resolved, the United States are now in a post-Constitutional world – regardless of what pretense of legitimacy-appeals we’ll no doubt continue to see – and the dangers in that situation are immense. But history has taken its toll; the phenotype wars inexorably advance: only fools hide their heads in the sand. This is why the ever so modest political suggestions that I have urged, in my new book, entail strategies that might yet soften our landing in the appointment with reality which we are approaching. And indeed, Abbott’s actions on the border might well be read as a contribution to just such strategies. Only time will tell, as always.  

New readers who want to understand this analysis more deeply, please…

Or, read my new book, A Plea for Time in the Phenotype Wars.

And if you know of anyone else who might benefit from such discussions, please…