Rob Hunter

Kavanaugh and the Constitutionalization of Politics

A longer version of this essay was posted on Legal Form on October 9, 2018.

(Updated October 7)

Contradiction is the recurring motif in the current Supreme Court nomination battle. Nowhere is this clearer than in the simultaneous magnification and diminution of the trauma of sexual violence. With their insistence that accusers’ accounts must be examined closely for any possible defect, and that the accused must never not have our sympathy, conservatives manage both to obsess over sexual assault and to trivialize it. We have been reminded forcefully of patriarchy’s enduring demands. It obliges impossible performances of unimpeachable victimhood from survivors who often themselves seem to be in the dock, all while insisting on the hermeneutics of charity and solicitousness for the accused.

A second, rather more banal contradiction is unfolding has unfolded against this backdrop: Brett Kavanaugh’s likely elevation to the ranks of the cloistered gerontocrats on the Supreme Court, despite widespread opprobrium and disgust (and in the wake of a sham investigation by an intelligence agency rehabilitated in many liberals’ minds as a redoubt of resistance). In confirming Kavanaugh, the Senate is fulfilling fulfilled one of the few remaining major functions of a national legislature under contemporary global constitutionalism. The governing coalition — in the sui generis absurdity of the United States, a single party — seeks the entrenchment of its political program through implantation in the judicial, administrative, and bureaucratic organs of the state. A majority-Republican Court is one that will more reliably protect and nurture conservative policies — and endow them with the patina of constitutional legitimacy.

In this respect, at least, constitutional practice in the United States is in alignment with much of the rest of the planet. The constitutional form has conquered the world; most states possess written constitutions, and courts practicing constitutional review are now common across democratic polities (liberal or otherwise). The practical effect of the judicialization of politics (or, in the case of transnational institutions such as the European Union, the administrativization of politics) is to buffer policy from popular contestation — an increasingly necessary precaution taken on behalf of measures for which durable mass constituencies cannot reliably be mustered, such as the criminalization of abortion in the U.S. or the imposition of austerity budgets in the E.U.

Constitutions are resistant to change by design. They are meant to reproduce political order by constraining the scope of legitimate conflict. This is not a neutral feature of constitutions. Constitutionalism’s historical development is commingled with that of capitalism, and constitutional regimes tend to shield privileged social relations — of production and reproduction — from public power. In the battle over Kavanaugh, conservatives have been clear-sighted and disciplined in their efforts to strengthen that shield. They seek to secure the juridical foundations of an increasingly crisis-ridden regime of accumulation, but they are also unabashed in their determination that the American constitutional order will continue to protect — and be sustained by — the prerogatives of white propertied men.

Kavanaugh’s likely confirmation is neither a cause nor a symptom of judicial illegitimacy; it is a textbook example of the constitutionalization (and hence de-democratization) of politics.

Interest Aggregation, Preference Expression, and the Democrats

Many elite liberals and Democratic operatives are embracing the bogus narrative that Hillary Clinton’s defeat resulted from a failure to pursue a median voter who is imagined to be an economically distressed white worker (and is believed to be drawn to Trump’s racism and xenophobia). There are several useful critiques of this line of thought out there – the most potent being this LARB squib by Katherine Franke. What I want to consider briefly in this post (and hopefully more thoroughly in a later post) is what the emergence of this line says about how prominent Democratic politicians and their epigones think about politics.

I want to suggest that, in part, the claim that Clinton lost because she failed to court Trump’s racist (and, allegedly, predominantly working class) base trades on rather impoverished conceptions of interest aggregation and interest definition. “Interest aggregation” refers to the process by which expressions of political preferences are translated into coherent policy regimes or party agendas. (Related concepts like interest definition, and the Gramscian notion of “political articulation,” refer to the ways in which political actors become aware of what their interests are, or what they take them to be; in the work of various contemporary theorists of radical democracy, such processes are dialectial or dialogic – it is rarely the case that any actor’s preferences are unchanged over the course of political activity.) One of the major functions of political parties is to serve as sites of interest aggregation, in which members’ and constituents’ preferences are identified, (re-)defined, and collected into platforms, policy programs, and so on.

It seems to me that such activities are best understood dialectically, in which all participants are affected and their preferences and interests are transformed through processes of interest aggregation. They are also temporally and spatially specific – it matters when and where political articulation takes place, and for how long. But the model of interest aggregation implicit in Democratic appeals to shift the party even further to the right appears to me to be unidirectional and synchronic. It seems that, on this view, preferences are exogenous to politics, expressed independently of one another, and are concatenated spontaneously.

To believe that preferences are exogneous to politics is to believe that they are prepolitical. In other words, they are brute facts about individual persons’ psychologies – you take them or you leave them. This would seem to be the worldview of the prototypical Democratic operative. How else to explain claims that Clinton lost because she wasn’t racist enough? If you don’t think that preferences may be shaped, transformed, or modified through political participation – one-on-one encounters, collective action, or even mere stump speeches – then you’re likely to conclude from electoral failure that the only explanation is that you failed to appeal to the median voter.

The belief that preferences are expressed independently of one another is something that flows from the belief that preferences are exogenous to politics. If you think that preferences are brute facts, locked inside individual brains, then there’s little reason to suppose that voting is a social act, or indeed that voters typically consider any preferences other than their own. The evidence suggests otherwise – there’s a large literature in American political science which strongly suggests that Americans engage in sociotropic voting, e.g., they consider the ways in which they believe others are affected by factors such as unemployment and economic performance – but it’s pretty much axiomatic in the Democrats’ national electoral strategy that individual voters only want to hear about what a candidate will do for them as individuals.

The Sturm und Drang around Trump’s contested mandate – the insistence that, despite losing the election in formal terms, Clinton is the winner in virtue of her greater popular vote count; the shambolic but energetic mobilization of protests and direct actions against Trump and his legatees – indicates that few observers and fewer participants in politics think that preferences are concatenated spontaneously: no one thinks that voters’ preferences are collected in one fell swoop at the polls, and then transmitted instantly to policy makers. Trump’s agenda, if it may be credited with the coherence and substance that the term implies, will encounter sustained resistance of varying degrees of effectiveness. As a bloc, conservative Republicans face startingly few formal obsctacles standing athwart the path toward the fulfillment of their policy objectives, and yet we may hope that they will not be able to do so quietly and in an uncontested way.

Nevertheless something like a belief in the spontaneous concatenation of expressed preferences seems to actuate the strategic thought of Democrats who fault Clinton for failing to ape Trump’s campaign strategy. They can only wring their hands and talk about what might have been, and are demonstrating their refusal to learn any lessons about the ongoing crisis of capitalist democracy. As such, they appear to regard four years of Trumpism as a fait accopmli. Apparently it isn’t possible to change one’s political fortunes by engaging in the difficult work of organizing coalitions, engaging persuadable potential allies and articulating a vision of how shared interests can be met through the pursuit of power. According to the view taken by elite Democrats, the terrain of struggle never shifts or changes, and the work of politics consists in courting an electorate whose views and self-understandings remain unchanged by other social forces.

A rictus of despair lies underneath the stern mask of technocratic competence put on by Democrats who, for the sake of a flawed approach to running election campaigns, urge a return to retrograde politics. They have no understanding of how interests are constituted, still less how they might be articulated, redefined, and transformed through collective political action. They are not interested in shifting their positions, in no small part because they have convinced themselves that voters’ own preferences can never be shifted. They have nothing to offer to us.

The Pathologies of Right-Wing Libertarianism

I have a new essay on the theoretical foundations of contemporary right-wing libertarianism up at Jacobin:

By elevating capitalist rationality above all other forms of social organizing, and by dismissing the public authority of democratic institutions as provisional and limited at best, libertarians advocate for conservatism, for capitulation to elites, and ultimately for the rejection of political activity. Libertarian political theory is in fact a potent form of anti-politics.

Cut-and-Run Liberalism

I wrote on President Obama’s selection of Merrick Garland as his Supreme Court nominee for Jacobin:

Obama’s decision to nominate Garland foreshadows the politics of accommodation likely to be pursued by the presumptive Democratic nominee. Both Obama and Clinton personify American liberalism — an ideology premised on a disdain for political antagonism and a fear of unresolved disagreement.

The nomination of Merrick Garland is only the latest illustration of this tendency in liberalism. Rather than articulate alternatives, state aims, and build coalitions to pursue them, liberals allow their opponents to define the terms of debate for them. Rather than seek the support and solidarity of those to their left, they await the arrival of conservatives they believe they can reason with.