Sullivan & Connolly v. Trump 243 US 183 (2016)

Two recent essays have called the sovereignty of the people—the founding, central principle of American politics—into serious question, and with it the notion that democracy is either governable or desirable. Both claim that Donald Trump’s ascendance is the occasion for their interrogations. In New York Magazine, Andrew Sullivan argues that the Donald is the epitome of the tyrant as Plato understood him—as the inevitable offspring of a centrifugal, democratic society with no limits on individual choices or voter preferences, and no intellectual guidance from elites. In the LA Review of Books, Brian Connolly argues that Trump is the return of the repressed, as psychoanalysis understood the imaginary Law of the Father—the castrating will of our dreams.

Connolly makes the better case by insisting that the various attractions of Trump reach beyond the rational, toward unmodulated infantile desires, and therefore must be explained by enlisting Freud and Lacan, not to mention Schmitt, Lefort, Hardt & Negri. He gives us a hilarious post-structuralist accounting of contemporary political crisis. Sullivan gives us a somber, serenely classical accounting of the same phenomenon which leaves out the unconscious, inarticulate urges that constitute—they do not exceed or enliven—modern politics.

But both conclude on the same note: we’re fucked unless we debunk the sovereignty of the people, understood either as unchecked majority rule (Sullivan) or the “latent desire of the people to be subjected to some sovereign authority” (Connolly). Note that this conclusion comes from opposite ends of western intellectual history, indeed from the beginning and the end of western philosophy. Note also that it follows not from any study of modern politics, you know, like what actually happened in between Plato and Lefort—from, say, 1640 to 1970—but rather from theoretical speculations about the symbolic properties of Donald Trump.

Don’t get me wrong, I have nothing against theory as such (I teach the stuff). But when it’s undisciplined by historical questions and methods, it becomes mere license for more theoretical speculation. Then it might as well be metaphysics. So, let me address this question of sovereignty, this problem of democracy, by consulting “original intent”—yeah, those guys.

II

In early 1787, having made a detailed study of republics ancient and modern, James Madison wrote a memo to himself called “Vices of the Political System of the United States.” This was a long rough draft of the famous Federalist #10. Here he worried about the multiplicity, the mutability, and the injustice of the laws passed by the various states under the diplomatic compact called the Articles of Confederation. But the big problem was the will of the people itself—an “elective despotism,” as Thomas Jefferson himself put it in 1783.

“If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental question of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”

Sound familiar? Andrew Sullivan just got there: “Democracy, for [Plato], I discovered, was a political system of maximal freedom and equality, where every lifestyle is allowed and public offices are filled by lottery. And the longer a democracy lasted, Plato argued, the more democratic it would become. Its freedoms would multiply; its equality spread. . . . And when all the barriers to equality, formal and informal, have been removed; when everyone is equal; when elites are despised and full license is established to do ‘whatever one wants,” you arrive at what might be called late-stage democracy. There is no kowtowing to authority here, let alone to political experience or expertise.”

Uh oh. Unlike Sullivan, however, Madison persevered because he believed in the sovereignty of the people as the sine qua non of republican government. He assumed that the defense of majority rule, and with it the possibility of a legitimate exercise of state power, required a logic that wasn’t circular—a logic that didn’t justify the power of the state, as expressed in law, by reference to power as such, in this instance the power of numbers.

In sum, Madison knew as well as Sullivan that a majority could be as despotic as Plato’s tyrant. What was to be done? How to contain or combat this despotic potential and thus preserve the substance and legitimacy of popular government? Neither a “prudent regard” for the common good nor “respect for character”—for elite opinion—was adequate, according to Madison. But piety was no help, either, because, like other “passions,” it could easily inflame oppressive majorities.

“The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other Passions, is increased by the sympathy of a multitude.”

So, the way to establish a republic on enduring foundations was not to prevent but to prolong the process of majority formation, to devise, as Madison put it, “such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions.”

In place of prudence and character and piety—instead of respect for elite opinion and its attendant hierarchies—Madison proposed, then, to put the structural constraints of a constitution. By this I don’t mean only that he proposed a “limited government” circumscribed by rights guaranteed to individuals, or prerogatives reserved to the states (the Bill of Rights), as enforced by a judiciary that recognized the federalist separation of powers. Of course he did. I mean also that his constitutional design, his “modification of the Sovereignty,” inscribed a difference, and a debate, between what he called “the two cardinal objects of Government, the rights of persons and the rights of property.”

It did so by adopting a “middle mode” through which the legislative branch was divided against itself, and each house became the effective voice of one of those “cardinal objects.” In this sense, Madison proposed to enlist historical time as the bulwark of justice in a society that would inevitably be riven by the differences between what he called “the Class with, and the Class without property”—he proposed to indefinitely prolong the debate between the social classes that had already appeared, in the 18th century, as the bearers of these different rights. The class without property would defend the rights of persons in and through the lower house of the legislatures, including the Congress itself. The class that possessed it would defend the rights of property in the upper house. But both houses would be subject to periodic electoral discovery and pressure.

III

In a critique of Jefferson’s draft of a constitution for Virginia, Madison explained the historical grounds for this division of labor.

“This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property. The former will be sufficiently guarded by one branch, the latter more particularly by the other. Give all power to property, and the indigent will be oppressed. Give it the latter and the effect may be transposed. Give a defensive share to each and each will be secure. The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution [because the bulk of the revolutionary coalition was small holders].

“In all the Governments which were considered as beacons to republican patriots & lawgivers the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population & American property, the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified.

“Experience and investigation have however produced more correct ideas on the subject. [That is, the study of history has forced the revision of classical and modern republican theory, Aristotle to Montesquieu. As he said in the constitutional convention on June 19, 1787, “According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority.”]

“It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property. It must be foreseen that America, and Kentucky itself will by degrees arrive at this stage of Society, that is some parts of the Union, a very great advance is already made towards it [Kentucky was shorthand for the most verdant lands on the trans-Appalachian frontier, a new Garden of Eden].

“It is well understood that interest leads to injustice as well where the opportunity is presented in bodies of men as to individuals; to an interested majority in a Republic, as to the interested minority in any other form of Government. The time to guard against this danger is at the first forming of the Constitution, and in the present state of population when the bulk of the people have a sufficient interest in possession or in prospect to be attached to the rights of property, without being insufficiently attached to the rights of persons. Liberty not less than justice pleads for the policy here recommended.

“If all power be suffered to slide into hands not interested in the rights of property which must be the case whenever a majority fall under that description, one of two things cannot fail to happen; either they will unite against the other description and become the dupes & instruments of ambition, or their poverty & dependence will render them the necessary instruments of wealth. In either case liberty will be subverted: in the first by a despotism growing out of anarchy; in the second, by an oligarchy founded on corruption.”

That last paragraph sounds like a Platonic prophecy along the lines drawn by Andrew Sullivan. Except that Madison never doubted that majority rule was the necessary if not the sufficient condition of popular government. In the convention, on June 26, 1787, he said this:

“An increase of population will of necessity increase the proportion of those who labor under all the hardships of life & secretly sigh for a more distribution of its blessings. These may in time outnumber those who are [placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. How is this danger to be guarded against on republican principles?” In other words, how to preserve both liberty and equality? How to treat both the rights of property and the rights of persons as commensurable commitments? How to embrace majority rule without enabling an “elective despotism”?

Nor did Madison ever think that a “natural aristocracy” of well-educated men with good character—an elite—could contain or guide the unruly energies of the proletarian masses. He always believed that the constitutional structures he designed would convert passions to interests, and that insofar as economic development created more and more interests, an oligarchy founded on corruption was unlikely if not impossible.

IV

He was more or less correct until our own time. Even in the so-called Gilded Age, when the robber barons bestrode the earth, the rights of persons and the rights of property were reconciled at the law and in the larger political debates of the time, which culminated in the remarkable reform movements and legislation of the Progressive Era. In our time, at the moment variegated social movements have successfully asserted the rights of persons—all persons, not just white males—the Supreme Court has announced that the rights of property are identical to the rights of persons, thus repudiating the “original intent” of James Madison, a founder if ever there was one.

Yes, corporations have enjoyed the standing of “persons” entitled to due process at the law since the Santa Clara decision of 1886; but until Citizens United in 2010, the Supreme Court held to the distinction between natural and corporate persons enunciated in the 1906 decision in Northwestern National Insurance Co. v. Riggs 203 US 243 (1906), and accordingly denied that corporate political expenditures were a form of free speech to be protected by the 1st Amendment. Sullivan is right to suggest that the power of money in politics is overrated. He is wrong to suggest that its power is negligible, or to deny that an oligarchy founded on corruption has been validated by the Court.

And he is wrong to suggest that Donald Trump is the beneficiary of “late-democracy,” when unchecked majorities supposedly trample decency, technical expertise, higher purpose—goods available where elite opinion is on sale. If majorities mattered that much, the Affordable Care Act would be a single-payer system, or some such extension of Medicare. If majorities mattered that much, the Republican Party’s rearguard actions against civil rights, gender equity, sexual freedoms, etc.—the content of the cultural revolution of our time—couldn’t have stalled social progress for so long. If majorities mattered that much, George W. Bush wouldn’t have been elected president, and couldn’t have started a pointless, pitiless war.

Sullivan’s detour into history comes late, in the 21st century, and when he gets there his fundamental complaint is against “media democracy,” the culmination and emblem of the late-stage kind. At first the Internet held political promise and journalistic possibilities, but by now it’s a melee at best: “The web’s algorithms all but removed any editorial judgment . . . And what fuels this [melee] is precisely what the Founders feared about democratic culture: feeling, emotion, and narcissism, rather than reason, empiricism, and public-spiritedness.”

Barack Obama was the first beneficiary of media democracy, according to this tragic account. Trump is the next: “He intuitively grasped the vanishing authority of American political and media elites.”

This is the pivot of the argument: chaos and demagogues rule when elites cannot. Sullivan cites Sinclair Lewis’s It Can’t Happen Here (1935) to chide himself and his fellow “respectables” for abdicating their responsibility to govern. “’We Respectables’ deserve a comeuppance. The vital and valid lesson the Trump phenomenon is that if elites cannot govern by compromise, someone outside will eventually try to govern by popular passion and brute force.”

Sullivan admits that since 2001, elites on Wall Street and in Washington have brought us economic, social, and political catastrophe on a global scale. But he ignores the simple fact that what he calls the “media elites”—from the New York Times and the New Yorker to The Atlantic and The New Republic—have cheered them on. As part of that crew, he did he, too, in 2003, by supporting Bush’s insane martial adventure in Iraq.

Why, then, should we want these people telling us what to do? Sullivan has the answer! Sort of. “But elites still matter in a democracy. They matter not because they are democracy’s enemy but because they provide the critical ingredient to save democracy from itself.”

And that ingredient? Sullivan never names it. Instead, he claims that to support the “demagogue of the left, Bernie Sanders,” is to play into Trump’s hand, and recommends solidarity with Republicans who would deny the Donald the nomination. Thanks, Andrew, really useful advice. Who are you offering it to?

V

I’ll spend less time with Brian Connolly’s essay because I enjoyed it so much and—full disclosure—because he’s a former student of mine at Rutgers. I don’t want to get the reputation of a castrating father, the role Connolly has devised for the Donald.

Now I’m as much an admirer of Freud and Lacan (also Lefort or Hardt & Negri) as Connolly is. But after reading this piece, I still don’t see how to apply Carl Schmitt’s notions of sovereignty and the “exception” to Trump except as hyperbole, just as I don’t see how Sullivan’s citation of Plato permits a portrayal of Trump as the tyrant in waiting.

The sovereignty of the people, as the founders conceived it, was never something indivisible, as in Dick Cheney’s dreams of a “unitary executive.” They sponsored a dispersal of power from the state to society, and from the center to the periphery, in two novel ways. On the hand, they claimed that sovereignty was “out of doors,” with the people in all their diversity and idiocy. Its address wasn’t the king, or the state, or the cabinet, or the ministers, or the president, or the legislature—its permanent residence was civil society. On the other hand, they treated the territories not as conquered, colonized hinterland to be merely exploited for the enrichment of the original states, but as “new countries,” states that would, upon admission to the Union, function as equals in the national government. They dismantled what Connolly calls the “colonial structure of sovereignty.”

As Connolly’s quote from Claude Lefort illustrates quite forcefully, and as his citation of Hardt & Negri would suggest, the idea of democracy and its alter ego, the commitment to popular sovereignty, are predicated on this very dispersal of power. Here’s Lefort on democracy: it “inaugurates a history in which people experience a fundamental indeterminacy as to the basis of power, law and knowledge.”

Connolly claims that the tension between freedom and subjection characterizes the issue of sovereignty, whether of a nation or an individual, and has now reached the point where subjection to the Primal Father feels like freedom. But here’s the thing. There is no freedom without subjection, as Tom Paine pointed out in 1776—absent society, absent a division of labor, you might as well be an animal, and even they run in packs. In the 19th century, and not until then, freedom finally came to mean self-rule, but that meant obedience to rules of your own making.

The sovereign, no less punishing image produced by this new figure—the American Adam, as we came to know him—was the self-made man, the father of himself. Freedom suddenly meant self-discipline, subjection to self-imposed limits and commitment to self-determined goals.

The question of sovereignty disappears in the last half of Connolly’s essay, much to my relief and delight; there it gets replaced by the fear of castration. There are 15 mentions of castration in the last nine pages, all of them designed to prove that we, the people, or at any rate Trump supporters, love the phallus wielded by this primal father, the “real but impossible masculine,” the guy who goes around castrating everybody in sight, from female Fox News reporters to pathetic Republican candidates like Marco and Jeb. For me, a who guy diagnoses castration anxiety in machinists of the early 20th century, this makes sense, but there are only about eight others outside of Zizek’s circle who might agree.

Still, I think Connolly is onto something, because, unlike Sullivan, he’s listening to the music as well as hearing the lyrics.

 

 

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