TELOSscope: The Telos Press Blog

Telos 160 (Fall 2012): Before the Law

Telos 160 (Fall 2012) is now available for purchase here.

“All rational liberal philosophic positions have lost their significance and power. One may deplore this but I for one cannot bring myself to clinging to philosophic positions which have been shown to be inadequate.”

—Leo Strauss, “Existentialism”[1]

The Supreme Court decision on the Patient Protection and Affordable Care Act, the Obama administration’s signature legislation on health care, attracted exceptional public attention, and rightly so. Health is a vital concern, and the topic is charged with acerbic party politics. More importantly, the terms of the debate give evidence of a widespread awareness, across the political spectrum, that the case has raised questions about the scope of government power and the permissible reach of legislation. If there is one point on which opponents have agreed, it is this recognition of the core importance of the outcome for defining the relationship of the state to society. Both proponents of cradle-to-grave government care and advocates of a strictly limited state power (whether in individualist, free-market, or communitarian modes) recognize that the health-care outcome could be a decisive moment in the evolution of American society.

Now the Court has spoken, but the decision itself split too many differences for anyone to claim a clear win. The individual mandate stands, but as a tax, not a penalty, and as a tax it may face the threat of review in a congressional reconciliation process. Meanwhile, the Medicaid expansion appears to be blocked. The electoral political consequences are blurry, and the prospects of implementing the policy even murkier. Yet in terms of the precedent-setting argument for the relationship between state and society, the consequences are surely profound.

This decision demarcated limits of government power, reminding us of the priority of existential human action—how we live with others and as individuals—over and above the efforts by the state to manage our life-worlds. Whatever transpires in the halls of Congress or, for that matter, even in the Court, there is substance to our lives, the vitality of community, that is not the invention of government offices or judicial principles. It is not merely produced by experts, defined by discourse, or contingent on statute. Our living precedes all that, thriving in a space that is, literally, before the law.

Chief Justice Roberts clarified that even the Supreme Court is not supreme, not the ultimate voice in the political life of the people. He offered instead a declaration of judicial restraint, antithetical to the model of judicial activism, that is part and parcel of a larger philosophical edifice involving limitations on government more broadly. As far as judicial pronouncements go, Roberts underscored that the courts have to defer to democratic political will: “Our permissive reading of these [enumerated] powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”[2] There you have it: the role of the Court does not involve deciding on the quality of policy, but only on its constitutional legitimacy. Presumably many policy structures could fit under that broad umbrella, and it is a political, not a judicial, prerogative to choose among them. That choice belongs first of all to elected leaders—elections have consequences, as the President famously put it—but secondly, and ultimately, to the people. The Court therefore does not protect the people, but only the Constitution. Roberts continues immediately to reassert the role of the Court in blocking unwarranted actions by Congress—not because they are bad policy but exclusively because they are found to abrogate the Constitution: “And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.” In other words, the discipline of limited government applies both to the Court and to Congress, and Roberts addresses both side by side. Indeed, he returns at the end of his opinion to reassert these constraints on state power in general and the role of the branches of government in particular: “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”[3]

Roberts’s vindication of limited government will surely be viewed as “conservative,” although it is not immediately obvious that “conservative” is the appropriate characterization of the insistence on the priority of the will of the “people.” Yet perhaps the key element here is not the self-evidently democratic designation that final judgment is reserved for the people but rather that there is a substantive dimension of political life that precedes the normative and regulative activities of the empirical state, and this in turn opens the door to the pursuit of a political theory prior to the state or even at odds with the state. This issue of Telos therefore opens with Robert Miner’s insightful survey of Leo Strauss, his indebtedness to Nietzsche’s critique of liberalism, and his apprehensions that neither Carl Schmitt nor Martin Heidegger was sufficiently probing in his diagnosis of modernity. Thus Miner cites Strauss in a 1933 letter to Karl Löwith: “I am reading Caesar’s Commentaries with deeper understanding, and I think about Virgil: Tu regere imperio . . . parcere subjectis et debellare superbos [‘May you remember, Roman, to rule the peoples with an empire. These will be your arts: to impose the custom of peace, to spare the subjected and war down the proud‘]. There exists no reason to crawl to the cross, to liberalism’s cross as well, as long as somewhere in the world there yet glimmers a spark of the Roman idea.” That “Roman idea” is a stand-in for a quality of ruling, and therefore a marker too for politics in general, at odds with liberalism. Strauss’s conservatism involves a pursuit of integrity and virtue, which he ultimately deems lacking both in liberal modernity and in its insufficient critics, like Heidegger, as Miner demonstrates.

The challenge of the priority of the political underpins the analytic overview that Qi Zheng provides for the reception of Carl Schmitt’s work in China. This systematic account of differing responses to Schmitt explains some initial contrasts with the western reception: while western liberals, including left-liberals, largely deplore Schmitt (and hardly surprisingly, given his explicit critiques of liberalism), in China Schmitt becomes available to support leftist criticisms of neoliberal policies and, ultimately, appeals for a return to a strong state. Yet Zheng leads us to a much more important aspect, the implicitly revolutionary impact of Schmitt in the pending transition in China. Any new constitutional order depends ultimately on that which is before the constitution, an act of political will formation by the sovereign, which can now only mean the people. The significance of Schmitt’s political philosophy in China “lies in demonstrating the fact that the founding of a constitutional order is based on the founding of a political order. The transition of a political form requires a fundamental political decision by the sovereign people. The political transition toward a democratic state cannot be a reform under the framework of a current constitutional order.”

A similar pursuit of politics beyond liberal institutions resonates in Kyle Gingerich Hiebert’s comparative treatment of Schmitt and Johann Baptist Metz, the major German Catholic theologian whose work involves extensive engagement with Frankfurt School thinking and who contributed to the new theology of the 1970s, including liberation theology. Both Schmitt and Metz explore the metaphysical and religious investments that precede government, which in both cases are replete with the potential of violence in light of an apocalyptic horizon. Schmitt’s scene of enmity mirrors Metz’s descriptions of danger, although, for Metz, typically associated with a cultural-critical or even cultural-transformative dimension. In Hiebert’s words, “Schmitt represents a kind of apocalyptic preservation, while Metz represents a kind of apocalyptic disruption. Viewed in this way, it may still be too much to claim that Metz is the religious supplement to Schmitt; however it is clear from the foregoing analysis that they stand much closer to each other than currently realized.” If they stand close to each other, then surely in terms of their doubts regarding bourgeois normalcy: for Schmitt a neutralization of political imperatives, for Metz a falling off from the power of revelation and Gospel. Yet we should not forget that for Strauss, at least in Miner’s account, Schmitt’s adversariality never reached as far as his opponents claimed.

James Hellings captures a similar ambiguity in Adorno. The caricatures of Adorno’s quietism, the allegations of his lack of politics, are well-known misunderstandings, but they remain indelible in the incorrigible academy. Hellings recovers the radicalism of Adorno’s advocacy for the work of art as a site of visceral criticism. Here too a space is carved out that precedes—and surpasses—the conventional normativity of quotidian liberalism: “Adorno valued modern advanced art for its distancing effect, for its great refusal, for becoming society’s Other. Art works well when complex antagonistic fragments crystallize into a force field confronting, critiquing, and transforming the damaged life of society. . . . Art, therefore, like the bottle of messages, is a container for truth and hope addressed and sent in spite of the aggressive indifference of the world, and aesthetics becomes, here at least, the privileged other of critical theory.” Hellings weaves a compelling account that links Adorno’s “message in a bottle” to Edgar Allen Poe, Caspar David Friedrich, and, in a particularly fascinating way, Bas Jan Aders, the Dutch performance artist, lost at sea somewhere between Cape Cod and Ireland in 1975 as par of his work In Search of the Miraculous.

Geoffrey Holsclaw’s title names the agenda—”At a Distance to the State”—as he compares two thinkers, Hobbes at the origin of the modern state and Badiou facing its current restructuring. In particular he shows how the internal logic of Hobbes’s approach pushes to the establishment of the singularity of the state, while Badiou’s thinking leads to the notion of multiplicity. This difference mirrors alternative relations to mathematics: “For Hobbes, the virtue of mathematics is essentially in its modeling of a method beginning from clearly defined principles, resulting in the state clearly defining rules for society. Yet for Badiou, mathematics does not proceed by definition but by axiomatic prescription, which . . . culminates in Badiou’s distance from the state.” If the older state, whether absolutist or democratic, was the vehicle for representation, Badiou insists on the presence of individuals independent of the state. “Badiou moves politics from the artificiality of representation to the actuality of presentation,” a move away from the primacy of the managerial state to the recovery of politics as prior to the state altogether.

Does surpassing the state indicate a space outside the managerial control, a defense—as Foucault put it—of society? Or is it just a concession to the logic of the market? Kevin S. Amidon and Zachary Gray Sanderson explore this ambiguity with regard to the concept of the “risk pool” in Slavoj Žižek’s work. While Žižek, like Badiou, harbors bizarre fantasies of communism as a plausible goal, he criticizes Badiou for “naturalizing” capitalism. Yet Žižek’s own treatment of risk could expose him to similar criticism. Robbie Duschinsky demonstrates how most scholarship on Agamben focuses on sovereignty—the state—while neglecting the sacred. “This ignores Agamben’s repeated indications that one cannot be understood without the other. [For Agamben] ‘religion and politics are not two things fundamentally’ but are, rather, each constituted in part by their interplay.” Instead of claiming the priority of theology, Agamben treats politics and religion as co-determining. Yet in the present, the liberal state is, for Agamben, in a process of decay. “The state of exception is becoming the norm. This increasingly undermines the legal protection of individuals . . . . The result is the move toward a governmental structure organized by ‘contingency-driven crisis-management.'”

Ryan Gunderson addresses the congruence of pessimism and hope in an insightful exploration of Horkheimer and his effort to join Schopenhauer and Marx. Ulrich Plass reviews Rei Terada’s study of phenomenality, especially in Kant, Nietzsche, and Adorno. The issue concludes with Timothy Stacey’s review of a collection of essays by John Milbank. Of particular importance is the discussion of New Labor from the vantage point of Radical Orthodoxy and, ultimately, the competition between secular and religious socialist traditions, or in Stacey’s terms, “what triumphs there have been for socialism have largely been due to the Christian-Republican tradition as opposed to the secular-democratic tradition,” and that republican tradition considers “human bonds prior to the state.” Hence a specific definition of a transformative agenda: “The point of socialism ought to be more than restoring the fiscal value of labor to the people; it should be about returning the sacral value too.” Community, value, religion, theology—this issue of Telos explores the foundations of politics as an alternative to the apotheosis of the state. Politics precedes the legislative state, but the managerial state may aspire to bringing politics to an end.


1. Leo Strauss, “Existentialism,” Interpretation 22 (1995): 305, cited by Robert C. Miner in his article in this issue of Telos.

2. National Federation of Independent Business v. Sebelius 567 U.S. ___ (2012), Roberts, C.J., slip op. at p. 6.

3. Ibid., p. 59.

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