Natural right, immanent power

I attended a presentation tonight given by the Federalists and which featured a talk by a noted Constitutional law scholar. Throughout his discussion of originalism and formalism as doctrinal forces operating conjunctively (sometimes in tandem, sometimes in tension) in contemporary Supreme Court jurisprudence with respect to questions of criminal procedure, I kept coming back to an observation made by Deleuze in a lecture he gave on Spinoza, Hobbes, and natural right, which goes,

“[W]hat is this history of power, and of defining things by power[?] I say: there was a very important moment, a very important tradition, where it is very difficult, historically, to get one’s bearings, if you don’t have some schemas and reference marks, some points of recognition. It is a history which concerns natural right, and this history concerning natural right, it is necessary that you understand this: today this appears to us at first glance very out of date, as much juridically as politically. The theories of natural right, in the manuals of law, or in the manuals of sociology, we always see a chapter on natural right, and we treat it as a theory which lasted until Rousseau, including Rousseau, up until the 18th century, but today no one is interested in it, in the problem of natural right.”

Deleuze, “Power and Classical Natural Right,” 9/12/1980, 2-3.

And Deleuze goes on to revitalize the question of natural right in political theory, inflected with his distinctive idea of quantitative distribution as power. But what I want to call attention to in quoting this passage is that Deleuze quite rightly locates the end of rights discourse in Rousseau. Chronologically perhaps this is not quite accurate, but this is not what is at issue: Rousseau is the culmination of rights discourse, the pinnacle of the pyramid. Rousseau has some beautiful – “romantic” – writings on the question of fundamental rights and their role in structuring social organizations. What is fascinating for an American in such a state of affairs is that Rousseau has a remarkable presence in the Federalist Papers (tonight someone called these documents “ratification propaganda,” to the chagrin of many in the room) as well as the Declaration of Independence, the Constitution, and other utterly central items of national interest. In civil law countries (continental Europe), Rousseau and the discourse of rights are not determining forces, at least not in the same way he and it are here in America. Libertarianism and other conservative ideologies would be impossible without this discourse; and such brands of thought and praxis are trademarked Americana by now. Moreover, if not merely the “end” / culmination of natural rights discourse appears with Rousseau but also its death, from Deleuze’s vantage point, it is evident that a sort of metempsychosis has brought it across the Atlantic and localized it at the very heart of American law and politics.

Natural right theory, or natural law, has as its core maxim the notion that innate and naturally-determined (or, more typically, theistically-determined), “inalienable rights” exist, and marks as the function of such regional sciences as jurisprudence and ethics the defense and upholding of such rights. As naturally-determined, these rights enjoy Universality. There is more to say on this peculiar Universality. But it is enough to note that, like Husserl’s Bedeutungen in the Logical Investigations, Vol. II, Inv. I, § 35, rights are not created, but discovered; they have no genetic history, but rather exist in their own particular ideal realm as analytic unities. Doctrine serves to “translate” these ideal unities into empirical rules.

Such metaphysical (literally onto-theological) obscurities should give us reason to pause. This Thomistic (not Aristotelian!) theory has survived legal realism (despite its transparent status as “transcendental nonsense,” in Felix Cohen’s words, however imprecise from a philosophical standpoint) and critical legal assault. In a sense. Battered and bruised, for sure, but nevertheless still breathing. Isn’t this astonishing?

In a future post, I will take up the question of the genesis of practical ensembles in order to try to account for social phenomena like this. But for now, let me limit my inquiry to the role of natural right theory in American Constitutional jurisprudence, and gesture toward a Deleuzian critique.

Originalism, a critical commentator at tonight’s talk said, is largely absent in all other Constitutional discourses in the world today. It is, in sum, a distinctly American juridical phenomenon. It demonstrates the fondness with which our culture relates to origins, traditions, and so on. Appeal to the original intent of the framers of the Constitution in order to resolve contemporary issues of law – which, of course, no soothsaying framer could have possibly foreseen – is a relatively uncontroversial approach (in Constitutional Law courses, in undergrad as in law school, students are told that “original intent” is one of the five major categories of argument the proponent or opponent of a particular position can make). Originalist arguments are frequently, notably by conservative Justices such as Scalia and an army of lesser federal judges in Circuit Courts, granted what amounts to a default status, as if divining the original intent of the framers automatically resolves the matter at hand. Of course this is reductionistic, but I think it is generally accurate. Critics often complain that originalism has no such claim to default status, that the Constitution is not an inert artifact but a “living document” changing with the social conditions of a particular time, or various other similar arguments of varying degrees of sophistication, all hinging on the notion that the original intent of the framers is more or less irrelevant. In a cultural sense, what is revealed in this phenomenon (and the degree of radicality attributed to the otherwise typical commentators attacking this appeal to historical authority) is the American fetish of the arche.

The Constitutional law scholar presenting tonight formulated a distinction under the proper names “Scalia” and “Breyer” and identified these names with two approaches to Constitutional jurisprudence: archaeological and architectural, respectively. The archeaological or ex post, retrospective approach is fundamentally conservative (in a broad sense) while the architectural or ex ante, prospective approach is fundamentally progressive and pragmatic. The archaeological jurisprudence of Scalia features an emphasis on originalism and formalism and seeks to find the delicate balance between the two notions that will generate “just results,” i.e., clear, bright-line rules in accord with the original intent of the framers. Though the speaker did not suggest as much, the architectural approach of Breyer could just as easily be splintered into a dichotomy featuring an appeal to origins as one part, though no default status is thereby attributed (rather, original intent assists in the decision insofar as it is pragmatically and efficiently possible to allow it to do so). Both of these approaches, then, manifest this fetish of the arche in the properly juridical sphere, indeed, in the highest court in that sphere (for Americans).

Isn’t there some tertium quid, some third way? Some way that does not privilege the arche and which nevertheless attains justice, inasmuch as that is possible? Yes, there is, if we are able to recognize the dividuality, in Deleuzian terms, of the nation-state: original intent (assuming completely arguendo that this is both possible and desirable to divine) loses its status as authority or legitimating ground insofar as the nation has qualitatively changed since the ratification of the Constitution, by way of a redistribution of intensive quanta. Intensive factors such as populations and socio-cultural pluralities and processes of pluralization, the immaterialization of labor, and so forth have operated to constitute a new field of cultural individuation, one that is qualitatively different from that at work in 1787 (or 1819, 1865, 1929, 1945, 2001…).

And this is what allows me to say fetish: such a situation is manifestly symptomatic of a sort of political delirium.

The appeal to origins can be refashioned, Deleuze tells us, as long as we recognize that it is not essence, not “nature” in this sense, that gives “rights” (useless representations, he tells us elsewhere) – no, “natural right” must be understood on the basis of a conception of “essence” as power, as what a body can do, what relations it can enter into and which will work for the heightening of capacity of that body. A Deleuzian natural (immanent, not innate) right (power) theory! It is worth thinking about.