Standing and procedure are essential for the protection of the Constitution

This brief note is in response to comments by representatives for the Trump campaign that maintaining the structure of the law is somehow a dodge. In Federalist 78, Hamilton makes a comprehensive account of the system of courts that we could come to enjoy, even if some of those innovations were decades away. Federalist 80 describes the case for original jurisdiction, which is also fundamentally limited to things like territorial disputes or cases involving foreigners. Federalist 83 makes it explicit that the common law system is what is envisioned by the framers. If you really want to have a good time, papers 78–83 are extensive (Hamilton wrote them) and discuss these concepts at length. I’ll get straight to the point of the implications:

Common law mechanisms are intrinsic to the Constitution.

When writing the Federalist papers the Common Law is overly named and relied upon as textual background. The constitutional structure in article three builds around a system of common law courts with trial by jury. Laches, standing and the like are Constitutional governance.

If you think this is just that liberal Hamilton, this is one of those places where the Anti-Federalists were even more explicit, supporting the same side. In fact, according to Federal Farmer 15 (I guess I am citing these now that Texas did) the only folks objecting to the common law system with trial by jury are, “governed by despotic principles.”

You don’t get to dispose of the legal system attenuated by the Constitution for the good of said Constitution.

Procedures are key to approaching Justice

Justice is hard, it is a universal, law is a particular. Without getting into the vast body of literature on the relationship of law and justice, I want to make a reference to the idea of aporia as described by Derrida — meaning a point where a subject must decide between conflicting duties.

There is no irresolvable contradiction in this case. Trump is now asserting that the fraud is undetectable. There are no facts in conflict, no meaningful legal theories at stake. Closest is the idea that conflicting priorities in the Federal Constitution should be seen in different priority.

If Justice is a universal that can only be particularized, the processes by which we particularize and judge are essential. Notice I say approaching, no one is naive enough to think that any procedural can truly take on the universal position of justice, and surely our current procedures also do injustice. What we can say is that procedures are preferable to crass power plays and that trashing alone.

Judicial authority is rhetorical, procedure is key to judicial ethos

Judicial authority is important for creating the perception of constrains anti-democratic behaviors that would clearly lead to a far worse state of affairs that we see now: more discriminatory and violent, less able to resolve conflicts through deliberation. The procedural orientation of the court allows it to sustain thousands of lower court rulings without signal boosting terrible arguments. By creating a strong norm for the maintenance of jurisdiction the Supreme Court reinforces the authority of judges at lower levels through the assumption of finality.

While it is true that courts are political, their politics are distinct from those seen between the majoritarian Democratic party and the counter-majoritarian Republican party. The Texas rejection reminds us that on the base level, the theatre is only open when something like an aporia is reached, and that provides a real degree of protection for liberal democracy as it is. In this moment the true Conservative position is also resonant: destroying institutions as they stand is not inherently progressive. It may pain those who ignore the argument in Hollow Hope, but progressives should not be waiting for judicial activism to implement their agenda, they need low level electoral wins. Courts are rhetorical, they deploy procedure as a persuasive strategy.

Teleological arguments fail (the other side has them too)

There is a certain desperation in Trump world talk today — now that is clear that even Justice Thomas was against them, they can’t simply add more enemies to their melodrama. The elections clause now is a synecdoche for the entire Constitution, the rest is seemingly disposable. I guess Alexander Hamilton and George Clinton were part of the deep state?

Story systems maintain their coherence through narrative equilibrium rules. For Trump, all other axioms of the world can be bent and even inverted, as long as he keeps on winning. At stake in this is the world itself for a Trump supporter. Suddenly Trump’s power is gone. Truth doesn’t reimagine itself to fit Trump’s need anymore. Getting the magic back for your leader justifies any action or abuse — of course the other side has the same needs and the same arguments. Perhaps that is the most important Constitutional dimension of all — it is a rhetorical enactment between people and in all the ways that it is a living thing, it just beat the scarecrow dressed-up to look like it.

Without common law principles like standing and laches, there would be chaos

The common law provides the backbone for your system structuring how, when, and where suits are filed. Clearly, the courts would not be allowed to take on all legislative and executive functions (at least not without some kind of coup or revolution), thus we would see the political stripping of the judicial function and we would lose the prospect of a process that approaches justice, gaining instead just another power grab. These structures may be invisible to the lay public, but that is because they are infrastructural, like rebar or the sand under your foundation.

Associate Professor of Social Media. Oregon State University. Read my book: Selling Social Media (Bloomsbury Academic), 2018.

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