Immigration and the rule of law II: Reply to RAF

(Title is a bit off because there’s nothing much about immigration here, but I started the series with “I” and III will return to a substantive discussion of immigration, and this belongs in the series).

Russell Arben Fox has written a thoughtful reply to my last post, in which he also gives his answer to some pointed questions that were posed to him in comments. This post is helpful in that it’s clarifying to me; I think I have a much better sense of what he’s coming from than I did before. That clarity doesn’t move me toward his position, however, if anything it makes me more confident in my own. Russell takes from my post and related discussion four questions for him which he seeks to answer here:

1)  What is the difference between constitutionality and legality, and do I think one is prior to the other?
2) What does procedural traditions, norms, and precedents have to do with either of those?
3) What specific norms do I think Obama’s action violated, in light of the actually existing history of executive orders?
4) Isn’t it irresponsible to toss around terms like “unconstitutional” in our current political climate anyway?

The fourth question wasn’t from me and I’m not particularly worried about it; I could see this being a reasonable worry if he were using his idiosyncratic definition of ‘unconstitutional’ (yet lawful) without further explanation in an op-ed in a major newspaper or something, but in a philosophically inclined intra-blog discussion such worries seem out of place to me. I’m most interested in the third question. I’ll follow Fox in taking the first two together in this post, and address #3 at greater length in a separate post.

Taking the first two together, Fox basically defends a conception of his focus on a conception of constitutionalism and the rule of law that focuses entirely on, as I put it, the relationship between different parts of the government and not the relationship those parts have with the governed, situating himself in a venerable tradition of democratic political theory associated with, amongst others, Hannah Arendt and Sheldon Wolin (One that I’m hesitant to call ‘radical’ even as it has become customary to do so; as Fox’s deployment of it clearly demonstrates it can have quite conservative implications, in both the small-c and contemporary political uses of the term).

The primary source for my disagreement is my rejection of the substantive claim that Obama’s executive order “violates symbolic precedents and procedural norms” and “show(s) disrespect for (admittedly, always evolving) informal expectations and procedural rites” to a degree that we should be troubled by. I’ll take this up again in my next post addressing Fox’s answer to the third question. A more detailed response here would get deeper into the inside baseball political theory disagreements than is necessary, so I’ll limit myself to one clarification and one general observation about the shortcomings of this approach.

A probably unnecessary clarification: in my previous response to Linker I sought to take him to task for conceptualizing the rule of law in a way that appeared to ignored the government/governed relation altogether, and focused entirely on the relationship between the parts of the government. That doesn’t mean I don’t think intra-government relations aren’t important for the rule of law, of course. What I did mean is that I don’t think there’s much value or utility in separating out the two kinds of rule-of-law concerns. The question “what does X mean for the rule of law?” simply can’t be meaningfully answered by bracketing out one half of the equation. The evaluation of X must weigh any rule of law damage to intragovernmental relations (which I don’t grant in this case, but let’s say I did) and weigh it against rule-of-law repair to the government/governed relationship. Neither will ever be perfectly consistent with the rule of law, a goal that will forever remain out of reach (this seems obvious to me, which is one thing that frustrates me about the treatment of the rule of law in much political and legal theory, where it’s treated more like a threshold concept than an aspirational one).

While leads to my more general observation.  I was fortunate to have the opportunity to take a class in graduate school with Joel Migdal, a scholar who influenced me a great deal in how I think, conceptually and analytically, about “the state.” Here’s his not as famous as it should be definition of the state:

The state is a field of power marked by the use and threat of violence and shaped by (1) the image of a coherent, controlling organization in a territory, which is a representation of the people bounded by that territory, and (2) the actual practices of its multiple parts. (from pg. 15-16 of this book).

It is, for my money, a great shortcoming of contemporary political and democratic theory that we discuss the state primarily in terms of (1) at the expense of (2). Some of the most interesting things we might want to say about the state can only come into focus only when we examine (1) and (2) side by side, noting the gaps, tensions, and contradictions between these two faces of the state (my next post will draw on the scholarship of a Migdalian immigration scholar doing exactly that). The state—and its rules, norms, conventions, and practices—only interest us because they interact with society. If we focus on (1) at the expense of (2) we risk becoming dazzled or mesmerized by the image of itself the state is selling, embracing its self-serving ideology uncritically. Another scholar whose work I know Russell finds quite powerful and who helps us keep this danger sharply in mind is James Scott, who does an outstanding job of demonstrating some of the dangers that accompany unofficial ideologies of states (his “seeing like a state” and its high-modernist assumptions about societies and terrain) that only become discernable when we focus on (2) alongside (1). I tried to capture the attitude toward the state I advocated for in this post:

Five hundred-odd years ago, give or take, in Europe, the configuration of social power changed. A kind of entity called the state began to emerge as victorious in struggle for social power. This power grab wasn’t at all noble or particularly justifiable in normative terms, indeed, war making and state building were intimately connected developments. The quasi-monopoly this kind of entity was able to create on the exercise of legitimate violence created extraordinary new opportunities for exploitation but also contributed to an environment that allowed for extended periods of peace and prosperity, at least for certain lucky segments of the population. To state the obvious, the arrival of the state as the dominant form of social and political power was both wonderful and horrible: the state created new opportunities for wealth and security, and perpetrated brutal, oppressive crimes against humanity with staggering efficiency.

In other words, let’s treat states as a historically bounded and contingent form of social power. Let’s avoid, as Jacob Levy puts it, the over-moralization of historical processes that lead us to a teleology of political forms.

This feels a bit vague to me so I’m going to try and sum up my argument with as much clarity as I can muster presently: When evaluating the the legitimacy of state action we ought to attempt to do so, as much as possible, from a position of epistemic and conceptual independence from the state’s legitimating stories.  I think a version of “the rule of law” might be a useful part of that assessment, and living up to their own commitments about how they’re supposed to govern could very well be part of that. But, if we’re starting from such a place of independence we can’t privilege that worry over the worry about the government/governed relation at the level of theory, as doing so concedes far too much ground to the state’s self-serving narratives about legitimacy. In short: I encourage Russell to work on his “anarchist squint.”