Bassok, Or 2017. The Arendtian Dread: Courts with Power. Ratio Juris, Vol. 30, Issue. 4, p. 417.
Jacobsohn, Gary Jeffrey 2014. Theorizing the Constitutional Revolution. Journal of Law and Courts, Vol. 2, Issue. 1, p. 1.
Albert, Richard 2009. Nonconstitutional Amendments. The Canadian Journal of Law and Jurisprudence, Vol. 22, Issue. 01, p. 5.
No two names better recall the polarized character of political life in mid-century Europe than Carl Schmitt and Hannah Arendt. Like so many of his peers in the Weimar intelligentsia, Schmitt eagerly polemicized against the Weimar Republic and actively sought its destruction. In 1933, he sold his soul to the Nazis and soon became one of their most impressive intellectual apologists. In striking contrast, Arendt risked her life to help anti-fascists and fellow Jews struggling to escape Germany in the immediate aftermath of the Nazi takeover. Forced to join the ranks of the thousands of “stateless” persons stripped of their German citizenship by the new regime, she ultimately found her way to New York City and a stunning career as one of our century's most impressive critics of totalitarianism. While Schmitt would continue to seize every opportunity to belittle the achievements of liberal democracy, even after the establishment of the relatively robust German Federal Republic in 1949, Arendt refused to abandon her chosen Heimat, the United States, even in its darkest hours. For Arendt, Vietnam and Watergate offered indisputable proof that the republican legacy of the American founding demanded our critical loyalty, but hardly—as one can imagine Schmitt arguing—of the inevitability of senseless political violence and authoritarian government.
I would like to thank David Dyzenhaus and Iris Young for their written comments on an earlier draft, as well as Seyla Benhabib and Ingeborg Maus for words of encouragement and, of course, criticism.
1. Wolin, Richard and Jay, Martin have offered suggestive analyses of Arendt's alleged existentialism in: Wolin, Richard, Labyrinths: Explorations in the Critical History of Ideas (Amherst: University of Massachusetts Press, 1996) at 162-74; Jay, Martin, Permanent Exiles: Essays on the Intellectual Migration from Germany to America (New York: Columbia University Press, 1986) at 237-56. But I believe that Maurizio Passerin d'Entreves effectively answers arguments of this sort in his fine The Political Philosophy of Hannah Arendt (New York: Routledge, 1994) at 85-90.
2. Arendt seems to have been familiar with the basic outlines of Schmitt's political and legal thought, as numerous references to Schmitt in her writings demonstrate. Although I have found no specific reference to the 1928 Die Verfassungslehre (Munich: Duncker & Humblot, 1928), where Schmitt offers the most lucid account of his constitutional theory, she may well have been aware of its core claims. One of Arendt's friends, the emigré Waldemar Gurian, was a former student of Schmitt's who devoted significant energy to developing a critique of his former teacher's legal thought. Although it is best to avoid speculation on such matters, I find it difficult to avoid imagining that Gurian and Arendt discussed Schmitt and his ideas, particularly in light of Schmitt's complicity in the horrors of Nazism. Hannah Arendt, “Waldemar Gurian: 1903-1954” in Arendt, Hannah, Men in Dark Times (New York: Harcourt, Brace & Jovanovich, 1983) 251.
3. Arendt, Hannah, On Revolution (New York: Penguin, 1963) at 18.
4. Elkin, Stephen & Soltan, Karol, eds., A New Constitutionalism: Designing Political Institutions for a Good Society (Chicago: University of Chicago Press, 1993).
5. Schmitt, supra note 2 at xii, 40-41. All translations are my own. For Schmitt, Kelsen's vision of the legal order as based on nothing but a “basic norm,” from which the entire legal structure is produced, represents the best contemporary example of liberalism's failure to acknowledge the existence of a foundational sovereign will at the basis of every legal system. For a discussion of Schmitt's constitutional theory and its relationship to Kelsen: Scheuerman, William E., “Carl Schmitt's Critique of Liberal Constitutionalism” (1996) 58 Rev. of Politics 299.
6. Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge, MA: MIT Press, 1985) at 66.
7. Schmitt writes that “[a] people (Volk) must already exist as a political unity if it is to become the subject of constitution-making power.” He then praises Sieyès' preference for the term “nation” in favor of “people,” arguing that it better captures the idea of a Volk “capable of political action,” in contrast to those political entities not fully coherent in ethnic or cultural terms (”nur eine irgendwie ethnisch oder kulturell zusammengehörige … Verbindung von Menschen”). Schmitt, supra note 2 at 61 and 79. Schmitt also identifies the French Revolution as the birthplace of “national democracy” and comments that the presupposition of this type of democracy is “national democracy” and comments that the presupposition of this type of democracy is “national homogeneity,” ibid. at 231. Although Schmitt does leave open the possibility that national homogeneity may take distinct forms, I believe that most evidence suggests, as Ulrich Preuß notes, that Schmitt tended to favor an “ethnicist” form in which the ethos is substituted for the demos: das Volk is conceived as an “ethnic and cultural oneness,” with a “capacity to realize its otherness in relation both to other people and the liberal-universalist category of mankind.” Preuß, Ulrich, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between the Constituent Power and the Constitution” (1993) 14 Cardozo L. Rev. 639 at 650.
8. Schmitt, Carl, The Concept of the Political, trans. Schwab, George (New Brunswick, NJ: Rutgers University Press, 1976) at 27.
9. Schmitt's comments on the American case are scattered and unsystematic. Nonetheless, his argument seems to take the following form: the concept of a social contract, to the extent that “one considers this construction at all necessary,” makes “political unity” possible in the first place. In turn, only a Volk possessing the quality of “political unity” is capable of consciously exercising its will in a coherent manner, thus “deciding” in favor a particular constitutional system. By conflating these two moments, the Americans risk obscuring this point. The Americans, therefore, ignore the importance of homogeneity as a precondition of constitution-making. Schmitt, supra note 2 at 61, 78-79.
10. In Arendt's words: “those who get together to constitute a new government are themselves unconstitutional, that is, they have no authority to do what they set out to achieve. The vicious circle in legislating is present not in ordinary lawmaking, but in laying down the fundamental law … which, from then on, is supposed to incarnate the ‘higher law’ from which all laws ultimately derive their authority.” Supra note 3 at 184.
11. Schmitt, , supra note 2 at 51.
12. Ibid. at 51.
13. Ibid. at 78.
14. The target here, once again, is Kelsen, who accepted Weber's vision of modernity as disenchanted and sought to justify a fallibilistic conception of liberal democracy appropriate to the morally “relativistic” dictates of modernity. Kelsen, Hans, Vom Wesen und Wert der Demokratie (Tübingen: J.C.B. Mohr, 1929).
15. Schmitt, , supra note 2 at 79 ; see also Schmitt, , Die Diktatur (Munich: Duncker & Humblot, 1922) at 140-152, where Schmitt summarizes the pouvoir constituant.
16. Schmitt, , supra note 2 at 79.
17. This claim has a number of striking similarities to contemporary French post-structuralist conceptions of constitution-making. For a defense of the view that constitutional government rests on and perpetuates an unavoidably arbitrary exercise of power, see Honig, Bonnie, “Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic” (1991) 85 Am. Pol. Science Rev. 97. For a response, see Benhabib, Seyla, “Democracy and Difference: Reflections on the Metapolitics of Lyotard & Derrida” (1994) 2 J. of Pol. Phil. 1.
18. Schmitt, , supra note 2 at 79.
19. Ibid. at 315.
20. Schmitt, Carl, Legalität und Legitimität (Munich: Duncker & Humblot, 1932) at 93.
21. Notwithstanding his oftentimes caricatured interpretations of French revolutionary political thought, this is the important insight of Furet, Francois, Interpreting the French Revolution (Cambridge: Cambridge University Press, 1981).
22. Ingeborg Maus has forcefully criticized interpretations of the French experience that mistakenly interpret it in light of the barbarism of mid-century European politics. My remarks here have been inspired by Maus, in more ways than I can begin to acknowledge. For a succinct summary of her response to contemporary caricatures of French revolutionary political ideals, see Ingeborg Maus, “‘Volk’ und ‘Nation’ im Denken der Aufklärung” (1994) 39 Blätter für deutsche und internationale Politik 602. Maus is correct to emphasize that too many interpretations of this experience conflate French revolutionary thought and practice, in part because such conflations serve antidemocratic political causes. Along these lines, Rogers Brubaker argues that we need to distinguish between the “conspicuously cosmopolitan” character of French revolutionary ideology and the xenophobia apparent in the revolution's waning days, “a product of war and factional struggle, which engendered a climate of extreme suspicion of the internal enemies that might knowingly or unknowingly be in the service of external enemies.” Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992) at 45-46.
23. Sieyès, Emmanuel Joseph, What is the Third Estate?, trans. Blondel, M. (New York: Pall Mall, 1963) at 58-59.
24. Ibid. at 58.
25. Ibid. at 60. Furet also underplays this absolutely crucial point. Sieyès simply contradicts Furet's claim that the French conceived of the nation as an “homogeneous” body in which “the multiplicity of individuals and of private interests is immediately cancelled out … .” Supra note 21 at 33, 44. Far more reliable here is the little known monograph by Forsyth, Murray, Reason and Revolution: The Political Thought of the Abbe Sieyès (New York: Holmes & Meier, 1987) at 71.
26. Supra note 23 at 60.
27. Brubaker, , supra note 22 at 1.
28. Ibid. at 45.
29. Of course, one might respond to this argument by referring to Rousseau, whom Schmitt considers to be an influence on some features of Jacobin practice as well as a precursor to his own vision of an homogeneous Volk. Schmitt, , supra note 2 at 229-30. But two immediate responses are possible here. First, even if we accept this reading of Rousseau as a prophet of a nationally homogeneous democracy, substantial historical research suggests that his relationship to French revolutionary practice is extremely complicated. We simply cannot uncritically accept the view, stated recently by Furet as well, that Rousseau's “political thought set up well in advance the conceptual framework of what was to become Jacobinism … .” Supra note 21 at 31. For a more balanced treatment of this issue, see McDonald, Joan, Rousseau and the French Revolution (London: University of London Press, 1965) and Fetscher, Iring, Rousseaus Politische Philosophie (Frankfurt: Suhrkamp, 1973). Second, Rousseau's vision of an homogeneous community is more complex than this view suggests. He clearly shows a preference for simple, small-scale, economically underdeveloped, and culturally homogeneous political communities (most famously, Corsica). But his is generally a backwards-looking, even nostalgic view. He does not seem to believe that homogeneity of this type can be produced or manufactured. To suggest that Rousseau's ideal is analogous to the homogenizing tendencies of the large-scale modem nation state or, for that matter, totalitarian attempts to create a national folk community, is probably anachronistic.
30. In a similar vein, see Breuer, Stefan, “Nationalstaat und pouvoir constituant bei Sieyès und Carl Schmitt” (1984) 70 Archiv für Rechts- und Sozialphilosophie 495. In other words, Schmitt is wrong when he claims that Sieyès' theory already represents an attempt to transcend Enlightenment rationalism. Die Diktatur, supra note 15 at 142.
31. Supra note 23 at 124.
32. Supra note 23 at 156-157, 183. We might recall Sieyès' influence on the Declaration of the Rights of Man, and his view that “the object of every social union, and consequently of every political constitution, can be nothing other to guarantee, to serve, and to extend the rights of man living in society.” Cited in Forsyth, whose discussion here is essential for understanding Sieyès' radical brand of liberalism, in supra note 25 at 109. Sieyès is far closer to Locke than commentators acknowledge. Sieyès' theory of the pouvoir constituant bears a striking resemblance to Locke's view that power rightfully reverts to the hands of the people as a whole when government steps beyond the bounds of the principles and procedures outlined in Locke's rationalistic, natural law-based model of the social contract. The fact that Locke believes that sovereignty then belongs to the (non-institutionalized) “people” (conceived, by the way, as an inalienable and indivisible entity), and not to existing legal and constitutional devices, hardly makes him a “totalitarian” anymore than it should Sieyès.
33. Supra note 23 at 152.
34. Ibid. at 152.
35. Ibid. at 132.
36. One ill of too much of contemporary constitution-making is that the constituent power is left in the hands of ordinary legislative channels, which means in practical terms that parliamentary representatives and the interest groups they represent are left to determine the fate of fundamental constitutional issues. For a good discussion of the dangers of this approach in eastern Europe, see Arato, Andrew, “Dilemmas Resulting from the Power to Create Constitutions in Eastern Europe” (1993) 14 Cardozo L. Rev. 661 and Ackerman, Bruce, The Future of the Liberal Revolution (New Haven: Yale University Press, 1992).
37. Supra note 23 at 137.
38. Supra note 3 at 156.
39. Ibid. at 163.
40. Ibid. at 181. For a critique of this view of power, see Arendt, Hannah, On Violence (New York: Harcourt, Brace & Jovanovich, 1970).
41. Supra note 3 at 157, 163.
42. Ibid. at 163.
43. Ibid. at 75, 158.
44. Arendt, Hannah, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979) at 230-31. There is only a “contradiction” between the idea of universal human rights and the nation state if, like Schmitt and Arendt, we deemphasize the cosmopolitan character of early revolutionary conceptions of the “nation.” To the extent that revolutionary theorists aspired for a “universal” republic, or at least an international federation of republics, there is no contradiction here.
Although she more clearly acknowledges the cosmopolitan character of revolutionary French conceptions of citizenship, Julia Kristeva far too uncritically accepts Arendt's argument on this point: “Hannah Arendt is right in thinking that the national legacy served as guarantee for Nazi criminality.” Kristeva, Julia, Strangers to Ourselves, trans. Roudiez, Leon S. (New York: Columbia University Press, 1991) at 151.
45. Supra note 3 at 77.
46. It is important to note that Rousseau's claim in Book II, chapter IV that “the general will, to be truly such, must be general in its objects as well as in its essence … that it loses its natural rectitude when directed toward any individual and determinate object … “would be incompatible with a vast array of legislative acts today, many of which are “individual” and situation-specific in scope. Authors who emphasize Rousseau's “totalitarian” side repeatedly ignore this rather inconvenient fact. Rousseau, Jean-Jacques, The Social Contract in Watkins, Frederick, ed., Political Writings, trans. Watkins, Frederick (Madison: University of Wisconsin Press, 1986) 32.
47. Ibid. at 31.
48. Supra note 3 at 78.
49. Ibid. at 94.
51. Supra note 46 at 27. For a refreshingly clear-headed account of this issue, see Maus, Ingeborg, Zur Aujklärung der Demokratietheorie (Frankfurt: Suhrkamp, 1992). For a provocative recent attempt to defend traditional conceptions of sovereignty, see Kriegel, Blandine, The State and the Rule of Law, trans. LePain, Marc A. & Cohen, Jeffrey C. (Princeton, NJ: Princeton University Press, 1995).
52. Neumann, Franz, The Democratic and Authoritarian State (New York: Free Press, 1964) at 136.
53. Supra note 3 at 153.
54. Ibid. at 166; my emphasis.
55. Ibid. at 157.
56. Ibid. at 212-13. Arendt does not deny the religious overtones of early American political thought. She rightly concedes that many attempts to resolve the vicious circle of foundational politics in the American Revolution ultimately depend on traditional religious ideas. Yet while Schmitt, as I noted above, praises the fact that French revolutionary theory remained under the sway of traditional religious notions, Arendt believes that the American Founders at least anticipate a solution to the vicious circle of foundational politics that requires no religious grounding. In other words, they point to a conception of legitimate constitutional government suitable to the dictates of a disenchanted moral and political universe.
57. Ibid. at 206
58. Ibid. at 170, 175. Clearly, much more is involved in Arendt's notion than the mere “language game” described by Honig in her defense of Derrida's (quite Schmittian) critique of Arendt. Honig, supra note 17. Unfortunately, I cannot discuss the complexities of Arendt's republican vision of action and deliberation in adequate depth here. To understand this vision, see Arendt, Hannah, The Human Condition (Chicago: University of Chicago Press, 1958) at 175-247.
59. Supra note 3 at 212-13.
60. The increasing significance of the “social question” and the closely related Europeanization of American politics, however, pose an omnipresent threat to this possibility in Arendt's view.
61. Supra note 6 at 66.
62. It simply does not suffice to assert that “[s]lavery was no more part of the social question for Europeans than it was for Americans” at the end of the 18th century, particularly in light of the important role played by debates over slavery in the French Revolution. Supra note 3 at 71-72.
63. For a similar criticism see Wolin, Sheldon, “Hannah Arendt: Democracy and the Political” (1983) 60 Salmagundi 3.
64. In Federalist #40, Madison defends the manifest illegalities of the constitutional convention by noting that “in all great changes of established governments forms ought to give way to substance; that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness’ … it is … essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens.” Rossiter, Clinton, ed., The Federalist Papers (New York: NAL Penguin, 1961) at 252-53. An excellent discussion of this point is provided by Amar, Akhil Reed, “Popular Sovereignty and Constitutional Amendment” in Levinson, Sanford, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995) at 89-116.
65. Ackerman, Bruce A., “Neo-Federalism?” in Elster, Jon & Slagstad, Rune, eds., Constitutionalism and Democracy (New York: Cambridge University Press, 1988) 153 at 163.
66. Supra note 3 at 164.
67. Supra note 52 at 137.
68. In particular, Arendt would have done well to recall that “Jefferson apparently did not think too highly of Montesquieu's version of the separation [of powers] doctrine.” Ibid. at 139.
69. For an extremely provocative recent discussion of this possibility, see Maus, , supra note 51 at 227-46.
70. For a thoughtful analysis and critique of Arendt's ideas about modem representative democracy, see Kateb, George, Hannah Arendt: Politics, Conscience, Evil (Totowa, NJ: Rowman & Allanheld, 1983) at 115-48.
71. For example, the Anti-Federalist “Brutus” asked “whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible … There is no power above them, to control any of their decisions. There is no authority that can remove them, and cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” Storing, Herbert J., ed., The Anti-Federalist (Chicago: University of Chicago Press, 1985) at 183.
72. Supra note 3 at 201.
73. Ibid. at 200.
74. Arendt, Hannah, “What is Authority” in Arendt, Hannah, Between Past and Future: Eight Exercises in Political Thought, enl. (New York: Penguin, 1961) at 93.
75. “The great measure of success the American founders could book for themselves, the simple fact that their revolution succeeded where all others were to fail … was decided the very moment when the Constitution began to be ‘worshiped’, even though it had hardly begun to operate.” Supra note 3 at 198-99. I suspect that this “blindness” has contributed to the many instances when those who claimed the mantle of American constitutionalism—McCarthy, for example—were able to dismantle basic civil liberties.
76. Supra note 3 at 200, 228. For an excellent discussion of the controversies concerning constitutional amendment procedures, see Levinson, supra note 64.
I do not mean to deny Bruce Ackerman's recent claim that we need to provide adequate space for “normal” or “ordinary” politics in which questions of constitutional significance no longer possess primacy. In fact, I believe that Ackerman's vision of a “dualist democracy” has much to be said in its defense. My question here simply concerns the appropriate institutionalization of this model. Very much in the shadow of Arendt, Ackerman believes that when the Supreme Court declares a statute unconstitutional, it is simply “signaling to the mass of private citizens … that something special is happening in the halls of power; that their would-be representatives are attempting to legislate in ways that few political movements … have done with credibility,” in short, with the fact that “ordinary” legislators are now trying to break with a rough consensus achieved during a previous period in which “the people” made use of the track of “higher-law-making.” But even Ackerman admits that this view still leaves unanswered the question of “[w]hat prevents [the Supreme Court] from misusing its constitutional authority to further one or another factional interest rather than to interpret the meaning of the past constitutional achievements of the … People?” Why, in other words, need we assume that an American-style Supreme Court provides the most effective instrument for institutionalizing and preserving the achievements of “higher lawmaking.” Supra note 65 at 172, 192. See also Ackerman, Bruce, We the People, vol. I (Cambridge: Harvard University Press, 1991).
77. Supra note 3 at 144.
78. Lazare, Daniel, The Frozen Republic (New York: Harcourt Brace & Company, 1996). My hunch is that academics will ignore Village Voice journalist Lazare's muckraking book, because of its breezy style and, at times, populistic assumptions. Nonetheless, Lazare does a fine job of explaining why so many of the idiosyncrasies of American constitutionalism can be linked to growing political alienation.
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