Hannah Arendt and the Constitution of Freedom

03-30-2025

Roger Berkowitz

This week I gave a lecture at the University of Sao Paulo in Brazil on Why Law Alone Can’t Defend Democracy—and why Only Power Can Check Power. Here is a transcript of my talk.

It's a pleasure to be here. I want to thank Celso Lafer and my hosts at Sao Paolo University Law School for inviting me. 
The power of law to restrain democratically elected autocrats is being tested in constitutional democracies around the world from Turkey and Hungary to Brazil and the United States. In the United States, a president openly challenges the authority of courts and Congress, while in Brazil, as elsewhere, populist movements question the foundations of representative institutions. With the retreat and cowardice of Congress in the United States, the judiciary is the only branch of the federal government standing between the President and his wished-for dictatorial power. But the ability for constitutional law to contain tyrannical power grabs through legal restraints is questionable.

Arendt’s constitutionalism begins with a stark premise: law will fail in the end to constrain political power. Courts have no armies or power over the purse. Constitutional rights, once guaranteed, are not self-executing. When freedom is under threat, only organized power—plural, public, and institutionalized—can resist domination. Arendt's rethinking of constitutionalism as "system of power" designed to limit the concentration and centralization of power is a necessary provocation for our moment. At a time when many still cling to the idea that constitutional doctrines and rights declarations are sufficient guardians of freedom, Arendt reminds us that any meaningful defense of freedom needs to be political. Her constitutionalism insists that the fundamental thrust of the United States Constitution is its federalist spirit that aims to cultivate multiple sources of power in the ultimate hope of restraining the dictatorial concentration of power. 

Though not often recognized as a legal thinker, Hannah Arendt offers a radical—and timely—insight about constitutionalism and the preservation of freedom: Arendt argues that constitutions are misunderstood when they are seen as a means for limiting power through law. Instead, constitutions as Arendt imagines them help to found freedom insofar they are about generating and distributing power through political structures that enable self-government. “Only power can check power,” Arendt insists. Law by itself—however noble its intentions—is a paper tiger that will be crushed in a contest with executive or legislative power. While the federal judiciary may be able to slow President Trump's power grab, any meaningful resistance to the President will have to come from other more popular and powerful institutions. 

In what follows, I explore Arendt’s often-overlooked reflections on constitutionalism, particularly as articulated in her book On Revolution. I argue that her vision offers not only a critique of prevailing legal frameworks but a constructive alternative: a constitution of freedom, grounded in multiplicity, participation, and a radical distrust of centralized sovereignty.

My focus on Arendt's constitutionalism may be surprising. It’s not widely known because she never wrote a book about law. Most of her legal thinking is scattered across her works, and many of you know her thinking on international criminal law and human rights from The Origins of Totalitarianism and Eichmann in Jerusalem.

In Origins, she wrote extensively about genocide and totalitarianism. In Eichmann in Jerusalem, she developed a theory of the crime of genocide and crimes against humanity. She is an essential thinker in those fields. But Professor Lafer asked me to talk about constitutional law. Interestingly, Arendt isn’t well known for her contributions there.

One reason for that is her constitutional thinking is mainly in On Revolution, which is a book about the American and French Revolutions. Because of that, it’s not widely read in law schools. Law schools think it's about revolutions, and law professors aren’t usually that interested in revolutions. But the two central chapters of On Revolution—chapters four and five—are both titled after constitutional concepts: “Constitutio Libertatis” and “Novus Ordo Saeculorum.” These chapters are among the most profound reflections on constitutional law ever written.

There’s another reason why her constitutional ideas aren’t widely taught: they challenge the dominant legal understanding of constitutional law. Most constitutional lawyers think constitutional law is about legal limitations on power. A constitution, in that view, says: “You can’t do this,” or “You can’t do that.” In the United States, this often means focusing on the Bill of Rights, which limit the power of the government. Most constitutional law courses are about the Bill of Rights: freedom of speech, the right to bear arms, the right to an attorney. When I went to law school, that’s what we studied in constitutional law.

Interestingly, the U.S. Constitution didn’t originally include a Bill of Rights. It was added in the First Congress as a compromise. Arendt’s approach to constitutional law has nothing or at least very little to do with the Bill of Rights. For her, constitutionalism is about structure, not rights.

Specifically, Arendt focuses on federalism—the idea that the U.S. has many different centers of power: the federal government, 50 states, the branches of the federal government (executive, legislative, judicial), and even more levels within states. She thinks that protecting freedom means protecting against centralized power. Legal limits alone will never work. Laws can’t protect us—they’re paper tigers.

This is extremely relevant to the U.S. today. We have a president who, despite some arguably good ideas, subscribes to what the legal profession calls the “unitary executive thesis.” This thesis holds that the president doesn’t just execute the laws, but that he can essentially govern without the need for Congress or the courts. In our system, the legislative, executive, and judicial branches are supposed to be jealous of their own power. But Congress is no longer jealous—it has ceded power. 

This has been happening for 50 years. Congress does almost nothing anymore and when it legislates it often leaves the hard and meaningful decisions to be decided by administrative agencies. The great American political scientist Ted Lowi argued that Congress was abandoning its job of legislating in part because of a fear of taking tough stands that would endanger their ability to raise money or be reelected.  The reasons for the failure of congress are complex—money, campaign finance—but the result is that the only remaining reliable federal check on executive power is the judiciary.

Today in the United States we are witnessing a battle between the legal profession and the executive branch. Courts are doing a decent job slowing the executive down—but they won’t win in the end. They have no police, no army, no power. The courts can in the end be undone by the appointment of new judges, the overwhelming of court dockets with frivolous cases that take years to resolve, and even by the political branches ignoring judicial rulings.  The courts can delay the concentration of power in the Presidency, but unless Congress reengages, the executive will win.

I want to talk about this constitutional struggle for power: Hannah Arendt argued that if law fails to check power, then only power can check power. Arendt’s point is that constitutions must be about power—not law.

So how do we understand her thinking?

First, for Arendt, revolution is about freedom. She says that modern war and violence are so destructive that the only possible justification for them is existential. Think of Israel and Gaza, Russia and Ukraine—both sides say: if we don’t fight, we will disappear. Freedom becomes the justification for war—and for revolution.

She distinguishes between liberation and freedom. Liberation is rebelling against an oppressor. It’s necessary, but it’s not the end goal. Freedom is more than that. It’s the foundation of a republic. A revolution must lead to the constitution of freedom.

Freedom, for Arendt, is not the same as liberty. Liberty is doing what you want. Freedom is the right to act and speak in public in ways that matter—to dissent, to protest, to self-govern. That’s why the goal of revolution is not liberty but the constitution of freedom.

She even says there’s only one human right: the right to be meaningful. She does not believe there is a right to life. We all die. There is no right to live in a particular place. People are often expelled from their land.  There is no right to housing or food. Many people don’t have the necessities of life. Instead, the only truly human right is the right to be meaningful. We humans have a right to have rights, which means we have the right to live in a political community in which we can speak, act, and appear in public. Through speech and action in a political community, we appear before others and have a public life. We can be talked about, celebrated, or even killed. What matters is that our lives have meaning, and that is what makes us human. Sometimes, Arendt writes, it’s more human to speak your truth and die than to stay alive without meaning.

To live a meaningful life in a public community means that we must be free to speak and act. Constitutions in Arendt's understanding are the framework that establish freedom.  Constitutionalism becomes central to freedom because the constitution establishes the space of appearance in which people can speak and act in public. The best constitutions are those that establish a system of power that found and protect that freedom. And in developing her thinking about constitutions, Arendt discusses three senses of what a constitution means.

First: a constitution is understood by limited government. That’s the standard view. It means rule by law, checks and balances. But Arendt says that this kind of constitution doesn’t guarantee freedom. Even monarchies can be constitutional. Even oligarchies. Even aristocracies. Only tyrannies cannot be constitutional. So this idea of limited government doesn’t get us to freedom as the freedom to speak and act in public in ways that matter.

Second: Arendt understands constitution as a verb—to constitute. The American revolutionary thinker Thomas Paine said, “A constitution is not an act of government, but of a people constituting a government.” This is closer to Arendt’s meaning. Constituting is an act of power—it’s founding something new.

Third: a constitution is an entirely "new system of power." This is the most important of Arendt's formulas for understanding constitutionalism. A constitution should neither create nor permit a sovereign power—it should create multiple and opposing powers. Arendt believed the American Constitution initially succeeded in this. It created a federal structure that multiplied power sources including the executive, the legislative, the judiciary, the 50 states, each with their own branches, plus civil society groups, voluntary associations, NGOs, business, and more.

The thinking behind this "federal principle" that underlies the American Constitution is that only power can check power. Montesquieu is the key figure here in Arendt's retelling of the history of constitutionalism. Montesquieu called the Constitution the grand temple of liberty not because it limits power but because it correctly distributes power. In his inquiry in the English Constitution he imagines that the greatest guarantee of liberty is found in the separation of powers. Power is separated into different institutions not to weaken government but to allow for power to operate without one power overwhelming the others and leading to tyranny. The aim is to create more centers of power that keep each other in check.

What Montesquieu first understood in the history of political theory is that power can only be checked by other powers. Laws can’t successfully check power. You can’t stop power with laws. But if one power rises, and other powers push back, you have freedom. Think of The Lord of the Rings. The danger is that one ring will rule them all. Arendt says: the constitution of freedom means that you need many rings. The point is to prevent any one ring—any one power—from becoming sovereign.

The objective of the American Constitution, Arendt argues, was not to limit power but to create more power. The idea was: let’s make the federal government stronger without making it tyrannical. So we keep the state governments strong, too. And we create more centers of power. The federal government was originally imagined as a counter to the power of the states under the Articles of Confederation. Today, the spirit of federalism says that the states are a reliable counter to the power of the federal government. In addition, the people in the United States have a tradition of bonding together to wield power through civil disobedience, the jury system, and civic associations.  

After Montesquieu, John Adams is the second key figure in Arendt's understanding of constitutionalism. Adams said: "power must be opposed to power, force to force, strength to strength." He called a constitution a scheme of powers that seeks the good of the whole community. Arendt adds to Adams the idea that the "greatest American innovation in politics" was the "consistent abolition of sovereignty." Noone—no person, no institution, not even “the people”—was sovereign in the United States. The Constitution stands above them not as a written document but as a framework, a new idea of power. In a way that is radically different from the French Revolution, where Rousseau’s “general will” became sovereign, there is in America no sovereign. 

Arendt argues this consistent abolition of sovereignty wasn’t just an idea—it had its real basis in American experience. She cites the Mayflower Compact, in which religious and criminal exiles coming to America created a constitution on the ship before landing. This act of self-governance in which a people arrogated to themselves the power to govern themselves was unprecedented. And it informed the spirit of republican self government that infused Colonial American. When towns wanted a road or a school, they didn’t ask the king or appeal to a sovereign—they held town meetings. These “town hall meetings,” especially in New England, were boring, messy, and democratic. But they were politics. They were the beginnings of the constitution of freedom.

What I've told so far is the American exceptionalist part of Arendt’s story. But she doesn’t stop there—she says the American constitution of freedom, the treasure of the revolution, has failed. Why did it fail? Because of the centralization of power and the loss of citizen engagement. Not because elites were corrupt—but because the people stopped caring. They preferred cars, jobs, and private comfort to the hard work of citizenship.

She says also that the Constitution failed because it didn't protect citizen institutions. Congress trains elites to be citizens, but there’s no institution for regular people to engage in the experience of citizenship. Town hall meetings, the mainspring of the democratic spirit in America, aren't mentioned in or guaranteed in the Constitution. County and municipal governments also aren't included. There’s no constitutionally protected public space for average people to act politically.

Thomas Jefferson agreed with Arendt. In the early 19th century he wrote letters saying the American Constitution’s greatest failure was not including a space for citizens to be engaged in politics. He proposed then a “ward system” where small, local institutions would be provided where citizens could meet, speak, and act. It would be in these Wards that Jefferson imagined people would be trained in citizenship. 
As I come to an end of this talk, I want to offer a proposal for reinvigorating citizenship and thus reconstituting freedom: citizen assemblies. I don’t know how many of you have heard of them. They’re popular in Japan, Europe, and Canada. I know here in Brazil you have often led the world in participatory budgeting. But citizen assemblies go further. They involve randomly selected citizens—like juries—brought together to deliberate over weeks or months, listen to experts, and then make recommendations or laws. They are schools for citizenship.
The justification is not that citizen assemblies always make the right decisions. Sometimes they get it wrong. The point is that they teach us how to govern. They teach us to listen, to deliberate, and to build consensus. In this way, citizen assemblies are very much like juries. Alexis de Tocqueville thought the jury was the most important democratic institution in America. Why? Because it teaches people to move beyond private interest and think like citizens. It teaches the public interest. Similarly, citizen assemblies are spaces where people come together and learn to listen to others, to deliberate, and to move beyond their personal interests to identify a common interest. They are, in this way, laboratories for self-government. 

The Arendt Center is helping to lead efforts to bring citizen assemblies to the U.S.—in New York, Oregon, Colorado, and California. The idea, eventually, is to create permanent citizen assemblies so that every American might one day sit on one, just like we sit on  juries.
If the failure of the American Constitution is the loss of power at the local level, then we must bring back that experience of power. We do that not by limiting power through a reliance on judges who interpret constitutional law, but rather by multiplying power. Reinvigorating democracy will not come from reinforcing laws alone. It will require rebuilding power at the local level—giving citizens meaningful opportunities to act together. Arendt reminds us that only power can check power, and that freedom is a practice, not a gift.
Thank you very much.