Power and Authority07-02-2023
The last 10 days have seen the Supreme Court reject the dangerous Independent State Legislature theory that would have allowed, amongst other things, state legislatures to deny the will of the voters and direct their electors on whom to cast that state’s electoral college votes. The Court also ended affirmative action in colleges and universities calling it a violation of the Equal Protection Clause of the 14th Amendment, said that the effort to use an emergency authorization law passed in the wake of 9/11 does not give the Secretary of Education the right to administratively forgive student debt, and decided that a web designer does not have to take on clients whose views violate her firmly held religious beliefs. While the decision denying the State Legislature theory has been praised by liberals and some conservatives, the decisions on affirmative action, student debt, and the conflict between free speech and equal protection have been wildly unpopular amongst liberals. The result is that many on the left are once again calling for reform of the Supreme Court.
The calls for reform—including term limits on the justices and packing the Court—reflect the reality that the current Court is deeply politicized. Votes are counted. Justices are called the “liberal” and the “conservative” judges. With notable exceptions, often led by Chief Justice John Roberts, the justices do seem to vote in packs along party lines. This suggests that the Court, rather than a court of law, is an unelected body of political actors appointed for life.
The line between law and politics is always a blurred one. It is easy to say that we live under a government of laws and not of men, but the fact is that the laws are made, interpreted, and implemented by men, women, and those who identify as neither. Laws are always under-inclusive and over-inclusive and in need of interpretation. This is especially true of constitutional law, in which justices are asked to address the spirit of the constitution as it inheres in often vague and idealistic expressions such as free speech and equal protection under the laws.
As our culture changes, laws too must change, but they do so slowly. The law is a stabilizing institution—Hora fugit, ius stat (Time Passes, but Law Remains). We humans need a stable world. As Hannah Arendt writes, “No civilization–the man-made artifact to house successive generations—would ever have been possible without a framework of stability, to provide the wherein for the flux of change. Foremost among the stabilizing factors, more enduring than customs, manners, and traditions, are the legal systems that regulate our life in the world and our daily affairs with each other.”
If law is to ensure the human need for stability, legal institutions have a complicated relationship with another fundamental human need, for change. “Change is constant, inherent in the human condition, but the velocity of change is not.” We are living in the last 100 years in a time of incredible change. We used to count three or four generations every century; now a generation last under a decade and five years age difference is enough to mark people as having grown up in a completely different world. As our culture changes, laws must keep pace.
During the Civil Rights Movement, the Free Speech Movement, the Anti-War Movement, and the general cultural shifts of the 1960s, our legislative institutions often lagged the social changes happening. The Supreme Court finally stepped in and enforced the 14th Amendment after nearly a century of failing to do so. But it only did so when the Civil Rights Movement “had brought about a drastic change in the attitudes of both black and white citizens.” When the Supreme Court acts to legalize change, it takes what Robert Post has called a Constitutional gamble. It gambles that the culture is changing so that it will come to see segregated schools as unconstitutional and abortion as a constitutional right. Clearly the former gamble paid off and the latter has not–at least not yet.
Does all this mean that the Court is simply a political institution and that we should treat it as such? Is the fact that the Court today mirrors our political divisions reason to abandon its role as the seat of authority divorced from politics, “the least powerful branch” of government? Should we not simply admit that law is politics and treat the Court as a fundamentally political institution?
In writing about the American Revolution, Arendt argued that the American Revolution succeeded, at least temporarily, in founding freedom, something that other revolutions in France and elsewhere failed to do. The successful founding of freedom in America had, she argues, two parts. First, the founding generation was taken with a uniquely American experience of power–the power of the people to act, engage, and participate in government that stretches from the Mayflower Compact to New England Town Hall Meetings and even to the tradition of Civil Disobedience that is part of a society in which the right to dissent is fundamental to the spirit of American democracy. This American Experience of Power underlies the Federalist Constitutional structure that not only separates power at the national level, but multiplies power sources throughout the country, pitting states, counties, cities and even civic groups against any effort at centralized administration. Since the Americans understood that only power can stop power, they established the “greatest American innovation in politics,” which Arendt saw as the “consistent abolition of sovereignty within the body politic.” The participatory spirit of the American Revolution was lost—or at least is in danger of being lost—because the Constitution never did institutionalize such power in town halls or Thomas Jefferson’s proposal for a Ward system. Nevertheless, the American experience of power is an essential part of the effort to found freedom.
The second key to the American Revolutionary founding of freedom was that the founders recognized that freedom could not last and endure simply based on power, even a dispersed and popular experience of power as existed in America. In addition to power, the foundation of freedom needs authority. If “the seat of power to them was the people,” the source of authority was to be the Constitution, “a written document, an endurable objective thing, which, to be sure, one could approach from many different angles and upon which one could impose many different interpretations, which one could change and amend in accordance with circumstances, but which nevertheless was never a subjective state of mind, like the will.” The surprising and mysterious fact that the American Constitution came to be worshiped in a “blind and undiscriminating” manner is either simply “great good fortune” or a side effect of the “political genius of the American people.” In either case, the “great measure of success the American founders could book for themselves… was decided the very moment when the Constitution began to be ‘worshiped.’”
Arendt calls it a “strange fact” that “constitution-worship in America has survived more than a hundred years of minute scrutiny and violent critical debunking of the document as well as of all the ‘truths’ which to the founders carried self-evidence.” And yet this strange fact may be, she writes, the key to the foundation of freedom in America: “One may be tempted even to predict that the authority of the republic will be safe and intact as long as the act itself, the beginning as such, is remembered whenever constitutional questions in the narrower sense of the word come into play.”
How the Constitution came to be worshiped is a mystery. That it did so is a fact of history. That many today, especially many young people, no longer worship the Constitution and the Supreme Court, is plain to see. The Court is politicized as at few other moments in our history. The media reports on the Court as simply a political body in which there are liberal and conservative factions. There is little effort to explain the (too often tenuous) legal nuances of the justices’ decisions.
At this moment, it is helpful to recall Arendt’s argument for why the Supreme Court and the Constitution are so essential to the foundation of freedom. As I’ve written before, Arendt argues there is “one institution that the American founders did discover that might preserve a space of freedom in modern society: namely in the Constitution itself and its institutional Praetorian guard, the Supreme Court.” Arendt rightly suggests that the American Constitution became a space for freedom within the American republic. It could do so, she argues, because of the double sense inherent in the word itself, by which constitution means both the text – an act of a government – and the active beginning in and through which a people founds itself as a people. It is the enduring power of this second sense of the constitution as a constitutive act of foundation that, for Arendt, is the secret behind the successful foundation of freedom in the American Revolution. Indeed, what ‘saved the American Revolution from’ the fates of all other modern revolutions – the replacement of the loss of absolute religious or traditional authority with the absolute authority of the democratic will of the nation – was, Arendt writes, ‘the act of foundation itself.’
When Arendt speaks of the Constitution as a manifestation of the founding moment, she alludes to the founders’ emulation of ancient Rome. In Rome, the Senate’s authority was not founded upon its claim to democratic representation. Instead, the Roman Senate ruled through its claim to be spiritually connected with the city’s original founders. The Senators, she insists, ‘reincarnated’ the ancestors and the ‘founding fathers’. As Arendt writes in words that need to be taken in their full force: ‘Through the Roman Senators, the founders of the city of Rome were present, and with them the spirit of foundation was present, the beginning, the principium and principle, of those res gestae [Latin for ‘things that are done’] which from then on formed the history of the people of Rome.’ The strength of the Roman idea of political authority was that it rested upon a vital ‘spirit of foundation’ that allowed the Roman Senate to unite ‘permanence and change’ in the self-same act. Whatever the Senate did, it did as a continuation of the founding spirit of Rome, which it possessed as representatives not of a collective will but as the present incarnation of a past-yet-still-vibrant foundational moment.
The distinction of the American Constitution is that it transfers the Roman foundation of freedom from the Senate to the Supreme Court. Because the Supreme Court is, in Woodrow Wilson’s phrase, ‘a kind of Constitutional Assembly in continuous session,’ the Court bases its authority on a reverence for – and a claim to be re-enacting – the founding experience of the nation. It is this intimate weaving of ‘foundation, augmentation, and conservation’, into a single cloak of constitutional authority that Arendt understands to be ‘the most important single notion which the men of the Revolution adopted’. Like Roman Senators, the Court justices must remain at all times as founders who would regularly experience the revolutionary thrill of foundation and beginning. The Court was, Arendt saw, a constitutionally authorized space of revolutionary freedom.
How the Supreme Court and its justices tie themselves back to the founding moment as reincarnations of the founding fathers partakes, of course, of the mysterious. The initial success of the American Constitution resulted from the founders causing the US Constitution to be worshiped. This worship depended upon and allowed an ambiguity to persist in the sense and understanding of the Constitution, on its becoming both ‘an endurable objective thing’, on the one hand, and yet one that could be approached from many angles and many interpretations. It must be amendable and changeable, and yet impervious to any subjective states of mind or influences of will.
The miracle of the Constitution’s foundational authority – it being worshiped as both a text and a continual reincarnation of the founding revolutionary act – is made possible only by a prior miracle – the miracle of beginning. As Arendt argues throughout her work, all men ‘are equipped for the logically paradoxical task of making a new beginning’. As beginners, we men are uniquely capable of understanding the mysterious way in which a beginning can also rest on ancient and unyielding foundations. Since men are themselves, as part of the human condition, beginners who can and do appear in the world to start things anew – since men are thrown into the world that we must respond to thus are we uniquely open to the idea of finding in the first and foundational act not only an arbitrary deviation but also an authoritative principle.
In the words of Augustine that meant so much to Arendt: ‘Initium ergo ut esset, creatus est homo – That there be a beginning, man was created.’ As a beginner, one’s birth does not predestine an entire life – our lives ar marked by contingency and unpredictability. And yet, we are born into a given world, a world with a spirit or an ethos that defines who we are. Because we are born into language, man is, as Aristotle long ago understood, a linguistic being. To act, to initiate a new beginning, therefore requires always also an acceptance of who one has been given to be. For men, therefore, the act of beginning anew is not an arbitrary deviation from the foundation. The foundation is in the past, and yet it remains a forceful part of everyday practice. The beginning, Arendt argues, ‘carries its own principle within itself, or, to be more precise, that beginning and principle, principium and principle, are not only related to each other, but are coeval’. As beginners, men are open to the claim of the beginning and foundation as an origin that carries with itself a principle and thus simultaneously allows for augmentation and conservation.
The sad fate of the American Constitution, and its institutional home in the Supreme Court, is that the need for conservation and stability will overwhelm the equally important drive for newness and the experience of beginning something new. Arendt’s point is that the Supreme Court’s mysterious and unaccountable power – its ability to do justice as a new act beyond the laws – threatened its legitimacy. In an age when power must be justified, the mystical authority of the Supreme Court can not but appear as illegitimate. As things stand, JeremyWaldron is right, there is little legitimacy or justice in having nine undemocratically appointed judges make what have come to be political decisions that overrule the political judgements of more than 500 representatives.
Calls to reform, expand, limit, or abolish the Supreme Court will no doubt continue. In a world when the answer to the question “What Is Authority?” is that the question should be “What Was Authority?” it is difficult to resist the conclusion that the Court is simply an institution of political power. That may be our fate. And yet, if it is, if the source of authority in the United States is lost, so too will be lost one of the pillars of our freedom.