The Supreme Court as Truthteller

03-30-2012

I spent an exciting day at the College of Arts and Letters at Stevens Institute of Technology. Along with Matthias Bormuth, Morris Kaplan, and our host Michael Steinman, we enjoyed a wide-ranging discussion centering around Hannah Arendt's essay Truth and Politics, but reaching deep into Arendt's thinking about law and politics as well.

Much of the discussion at our seminar discussed the status of the Supreme Court as a truthteller. Arendt saw the great innovation of the American form of government to be the shift of the seat of authority to the Supreme Court. By authority, Arendt means that pre-political claim of obedience that flows from tradition, religion, or possibly from charisma. In Rome authority was located in the Senate, and the Senators

"held their authority because they represented, or rather reincarnated, the ancestors whose only claim to authority in the body politic was precisely that they had founded it, that they were the 'founding fathers'. Through the Roman Senators, the founders of the city of Rome were present..."

In America, authority was vested in the Supreme Court. The Justices, like the Roman Senators, hold their authority because they had no power themselves, since they "'possessed neither Force nor Will but merely judgment.'" The Justices' authority comes not from power, but from their being linked back to the founders as interpreters of the founding moment, thus as a continuation of the constitutional convention in permanent session.

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 worshipped. 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 worshipped 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.

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. 

Arendt's locating of authority in the Supreme Court is part and parcel of her respect for the American Constitution and for federalism. The seat of American freedom is, in Arendt's understanding, the diffusion of powers and the refusal of absolute sovereignty in the American system of government.

It is, I think, worth recalling that the present arguments about the Affordable Care Act before the Supreme Court concern precisely this question of federalism. If the Court holds the Act unconstitutional, it will be because we live in a constitutional republic defined by the separation of powers including the division of power between a centralized national government and de-centralized state governments. According to this theory, liberty is best protected by diffusing power. The federal government has the right to regulate commerce. But to hold that people who do not purchase health care are engaged in interstate commerce is to say that the government can regulate anything we do, even non-commercial activities, simply by insisting that we buy something and then calling it commerce. By this theory, the act removes any and all limits on federal power and violates the constitutional idea of the diffusion and separation of powers.

I have no idea what Arendt would have thought of the Affordable Care Act. Clearly the Act is both flawed and ambitious, and it carries both much that is good and some that is less so.

But it does seem undeniable that the Affordable Care Act is a significant expansion of governmental power, both the power of the federal government over the states as well as the power of government over individuals. It confirmation would be another step in the long chain of 20th century cases eroding the separation of powers that Arendt held so important a bulwark for human freedom.

As the debate around the Affordable Care Act rages on, and as the judges retire to their chambers to commune with our ancestors, it is well worth your time to revisit Chapter Four of Hannah Arendt's defense of  On Revolution. It is your weekend read. Click here to download.

-RB