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Steeped in the Constitution: Hannah Arendt, Popular Constitutionalism, and the Tea Party

Alexander Ades

…a constitution is not intended to embody a particular economic theory…It is made for people of fundamentally differing views…

–Justice Oliver Wendell Holmes, Jr., dissenting in Lochner v. New York1

What should be your guide? … The Constitution. This ain’t no thinkin’ thing.

–Former House Majority Leader Dick Armey2

Introduction

Hannah Arendt’s On Revolution, not unlike much of her other work, is at once an

uplifting, inspiring narrative and a cautionary tale. Demonstrating her remarkable ability to give

voice to the “fundamental human experiences” 3 that have time and time again become

submerged in the theoretical thicket of the Western philosophical tradition, Arendt makes vivid

the resurfacing of the experience of freedom that occurred in the course of the American

Revolution – an unforeseen turn of events by which the deliberating and decision making that led

the revolutionaries to declare their independence from Britain “threw them into public business,

where, intentionally or more often unexpectedly, they began to constitute that space where

freedom can unfold its charms and become a visible, tangible reality.”4 Yet while she credits the

founders of the American republic with making an incredible rediscovery – “that a new

beginning could be a political phenomenon, that it could be the result of what men had done and

1 198 U.S. 45 2 Quoted in Michael Sokolove, “The Outsider’s Insider,” New York Times Magazine, November 8, 2009, http://www.nytimes.com/2009/11/08/magazine/08Armey-t.html?page%20wanted=all%20 (accessed April 4, 2013). 3 Hannah Arendt, The Human Condition, 2nd ed. (Chicago: University of Chicago Press, 1958), 94. Hereinafter HC. 4 Hannah Arendt, On Revolution (New York: Penguin Books, 1979), 33. Hereinafter OR.

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what they could consciously set out to do”5 – Arendt at the same time faults them, albeit

sympathetically, for failing to transmit “this experience of being free” to posterity by

institutionalizing it;6 thereby tainting the precedent set by their revolutionary act.

The sympathetic note inheres in Arendt’s recognition that the founders were confronted

by a “perplexity” that, from within their existing conceptual framework and in light of the

revolutionary experience, appeared to them as an insuperable paradox. The founders realized that

if their new beginning was to be more than novelty for novelty’s sake, if it was to represent the

inauguration of “something permanent and enduring,” then “a lasting institution, embodying this

spirit [of beginning] and encouraging it to new achievements, would be self-defeating.”

Consequently, it seemed to them that “the price to be paid” for their new beginning was to deny

future generations a guaranteed space for the very experience of freedom they had discovered.7

By thus failing to provide a public space for the people writ large, rather than for their elected

representatives, “the Constitution itself, this greatest achievement of the American people,” not

only “cheated them of their proudest possession,”8 but also handed down to all posterity a

stultifying intellectual legacy in which “the concern with stability and the spirit of the new have

become opposites in political thought and terminology.”9 The upshot of this line of thinking is

that the “revolutionary spirit” – an ethos that joins a zeal for “public freedom” (i.e.,

“participation in public affairs, or admission to the public realm”10) and for the novelty inherent

5 Ibid., 46 6 Ibid., 34 7 Ibid., 232 8 Ibid., 239 9 Ibid., 223 10 Ibid., 32

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in action to an ardent desire to construct and maintain a “house where freedom can dwell”11 –

has, for us, become a “lost treasure.”

From a theoretical perspective, “the effort to recapture the lost spirit of revolution

must…consist in the attempt at thinking together and combining meaningfully what our present

vocabulary presents to us in terms of opposition and contradiction”:12 namely, this inherited

tension between stability and novelty. And political theorists such as Patchen Markell and

Bonnie Honig have made great strides toward this end. Building on Arendt’s insights into the

nature of action and beginning, they have sought to shake democratic theory free of the tight grip

of outmoded and unhelpful binaries, showing us how “conventional oppositions between order,

closure, and continuity; and interruption, openness, and novelty” need not structure our

understandings of democracy and constitutionalism.13 Nevertheless, at the level of political

practice it remains unclear how spaces for popular political freedom are to be embedded in the

framework of a constitutional republic in a manner that does justice to the Janus-faced concept of

the revolutionary spirit. It is still a live question which sorts of political activity correspond to an

understanding of political freedom and authority that is not hostage to an illusory tension

between stability and novelty. And such uncertainty can only serve to undermine the

considerable theoretical advances that have been made, prompting us to question whether

stability and novelty, constitutionalism and democracy can in fact be complementary aims.

Indeed, Jason Frank has voiced exactly this concern, observing that “Arendt’s judicial

interpretation of continuous authority in On Revolution, along with the attending contrast

11 Ibid., 35 12 Ibid., 223-4 13 Patchen Markell, “The Rule of the People: Arendt, Arche, and Democracy,” American Political Science Review 100, no. 1 (2006): 1–14, (quote from p. 1); Bonnie Honig, “Dead Rights, Live Futures: A Reply to Habermas’s ‘Constitutional Democracy,’” Political Theory 29, no. 6 (2001): 792–805; Bonnie Honig, “Between Decision and Deliberation: Political Paradox in Democratic Theory,” American Political Science Review 101, no. 1 (2007): 1–17.

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between law and power, does not easily correspond with Markell’s insightful interpretation” of

Arendtian action.14

It is to counter misapprehensions such as these that I employ Arendtian concepts and

categories to argue, contra Arendt, that the revolutionary spirit is in fact alive and well, that in

democratic practice – not just in theory – we have cast off the misconceptions of the founding

era. Specifically, it is my contention that Arendt failed to appreciate how a constitution, as the

locus of unceasing hermeneutic activity, conceptually guarantees a space for a specific practice

of public freedom – popular constitutionalism.15 Elaborating popular constitutionalism as a form

of Arendtian political action, 16 I suggest that it captures the nuances of Arendt’s post-

foundational account of political authority. In instances of popular engagement with

constitutional understandings we see the distinctive dynamic of augmentation on full display, an

activity that allows us to affirm our freedom while at the same time tending to a common world

14 Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Durham: Duke University Press, 2010), 261n7. 15 Although, in later writings, Arendt suggests that civil disobedience is a form of action in keeping with the spirit of the revolution, she finds it difficult to incorporate disobedience into the framework of the legal system. See Hannah Arendt, Crises of the Republic (San Diego: Harcourt Brace & Co., 1972). While it may very well represent an important political activity, as a marginal phenomenon civil disobedience cannot play a material role in the propagation of political authority. It is worth noting that Frank interprets Arendt’s turn to civil disobedience as an unwitting nod to “the resources of popular constitutionalism in American political history,” but whereas he contends that drawing out this implication would undermine Arendt’s attempt to maintain a distinction between the sources of law and power (66), I argue that Arendt’s conception of authority is not just capable of accommodating a certain form of popular constitutionalism, but actually calls for it. 16 To my knowledge, only a single article, by the legal scholar Candice Hoke, discusses popular constitutionalism in Arendtian terms. See Candice Hoke, "Arendt, Tushnet, and Lopez: The Philosophical Challenge Behind Ackerman's Theory of Constitutional Moments," Case Western Reserve Law Review 47 (1996): 903-19. Hoke, however, is only concerned with highlighting the philosophical dimensions of Bruce Ackerman’s theory of constitutional moments – not with assessing its significance for an Arendtian understanding of politics – and therefore only briefly suggests how his theory can be read as a reply to “Arendt’s concerns about the American Constitution and the loss of the authentically revolutionary politics” (910n41). Interestingly, Ackerman himself engages Arendt’s interpretation of the American Revolution (in the same book Hoke discusses), but he never offers his theory of popular constitutionalism as a counterexample to her claim that the founders failed to institutionalize the revolutionary spirit. See Bruce Ackerman, We the People, Volume 1: Foundations (Cambridge: Harvard University Press, 1993), Chapter 8 and passim.

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that bestows a measure of permanence upon the realm of human affairs. Reflecting on the

practices in which we find ourselves already engaged can, in turn, enrich our conceptual

understanding of public freedom and its institutionalized forms, attuning us to the subtleties and

vagaries of augmenting action.

In this spirit, and heeding Arendt’s now famous injunction to “think what we are

doing,” 17 I propose to substantiate this claim by examining the practice of popular

constitutionalism as it is manifested in a contemporary social movement: the Tea Party. Granted,

the Tea Party is an unlikely candidate for such an endeavor. It is by no means the first popular

movement to articulate its goals in terms of a specific constitutional vision – the history of

popular constitutional movements in America stretches from the conflicts of the post-

revolutionary era18 to the abolitionist movement, the New Deal, the civil rights movement of the

1950s and 60s, and beyond.19 And in addition to being responsible for refocusing our public

political discussions on economic questions (which Arendt perceived as threatening to

instrumentalize politics), its emphatic equation of freedom with negative liberty appears

militantly opposed to the robust conception of positive political freedom that Arendt triumphs.

Yet it is the very contradictions it engenders when viewed from an Arendtian perspective that

renders the Tea Party worthy of close study, for these can help shed light on the peculiarities, the

trademark strengths and weaknesses, of popular constitutionalism as a type of political action. In

particular, the example of the Tea Party suggests that popular engagement with the Constitution

provides a space for meaningful political action in the age of mass democracy and the welfare

state. At the same time, however, the tenor of the Tea Party’s constitutional rhetoric highlights

17 Arendt, HC, 5. 18 Cf. Frank. 19 Cf. Ilya Somin, "The Tea Party Movement and Popular Constitutionalism," Northwestern University Law Review Colloquy 105 (2011): 300-2.

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the contingent nature of such spaces, revealing them to be reliant on a continuous practice of

political judgment that takes into account, and cultivates, the plurality of individual perspectives

on the common world.

As such, I proceed as follows. I begin by examining Arendt’s understandings of the

Constitution (I) and political authority (II), and the relation between them; drawing out the

tendencies latent in each that will later support a reinterpretation of them in the language of

popular constitutionalism. Before that, however, I bring these to bear on the issue of the

institutionalization of political freedom and authority, isolating the key factors that must be

considered when addressing this question (III). It is only after this that the import of popular

constitutionalism begins to emerge. Drawing upon the newly theorized accounts of popular

constitutionalism, I posit that these practices are in fact central to the dynamic of post-

foundational democratic authority that Arendt describes, and that they constitute a weakly

institutionalized form of political freedom (IV). Finally, I introduce the case of Tea Party

constitutionalism, examining first how it reflects positively on the capacity of popular

constitutionalism to disclose new possibilities for action, and then using it as a bridge to a

discussion of the promises and perils of political judgment (V).

I. The Constitution and the Condition of Plurality

The distinctive and vital role that the Constitution plays in Arendt’s understanding of

political life, and of American political life in particular, is captured in the semantic ambiguity of

the word itself. “The word ‘constitution’ obviously is equivocal in that it means the act of

constituting [a government] as well as the law or rules of government that are ‘constituted’, be

these embodied in written documents or, as in the case of the British constitution, implied in

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institutions, customs, and precedents.”20 Though each face of the word refers to a distinct feature

of political experience – the former to action, and the latter to structure – they are nevertheless

inextricably linked via Arendt’s understanding of the purpose of revolution; namely, “the

foundation of freedom: that is, the foundation of a body politic which guarantees the space where

freedom can appear.”21 Thus, the founders recognized that “they needed a constitution to lay

down the boundaries of the new political realm and to define the rules within it, that they had to

found and build a new political space within which the ‘passion for public freedom’…would

receive free play for generations to come.”22

That the Constitution is properly understood as guaranteeing a space for freedom, as

representing a blueprint of sorts for a “house where freedom can dwell,”23 suggests that it bears

an intimate relationship to the human condition of plurality. For “freedom in its most exalted

sense as freedom to act”24 is dependent upon “the constant presence of others who can see and

hear and therefore testify to” the existence of the words one speaks and the deeds one performs.

This endows the normally fleeting products of action and speech with a tangibility they would

not otherwise possess, and thereby confers upon the realm of human affairs a degree of reality

that saves it from its natural state of futility.25 It is only in appearing before others – in “be[ing]

seen by many in a variety of aspects” and from the “innumerable perspectives” that correspond

to each individual’s distinct place in the world – that the things of the world acquire their reality.

And it is out of this unique state of affairs, in which those present know themselves to be

oriented to the same object in spite of their diverging perspectives – in which they “know they

20 Arendt, OR, 145. 21 Ibid., 125 22 Ibid., 126 23 Ibid., 35 24 Ibid., 232 25 Arendt, HC, 95.

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see sameness in utter diversity” – that a common world, an experiential reality that can truly be

said to be shared, begins to take shape.26 This public realm is the medium that makes human

interaction and living-together possible, for it is a necessary “in-between” that at once serves to

relate individuals to one other in mutually intelligible ways, while also providing the necessary

degree of distance between discrete persons.27

Thus, the act of promulgating a constitution is a world-constituting activity. Though “the

world thrusts itself between” human beings whenever they gather together, “Every such space

has its own structure that changes over time and reveals itself in a private context as custom, in a

social context as convention, and in a public context as laws, constitutions, statutes, and the

like.”28 Because a constitution gives a definite form to the public realm, articulating the

institutional structures that make political interaction possible29 as well as the values that the

political community desires to make manifest in these interactions, Arendt concludes that,

“Under modern conditions, the act of foundation is identical with the framing of a

constitution.”30 However, the “peculiarity” of this “space of appearance” is that “it does not

survive the actuality of the movement which brought it into being, but disappears not only with

the dispersal of men…but with the disappearance or arrest of the activities themselves.”31 It

comes into being wherever power springs up – that is, wherever people join together for a

26 Ibid., 57-8 27 Ibid., 52-3 28 Hannah Arendt, The Promise of Politics, ed. Jerome Kohn (New York: Schocken, 2005), 106. 29 Jeremy Waldron offers an institutional, structural, and relational reading of Arendt’s constitutionalism, emphasizing the importance of, inter alia, “basic rules of political procedure,” voting, representation, parties, and federalism to the implementation of her vision of politics. This is surely a necessary component of any constitutional understanding, but I will suggest that it by no means exhausts Arendt’s. Jeremy Waldron, “Arendt’s Constitutional Politics,” in Cambridge Companion to Arendt, ed. Dana Villa (Cambridge: Cambridge University Press, 2000), 201-19. 30 Arendt, OR, 125. 31 Arendt, HC, 199.

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common purpose in word and deed.32 Recognizing that power is what keeps it in existence, the

founders – in framing the Constitution – intended “not to limit power but to create more power,

actually to establish and duly constitute an entirely new power centre.”33

The goal of the Constitution, on Arendt’s reading, was therefore “the constitution of

power,” which is also to say “‘the constitution of political freedom,’”34 since it is when speech

serves “to disclose realities” and action is the occasion “to establish relations and create new

realities” that power is “actualized.”35 As such, borrowing from Montesquieu, the founders

divided power horizontally and vertically, counterbalancing the power embodied in one

institution or at one level of government with a concentration of it elsewhere, in order to multiply

the sites of power; thereby ensuring that power would continue to be generated without unduly

accumulating in any single node of the federal system.36 Yet, while Arendt commends the

founders for the unparalleled perspicacity they displayed in addressing the complexities of power,

we have seen that she ultimately condemns them for failing to institutionalize widespread

popular participation. Through “mutual promise and common deliberation”37 the founders had

brought forth a new body politic, but in their preoccupation with the issue of its stability they had

neglected to guarantee a space for the people to exercise the political freedom they had

rediscovered through the very act of constituting the republic. Thus, pace Arendt,

Paradoxical as it may sound it was in fact under the impact of the Revolution that the revolutionary spirit in America began to wither away, and it was the Constitution itself, this greatest achievement of the American people, which eventually cheated them of their proudest possession.38

32 Hannah Arendt, On Violence (New York: Harvest, 1969), 44, 52; Arendt, HC, 199-207. 33 Arendt, OR, 154. 34 Ibid., 150 35 Arendt, HC, 200. 36 Arendt, OR, 150-4. 37 Ibid., 214 38 Ibid., 239

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Although Arendt correctly observes that the Constitution, in establishing a representative

democracy, formally grants a monopoly on the institutionalized spaces for the exercise of

political freedom to a relatively small group of elected officials,39 it is my contention that a

constitution, by its very nature, at least conceptually guarantees the citizenry an ever-present

occasion for the exercise of popular political freedom: that is, it weakly institutionalizes political

freedom. We will see shortly how practices of popular constitutionalism instantiate public

freedom, but before that we must further elaborate the connection between a constitution and

plurality, for just as this relationship explains the origins, and exposes the fragility, of the public

realm, so too does it hold the key to understanding how a modern democratic constitution

necessarily institutionalizes this particular form of popular political action. Yet this requires us to

articulate a different, though related, dimension to the association between constitutions and the

condition of human plurality.

As we observed above, plurality is inscribed in a constitution qua in-between, relating

and separating distinct individuals, but it is also a constitutive feature of the way a democratic

political community relates to the constitution, the way it is experienced through the practices of

a democratic politics. That is, this worldly in-between calls upon those who inhabit the way of

life it makes possible to reflect back upon it. This is particularly clear in the case of the U.S.

Constitution as

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. It has remained a tangible worldly entity of greater durability than elections or public-opinion polls.40

39 Ibid., 235-8 40 Ibid., 157. Emphasis added.

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Thus, as a written document, it is evident that the Constitution can be the focal point of a

multiplicity of perspectives on, and interpretations of, the very norms and practices that, as a

world-constituting entity, it throws in between citizens to relate and separate them. Yet the

emphasis Arendt here places on the writtenness of the Constitution can be read as simply

highlighting “the elementary objective, worldly character” of constitutions in general.41 For, in a

political context, “the in-between is not physical but normative”;42 regardless of whether one can

lay eyes upon it, it can be acknowledged as articulating the conditions of our shared public life,

which norms we recognize as commonly held, but, given our diverging perspectives on the world,

are prone to interpret differently. And it is this very attribute of the Constitution, its ability to

draw out, or serve as an outlet for the expression of, the human condition of plurality, that

contributes to its world-building function. As Arendt explains, “The more standpoints there are

within any given nation from which to view the same world that shelters and presents itself

equally to all, the more significant and open to the world that nation will be,” and indeed “the

larger and richer that world will be.”43 In view of the Constitution’s worldly character, it is

significant that Arendt locates the source of political authority in it. For, as we shall see, it

introduces a popular element to authority that Arendt does not fully elaborate, but which, if

teased out, reveals popular constitutionalism as a recognizably Arendtian means of fusing the

concern for stability and the spirit of the new.

II. The Origin and Location of Arendtian Authority

Arendt attributes the success of the American Revolution in “founding a body politic

stable enough to survive the onslaught of centuries to come”44 to the founders’ distinguishing

41 Ibid., 164 42 Waldron, 204. 43 Arendt, Promise of Politics, 176. 44 Arendt, OR, 198.

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“clearly and unequivocally between the origin of power…and the source of law.” That is, they

recognized that “while power, rooted in a people that had bound itself by mutual promises and

lived in bodies constituted by compact, was enough ‘to go through a revolution’” – to bring into

existence a new body politic – “it was by no means enough to establish a ‘perpetual union’, that

is, to found a new authority.”45 Here it seems that power aligns with the spirit of novelty, and

authority with the concern for stability and permanence, but we will see shortly that these are far

more integrated than this distinction between power and law initially suggests. Since the

founders intended the new system of government they had established and embodied in the

Constitution to represent the “new law of the land, which was to incorporate for future

generations the ‘higher law’ that bestows validity on all man-made laws,” they had to locate the

authoritativeness of this authorizing higher law in a source that transcended the popular power

that had initially given birth to it, and which could thereby serve to constrain the unpredictable

and creative nature of that power.46 Yet, as the Declaration of Independence’s references to self-

evident truths and a divine being attest, the founders struggled to conceptualize the legitimizing

force behind their founding act. Constrained by the traditional understanding of law as command,

they proved unable to formulate theoretically the characteristically Roman solution that Arendt

claims they backed into: that “the act of foundation itself”47 served as the fount of authority. As

evidence of this she cites, on the one hand, the remarkable “strength with which the American

people bound themselves to their constitution,” which had “become overnight the object of ‘an

undiscriminating and almost blind worship,’”48 and, on the other, the establishment of “a

45 Ibid., 182 46 Ibid. 47 Ibid., 196 48 Ibid., 198. Quoting Woodrow Wilson.

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concrete institution…especially designed for the purpose of authority”: a Supreme Court, which

would channel the authority of the Constitution through its interpretation of it.49

The grave stakes of not just distinguishing between the sources of power and authority,

but also tangibly incorporating this distinction in some manner into the structure of government

is illustrated poignantly, for Arendt, by the very different course taken by the French Revolution.

With the rise of Robespierre and the Jacobins, Rousseau’s general will was installed as the

source of all laws, eliding the distinction between power and authority and resulting in an endless

succession of “decrees and ordinances, which were obsolete the very moment they were issued,

swept away” by the mutable will of the People.50 This turn to, and exclusive reliance upon, the

popular will necessarily devalues plurality, for “The will, if it is to function at all, must indeed be

one and indivisible,” and it therefore “excludes all processes of exchange of opinions and an

eventual agreement between them.” As such, the attempt to locate “the enduring unity of the

future political body…not in the worldly institutions which this people had in common, but in

the will of the people themselves”51 failed to provide either stability or a space for freedom.

For this reason Arendt is quick to credit the founders of the American republic for

locating the source of authority in the worldly entity that is the Constitution, and distancing it

from the popular source of power by isolating it in the powerless institution of the Supreme

Court. Yet, on Arendt’s view, this move only addresses the question of stability, doing nothing to

preserve or institutionalize the revolutionary spirit.52 She therefore finds it necessary to evoke the

images of the town-hall-like “popular councils” of the revolutionary era and Jefferson’s vision of

a national system of wards in order to highlight the absence of an institutionalized space for

49 Ibid., 199-200 50 Ibid., 183 51 Ibid., 76 52 Ibid., 229, 231

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public freedom. However, as will be discussed shortly, this represents a failure on Arendt’s part

to fully think stability and novelty together, for her conception of authority as constitutional

authority, when joined with her analysis of the maintenance of that authority in terms of

augmentation, suggests that popular engagement with constitutional interpretation satisfies both

imperatives.

In fact, it is somewhat misleading for Arendt to state that “the true seat of authority in the

American Republic is the Supreme Court.”53As, soon after, she remarks: “needless to say, the

very authority of the American Constitution resides in its inherent capacity to be amended and

augmented.”54 Nor does she stop there. She goes on to conjecture that

the remembrance of the event [the foundation] itself – a people deliberately founding a new body politic – has continued to shroud the actual outcome of this act, the document itself, in an atmosphere of reverent awe which has shrouded both event and document against the onslaught of time and circumstance,

and that therefore “the authority of the republic will be safe and intact as long as the act itself…is

remembered whenever constitutional questions in the narrower sense of the word come into

play.”55 Nevertheless, the Roman model of authority that Arendt draws upon fits these seemingly

contradictory statements together neatly.

Although, under modern conditions, the political realm must be sustained “without the

religious trust in a sacred beginning and without the protection of traditional and therefore self-

evident standards of behavior” – which, alongside authority, constituted the three foundational

pillars of the Roman understanding of the political56 – the Roman experience of authority (or

something closely resembling it) remains accessible to us, and explains the abiding stability of

53 Ibid., 200 54 Ibid., 202 55 Ibid., 204 56 Hannah Arendt, “What is Authority?,” in Between Past and Future (New York: Penguin Classics, 2006), 140-1.

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the American republic. The crux of the Roman conception of authority is that “the act of

foundation inevitably develops its own stability and permanence,” for “authority in this context

is nothing more or less than a kind of necessary ‘augmentation’ by virtue of which all

innovations and changes remain tied back to the foundation which, at the same time, they

augment and increase.”57 This view of authority as augmentation draws a tight connection

between “permanence and change,”58 challenging the commonplace assumption that authority is

necessarily and exclusively a conservative force, asserting the primacy of a prior time or a

transcendent force over the intentions of contemporaries. Rather, on this conception “foundation,

augmentation, and conservation are intimately interrelated.”59 It becomes plausible to say that an

alteration of the Constitution – itself a new beginning of sorts – is at once an act of

(re)foundation and conservation insofar as its intention to improve the political order brought

forth by the founding generation (to infuse it with an added measure of novelty) confirms both

that the founders indeed inaugurated a new beginning that calls for the response and (re)action of

future generations,60 and that the legacy of this act qua beginning will continue to be carried

forward into an uncertain future. As Waldron concisely glosses it, “Respect for an established

constitution does not mean treating it as sacrosanct and beyond change; but it means treating it as

the object of change and augmentation, rather than simply purporting to begin again every time

we suppose ourselves to have accumulated more wisdom than our ancestors.”61 And this image

of the Constitution as forever susceptible to augmenting alteration is consistent with the

57 Arendt, OR, 202. 58 Ibid., 201 59 Ibid. 60 Thus, contra Frank, Arendt’s conception of authority corroborates, rather than confounds, Markell’s interpretation of Arendtian beginnings in terms of “practical engagement with events” (Markell, 7). As will become clear in the discussion of popular constitutionalism, neither Arendt’s emphasis on the role of the judiciary in the maintenance of democratic authority nor her insistence on drawing a distinction between law and power undercuts this. 61 Waldron, 213. Emphasis in original.

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Constitution as the culmination of action, rather than the product of fabrication. Thus, the

imbrication of foundation, augmentation, and conservation on this model – in which none can be

invoked without implicating the others – is best expressed as “a coincidence of foundation and

preservation by virtue of augmentation,” in which “the ‘revolutionary’ act of beginning

something entirely new, and conservative care, which will shield this new beginning through the

centuries, are interconnected.”62

III. Institutionalizing Freedom and Authority

Although Arendt’s turn to the Jeffersonian system of wards has perplexed many of her

commentators, given the considerable practical obstacles standing in the way of its

implementation,63 it is an eminently understandable move. We have seen that Arendt is centrally

preoccupied with the founders’ failure to institutionalize the revolutionary spirit, which she

equates with a failure to incorporate widespread public participation into the framework of the

Constitution. As she reasons,

If the ultimate end of revolution was freedom and the constitution of a public space where freedom could appear, the constitutio libertatis, then the elementary republics of the wards, the only tangible place where everyone could be free, actually were the end of the great republic whose chief purpose in domestic affairs would have been to provide the people with such places of freedom and to protect them.64

However, rather than taking this as a literal institutional prescription – which, aside from

problems of implementation, would risk portraying Arendt as a partisan of direct democracy – it

is more productive (following Albrecht Wellmer) to consider it metaphorically. That is, Arendt’s

account, in the final sections of On Revolution, of the local popular councils that have arisen

62 Arendt, OR, 202. Emphasis added. 63 Cf. Albrecht Wellmer, “Arendt on Revolution,” in Cambridge Companion to Arendt, ed. Dana Villa (Cambridge: Cambridge University Press), 220-41. For a rare defense of the feasibility of the council system see Wolfhart Totschnig, “How to Reconcile Participation and Representation: A Defense of Arendt’s Argument for the Council System,” Paper presented at the annual meeting of the American Political Science Association, August 30 – September 2, 2012. 64 Arendt, OR, 255.

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organically in the course of every modern revolution (but have nowhere been preserved),65 can

profitably be read as an attempt to impress upon us the political insight that the founders failed to

heed: “that the taste for freedom and the experience of freedom can only come from diverse

forms of active participation in common concerns.”66

Nevertheless, some attention must still be paid to the institutional form such participation

assumes, for, as we observed in the previous section, Arendt’s post-foundational account of

political authority requires a close relationship between exercises of public freedom that

introduce novelty and unpredictability, and practices of conservation targeted to shoring up the

stability and permanence of an established public realm. Thus, while it is important to multiply

the spaces where public freedom can flourish, the effort to recapture the revolutionary spirit does

not consist solely in this. If we retrieve a general taste for public freedom but do not preserve a

space where the people themselves can experience the “coincidence of foundation and

preservation by virtue of augmentation” – that is, experience their freedom, their capacity to

inaugurate new beginnings, through the augmentation of past beginnings – then we risk

reinscribing the false tension between stability and novelty. It is in this sense that the councils are

a potentially misleading metaphor, for they represent a popular practice of political freedom in

which the people are placed at an unnecessary distance from the Constitution, which is the

proper object of such augmenting activity. Such an institutional scheme sets a dangerous

precedent, as it fails to do justice to Arendt’s model of authority and ends up effecting a

gratuitously sharp divide between extraordinary and ordinary politics. As such, it is instructive to

examine these theoretical shortcomings of the council system – with the intention not of simply

65 Ibid., 255-68 66 Wellmer, 224.

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criticizing this particular institution, but of underscoring the significance of accounting for the

popular element of authority when seeking to institutionalize public participation.

In essence, the institutional vision Arendt sketches would institute a division of labor

between the ward system and the court system, with the former guaranteeing public freedom by

empowering citizens to deliberate and legislate on matters of common concern, and the latter

tending to authority. While this seems to satisfactorily reconcile Arendt’s competing

observations that, on the one hand, the Supreme Court is the “seat of authority” and, on the other,

that the authority of the Constitution derives from its capacity to be augmented, dividing these

responsibilities between unrelated institutions implies a “disaggregation between augmentation

and conservation”67 that is inconsistent with the account of authority discussed above. To accept

this reading would therefore require us to discount Arendt’s elaborate articulation of the

interrelatedness of foundation, augmentation, and preservation. In fact, this is the approach

adopted by Andreas Kalyvas, who, taking these as “the two institutional pillars of [Arendt’s]

republican vision”68 of normal political life, is forced to conclude that she did not intend the

Roman fusion to be replicated in modern times.69

More important, however, is that such a bifurcated institutional model would drive a

wedge between an extraordinary politics practiced during foundational moments – the sort of

action that produces an “exhilarating awareness of the human capacity of beginning”70 – and an

ordinary politics, the “normal freedom and agonistic contestation,”71 that takes place on a day-to-

day basis within the spaces constituted by the former. And this hardly seems consonant with

67 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2008), 280. 68 Ibid., 264 69 Ibid., 279 70 Ibid., 223 71 Ibid., 256.

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Arendt’s desire to recapture the revolutionary spirit, to make the “charms” of a freedom

experienced not just in deliberation and action, but also in shaping and caring for a world we

hope to house future generations, more than the lost treasure of a bygone era. There is certainly a

distinction to be made between the revolutionary politics of the founding and the constituted

government that was its outcome – Kalyvas is right to observe that “Arendt did not welcome

total politics or permanent revolution.”72 Yet to reify this distinction into a sharp opposition

between a high- and a low-politics (or into distinct “moments” of democratic politics as Kalyvas

does73) is to once more run aground on the manufactured tension between stability and novelty.

The location of public freedom in an institutional home is undoubtedly a step in the right

direction, but this must be done in a manner that reinforces, rather than minimizes, the link

between the people and the foundation. Of course, even on the model that Arendt presents, and

which Kalyvas takes literally and further develops, the people retain the right to participate in

extraordinary politics by amending the Constitution. But to relegate such participation to the

margins of politics – to periods of formal constitutional politics – while tying the typical

experience of political freedom exclusively to “the more mundane form of normal, everyday

lawmaking,”74 is to continue to subordinate the capacity for novelty to the concern for stability.

It suppresses the link between present political practices and the founding that the Constitution as

a worldly object provides, and which a practice of authority that is supportive of political

freedom requires.

The consequences of so distancing the Constitution and the founding moment from the

people is concisely conveyed by Arendt in her description of the “tragic fate which awaited the

first constitution in France.” While this brief narrative is explicitly intended to demonstrate the 72 Ibid. 73 Cf. ibid., 12 74 Ibid., 277

20

repercussions of unmooring the act of founding a space for freedom, of drafting a constitution,

from the constituent power residing with the people, it is equally well suited to our purposes here

for it describes how a constitution can effectively be drained of its significance. As Arendt’s

account goes, “instead of taking their resolutions and deliberations back to the people,” the

French Assembly “cut themselves adrift from their constituent powers” and “the Constitution of

1791 remained a piece of paper, of more interest to the learned and the experts than to the

people.” With its authority “shattered,” the first constitution “was followed in quick succession

by one constitution after another until…the very notion of constitution disintegrated beyond

recognition.” Indeed, Arendt concludes, “It was in this process that the act of constitution-

making lost its significance, and that the very notion of constitution came to be associated with a

lack of reality and realism, with an over-emphasis on legalism and formalities.”75

Thus, to sever the link between the Constitution and the people by shuttering the former

away in the judiciary while the latter, though guaranteed a role in government, go about their

business with nothing more than a tangential relationship to it can be expected to produce the

same enervating effects. For this is inconsistent with the Constitution’s status as a worldly reality,

thriving on the multiplicity of perspectives from which it can be approached, reconceptualized,

and rearticulated. When the everyday experience of political freedom is directed away from the

Constitution and towards the ordinary, politics becomes less about care for the world – for “the

judicious exchange of opinion about the sphere of public life and the common world, and the

decision of what manner of action is to be taken in it, as well as to how it is to look henceforth”76

– even as it allows individuals to cultivate a sense of public happiness and rejoice in the self-

disclosive activity of mutual deliberation and decision-making. This is not necessarily to deny 75 Arendt, OR, 125-6. Emphasis added. 76 Hannah Arendt, “The Crisis in Culture,” in Between Past and Future (New York: Penguin Classics, 2006), 219-20.

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the usefulness of popular councils or other means of institutionalizing public freedom on a large

scale, for these are indeed laudable goals; and, of course, political activity need not always

contain an element of, or make reference to, the extraordinary – otherwise, constituted

government would not have the effect of introducing “islands of predictability” and “guideposts

of reliability” into the uncertainty of human affairs.77 But to insist on a sharp separation between

the ordinary and the extraordinary, between augmentation and foundation, both reflects a flawed

understanding of the relationship between stability and novelty and obscures a very real and

present path to public freedom through a sustained relationship with the extraordinary – one in

which the people can experience their freedom in an elevated way without it being either too rare

and fleeting an experience or one that is corrosive of authority. On the contrary, as we will now

see, such a practice is in fact a common one and plays a crucial role in sustaining political

authority.

IV. Popular Constitutionalism

Over the course of the past two decades, popular constitutionalism has emerged as a topic

of intense debate among legal scholars – both from normative and empirical standpoints. As a

normative ideal, popular constitutionalism expresses the democratic intuition that “the people

themselves” should exercise “active and ongoing control over the interpretation and enforcement

of constitutional law.”78 As a positive concept, popular constitutionalism refers to the informal,

77 Arendt, HC, 244. Also see Hannah Arendt, The Origins of Totalitarianism, 2nd ed. (Cleveland: Meridian, 1958), 465. 78 Larry D. Kramer, "Popular Constitutionalism, Circa 2004," California Law Review 92, no. 4 (2004): 959. Two particularly influential works in this very recent tradition are: Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2005); and Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 2000). For an overview of the underlying commitments of a normative popular constitutionalism see David E. Pozen, "Judicial Elections as Popular Constitutionalism," Columbia Law Review 110, no. 8 (2010): 2053-64.

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extra-constitutional processes through which the public in fact shapes constitutional meanings.79

Drawing upon the resources furnished by the latter strand, I sketch out how the practices of

popular constitutionalism that have long played a role in American politics suggest that, in the

realm of democratic praxis, we have already stepped out from underneath the shadow of the false

dichotomy between stability and novelty. They demonstrate how we can affirm our freedom

while at the same time maintaining the political structures that delimit the public realm. The

discussion proceeds in two parts. First, I examine how existing practices of popular

constitutionalism corroborate Arendt’s account of political authority in a constitutional

democracy. Second, I elaborate popular constitutionalism as a form of action, thereby

vindicating the claim that the Constitution weakly institutionalizes public freedom.

Popular Constitutionalism and Political Authority

As we have seen, the nature of the Constitution as a worldly and world-constituting

reality, inseparable from – and indeed calling for and thriving on – the numerous perspectives

from which it is viewed and the various stances that can be taken toward it, requires an

understanding of political authority with a distinctively popular inflection. And this is the same

understanding one arrives at after taking stock not just of the palpable influence popular

constitutional claims exert over collective and official understandings of the meaning of the

Constitution, but also of the vivifying effects such public contestation has on our democratic

sensibilities.

Before examining this in greater detail, however, there is some initial ground clearing in

order, as “popular constitutionalism” is far from a univocal concept. Many normative accounts of

popular constitutionalism express an almost militant opposition to the judiciary, as the very title

79 For an overview of the considerable empirical work that has been conducted on this subject across disciplinary boundaries see Kramer, “Popular Constitutionalism,” 967-74.

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of Mark Tushnet’s book on the subject makes abundantly clear: Taking the Constitution Away

from the Courts. But although the suggestion that the people should, or do, have considerable

sway over the authoritative meaning of the Constitution constitutes an undeniable challenge to

judicial supremacy, it need not deal a fatal blow to the tradition of judicial review. In fact, we

will see that while Arendt left the relationship between judicial review and popular engagement

in constitutional interpretation unspecified, theories of popular constitutionalism explain how the

two practices can be mutually supportive.

At the same time, we must also guard against the excesses of certain descriptive accounts

of popular constitutionalism. Specifically, those that stipulate overly restrictive criteria for

identifying successful cases of popular influence on constitutional meaning. For example, even

Bruce Ackerman’s theory of “constitutional moments”80 – one of the earliest, and most detailed,

accounts of the ways in which popular movements can effectively alter constitutional law

without recourse to the official Article V amendment process – only sensitizes us to the rare

instances of “constitutional politics,” in which “The People are roused from the slumber of their

normal private lives to partake in widespread public debate and resolution about some central

public issue.”81 Such accounts serve only to reinforce the distinction between extraordinary and

ordinary politics, as Ackerman himself takes care to delineate the differences between “normal

politics” and “higher lawmaking,” and then further distinguishes between those instances of the

latter that do and do not warrant “codification” in judicial decisions.82 Yet there are accounts of

popular constitutionalism that dissolve this opposition by pressing deeper into the complex

relationship between a people and its constitution, and it is to one of these that we now turn.

80 Ackerman, We the People, Volume 1; and Bruce Ackerman, We the People, Volume 2: Transformations, (Cambridge, MA: Harvard University Press, 2000). 81 Hoke, 909n31. 82 Ackerman, We the People, Volume 1, Chapters 9 and 10.

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Taking “cultural controversy,” not as a symptom of eroded Constitutional authority, but

as the starting point for an analysis of the conditions of that authority, Yale constitutional

scholars Robert Post and Reva Siegel have expounded a theory of “democratic

constitutionalism”83 that resonates with the Arendtian understanding of the Constitution. To

bring these similarities into full relief, however, we must dispense with their sometimes

problematic framing of the issue. On the surface they appear to be firmly ensconced in the

troublesome paradigm that Arendt seeks to displace: they isolate a tension between stability and

novelty as “a deep logic of the American constitutional order,” characterizing it in terms of

“competing commitments to the rule of law and to self-governance.”84 And, accordingly, they

offer democratic constitutionalism as a description of “how our constitutional order actually

negotiates the tension between the rule of law and self-governance.”85 Yet this language is

misleading, for by showing how practices of popular constitutionalism have dynamically and

dialectically86 mediated the imperatives of law and politics, constitutionalism and democracy,

stability and novelty, the model of democratic constitutionalism actually serves to dissolve these

binaries, while at the same time preserving the distinctiveness of these categories. And to do so it

draws upon what is essentially an Arendtian conception of constitutional authority. As Post and

Siegel outline it:

The premise of democratic constitutionalism is that the authority of the Constitution depends on its democratic legitimacy, upon the Constitution’s ability to inspire Americans to recognize it as their Constitution. This belief is sustained by traditions of popular engagement that authorize citizens to make claims about the Constitution’s

83 See Robert C. Post and Reva B. Siegel, "Roe Rage: Democratic Constitutionalism and Backlash." Harvard Civil Rights-Civil Liberties Law Review 42, no. 2 (2007): 373-434; and Robert C. Post and Reva B. Siegel, "Democratic Constitutionalism," in The Constitution in 2020, ed. Jack M. Balkin and Reva B. Siegel (Oxford: Oxford University Press, 2009), 25-34. 84 Post and Siegel, “Roe Rage,” 375. 85 Ibid., 376. Emphasis added. 86 Robert C. Post, “Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics,” California Law Review 98, no. 4 (2010): 1345.

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meaning and to oppose their government – through constitutional lawmaking, electoral politics, and the institutions of civil society – when they believe that it is not respecting the Constitution. Government officials, in turn, both resist and respond to these citizen claims. The meaning of our Constitution has historically been shaped by these complex patterns of exchange.87

This notion that the authority of the Constitution is a product of its “democratic

legitimacy” – the perceived responsiveness of official interpretations of it to shifting popular

understandings of its meaning – acknowledges the pivotal role of practices of augmentation in

the complex dynamic of post-foundational democratic authority. Augmentation serves to bridge

the gap between the founding moment, the act of beginning that we recognize as such and take as

our political lodestar, and our freedom to act and begin anew. As Honig explains,

Arendt…sees that a beginning too firmly rooted in the past is in danger of becoming reified and foundational. Our commitment to augmentation and amendment may derive from our reverence for a beginning that is in the past; but our practices of augmentation and amendment make that beginning our own, not merely our legacy but our own construction and performative.88

This is exactly what the forms of popular engagement in constitutional deliberation recognized

by democratic constitutionalism achieve. By advocating for a particular interpretation of

constitutional meaning, social movements aspire to convince officials tasked with enforcing

constitutional understandings that their constitutional vision expresses the considered convictions

of the people from whom the Constitution’s power springs, and thereby to see that vision

vindicated and their substantive aims realized. At the same time, these contestations of extant

constitutional understandings and challenges to the authority of those formally tasked with the

responsibility of legal interpretation and enforcement actually serve to “sustain intergenerational

identification with foundational acts of constitutional lawmaking” while at the same time

“deliver[ing] all of the expressive, regulative, and rule-of-law goods that constitutional

87 Post and Siegel, “Roe Rage,” 374. Emphasis in original. 88 Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993), 114. Emphasis added.

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lawmaking delivered to the founding generations.”89 Since, for these appeals to be successful,

social movements must frame their claims in the language of the shared values, narratives, and

commitments underwriting the constitutional order, an effective challenge to received

understandings of the Constitution requires a creative appropriation of the Constitution and the

legacy of the founding and thus “dynamically sustains its democratic authority.”90 Furthermore,

the ostensible threat to the interpretative authority of officials is simply a product of the

inherently fluid – the “differentiated yet interdependent” – role-understandings of citizens and

officials regarding who should be responsible for issuing authoritative interpretations of a

Constitution that at once arises from “We the People” and is intended to stand over them. These

“ambiguities about the scope of the authority each possesses and the deference each owes” open

channels of “communication, coordination, and accommodation” that allow popular movements

to contest and alter constitutional meaning – to exercise their freedom and make the Constitution

their own – “in ways that anchor the legitimacy of government and identity of the polity under

conditions of ongoing and unresolved normative conflict.”91 These popular mechanisms of

constitutional change reflect the “complex and interdependent relationships”92 – not a conflict,

tension, or opposition – between stability and novelty, law and politics, a necessary authority and

a precarious freedom. Indeed, since popular contestation of established constitutional meanings –

which, on alternative accounts, appears as a threat to the stability of the constitutional order – is

89 Reva B. Siegel, "Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA,” California Law Review 94 (2006): 1342. 90 Ibid., 1350: “Disputes about forging a common future are thus expressed as claims about the meaning of a shared past.” Also see ibid., 1352-62. 91 Ibid., 1349, 1355. The implied framework here is the dynamic account of “constitutional culture” that is one of Siegel’s influential contributions to the literature. In her usage, the concept refers to this reservoir of “understandings of role and practices of argument through which citizens and officials can propose new ways of enacting the society’s defining commitments” (ibid., 1327). 92 Post, “Theorizing,” 1345.

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acknowledged to be decisive for the continued authority of the Constitution,93 it makes little

sense to speak of a polarity between higher law and popular politics. Rather, these remain

operative concepts that are now seen to be two sides of the same coin: “Ordinary citizens believe

that they are entitled to make claims about the meaning of the Constitution, while at the same

time they view the Constitution as a form of paramount law that supervenes ordinary expressions

of political will.”94

This model of democratic constitutionalism thereby accounts for the interrelatedness of

foundation, augmentation, and conservation – which implicates popular involvement in the

reproduction of political authority – while also explaining Arendt’s insistence on a prominent

role for the judiciary. The key observation of democratic constitutionalism is that the courts play

a unique, but not hegemonic role, in processes of constitutional meaning-formation:

Constitutional ideals enforced by courts express national identity; they radiate gravitas and consequence. When entrenched through the professional logic of legal reason, otherwise contested understandings of the nation’s ideals receive official endorsement and application by those who feel obligated to obey the law. They become guides for the juridical organization of society, wielding enormous symbolic power and shaping the social meaning of innumerable nonlegal transactions.95

This acknowledgment of the distinct value of constitutional meaning in its capacity as

fundamental law – as the product of specialized legal interpretation and the source of

authoritative legal obligations – reflects Arendt’s intuitions that “in the American republic the

function of authority is legal, and it consists in interpretation,” and that the judiciary’s lack of

power (except for the symbolic sort) renders it uniquely suited to wielding authority.96 And the

practices of contestation outlined above render this indispensible function of the judiciary

93 As Honig pithily renders the point, on Arendt’s view “the practice of authority turns out to be, paradoxically enough, a practice of deauthorization” (Political Theory, 115). 94 Reva B. Siegel, “Text in Contest: Gender and the Constitution from a Social Movement Perspective,” University of Pennsylvania Law Review 150 (2001): 322-3. 95 Post and Siegel, “Roe Rage,” 380. 96 Arendt, OR, 200.

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consistent with the recognition that the authority of its interpretations of the Constitution partly

relies on their perceived democratic legitimacy. It is “because Americans believe in the

possibility of persuading others – and therefore ultimately the Court – to embrace their views

about constitutional meaning,”97 that deference to the judiciary can be reconciled with popular

engagement in constitutional deliberation. Being explicitly endowed with the responsibility of

issuing pronouncements of constitutional meaning, the courts are recognized as channeling the

authority of the Constitution. And it is because the authority of the Constitution transcends every

instantiation of it in the form of judicial interpretation98 that the courts can serve as the target of

social movement agitation. It is in the hope that their constitutional vision will be expressed in

the official interpretation and enforcement of the Constitution that social movements articulate

and rally around contestable interpretations of constitutional meaning. “The ongoing possibility

of shaping constitutional meaning helps explain why Americans remain faithful to their

Constitution even when their constitutional views do not prevail,”99 and thereby renders popular

practices of authority and a strong judiciary complementary, and necessary, attributes of the

American political order.

Popular Constitutionalism as Weakly Institutionalized Action

Thus, contra Arendt, we need not go searching beyond the Constitution – in the writings

of Jefferson or in the experiences of the Paris Commune, the Russian soviets, or the German

Rätesystem100 – to find an institutional home for the public freedom that it is the goal of every

revolution worthy of the name to found. The Constitution itself weakly institutionalizes such

freedom because its continued existence as a worldly in-between and the wellspring of authority 97 Post and Siegel, “Democratic Constitutionalism,” 27. 98 Arendt, OR, 200: “The Supreme Court derives its own authority from the Constitution as a written document.” 99 Post and Siegel, “Roe Rage,” 383. 100 Cf. Arendt, OR, 262.

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demands that it be taken as a starting point for further action – that it constantly be reinterpreted

and reappropriated as we chart our course forward. As such, it is “not only from Arendt’s

accounts of action and participation but also from her account of authority” that we get the

impression that “a republic, properly constituted, empowers its citizens to a degree unparalleled

by any other form of political association.” It does so “by committing itself institutionally to

continual world-building” 101 – that is, by making practices of augmentation a necessary

condition of political life.102 And the institutional home for these practices is located in the

complex channels of interaction between citizens, officials, and the reservoir of values,

principles, and traditions that is the Constitution.

Yet it is crucial to keep in mind that this is only a weak form of institutionalization. The

worldly nature of the Constitution calls for it, and the survival of the republic demands it, but the

activity itself springs from the people – from citizens, armed only with their opinions, seeking to

persuade one another that their shared commitments to liberty or freedom of speech require a

particular course of action, and then joining together in an attempt to make their vision a reality.

Thus, we might say that the Constitution is both a sufficiently strong and a sufficiently weak

guarantor of political freedom. In virtue of its status as a worldly object that supervenes on its

being judged from different perspectives, it is strong enough to guarantee that there is necessarily

an outlet for future action and world-building. And the nature of its authority helps ensure that

the action it precipitates serves to augment, rather than undermine, the initial act of founding

even as it alters it in unpredictable ways; thereby addressing the founders’ concern with stability.

At the same time, this means of institutionalizing public freedom is weak enough not to

determine action, not to routinize the authorizing practices that can simultaneously serve as an 101 Honig, Political Theory, 112. 102 Ibid., 115: For Arendt, “augmentation is both a necessary condition of politics and constitutive of one form of the activity itself.”

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expression of freedom, and thereby convert them into mere stimulants of behavior. This

addresses a converse worry, which the founders and Arendt shared: that the revolutionary spirit

would not, and perhaps could not, survive its institutionalization.103

Thus, Arendt failed to realize that the Constitution itself necessarily opens up a space

where the people can rediscover “the desire for freedom and for self-determination” that the

founding generation so vividly expressed through their words and deeds, while at the same time

preserving “the voluntative, performative, and contingent aspects attending the realization of this

desire.”104 This point is made even clearer by the example of the Tea Party, which illustrates both

how a space for action can be forged even in an age where the social question is seemingly

predominant as well as how such a space can quickly disappear if not tended to with the proper

attention to, and care for, plurality.

V. Dispatches from the Grassroots: The Case of Tea Party Constitutionalism

Given its apparently tenuous connection to the ethos of the revolution, as Arendt

understands it, and indeed to the historical record of the revolutionary era itself,105 the Tea Party

seems to be of little help in understanding how popular appropriation of the Constitution and the

legacy of the founding can constitute a form of political action that not only recaptures the

revolutionary zeal for public freedom, but also reconciles it with the need for a degree of

permanence. It could be argued, however, that, in light of its demonstrable influence on electoral

outcomes, congressional voting, and policymaking,106 the Tea Party serves to attenuate Arendt’s

103 Cf. Arendt, OR, 235. 104 Wellmer, 239. 105 See Jill Lepore, The Whites of their Eyes: The Tea Party's Revolution and the Battle Over American History (Princeton: Princeton University Press, 2010). Lepore characterizes the Tea Party’s account and use of the revolutionary heritage as “historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution” (ibid., 124). 106 Cf. Michael A. Bailey, Jonathan Mummolo, and Hans Noel, "Tea Party Influence A Story of Activists and Elites," American Politics Research 40, no. 5 (2012): 769-804; Karpowitz et al., "Tea Time in

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critique of representative democracy. That is, although only a small group of elected officials are

formally tasked with governing, and therefore enjoy a monopoly on the institutionalized spaces

for the exercise of political freedom,107 the Tea Party demonstrates that through uniting in

informal public spaces to engage in discussion and persuasion the citizenry can experience the

freedom that comes from acting in concert to influence our collective fate. While this may be

true, it fails to acknowledge the distinct function served by popular constitutional movements in

general and the unique contribution that the Tea Party can make to our understanding of it.

This contribution is two-fold. First, the example of the Tea Party indicates that not only

can this form of action – which links the people to the extraordinary politics of foundation – be

incorporated into the happenings of everyday politics, but that it can also be situated in the midst

of political mobilization around economic issues: contrary to Arendt’s worries about the

colonization of the political by the social. Second, the constitutional vision of the Tea Party –

what has been termed a “popular originalism” – gestures toward the threats to political life that

come into view when the faculty of judgment is recognized to be central to the practice of

political authority.

Popular Constitutionalism in the Age of the Social

In order to appreciate how the Tea Party illustrates the benefits of popular

constitutionalism – how it eases the distinction between extraordinary and ordinary politics and

can help resist the colonizing influence of the social – we must first establish that it is not guilty

of illicitly instrumentalizing politics by introducing the life process into it. In The Human

Condition Arendt describes the threat posed by “the rise of society”: whereby historically private

America? The Impact of the Tea Party Movement on the 2010 Midterm Elections," PS: Political Science & Politics 44, no. 2 (2011): 303-9; and Madestam et al., Do Political Protests Matter? Evidence from the Tea Party Movement (American Enterprise Institute, 2012). 107 Arendt, OR, 235-8; Kalyvas, 272-5, 280-3.

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concerns related to the “life process” – “the necessities of life, of individual survival”108 –

assume the status of public concerns, rendering politics a “nation-wide administration of

housekeeping.”109 This colonization of politics by “the social question” has, according to Arendt,

deprived modernity of the unique experience of freedom that an authentic politics – that is, one

oriented to the value of speaking and appearing in public and acting in concert, rather than

satisfying individual and group interests – makes possible. In politics as housekeeping the

plurality of individual perspectives is effaced as individuals are aggregated into social groups

and common interests, and the possibility of “spontaneous action or outstanding achievement” is

precluded as political activity becomes a matter of the distribution of goods and selecting the

means to satisfy collective ends.110

The direction the Tea Party has taken our politics in seems only to confirm Arendt’s

critique of modernity. Over the course of the past five years disagreements over social justice,

redistribution, taxation, and welfare have come to acquire a position of prominence in our public

political discourse. Partisan showdowns in the halls of government have revolved around

economic stimulus spending, bank bailouts, universal health care, financial reform, entitlement

reform, collective bargaining rights, and the national debt. And these debates have galvanized the

public, with those on the left rallying around the abuses of Wall Street and calling for relief for

Main Street in the form of health care and a more progressive tax scheme; while those on the

right are pushing back against a burgeoning federal government and championing the free

market and individual liberties. Thus, even if the Tea Party’s appropriation of the Constitution

were to prove helpful in thinking past the tension between stability and novelty, we might find

that the institutionalized space for the exercise of political freedom in our democracy has 108 Arendt, HC, 45. 109 Ibid., 28 110 Ibid., 40-1

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withered away, as the influx of the life process into politics calls for rule by experts and

bureaucrats, rather than political actors.

Yet it would be counterintuitive to summarily proclaim that the horizon of political

freedom is receding when citizens are actively engaged in public debates. Over the course of the

past two years the amount of scholarship on the Tea Party has been increasing exponentially, as

the movement’s rapid rise to prominence and its unexpected victories in the 2010 midterm

elections have ignited scholarly and journalistic interest. The resultant surge in readily accessible

data on the Tea Party – both anecdotal and statistical, from surveys, in-depth interviews, and

textual analysis – has made it possible to draw relatively reliable conclusions about the nature of

the movement, its ideals, and the shared beliefs and motivations of its members. Thus, although

the Tea Party clearly engages the social question and has its origins in a period of economic

downturn, the literature overwhelmingly suggests that the movement is not driven by the

economic needs of its individual members. In what is one of the most comprehensive studies of

the Tea Party movement to date, Skocpol and Williamson state unequivocally that although “the

coincidence of popular protests with plunging economic indicators” appears to corroborate the

hypothesis that the movement was a reaction to the Great Recession, “For Tea

Partiers…pessimism about the economy is politically tinged. Those who joined the eruption

were not the most economically dislocated Americans – even if the newly minted Tea Partiers

who took to the streets in 2009…got an extra prod from the downward-spiraling economy.”111

And they confirm this through simple demographics: Tea Partiers tend to be older, white, middle

class Americans, and this subset of the population has been relatively insulated from the effects

111 Theda Skocpol and Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism, (Oxford: Oxford University Press, 2012), 29.

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of the recession.112 More rigorous studies, such as a time series analysis of national political

attitudes 113 and a comparison of unemployment rates with levels of Tea Party online

membership,114 indicate the same.

It therefore seems accurate to characterize the movement in terms of its ideological and

rhetorical dimensions, and thereby begin to come to terms with the possibility that Tea Partiers

are in fact acting politically when they make claims that appear to be motivated by economic

needs. While we will shortly examine exactly how this operates, for our present purposes we

need only understand that there is a political rationale – an opinion rather than an interest (to use

an Arendtian distinction)115 – underlying the Tea Party’s concern with issues such as welfare

program expenditures. Careful analysis of Tea Party attitudes toward entitlements reveals that

they have endowed these programs with a quasi-normative status. That is, they are not opposed

to the institutions of ‘big government’ as such – most notably, Social Security and Medicare –

but rather are incensed by their being co-opted “to redistribute wealth from productive taxpayers

like themselves to people who have not earned their way.”116 According to Tea Partiers, publicly

funded benefits should only go to the deserving members of society, those who have worked

hard and paid into the system, and not to “freeloaders” or “moochers” – mainly youth and

immigrants.117 In essence, the Tea Party movement is aptly characterized as a “right-wing

populist producerism,” for at its core is “the [producerist] idea that the real Americans are

112 Ibid., 30 113 David E. Campbell and Robert D. Putnam, "Crashing the Tea Party," New York Times, August 16, 2011, http://www.nytimes.com/2011/08/17/opinion/crashing-the-tea-party.html (accessed April 4, 2013). 114 Devin Burghart and Leonard Zeskind, Tea Party Nationalism: A Critical Examination of the Tea Party Movement and the Size, Scope, and Focus of its National Factions (Institute for Research & Education on Human Rights, 2010), 77-8. 115 Cf. Arendt, OR, 227-8. 116 Skocpol and Williamson, 66. 117 Ibid., 59-74

35

hardworking people who create goods and wealth while fighting against parasites at the top and

bottom of society.”118

In light of this it becomes clear that in arguing for deregulation or against Obamacare,

Tea Partiers are foregrounding and contesting our collective self-understanding as Americans,

and disclosing who they are as individuals in the process, rather than trotting matters of

housekeeping out into the public sphere. Through their words and deeds, though oriented toward

economic issues, they are advocating for a particular vision of America as a political community

– an America composed of ‘makers’ and not ‘takers,’119 an America that gives pride of place to

individual liberties, and an America that rewards personal initiative rather than redistributing

resources – and are trying to make that vision a reality. And in so doing members of the Tea

Party “have found a new love of politics, a new willingness to get involved and work with others

for desired outcomes.” 120 They indeed seem to have discovered the charms of freedom:

organizing themselves into local chapters and national groups, staging protests, educating

themselves on the intricacies of the policy process at all levels of government, and mobilizing all

of these resources to convince their elected officials and the broader public that the America of

the Tea Party is worth fighting for.121 And, as we will now see, they have achieved this primarily

by attaching themselves to a robust constitutional vision; yet this has, at the same time, added a

dangerous inflection to their otherwise admirable engagement in politics.

118 Chip Berlet, "Reframing Populist Resentments in the Tea Party Movement," in Steep: The Precipitous Rise of the Tea Party, ed. Lawrence Rosenthal and Christine Trost (Berkeley: University of California Press, 2012), 57, 60. 119 This trope was prominent in the 2012 presidential election cycle and is a Tea Party favorite: cf., Mark Meckler and Jenny Beth Martin, Tea Party Patriots: The Second American Revolution, (New York: Henry Holt and Company, 2012), 49. 120 Skocpol and Williamson, 201. 121 Ibid., 198-9, 83-99, 177-83

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Tea Party Constitutionalism and the Perils of Judgment

Writing during the Tea Party’s rapid ascent to prominence, half a year before the 2010

midterm elections, New York Times legal reporter Adam Liptak observed that, “Brash and young

though it is, the Tea Party movement has already added something to contemporary political

discourse. It has made the Constitution central to the national conversation.”122 And it has done

so by presenting its limited government views as an exposition of the Constitution and an

elaboration of the foundational principles of the United States. Tea Party protests and gatherings

are replete with tri-cornered hats and pocket Constitutions, and their policy statements resound

with references to the Commerce Clause and the Tenth Amendment and calls to restore to their

former glory the indispensible principles the founders enshrined in the Constitution, such as

federalism and states’ rights.123 Casting their producerist opposition to profligate government

programs, and welfare programs in particular, in these terms, they “inject constitutional

considerations into what has previously been understood as questions of politics and policy”124 –

a dynamic most clearly on display during the debates over health care reform.125 Such fervent

attempts on the part of concerned citizens to articulate a constitutional vision and encourage its

uptake by government officials mark the Tea Party as a particularly vibrant example of a popular

constitutional movement.126

122 Adam Liptak, "The Tea Party and the Constitution," New York Times, March 13, 2010, http://www.nytimes.com/2010/03/14/weekinreview/14liptak.html (accessed April 4, 2013). Quoted in Christopher W. Schmidt, "The Tea Party and the Constitution," Hastings Constitutional Law Quarterly 39, no. 1 (2011): 52. 123 For a comprehensive analysis of the Tea Party’s constitutional views, see Jared A. Goldstein, "The Tea Party Movement and the Perils of Popular Originalism," Arizona Law Review 53 (2011): 835-49. 124 Schmidt, 53. 125 For an elaboration of the national discussion of the Patient Protection and Affordable Care Act as a clash of popular constitutional visions, see Rebecca E. Zietlow, "Democratic Constitutionalism and the Affordable Care Act," Ohio State Law Journal 72, no. 6 (2011): 1367-406. 126 Cf. Schmidt; Somin; Goldstein, “Perils”; Randy E. Barnett, "The Tea Party, the Constitution, and the Repeal Amendment," Northwestern University Law Review Colloquy (2011): 281-7; Jared A. Goldstein, "Can Popular Constitutionalism Survive the Tea Party Movement?," Northwestern University Law

37

While such popular engagement with the Constitution on the part of Tea Partiers (and

those who have mobilized to oppose their constitutional vision)127 has certainly done much to

cultivate the revolutionary spirit and open up channels for public freedom – as we have seen is

characteristic of popular constitutionalism in general – the Tea Party’s constitutional rhetoric at

the same time paradoxically threatens to undermine the Constitution’s capacity to institutionalize

this form of action. This stems from the Tea Party’s fusion of popular constitutionalism with

originalism: the interpretive doctrine that holds that constitutional meaning is fixed by the

intentions of those who originally and authoritatively instituted its provisions. While originalist

rhetoric is not unprecedented in the context of popular movements,128 the Tea Party stands apart

from the rest in that “restoring an originalist vision is central to its political agenda.”129 And it is

this unrelenting insistence on an originalist reading of the Constitution that isolates the Tea Party

as a danger to public freedom, for it threatens to efface all traces of plurality from the fabric of

the Constitution.

For when we understand constitutional authority on the model of democratic

constitutionalism, it becomes clear that the continuing authority of the Constitution – an

authority that is intended to ensure stability while not denying a space for freedom to appear –

hinges on the political faculty of judging, as it is understood by Arendt. Following Kant’s

analysis of aesthetic, or “reflective,” judgments in the Critique of Judgment, Arendt interprets

Review Colloquy 105 (2011): 288-99; and Jared A. Goldstein, "The Tea Party's Constitution," Denver University Law Review 88, no. 3 (2011): 559-76. 127 Zietlow isolates popular support for the Affordable Care Act as a recent example of progressive popular constitutionalism and a counterweight to Tea Party constitutionalism. 128 For a discussion of the political maneuvering that contributed to originalism’s emergence as an influential jurisprudential and political force see Robert C. Post and Reva B. Siegel, "Originalism as a Political Practice: The Right's Living Constitution," Fordham Law Review 75, no. 2 (2006): 545-74. The gun rights debate is another salient example of popular originalism, see Reva B. Siegel, "Dead Or Alive: Originalism as Popular Constitutionalism in Heller," Harvard Law Review 122 (2008): 191-245. 129 Goldstein, “Perils,” 851.

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judgments as making a claim to a subjective universality: that is, the person offering an opinion

asserts that others ought to judge similarly, although he or she cannot hope to compel their

agreement. Political judgments are therefore “persuasive”; “the judging person…can only ‘woo

the consent of everyone else’ in the hope of coming to an agreement with him eventually.”130 In

the context of articulating judgments regarding constitutional meaning, we have seen that the

persuasiveness of a claim is dependent upon framing it in terms of the shared values, traditions,

and history of the constitutional order. These references to shared commitments do not serve to

ground (in a strong manner) the contestable claims social movements make to have worked out

the meaning of the Constitution, but rather guarantee the mutual intelligibility of conflicting

claims.

This makes explicit the worldly character of the Constitution as a site of contestation, the

focal point of endlessly various perspectives. It is the activity of judging that brings the

Constitution into being. It is in the process of forming, confronting, and exchanging opinions

about the text of the Constitution, its heritage, and the values it embodies that we come to realize

“sameness in utter diversity,”131 and the Constitution emerges as something we hold in common

– and that holds us in common. The interpretive claims offered by citizens and social movements

are, as Siegel masterfully articulates it,

…performative in form. The Constitution comes into being in virtue of the mode of address, the aspiration to persuade, the appeal for communal recognition of a claim of constitutional meaning. The Constitution, and with it a certain form of constitutional community, is realized through the practice of constitutional argument.132

The entire legacy of the founding generation – the space for freedom they inaugurated – is

therefore dependent upon a continuous practice of forming, articulating, and advancing

130 Arendt, “Crisis,” 219. 131 Arendt, HC, 57. 132 Siegel, “Constitutional Culture,” 1355.

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judgments. And this is why it is vitally important to heed the insights Arendt provides into the

faculty of judgment.133

Prominent among these is that the mutual intelligibility, or “communicability,” of

judgments is predicated on adopting an “enlarged mentality” that takes plurality into account.

Since judgments pertain to the world we hold in common, the validity of our judgments gain in

validity – that is, in their ability to “‘court’ the agreement of everyone else”134 – to the degree

that we think “representatively” through the viewpoints of others, taking their perspectives on the

world into consideration.135 Thus, communicability is the “touchstone”136 and it “obviously

depends on the enlarged mentality; one can communicate only if one is able to think from the

other person’s standpoint; otherwise one will never meet him, never speak in such a way that he

understands.”137 Yet this does not just contribute to the persuasiveness of judgments in a

sophistic sense, but rather reflects the world-building capacity of judging.138 It is in the back and

forth of advancing and revising judgments, attempting to come to terms with the viewpoints of

others, that we begin to collectively align our sense of what is real, of how the world we share in

133 Since it is my intention merely to suggest that the faculty of judgment has a role to play in the political practices that sustain democratic authority, the subsequent discussion brackets a variety of issues that are contested in the literature on Arendtian judgment: most notably, the mechanics of enlarged thought and the nature of the sensus communis. On these questions, see Seyla Benhabib, The Reluctant Modernism of Hannah Arendt (Lanham: Rowman & Littlefield, 2003), Chapter 6; Iris Marion Young, “Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought,” in Judgment, Imagination, and Politics: Themes from Kant and Arendt, ed. Ronald Beiner and Jennifer Nedelsky (Lanham: Rowman & Littlefield, 2001), 205–228; and Linda M.G. Zerilli, Feminism and the Abyss of Freedom (Chicago: University of Chicago Press, 2005), Chapter 4. 134 Hannah Arendt, Lectures on Kant's Political Philosophy, ed. Ronald Beiner (Chicago: University Of Chicago Press, 1982), 72. Hereinafter LKPP. 135 Arendt, “Crisis,” 219-20; Arendt, LKPP, 42-4; Hannah Arendt, “Truth and Politics,” in Between Past and Future (New York: Penguin Classics, 2006), 237-8. 136 Arendt, LKPP, 73. 137 Ibid., 74 138 On judging as a world-building practice, see Zerilli, Abyss, Chapter 4; and Linda M.G. Zerilli, “Value Pluralism and the Problem of Judgment: Farewell to Public Reason,” Political Theory 40, no. 1 (2012): 6–31.

40

common “is to look and sound, what men will see and what they will hear in it.”139 In fact, this

dynamic is typically reflected in the patterns of mobilization and countermobilization that

characterize popular constitutional movements. That is, when a social movement’s constitutional

vision has begun to gain traction in the popular imagination it tends to trigger the formation of a

countermovement that “will endeavor to reinvigorate justifications for contested understandings

and practices, and rebut new interpretive claims on the constitutional tradition.” The original

movement is therefore compelled to address the concerns of its detractors and reformulate its

vision, in turn provoking the countermovement to refine its arguments, and so forth.140 Such a

positive feedback cycle bodes well for the constitutional order, as it channels the energy of social

movements seeking change into generating novel constitutional understandings that at the same

time bolster the Constitution qua worldly in-between. Yet this situation is precarious: the

integrity of the Constitution relies upon practices of popular constitutionalism that serve to

cultivate the plurality that is the sine qua non of the public realm, but the example of the Tea

Party’s constitutional rhetoric suggests that this is by no means to be taken for granted.

Unlike other popular constitutional movements, which continually breathe new life into

the Constitution and the public space it constitutes, Tea Party constitutionalism serves to leach it

of its reality as a worldly and world-constituting entity. Though it is difficult to characterize the

Tea Party as a whole, given its diffuse organizational structure, two relatively ubiquitous tropes

illustrate this dangerous strain in their constitutional rhetoric. The first of these pertains to the

Tea Partiers’ avowed self-understanding of their appropriation of the Constitution and the history

of the founding era, which essentially denies the image of the Constitution as a worldly in-

between. For Tea Partiers the Constitution, having a meaning fixed by original intent, is

139 Arendt, “Crisis,” 219. 140 Siegel, “Constitutional Culture,” 1363, 1362-6.

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immediately accessible to all citizens in its full significance. As former House Majority Leader,

and vocal Tea Party advocate, Dick Armey has been known to exclaim, “If you don’t understand

the Constitution, I’ll buy you a dictionary.”141 Likewise, the mission statement of the Tea Party

Patriots (a national Tea Party umbrella organization) lists “Constitutionally Limited Government”

as one of its three “Core Values” – the other two being “Fiscal Responsibility” and “Free

Markets” – and in describing this value boldly proclaims, in language adopted by local Tea

Parties throughout the country: “We…are inspired by our founding documents and regard the

Constitution of the United States to be the supreme law of the land. We believe that it is possible

to know the original intent of the government our founders set forth, and stand in support of that

intent.”142 This claim to have full and immediate access to a distinct and finite set of static,

indisputable constitutional meanings corroborates Skocpol’s and Williamson’s observation that

“Tea Partiers do not see their use of history as interpretive,”143 but rather understand themselves,

as the Maine Refounders put it, to be “fighting to preserve our Constitution…and hold true to the

visions of our founding fathers.”144 This spirit is most fully captured by the self-proclaimed

mandate of the 1776 Tea Party (another national organization):

We stand by the Constitution as inherently conservative. We serve as a beacon to the masses that have lost their way, a light illuminating the path to the original intentions of our Founding Fathers. We must raise a choir of voices declaring America must stand on the values which made us great. Only then will the politically blind see and deaf hear!

We see here that the Tea Party’s constitutional vision takes on a salvational tone: those who

interpret the Constitution differently are to be liberated from their misconceptions, rather than

141 Kate Zernike, Boiling Mad: Inside the Tea Party (New York: Henry Holt and Company, 2010), 67. Quoted in Goldstein, “Perils,” 845. 142 Tea Party Patriots, “Tea Party Patriots Mission Statement and Core Values,” http://archive.teapartypatriots.org/Mission.aspx (accessed May 1, 2013). Emphasis added. 143 Skocpol and Williamson, 51. 144 Maine Refounders, “About Us,” http://themaineteaparty.com/page/about-us (accessed May 1, 2013). Emphasis added. Quoted in Skocpol and Williamson, 48.

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engaged with argumentatively. And while the rhetoric need not be as explicitly religious as it is

here, 145 the similarity between the Tea Party’s understanding of the Constitution and a

fundamentalist understanding of the Bible is both striking and instructive. As legal scholar

Garrett Epps notes, the Tea Party’s preoccupation with original intent parallels the Protestant

emphasis on the “sensus literalis” of the Bible, in which “‘Scripture had to be not interpreted but

delivered from interpretations to speak for itself.’”146 In a similar vein, Tea Partiers view their

sacred text, the Constitution, not as an object of interpretation, but as something to be preserved

or redeemed, to be rescued from those who are distorting it or trampling on it.

Wedded to this, and not often easily separable from it, is the Tea Party’s tireless attempts

to brand opposing constitutional visions, and those who espouse them, as ‘un-American.’ While

these charges are frequently steeped in vitriol and lobbed at Democratic politicians (typically

President Obama),147 the notion that their ultra-conservative, laissez-faire understanding of core

constitutional values is the meaning, and not simply one possible construal, of American

principles is a central tenet of the Tea Party’s constitutional outlook. It comes across in the

Maine Refounders’ call for a “choir of voices” to trumpet “the values which made us great,” and

it is forcefully articulated by the founders of the Tea Party Patriots in their attempt to explain the

great and rapid success of the Tea Party:

Here is the answer that our detractors and attackers and opponents are terrified to admit but, deep down, know is true. The reason for the success of the modern-day Tea Party movement is that our “source code” is the same as America’s. Our founding principles

145 Though often it is even more so, given the popularity among Tea Partiers of the work of W. Cleon Skousen, who propounded a view of the Constitution as divinely inspired and explicitly anti-communist. On the relationship between Tea Party constitutionalism and Skousen see Goldstein, “Perils,” 839-50. 146 Garrett Epps, “Stealing the Constitution,” The Nation, January 20, 2011, http://www.thenation.com/article/157904/stealing-constitution?page=0,1 (accessed May 6, 2013). Quoting Jaroslav Pelikan, Interpreting the Bible and the Constitution (New Haven: Yale University Press, 2004), 101. Emphasis added. 147 Cf. Goldstein, “Perils,” 847-8.

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are the same as America’s. These beliefs are in Americans’ DNA; they are each American’s birthright.148

Compare this to President Obama’s very different appeal, in his second inaugural address, to that

same “lasting birthright.” Calling upon all Americans “to advance the timeless spirit once

conferred to us in a spare Philadelphia hall,” Obama fleshes out this founding legacy, with its

principles of life, liberty, and the pursuit of happiness, in progressive terms – triumphing the

benefits of collective action through government alongside those of “hard work and personal

responsibility.” Yet Obama concludes on a note that seems to clash even more sharply with Tea

Party sensibilities than does the robustly liberal constitutional vision he had just elaborated:

“Being true to our founding documents does not require us to agree on every contour of life; it

does not mean we all define liberty in exactly the same way, or follow the same precise path to

happiness.”149 It is just such an attitude – of passionate commitment to a shared world that is

recognized as showing up differently to others, but is still collectively ours – that is consistent

with, and conducive to, the Constitution’s status as a worldly and world-constituting reality. Yet

it is an attitude flatly rejected by the Tea Party’s understanding of the Constitution.

Thus, the Tea Party’s Constitution is expressly not something “one could approach from

many different angles and upon which one could impose many different interpretations.”150

Instead, it is “a clear-cut document readily applicable to modern political issues,”151 and it can

better be described as “a repository of what they consider the fundamental and unchallengeable

values upon which the nation was founded.” 152 Rather than being “made for people of

fundamentally differing views,” as Justice Holmes described the Constitution in his famous

148 Meckler and Martin, 23. 149 The text of President Obama’s second inaugural address is available at http://www.whitehouse.gov/ the-press-office/2013/01/21/inaugural-address-president-barack-obama (accessed May 1, 2013). 150 Arendt, OR, 157. 151 Skocpol and Williamson, 51. 152 Goldstein, “Tea Party’s Constitution,” 561.

44

dissent in Lochner, and rather than therefore constituting “a framework for resolving

fundamental differences through political and legal processes,” the Tea Party’s Constitution

“itself resolves those differences, establishing once and for all the fundamental values that bind

us, leaving no room for interpretation or debate.”153

As Jared Goldstein observes, this “anti-democratic” strain of popular constitutionalism

defeats the assumption, posited by proponents of popular constitutionalism as a normative ideal,

that a fuller recognition of the popular sources of constitutional authority will be a boon to

democracy. However this is not the distinctive feature of the Tea Party’s constitutionalism.

Rather, it is a trait shared by all popular constitutional movements – which the Tea Party happens

to manifest to an extreme degree – because in agitating for (formal or informal) constitutional

change one is attempting to place certain rights or values beyond the reach of majoritarian

politics. 154 What is unique, and worrying, about the Tea Party is that their originalist

interpretation of the Constitution asserts that the meaning of the Constitution is exhausted by the

set of rights and values that they celebrate. That is, we have observed that they claim not to be

interpreting the Constitution, but to be protecting, restoring, or liberating it, as if it were

something that could be apprehended in its totality. It is when the Constitution is thus viewed

from only a single perspective that it ceases to be a “house where freedom can dwell.” Instead of

being a political reality, an ongoing project that allows us to continually rediscover the charms of

action and disclose ourselves and the world, it becomes an obstacle to our public freedom – even

if, in the case of the Tea Party’s Constitution, it expands our private freedoms.

It has been widely noted that the Tea Party’s account of the original intent of the

revolution, the founding, and the Constitution – upon which its fundamentalist interpretation of

153 Goldstein, “Survive,” 298. 154 Goldstein, “Perils,” 856-7, 861-6.

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the Constitution is based – does violence to the historical record, if not by blatantly

misrepresenting it then by suggesting that the founding generation spoke with a single voice.155

Yet this too is almost beside the point. To a large degree, a misappropriation of the constitutional

tradition is not just implicated in every popular constitutional movement, but has been necessary

for their success. We have seen that it is in seizing upon foundational principles and offering

alternative interpretations of them or applying them beyond their current boundaries that popular

constitutional movements both instantiate the peoples’ freedom to act and perpetuate the

authority of the Constitution.156 Thus, the real upshot of the Tea Party’s constitutional rhetoric is

that, with judgment at its core, the practice of political authority is a tenuous enterprise – the very

form of public political participation that recaptures and revitalizes the revolutionary spirit, if not

conducted with the proper care for the world, can spell the ruin of the public realm.

Conclusion

The foregoing attempt to locate the revolutionary spirit in practices of popular

constitutional interpretation and contestation suggests that Arendt was perhaps misguided in

declaring this unique ethos – which does justice to both our capacity and desire for freedom as

well as that freedom’s reliance on a public space for its appearance – to be a “lost treasure” of

the founding era. Nevertheless, it vindicates her understanding of the legacy of the revolution in

several senses. First, the literature on popular constitutionalism confirms Arendt’s perceptive

account of the Constitution as a worldly and world-constituting entity and of democratic

authority as a practice of augmentation. Indeed, as I have argued, the components of Arendt’s

155 See Lepore. Ryan Murphy suggests that the Tea Party’s constitutional vision does in fact have a basis in early American history, but he locates it in the Jacksonian era rather than the revolutionary period. See Ryan D. Murphy, "Tea Party Constitutionalism: Does the Astroturf have Roots in the History of the Constitution?" Hastings Constitutional Law Quarterly 40, no. 1 (2012): 187-220. 156 See Siegel’s account of the origins of the “de facto ERA” in Siegel, “Constitutional Culture,” 1366-1419.

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understanding of authority can be fruitfully redescribed in terms of popular constitutionalism.

And, in turn, when we filter the practices of popular constitutionalism through Arendt’s

categories we gain a fuller understanding of their democratic significance. That is, we come to

realize that such practices do not mediate a tension between fundamental law and popular

politics, but rather show us that the two are dynamically interrelated. The ostensibly destabilizing

practices of constitutional contestation and mobilization, in which we experience our freedom,

contribute to the Constitution’s status as the supreme law of the land, which we acknowledge as

standing over us and relating and separating us.

Second, and more fundamentally, that this activity assumes only a weakly

institutionalized form reveals it to indeed be a treasure that can all too easily be lost. The positive

political possibilities that the Constitution conceptually guarantees – of spaces for freedom

embedded in everyday political life – cannot be secured once and for all. They are at once always

present to us and always also in danger of being forgotten or denied. An understanding of

democratic political authority in terms of popular constitutionalism and the faculty of judgment

brings with it an acute awareness of this fact, and should cause us to be wary of attempts to

distract us from the contingency and plurality that characterize political life – whether they come

in the form of constitutional rhetoric on the model of the Tea Party’s or in the form of

conceptions of constitutional democracy that leverage the stabilizing force of constitutionalism

against the anarchic potential of democratic rule or, conversely, triumph the democratic will of

the people over the constraining influence of constitutionalism, or those that claim to reconcile

the two by invoking a more fundamental normative principle.157

157 This last alternative refers mainly to Habermas, who argues that “The performance of those founding acts from which self-governing communities originate…contains an implicit, intuitively available meaning that is the same for everybody, though it is spelled out and explicated in the wordings of so many different texts, interpretations, and implementations,” and that this “provides a normative

47

Yet such contingency is not to be lamented. For, as Arendt impresses upon us, our

freedom inheres in the open-endedness of the Constitution. It is due precisely to the lack of

necessity in human affairs – to the fact that nothing compels us to carry forward the new

beginning we continue to inherit – that we are empowered to constantly rediscover our freedom.

To do so we must be steeped in the Constitution, while at the same time taking care not to drown

in it.

perspective from which later generations can critically appropriate the constitutional mission and its history” (Jürgen Habermas, “On Law and Disagreement. Some Comments on ‘Interpretative Pluralism,’” Ratio Juris 16, no. 2 [2003]: 193). It is on the basis of such “self-correcting attempts to tap…ever more fully” the normative substance of the constitution that Habermas is able to assert the ‘co-originality’ of constitutionalism and democracy (Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?,” Political Theory 29, no. 6 (2001): 776). While this portrays constitutions as works in progress, as Honig points out, the teleological framework of a self-correcting learning process compromises the democratic agency of present generations, which is preserved on “Arendt’s post-providentially contingent and open-ended” understanding of constitutions as future-oriented (Honig, “Dead Rights,” 796-7). My analysis of authority in terms of popular constitutionalism underscores this point and suggests that this contingency is partly attributable to the central role that judgment plays in these practices.

48

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