In principle, all modern constitutions begin with ‘We the People’. From Arendt’s reflections on modernity an ambiguous account of the relationship between freedom and modern law emerges. On the one hand, the revolutionary events in America and France in the late eighteenth century mark the appearance of a strong sense of ‘political freedom’ in the world, with the novelty that subjects now consider themselves rulers. ‘We, the people’ are the new foundations of political and constitutional authority. Exemplified in those modern revolutionary moments on either side of the Atlantic, Arendt suggests, is a radical sense of freedom as collective action in the circumstances of plurality. This signals a break with ‘the great tradition’3 of philosophy that had prioritized isolated contemplation over the plurality of politics and divorced freedom from the experience of action. And since our conception of law is a reflection of our self-understanding as social and political animals, the new sense of political freedom that emerges with the birth of our constitutional potentia also implies a shift in the modern juridical consciousness.
In the urge to rescue politics from philosophy by recovering a conception of political freedom, Arendt therefore takes aim at the entire Western tradition. The category of freedom has been lost to us because the tradition prioritized a dialogue with the self (the ‘dialogue’ between ‘me and myself’ in the course of contemplation) over the dialogue with others (participation and speech in the course of action). The first ‘dialogue’, the inward experience of freedom, in as much as its significance cannot be denied, is derivative. It is only in the second dialogue, which comprises the field of human affairs and politics, that freedom can properly be recovered: [A]ction and politics, among all the capabilities and potentialities of human life, are the only things of which we could not even conceive without at least assuming that freedom exists, and we can hardly touch a single political issue without, implicitly or explicitly, touching upon an issue of man’s liberty […] The raison d’être of politics is freedom, and its field of experience is action.
Freedom, for Arendt, is emphatically not a phenomenon of the ‘will’, a question of one’s personal freedom to choose from a set of already existing alternatives, ‘x, y or z’. It is not about being able to manage our own strategic choices, selecting the most efficient means to ends that are predetermined. It is not even about being able to choose our ultimate goals or the absence of interference (or domination) by others in this choice and the means to pursue it. It is the freedom to ‘call something into being which did not exist before’, something that is not given ‘even as an object of cognition’. This conception of freedom, which depends upon man’s faculty to begin something new, reflects the centrality of the event of ‘natality’ for the human condition. ‘The new beginning inherent in birth,’ Arendt notes, ‘can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting,’ and in so doing of performing the unexpected and even the ‘infinitely improbable’. It is only in the course of acting and speaking in the public realm that men reveal this potential to the world by revealing who they are, exercising their freedom by disclosing their ‘unique personal identities’.
Political freedom, which must transcend both our motives and our intended goals, is not, as the analogy with the unexpected might suggest, wholly arbitrary. It springs from what Arendt somewhat enigmatically calls ‘principle’, and as she will later note in reference to the new beginning that is the American revolution, ‘beginning’ and ‘principle’ have the same etymological root. Principle, in contrast to the judgment of the intellect and to the command of the will, is fully manifested only in action itself. But whatever the nature of the principle that inspires action – whether it is the love of equality, which Montesquieu called virtue, or fear and distrust – it is only in action that men can experience freedom and only through action with others that political power is generated. This experience of action in the public realm, whether it is the creation and maintenance of political and social institutions or the promises that men make to each other in their daily lives, has no independent life outside of the continued conservation of those institutions or promises by those through whose action they were constituted and might be maintained. Although it is, to be sure, both unpredictable in nature and fragile in its existence, the idea of political freedom, which can be resurrected from our neglected traditions and historical experiences, still looms large in our imagination.
The French and American revolutions bring us closer to this conception of political freedom as it makes its appearance (or reappearance) in the world and in doing so reveal its implications for our juridical consciousness. But it bears reiteration that the period from the late eighteenth century up to the middle of the ‘American century’ in which Arendt was writing are those of the triumph of a liberal worldview in which ‘negative liberty’ looms large, and ‘political freedom’ has largely disappeared. These revolutionary events that Arendt recovers therefore present us with something of the exceptional. And yet although political freedom as experienced in the course of modern revolutions is in tension with the liberal tradition as well as the Christian tradition and the great tradition of Philosophy which preceded it, at the same time it appears (in hindsight) to be an inevitable part of our modern juridical consciousness manifested most apparently in the concept of constituent power: ‘we, the people’ are the foundations of the modern constitutional settlement. The recovery of political freedom therefore trades both on the exceptional part of the revolutionary moment and on its unavoidable aspect in hindsight; it remains with us in the way we conceive of constitutionalism in modernity – namely in accordance with an ideology of popular sovereignty, irrespective of the extent to which it is fulfilled or betrayed in practice. ‘Crucial to any understanding of revolutions in the modern age,’ Arendt suggests, ‘is that the idea of freedom and the experience of a new beginning should coincide.’ Unique about modern revolution is that freedom is conceived not as a mental category of thought, judgment, and will, but as a category of action and, furthermore, in a manner that supersedes the weak sense of mere ‘liberation’ from the oppression of the ancien régime and the constraints of the traditions that it embodied. It emerges in the strong sense of revealing our constitutional potentia, the capacity to create a ‘new beginning’ for political freedom, as well as institutions to preserve a space in which freedom can be exercised for posterity (freedom as the experience of the ‘We can’ rather than the ‘I will’). Of the self-conception of the American founders, the record of the American Revolution speaks an entirely clear, unambiguous language: it was not constitutionalism in the sense of ‘limited’, lawful government that preoccupied their minds. The main question for them, ‘was not how to limit power but how to establish it, not how to limit government but how to found a new one’.
Freedom needed, in addition to mere liberation, the company of other men who were in the same state, and it needed a common public space to meet them – a politically organised world, in other words, into which each of the free men could insert himself by word and deed. To capture the modernity of revolution is to capture the sense that more than merely liberation (from monarchy, despotism, or oppression) is at stake, which generally trades on a negative conception of liberty as freedom from interference or domination. The constitution of political freedom is at stake, and this requires the establishment of political equality among citizens in a republic who are responsible for their own laws. In other words, it is about experiencing and constituting the freedom to govern in concert with others rather than the freedom from oppressive government by those in power. The revolutions thereby arouse passions that have been dormant for man outside of classical antiquity, absent in the centuries between the fall of the Roman Empire and the beginning of the modern age. Of the sheer extraordinary perspective of this experience, the startling recognition of man’s capacity for beginning anew, Arendt is in little doubt. It is at the root of the enormous pathos we find in both the American and the French ‘revolutionary spirit’, a spirit which consists, she says, in ‘the eagerness to liberate and to build a new house where freedom can dwell’, and is ‘unprecedented and unequaled in all prior history’.
The event of modern revolution connects political freedom to a legal theoretical inquiry with the emergence of this constitutional potentia, an idea with real juridical significance because it suggests the ultimate foundations of constitutional authority lie with the collective power of the people to constitute their own basic laws. From a juridical perspective, whilst the original political meaning of the revolutions, was, as Arendt explains, that of demanding a return to the limited government of the past – the restoration of ancient liberties that had been slowly eroded by the monarchies in England and France – the outcome was far more radical, leading spectacularly to a whole new social imaginary, based on constituent power and popular sovereignty.
Intellectual history is not our prime concern. It is only when the phenomenon of revolution makes its actual appearance in the world that newness is no longer considered merely the ‘gift of Providence’ but is ‘endowed with a reality peculiar to the political realm’. The historical examples of revolution – whether it is the American or the French, the later experience of the Paris Commune of 1871, the creation of Soviets during the Russian revolution, the French Resistance during World War II, or the Hungarian revolt in 1956 – show that individual men and women could ‘step forward from their private lives in order to create a public space where freedom could appear’. In doing so, it is claimed, ‘they rediscovered the truth known to the ancient Greeks that action is the supreme blessing of human life’. ‘Only in such revolutions’, Arendt notes, ‘was there a direct link between the idea of participating in government and the idea of being free.’
The very fact that the men of the American revolution thought of themselves as founders indicated the extent to which they must have known that it would be the act of foundation itself, rather than an Immortal Legislator […] or self-evident truth or any other transcendent […] source, which eventually would become the fountain of authority in the new body politic […] It is futile to search for an absolute to break the vicious circle in which all beginning is inevitably caught, because this absolute lies in the very act of beginning itself. The vicious circle of the legality of the new law and the legitimacy of the new power is tamed not by positing an absolute, but by developing a principle from the act of beginning, which, Arendt notes, for the first time in history occurs in the US ‘in broad daylight’. This event, breaking into the continuous sequence of historical time, manifests the constitutional potentia and reveals the possibility of political freedom without the absolutism of a creatio ex nihilo. What saves the act of beginning from arbitrariness ‘is that it carries its own principle with itself, or to be more precise, that beginning and principle are not only related to each other but are coeval’.119 The political relevance of these insights, Arendt argues, is that they stand in opposition to the claim that violence is necessary for all foundations and unavoidable in all revolutions, a claim that she (misleadingly) suggests is refuted by the American revolutionary experience. What the experience does genuinely point to is the possibility of a distinction between the beginning as ‘absolute’ – as in the case of fabrication in accordance with a fixed ideal – and the beginning as a ‘principle’ of joint political action, which is always dynamic, temporal, and contingent: [A] terminological distinction between the word ‘principium’ (beginning of the world) and ‘initium’ (the beginning which is a man), underlin[es] that, by contrast with the absolute beginning (principium) that can only be the work of God, the human beginning (initium) is always inserted within the continuum of time and thus necessarily amounts to a re-beginning. And yet what is distinctive about the escape from tradition is not only the novelty and exhilaration of political freedom but the fact that the revolutionary events ‘concern the many and not the few’. In this sense, modern revolution is not only about freedom but also about equality as a ‘birthright’, which ‘was utterly unknown prior to the modern age’. Newness, as Arendt puts it, ‘reaches the market place’ in the wake of modern revolution. It is, in other words, although Arendt fails to develop the point, the birth (or rebirth) of democratic political freedom that is signaled by the late eighteenth century revolutions. Constitutional potentia must be understood as a democratic potentia if it is to remain faithful to the promise of modernity.
Although the revolutionaries still, unhappily, talked about ‘obedience’ to law, because of their inability to transcend the tradition, what they meant, according to Arendt, was rather the support of the laws through the consent of the citizen. This understanding of power based on consent recalls another aspect of Arendt’s distinction between power and violence. Whereas violence can manage without the many, power always stands in need of numbers. After the modern democratic revolutions, constitutionalism must therefore stand against the Platonic understanding of it as that part of theology which ‘taught the few how to rule the many’, as well the liberal understanding of it as a ‘counter-majoritarian’ device based on the ‘fear of the many’. It should instead approximate to the Greek isonomy (the notion of ‘no-rule’), which conceives equality not on any naturalistic basis or self-evident truths, but in virtue of the social and political equality of citizenship.
But how can ‘the many’ act in concert when it comes to constitutional politics? Or, to reverse the question, how can mere ‘consent’ be sufficient for the generation of political power and expression of political freedom? The choice we seem to be faced with is the following: Restrict political freedom to the freedom founding actions of those who actually engage in the constitutive activity associated with lex, thereby rendering freedom elusive and elitist, sporadic and fleeting, or generalize and dilute political freedom and risk that it becomes little more than the pallid acquiescence in the structure of constitutional authority.
Arendt argues persuasively that the institutions of the post-revolutionary era that gave stability to the new polity, the Senate and the Supreme Court, and answered the early preoccupation with permanence and the ‘augmentation’ of the foundations of the republic, were precisely those same institutions which destroyed the spirit of revolution itself and undermined the possibility of maintaining political freedom in terms of the democratic constitutional potentia of ‘we, the people’. But how, if at all, can the political freedom of the many be reconciled with the constitutional authority of the few, without reintroducing a problematic foundation of constitutional origins?
Although this is a dilemma that Arendt never directly confronts, she does suggest an analogy that is more apposite to its resolution than that of ‘fabrication’ (or even of ‘promising’). More apt to capture the ‘immanence and plurality’ of democratic constitutionalism than the metaphor of building, housing, or erecting walls and structures is that of constitutional law as ‘political grammar or syntax’. Rather than suggesting a one-off activity or constitutional moment when the ‘house’ wherein freedom can dwell is constructed or reconstructed in one go, it suggests a dynamic and on-going narrative in the changing circumstances of plurality, and in which freedom is negotiated and renegotiated in the public realm. Constitutionalism as political grammar represents the idea that even our most fundamental law is relational and dynamic, developing symbiotically with politics and the exercise of political freedom rather than being fabricated or constructed ‘up front’ as a timeless container for the vicissitudes of political action.