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Dissent in Dark Times H A N N A H A R E N D T O N C I V I L D I S O B E D I E N C E A N D C O N S T I T U T I O N A L P AT R I O T I S M v e r i t y s m i t h . . . there can be no patriotism without permanent opposition and criticism. h a n n a h a r e n d t, Letter to Gershom Scholem (1963) There has been much talk of late regarding the so-called paradox of democratic constitutionalism in debates surrounding constitutional design, amendment, and interpretation.1 As Frank Michelman puts it, “constitutional theory is eternally hounded, if not totally consumed, by a search for harmony between what are usually heard as two clashing commitments: one to the ideal of government constrained by law (‘constitutionalism’), the other to the ideal of the search for government by act of the people (‘democracy’).”2 In this essay, I explore the place of civil disobedience in Hannah Arendt’s work to generate an account of constitutionalism in which the rule of law and democracy are mutually constitutive rather than opposed principles. The first section argues that Arendt is what I call an “agonistic constitutionalist.” The second section delineates her debts to Montesquieu in this regard. The third section takes up civil disobedience as a constitutionally regenerative practice of reverent disobedience. hannah arendt: agonist or constitutionalist? Hannah Arendt may not immediately spring to mind as a constitutional thinker.3 It is understandable that this is so, for she does not articulate an easily identifiable doctrine, theory, or model of constitutionalism, or, for that matter, of democracy, emphasizing instead the language of freedom, plurality , and action-in-concert. Moreover, complexities abound, as she is critical of theories of law and contract based on natural rights, as well as theories of rule based on will or sovereignty, including theories in which the rule of law is legitimated by popular sovereignty (and vice versa). In On Revolution, the work in which she most directly addresses processes of revolution, foundation , and constitution, she is critical of the centralizing tendencies and Facing: Page 33 of Hannah Arendt’s heavily annotated copy of Alexis de Tocqueville’s Democracy in America. At the top of vol. 2, part I, chapter 8, Arendt writes: “man: animal perfectible: = change of human nature? = no human nature.” Courtesy of the Hannah Arendt Collection, Stevenson Library, Bard College. 10 Dissent in Dark Times “vertical” or hierarchical nature of representative institutions. She seems here and elsewhere to call for acts of political insurgency in ways that seem anticonstitutional .4 She is also explicitly critical of liberalism’s emphasis on “negative liberty.” Her emphasis on action-in-concert, free communication, and the public sphere has facilitated collectivist, communitarian, and deliberative democratic readings. And her account of the heroically performative politics of the Greek polis has led many to read her as agonistic in either a Nietzschean or classical mode.5 Aspects of her work make all of these readings available, and even persuasive. And yet, Arendt also stresses the importance of the institutional structure that makes political life possible. In particular, she invokes the language of laws as boundaries, hedges, or walls within which men can act. Law she says, is literally the “framework of stability” required for public life.6 At times, Arendt is almost maddeningly contrarian, sounding as if she is writing in riddles: What kind of walls are without foundation? How can activity provide stability? The paradox, it seems, is that Arendt is at once an institutionalist proponent of the rule of law, and an anti-institutionalist agonist or radical democrat. Accordingly, it may seem that the participatory elements of her idea of democracy are in tension with the constitutional, limiting, and constraining elements. But Arendt’s essay “Civil Disobedience” illuminates a way in which we can see those two sides together. That is, the activity that best embodies the way we can hold together these two elements—the desire for limited constitutional government and the need for vital, active, and participatory contestation—is civil disobedience. At the heart of her insight into the constitutionality of civil disobedience is Arendt’s attempt to frame civil disobedience as an activity that mediates between a need for change and a need for stability. Civil disobedience is not a fully revolutionary activity...

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