Revolutionary constitutions: Arendt's inversions of Heidegger

In the first part of this paper, I will discuss some differences between Arendt and Heidegger. I shall argue that the main difference is not the replacement by Arendt of the concept of ‘thrownness’ with the concept of ‘natality’ but, rather, her overcoming of Heidegger's philosophy of origin of an immemorial Being (Sein). This is achieved through a negative critical theory of the memorial and historical revolutionary origin of modern political power and its constitutional implementation (1). This theory, however, lacks an evolutionary perspective. Therefore, I shall try to add some evolutionary elements to Arendt's arguably anti-evolutionary conception of revolution (2). If we distinguish between ‘revolution’ and ‘evolution’, the critical aspect of her theory of revolutionary constitutions becomes clearer. Against this background, I turn to the development of her concept of power and her critique of power-limiting constitutionalism (3) as well as, finally, to her idea of a ‘power-founding constitution’, which is based on the living power of the people. Power-founding constitutions are designed to maintain revolutionary power in times of evolutionary constitutional incrementalism (4).

In On Revolution (1963) Hannah Arendt radically revised her theory of the origins of modern society. In The Human Condition (1958) she followed Heidegger's idea that a kind of being in the world that has the structure of Dasein (‘being-there’/‘performative existence’, always already-socialized human beings) is something that operates within a meaningful world (Heidegger, 1927/1977). To operate within this world, what is needed is an open list of skills and competencies (Zuhandenheit: ‘readiness-to-hand’ or ‘know-how’) in relation to other things and Daseins that are co-original within the same world. Heidegger's thesis – defended in the first part of Sein und Zeit – that ‘knowing how’ is prior to ‘knowing that’ (Vorhandenheit), is a radical refutation of the metaphysical positivism we find in Plato or Descartes. His thesis in the second part of this work is a radical refutation of the metaphysical historicism we find in Hegel, in which Dasein is indissolubly individualized. Dasein is restricted by time-limits (Zeitlichkeit, Geschichtlichkeit); it knows this to be so and is able to act in relation to itself and its self-knowledge. Therefore, for Heidegger, Dasein has the ability to act in relation to its, her or his entire existence, or life as a whole; it can have care (Sorge) for its own and others’ Dasein, it can ask itself what life it wants to live (e.g. that of an artisan in a particular society), what kind of being it strives to be (e.g. a good guy); in brief, it can confront itself with Hamlet's famous question: ‘To be or not to be?’ (Tugendhat, 1986).

Heidegger usually designates the situation in which people ask this sort of question with the term Geworfenheit (thrownness) and sometimes also with the term Gebürtlichkeit (‘natality’) (Heidegger, 1927/1977, pp. 373–374). The situation of ‘thrownness’ or ‘natality’ is a situation that confronts Dasein with its own freedom to make a deliberate (reflexive) individual decision, and such an individual decision always creates something new, at least a singular story that begins at a certain indivisible position of someone in space and time. So far there is no difference from Arendt's basic concept of Dasein as natality.

However, Heidegger designates the way we resolve the problems of Geworfenheit (thrownness) in the German expressionist language of the early 1920s as Sein zum Tode (being-towards-death). This means just thinking about your future, deliberating what you expect of your entire life (Ganzsein des Daseins), and hence what kind of person you want to strive to be and what kind of life to strive to live, which Heidegger calls Ruf des Gewissens (the call of conscience) (Heidegger, 1927/1977, pp. 235–267). Arendt does not deny that Vorlaufende Entschlossenheit (anticipatory resoluteness) – in which one confronts oneself with one's entire life embedded in a life-world and Ruf des Gewissens (the call of conscience) – is an important conceptual invention and has important implications for the theory of freedom (going back to Kierkegaard). But Vorlaufende Entschlossenheit can be avoided by the many who prefer to stay with David Riesman's ‘lonely crowd’, of which Heidegger speaks by using a substantivized German indicator das Man (the They); that is, the average everyday-life of a Dasein that is inauthentic (uneigentlich) because it effectively represses the always already, latently present possibility of confronting oneself with the question ‘To be or not to be?’. Heidegger confounds this (universal and egalitarian) question with the dichotomy between eigentlichem (authentic) and uneigentlichem (inauthentic) being-in-the-world, which gives it an elitist meaning. Das Man (the They), the form of life of the many or the lonely crowd, is ‘seinsvergessen’, forgetful of its own thrownness into being-in-the-world. Only the authentic few can withstand the anxiety of facing contingent thrownness.

Arendt can avoid the elitist distinction between ‘authenticity’ and ‘inauthenticity’ precisely because she traces the foundation of natality (Geworfenheit or Thrownness) back to the situation of a Dasein that articulates a negative operation, as does the baby who rejects the food offered to her: ‘It is the function [ … ] of all action [ … ] to interrupt what otherwise would have proceeded automatically and therefore predictably’ (Arendt, 1969, p. 31). Action is the disappointment of an expectation, it ‘always happens against’ habitual ‘probability’. Action and language are so closely intertwined that ‘speechless action would no longer be action because [ … ] the action he [the actor] begins is [ … ] disclosed by the word, and [ … ] it becomes relevant only through the spoken word’ (Arendt, 1959/1989, pp. 178–179). Performative speech acts (‘the spoken word’) are constituted by the competence to ‘say “Yes” or “No”’, to ‘agree or disagree with what is factually given, including [the speaker's/ actor's] own self and his existence’, and to let this faculty ‘determine what he is going to do’ (Arendt, 1981a, p. 68). There is no being without negation (p. 51). This is, as Duns Scotus first argued, the ultimate reason why the ‘willing ego’ ‘constitutes’ the ‘thinking ego’ (p. 43, see pp. 31, 37, 120–140, 195–196). Thus, Hegel and Marx are right in saying that man's ability to act negatively ‘reverses’ the ‘ordinary time sequence – past–present–future’ precisely through ‘man's denying his present’ (p. 41). It is the ‘future as the Will's project that negates the given’, and ‘the power of negation [ … ] is derived from the Will's ability to actualize a project: the project negates the now as well as the past and thus threatens the thinking ego's enduring present’ (p. 36).

Willing is possible only through the possibility of saying ‘No’: ‘If the Will did not have the choice of saying “No” it would no longer be a Will’ (Arendt 1981a, p. 69). Therefore, the starting point of Arendt's ‘natality’ is a Dasein (Ego) that negates something because its action is understood by another Dasein (Alter Ego) as a negation of something. As we find later in Levinas, Dasein begins with Alter Ego's first action, and the first action is constituted by the possibility of saying ‘No’. The ‘No’ is ‘implied’ ‘in every Yes’ (p. 83). Therefore not only ‘obedience presumes the power to disobey’ (p. 83; my emphasis) – and this negative notion of power is at the very origin of Arendt's distinction between power and violence (see below) – but also ‘justice’ necessarily presumes ‘experiencing injustice’ (p. 93). With this turn to the interrupting and negative use of language, Arendt gives thrownness – and this is the first contrast to Heidegger – the normatively egalitarian meaning that a new beginning (Heidegger's Vorlaufende or anticipatory resoluteness) is ‘guaranteed by each new birth’ as the ‘supreme capacity’ of ‘every man’ (Arendt, 1948/2004, p. 479; Fine, 2015). This capacity is present in all of his or her actions/ speech acts, no matter how authentic they are.

Arendt – this is the second contrast – turns the interrupting, negative use of language into the very condition of possibility of an act of Dasein that is really universal, and not just pseudo-universal as was Heidegger's Sein, which merely conceals equivocations in the meaning of ‘to be’ (a word that does not even exist in all languages) (Tugendhat, 1992). There is nothing universal in ‘Being’ or ‘to be’, but there is no use of ‘to be’ (and no symbolic expression at all) that cannot be negated. There is no comprehensible language without negation. Only negation – that is, the operation that interrupts what otherwise would have proceeded predictably – is universal.

The contrast that distinguishes Arendt and Heidegger becomes deeper if we explain it in the context of the ‘history of Being’ (Seinsgeschichte). As Heidegger argues (and as others, notably Hegelian Marxists and American pragmatists, also argue), Arendt suggests that something went wrong both with and within the history of being. This, at least partly, should be explained by the fact that a capacity that was internal to action/ speech acts was repressed at the origin of Western thinking. The use of the word ‘origin’ in The Origins of Totalitarianism (afterwards Origins) is due to this Heideggerian idea of Seinsgeschichte (history of Being). The last sentence of Arendt's famous book of 1948 reveals what is repressed by metaphysical positivism/historicism, and that is man's ‘freedom’ that is ‘identical’ with his ‘capacity’ to initiate a ‘new beginning’, hence natality; and the most radical, most aggressive and most oppressive form of this repression is totalitarianism (Arendt, 1948/2004, pp. 478–479). Metaphysical positivism turned the history of Being in the wrong direction, supporting alienation, reification, exploitation and oppression. Exploitation and oppression did not matter much for Heidegger but – and this is the third contrast – they did for Arendt, the Hegelian Marxists and American pragmatism (both of whom she nonetheless disdained).¹

More important is another difference. The forgottenness of being consists not only in the repression of our capacity to initiate a new beginning, but also in the reduction of (creative, innovative, world-disclosing) being (Sein) as a whole to that which exists as a singular entity (Seiendes in the meaning of ‘to be’). This thesis can be reread in linguistic terms as the reduction of the referent of language as a whole to the referent of singular terms used in specific statements, or as the reduction of the performative use of language (which is always already innovative and soaked in negativity) to assertoric statements (which are merely reproductive, representing affirmatively what already exists) (Rorty, 1984, p. 14). For Heidegger, the assimilation of our performative use of language to representative statements, or of praxis to technique, can be changed only by invoking the creative, poetical disclosure of Being at the origin of Western thinking that is beyond occidental rationalism and Western civilization. This de-concealing invocation (Entbergung) of immemorial (unvordenklich) Being is meant to prepare us – or at least the few of us who know, the élites, the best poets (Dichter), the greatest philosophers (Denker) and the most advanced political leaders (Staatengründer) – for the return of the original epoch of poetic existence (dichterisches Wohnen) (Heidegger, 1980, 1962/1978, 1957/1986).

Even if the difference between poetic existence and that of the technically governed masses makes some sense for Arendt (and, for instance, for Adorno), her concern is different. What is forgotten in the history of Being (Seinsvergessenheit or forgotteness of Being) is not so much the poetic origin of Being that is beyond occidental rationalism and Western civilization, even beyond interruptive negation; but rather – and this is the fourth contrast – the origin of political community that already exists within negation, rationalism and civilization. What is at stake for Arendt is the (more prosaic) origin of solidarity. It comes to the fore in common political action that is beyond oppressive and coercive rule and beyond technical manipulation. Hence, what we should recover is the politics of a community of equal citizens (isonomia) that was once realized in urban Greece two and a half thousand years ago. Western thinking, therefore, should try to recollect the old political freedom repressed under the conceptual regime (Begriffsherrschaft) of metaphysical positivism. With this fourth turn against Heidegger, Arendt comes ever closer to the position of Hegelian Marxists and American Pragmatists who combined the poetic with the political and normative dimensions of language to create a modern, post-Christian and secular language of solidarity; that is, the language of universal, egalitarian, political and human emancipation (Brunkhorst, 2005). Moreover, in going back to Augustine's Christian ‘Initium ut esset homo creatus est’ instead of Heidegger's pagan Pre-Socratics, Arendt takes the same track out of the metaphysical and positivist wrong track of onto-theology as did Marx and Dewey, Benjamin and Adorno (Arendt, 1948/2004, p. 479). Whereas Heidegger seeks to emancipate the thinking, poetry-writing and state-founding few from theology in order to un-conceal the original truth of ontology, Marx, Dewey, Benjamin, Adorno and Arendt seek to emancipate from the domination of ontology the many addressees of the theological message of a new beginning of a great egalitarian community.

This way, Arendt not only urbanized the Heideggerian province (as did Gadamer, according to a famous speech given by Habermas) but she also politicized it. The original Being of Dasein is that of the political being, the Aristotelian zoon politicon, but this time based on the ‘portentous’ universalizing ‘power of the negative’ (Hegel). It was this portentous power of the negative that motivated Arendt's final turn Westwards from Greek to Roman politics (which she studied through the negativist lens of Machiavelli and the revolutionary lens of Jefferson and Madison), and from a history of Being of the past to – and this is the fifth contrast – the history of Being of the present and the future that is the history of modern revolutions.

The revolutionization of Heidegger's Province (that brings her close to Heideggerian Marxists such as Marcuse, Sartre and Kosic – the only one she quotes – or Petrovic) finally emancipated Arendt's political theory (a term she did not like) from its Heideggerian origins. For Arendt, it is the French and in particular the American Revolutions that constitute the very origin of a ‘Being’ that could be used to correct the wrongs of metaphysical positivism and historicism and to recover and recollect the potential of the political Being-in-the-world that is revolutionary.

Co-original with the beginnings of the American civil rights movement, the campaigns against the Vietnam War, and the quickly globalized student protests in Berkeley, Arendt revived the idea of revolution. The Cold War assumption – and, subsequently, the postmodern thesis – that after the Great American and French Revolutions there were only bad copies of these two major historical events, finally discharging into the bloody totalitarian farce of the first half of the twentieth century, and, that, therefore, the French and American Revolutions were the last revolutions of history – has been refuted by historical facts.²

If we take historical and evolutionary research on legal revolutions into account, Arendt's phenomenology of the praxis of revolutionary foundation fits nicely with the, at once, factual and normative concept of the great legal revolutions.³ Alas, Arendt herself was not so much interested in historical research, much of which she considered to be mere ‘positivism’; she was even less interested in evolutionary theory, which she considered just one further step down to historicist Seinsvergessenheit, close to fascism. The idea of revolutionary foundation and constitution-making, however, fits nicely with the evolutionary role not only of the French and American Revolutions but also of the other great legal revolutions.⁴ In particular, the distinction between power-limiting constitutionalization and power-founding constitutions – which she discusses only briefly, but which is nonetheless vital for her thesis – is strongly backed and generalized by evolutionary theory of legal revolutions as well as by legal and constitutional theory (Arendt 1963/1977, pp. 134–141).⁵ Yet, differently from Arendt, an evolutionary reconstruction of legal revolutions must combine her theory of constitutional foundation with a theory of normative learning processes, which are driven by the sense of injustice (Barrington Moore) that is internal to social class struggles and other structural conflicts. The constitutional foundation of power and normative learning through the experience of social injustice are two sides of the same revolutionary coin. And yet, Arendt is much more ambivalent in relation to the French Revolution than to the American Revolution and to the foundation of power in a pure ‘constitutional moment’ (Bruce Ackermann). It seems that she transfigures the latter in too strong a fashion, while giving the former insufficient credit.

With respect to class struggles, Arendt's assessments are usually positive when it comes to the organized workers movements of ninetieth and twentieth centuries. Even if she takes Luxemburg's side in her debate with Lenin and rightly criticizes the latter's technocratic understanding of politics, Lenin, far from being a mere forerunner of Stalin, was – in her eyes – one of the great revolutionary founders and statesmen of history. She criticizes the Jacobins, however, for their sentimental engagement with the poor people of Paris; she is right insofar as the Jacobins cheated the poor, the urban and rural plebs, using all their revolutionary influence and power to support and establish bourgeois class rule over the poor people of Paris and their brothers and sisters in the provinces, not to speak of the colonies (Tilly, 1995, pp. 167–171). It is not accidental that Napoleon, the initiator and one of the authors of the first purely bourgeois civil code, started his career as a Jacobin.

With respect to what Arendt (a little contemptuously) calls the social question, she was less ambivalent because she – in line with Aristotle and Lenin – thought that this was a merely technical question (quoting Aristotle several times to the effect that if we had machines we would no longer need slaves). Yet the social question could become a political one through the struggle of politically organized workers. Thus, Fine (2015) has rightly argued that one should read Arendt's On Revolution not primarily as a story of the two revolutions, the ‘good American’ and the ‘bad French’ one – even if Arendt tells this story, and even if this story is deeply wrong in nearly all respects, historically and conceptually.⁶ If, however, we abstract her categories from their application to concrete historical examples, reinterpret them in the context of her other writings, and take them as a schema to recollect the ambivalence of historical experience of the revolutions and their results from the actors’ perspective alone, we can see how they fit both revolutions – in terms of both their social and their political dimensions.

Arendt's contribution to understanding the ambivalence, even negative dialectic, of the great revolutions is important. Habermas has mentioned this in his early review of On Revolution, where he rightly criticized the (deeply bourgeois) separation of political and social domination that was in the ninetieth century performed with the evident intent of emancipating us from political rule through a stabilization of the privatized (and, hence, politically not directly visible) social rule of the capitalist class over the working class. Arendt was right to insist, however, that social emancipation (or what Marx called ‘human emancipation’) without political emancipation cheats us of our right to self-determination, which was the very reason for the revolution (Habermas, 1981a, p. 227; see Fine, 2015).

Moreover, the ambivalence of the great revolutions consists in a specific dialectic of enlightenment that Kant already had observed. What is normatively significant about major social and political revolutions – such as the French or American Revolutions – is that they transform moral insight into an existing concept, a Hegelian idea that Kant anticipated when he observed the enthusiasm of a politically active audience vis-à-vis the irreversibility of moral progress that was established by the French Revolution – even if the revolution itself sunk in a sea of blood, terror and war and was totally beaten (as was Napoleon in 1815). Kant argued that we can never justify such a bloody crime as a great revolution in advance. Once the revolutionaries factually gain more power than the former representatives of the sovereign, their positive law becomes the only valid one (as in Hobbes); in this case, the revolution is justified because of the irreversibility of the moral progress that it has established. Kant's solution and later Marx's similar solution⁷ still seem valid, illustrating that Arendt's ambivalences can be mastered conceptually if we do not, as Arendt did it, neglect the normative learning processes that are internal to all great legal and constitutional revolutions. Yet, and here Arendt's caveat is right, this progress, from moral insight to the existing concept that opens a new path of social evolution, was always attained at a high price. If there was any normative ‘progress in the consciousness of freedom’ (Hegel) established by the great legal revolutions (such as the Papal, the Protestant or the Atlantic Revolutions), then it increased the potential of emancipatory praxis together with the means, power and stability of social class rule, political and economic oppression, cultural hegemony and societal exclusion (Brunkhorst, 2014).

And yet, there is another conceptual weakness in Arendt's theory of the revolution, in particular if we compare it with the results of social history and evolutionary theory. Arendt never overcame her fixation on rare constitutional moments of history, which is a remnant of her Heideggerian philosophy of origins (Ursprungsphilosophie). As historical research demonstrates, there is never the one and only constitutional moment, except in revolutionary chants and memorial celebrations. Arendt is right (especially in opposition to functionalist theorists such as Niklas Luhmann) to take ‘solemn declarations’ and ‘revolutionary chants’ seriously, and not just treat them as ‘superfluous superstructure’ (Luhmann, 1991, p. 176; my translation). She overestimates their singularity, however, because there are always several moments of foundation (in the same way as there is not one source of the Rhine River at its so-called origin, but an uncountable multitude of sources feeding the great river on its whole course). Even constitutional moments are, as one could say with Hegel, only moments of the whole and depend on its existence. Therefore, they appear synchronically as well as diachronically again and again. Arendt tries to solve the problem in two ways. The first is a rehabilitation of the category of auctoritas (Arendt 1963/1977, 200–203). Yet, this is both a misleading and an outdated category that belongs to pre-constitutional informal rule, which is typical for a stratified society (such as ancient Rome) and which is no longer useful in the legally organized and functionally differentiated mass democracies that emerged after the modern constitutional revolutions of the eightieth century. The other way to solve the problem of the permanence of revolutionary power is only briefly mentioned by Arendt with reference to Jefferson and in her remarks on power-founding constitutions. This, however, is the more fruitful and modern way, which will be considered in the last section of this paper.

As Ackerman (1998) has demonstrated, the American Revolution has triggered a still lasting history of the diachronic plurality of constitutional moments, such as the New Deal. All of them are part and parcel of what we call ‘the revolutionary foundation of the American constitution’. Furthermore, the history of legal revolutions has shown that what is new with the great revolutions (and indeed a new beginning) is not the actualization of an immemorial original history (Urgeschichte) of political being, but a radical re-interpretation of the already existing advances that are the product of former revolutionary and reformist activities. In this context, the point is that any radically new foundation that occurred in history was enabled not only by contingent functional results but also by the experienced and articulated contradictions of normative advances of the immediately preceding legal revolutions and the whole historical accumulation of normative learning processes. There is nothing originally behind them that is then un-concealed by an authentic revolution.

The famous story of the two revolutions not only suffers from its much-criticized but phenomenologically retrievable dualisms of ‘the good’ and ‘the bad’ revolution (‘the political’ and ‘the social’) but also from the methodological nationalism that framed the time in which On Revolution was written. Despite her awareness of the cosmopolitan perspective, Arendt still tells her original history of political being as a national history. Meanwhile historians have discovered world history, and the occurrences in France and North-America during the eightieth century are re-described as part of a world-revolutionary occurrence that had its centre in the Atlantic world-region as a complex unity of economic, political, cultural and social relations. Therefore, world historians prefer to speak of the Atlantic Revolution as one great revolution with a synchronic variety of revolutionary moments in Northern and Southern America, in the Caribbean and Western Europe (Osterhammel, 2014).

Arendt describes modern society as a ‘rational capitalist market society’, which is functionally differentiated from the political public (res publica). In her view, the most powerful driving forces of modern society are capital and power. In Arendt's account of The Origins of Totalitarianism, the accumulation of capital and power are both structural social processes that reinforce each other:

Both are based on a highly abstract, reflexive mechanism that Arendt calls ‘expansion for expansion's sake’ or ‘power for power's sake’ (pp. 215, 217, 351).⁸ Anticipating modern systems theory, Arendt writes that ‘power appears as a dematerialized mechanism which with its every move produces more power’ (p. 418).

Arendt explains the self-radicalizing dynamic, first of modern colonial imperialism and then of fascism and Stalinism, through the absence of any counter-power capable of regulating and controlling the unfettered expansion of capital and power for capital's and power's sake.⁹ In the 1940s, she thought that the only power that could cope with the reflexive mechanism constantly producing more power was the modern nation state:

The question that emerges in this context is why the bulwark crumbled so quickly. Hannah Arendt's first answer in Origins is that it was because of the pressure of the so-called ‘mob’, the Marxian Lumpenproletariat, which in Arendt's – Luxembourgian – Marxism became an ever-growing surplus population that was excluded from access to bourgeois society as well as from the political organizations of the working class. Until the First World War, she argues, this problem could be solved by colonial imperialism where the Lumpenproletariat met the Lumpenbourgeoisie in the stateless heart of darkness. Imperialism became the realm of unlimited expansion of capital and power for capital's and power's sake; the result was extreme exploitation, slavery, genocide, concentration camps and all kinds of atrocities. Yet, this solution by territorial exclusion of ‘barbarism’ from ‘civilization’ took its revenge in Europe once the nation state crumbled in the course of the global civil war that began at the end of the First World War and ended only in the second half of the twentieth century. Arendt assumes that the very origin of totalitarianism consists in the successful repression of any political debate, any political struggle, let alone any political solution of the problem of an ever-growing surplus population. In this account, the crisis of the nation state caused a bloody return of the repressed and opened the path for totalitarianism: a category bound by Arendt to the two cases of Germany between 1933 and 1945 and the Soviet Union between 1929 and 1953, the year in which Stalin died, and explicitly excluding the Soviet regime during the war period 1941–1945, which, in contrast to Nazi-Germany, ‘was a time of temporary suspense of total domination’ (Arendt, 1948/2004, p. XXV, Preface to Part III).

I shall leave aside the empirical and historical problems connected with an explanation that fits at least partly with functionalist, historical and evolutionary research into modern state-formation (Thornhill, 2011). Yet, whereas Arendt argues that imperialism, fascism and Stalinism are enabled by the completion of the functional differentiation of power and capital, functionalist constitutional sociology suggests that imperialism, fascism and Stalinism were enabled by an incomplete functional differentiation of parliamentary state-power after World War I, and in particular by an oligarchic corporatism that integrated power and capital at the expense of functional differentiation (Thornhill, 2011, pp. 309–310).

On the one hand, this leads Arendt to a one-sided analysis of the historical facts and to the fatal misjudgement that the proper organized national state of the nineteenth century actually functioned as a bulwark against the unlimited domination of bourgeois society and against imperialistic politics. Rather, the opposite is true. Even if the best Western national states of the nineteenth century once might have been supposed to express the sovereignty of the people, they no longer did, not even in the few existing half-democratic regimes such as the USA. State-power was based not on popular sovereignty but, above all, on administrative and coercive power that became more and more differentiated, self-referentially closed, uncontrollable and expansive. It appeared more and more as a dematerialized mechanism, which with its every move produced more power (Reinhard, 1999).¹¹ Arendt soon recognized that and changed her mind about the bulwark theory in the last part of Origins, but she nonetheless hoped that the Rechtsstaat could tame the deadly powers of unlimited expansion. She progressively changed from the power-limiting Greek notion of nomos (walls of the city) to the power-founding Roman notion of lex (as a praxis of establishing pacts and enlarging relations).¹²

On the other hand, Arendt rightly touched the sore spot of functional differentiation because the completion of functional differentiation between power and capital (and other functional systems) only leads to an ever-better adaptation of functionally differentiated society to its environment, be it democratic or not. Power-limiting constitutionalism is ‘not dependent upon the form of government’ (Arendt, 1963/1977, p. 134). The normatively neutralized increase of adaptive capacity can be reached by many methods, all of which are able to produce a great variety of functional equivalents; only a few are democratic and others might even include concentration camps. But, as Arendt rightly argued, there is no functional equivalent for the ‘living power of the people’ (1969, p. 140). As far as it refers to this power, constitutional law must be understood as an embodiment of this normatively universalizing power that cannot be reduced to the function of the structural coupling of law and politics (Luhmann, 1991).

Arendt always distrusted the power of mere moral insight as well as the power of human rights not backed and enforced by state-power. On the other hand, she clearly expressed her discontent with the national limits of rights (Burke's infamous ‘rights of the Englishman’), which tended to exclude the stateless surplus populations of the twentieth century and all kinds of non-citizens placed beyond the colour or social class line. In Chapter Six of Origins, Arendt denounced Burke's critique of the rights of man as the common source of ‘German and English race-thinking’ (1948/2004, p. 175), and especially in On Revolution she extended her distrust to the so-called Rechtsstaat and its liberal confinement within power-limiting constitutionalism (Arendt, 1963/1977, pp. 134–140). Here she describes power-limiting constitutionalism as a ‘counterrevolutionary’ turn of a revolution, whose purpose is to ‘break’ the ‘revolutionary power of the people’ and to institutionalize ‘distrust against the people.’ (Arendt, 1974, pp. 187, 379 note 7)

In light of the above, what is the alternative if it is not just an empty appeal to the moral conscience of the inner self, or the celebration of declarative speech acts without any binding power? Arendt looked for a power of the people that is not coercive and administrative but could be embodied in the constitution and become the basis of lasting political institutions. Moreover, it should be a real and effective counter-power to the expansion of capital and power, to power for capital's and power's sake. It should be at least as powerful as, or even more powerful than, the reflexive and expansive power of a modern state administration unfettered in its imperial and total domination.

In The Human Condition and On Revolution, reflexively constituted and therefore unlimited power no longer appears as exclusively administrative, imperial and totalitarian. Arendt discovers that the general features of reflexive power, namely, that power can only become more powerful through power and that the ‘separation of powers makes a community more powerful than the centralization of power’, also apply to the power created by citizens in their public assemblies and common action (Arendt, 1974, p. 198).¹³

Power created by citizens in common action – that is, communicative power, as Habermas (1981b) has suggested – can be increased only through reflexive differentiation and decentralization.¹⁴ Communicative power can be destroyed through ‘violence’, but it cannot be realized through ‘violence’ (Rensmann, 2015). We can make Arendt's terminology compatible with sociology by equating Arendt's idiosyncratic use of ‘violence’ – that usually just means the movement of physical bodies – with the administrative/coercive power of making binding decisions (Arendt, 1981b, pp. 193–194; 1974, p. 196). ‘Violence’, or administrative power, can be monopolized, but communicative power cannot. The living power of the people is not at the disposal of those who are the wielders of coercive power. Communicative power is a public affair and not a private property: ‘power springs up between men when they act together and vanishes the moment they disperse’ (Arendt, 1959/1989, p. 194).

Yet, communicative power cannot stabilize itself. It stems completely from the ‘opinion upon which many have agreed in public’ (Arendt, 1970, p. 45). It ‘springs up between men when they act together’, it is ‘innovative’ and ‘experimental’, it is nobody's private property, it is socially inclusive and therefore ‘from the start open to all’ (Arendt, 1959/1989, p. 200; 1974, pp. 222–223; 1981b, p. 194; 1963/1977, p. 178). In exercising communicative power, ‘unlimited power’ emerges that without the use of ‘violence’ (here Arendt uses ‘violence’ in the usual way as movement of bodies) ‘may engender an almost irresistible power’ that can overcome even ‘materially vastly superior forces’ (1959/1989, pp. 200–201). But the communicative power of the people lasts only for the ‘fleeting instant of acting in common’; it ‘vanishes the moment they [the people] disperse’ (p. 200). One cannot rely on the ‘tremendous potential’ of communicative power, which is as productive as it is destructive (1963/1977, p. 178). Action is ‘the most dangerous of all human capacities and possibilities’ (1974, p. 228; 1994, p. 363). Therefore the ‘men of the Revolution’ always stare into an ‘abyss’ (1979, pp. 30, 185ff; see Cordero, 2015).

The riddle of all revolutionary constitutions that establish the power of the people is evident: How is it possible to stabilize their communicative power to act in concert and conflict without repressing it, and that means stabilizing a power that is unlimited and almost irresistible and hence can change, abolish and create any political institution? The answer to this question can be found in the power-founding constitution (1974, p. 183ff). Revolutionary constitutions (such as the revolutionary American or French constitutions) are not just Bills of Rights; they are designed not to limit but to establish, enlarge and improve the power of the people. In democratic constitutions the meaning of the different lists of human and civil rights can be disclosed only through the interpretation of the democratic Staatsorganisationsrecht – an untranslatable German word that might be explained in American legal English as constitutional law of check and balances (Richard Tribe). Thus, as Hermann Heller wrote in the 1920s, the

This also has the implication that the constituent power of the people never vanishes from the legal actions of their constituted power (Böckenförde, 1986). In sharp contrast with power-limiting constitutionalism, the only purpose of a power-founding constitution is to establish a government not for but by and of the people. The revolution ‘submits the constituent power to the people’ – and the system of check and balances here has the functions only of constituting, organizing and stabilizing that constituent power (Arendt, 1974, p. 193).

Hence, the system of check and balances must be designed to coordinate all the constituted powers of a political community – legislative, judicial and executive bodies as well as federal and state powers – for two purposes: to prevent the constituted powers from ‘destroying’ the ‘original’ and permanently constituent communicative power of the people, and to preserve the ‘growth’ and capacity of the constituent power to ‘engender new power’ and ‘new centers of powers’ (Arendt, 1974, pp. 196–197, 200).¹⁶ Thus, the American constitutional system of check and balances – Arendt argues – applies power to power, ‘confronts power with power’ (John Adams) in a reflexive manner, not to weaken internally differentiated political power, but ‘to make’ it ‘mightier’, to ‘make the political community mightier than any centralized power’ ever could be (pp. 198–199). The revolutionary constitutional ‘division of powers’ is not so much a division as a unification of different powers: ‘e pluritate unum – but without depriving’ the single elements – the federal states, different peoples and individual citizens – ‘of their power’ (p. 198).

In Arendt's final theory of power, the alternative to counterrevolutionary constitutionalism consists in the idea of a permanent revolution that is constitutional, and hence prevented from depriving the people of their constituent communicative power and destroying itself, as happened in the Russian and Chinese Revolutions, neither of which ever established a working normative constitution (Arendt, 1974, p. 187). Even if Arendt never sought to relate her idea of a permanent revolution that is constitutional to ‘democracy’, or even worse (for her) to ‘mass democracy’, and even if Arendt always preferred to speak of a self-ruled republic or isonomia instead of ‘democracy’ (a word that she used more or less pejoratively), her idea of a permanent revolution that is constitutional is nothing else than an explication of the very idea of a socially inclusive constitution of egalitarian ‘mass democracy’.

The idea of a permanent revolution that is constitutional carries a ‘meaning’ of ‘democratic self-rule and equity’ that never can be ‘reduced to any particular set of institutions and practices’ (Marks, 2000, pp. 103, 149–150). The ‘normative surplus’ (McCarthy, 1994, p. 21) of democratic meaning depends on different and changing contexts and circumstances, and it always already transcends any set of legal procedures of democratic legitimization (Arendt, 1974, p. 188ff). There is always a meaning of democracy that cannot be ‘exhausted’ by ‘representative government’ and ‘national government’ alone (Marks, 2000, pp. 2–3). Democracy is not, as the young Marx once wrote, the solved riddle of all constitutions, but (with Susan Marks) the unsolved riddle of all constitutions. Power-founding constitutions have to keep the riddle open, simply because it is up to the individual and collective self-determination of the people to determine, interpret and re-interpret the altering meanings of democratic self-determination, self-rule and equity – again and again, in ever new terms of institutional design, be it representative or not, be it national, sub-national, trans-national or supranational.