Constitutional crises put republic in danger

Last month, the program on Ethics, Politics and Economics and the Whitney Humanities Center hosted a conference at Yale titled “Hannah Arendt at One Hundred: Crises of Our Republics.” Scholars from around the world were present, and even a handful of undergraduates turned out. For this gathering of philosophers and intellectual historians, the tone of the gathering was one of deep urgency.

The event was more than a crowd of academics jabbering about “The Origins of Totalitarianism.” The themes of Arendt’s writing, especially the titular “Crisis of the Republic,” strike at the heart of the moment we are living in, under a government that has continued its assault on the Constitution and international law and lurches forward with its imperial adventure in Iraq. It is well understood these days that things are not going well in this country. What is perhaps rarely stated, and what became clear to me at the conference, is the depth of the crisis. The crimes of the current administration threaten the ideals of the Constitution itself.

In the opening panel of the conference, the scholar-journalist Jonathan Schell threw out his prepared paper and launched into a simply stated yet impassioned argument, warning that the United States has already fulfilled many of the conditions for the formation of totalitarian rule as defined by Arendt. What put Schell in such a state of alarm was the passage in the Senate the previous night of the “detainee bill,” also known as the “torture bill.”

Senate Bill 3930, while prohibiting a few of the most extreme techniques, permits many other forms of torture and expands presidential power in unprecedented ways. The bill denies access to the courts to the detainees in places like Guantanamo Bay, and broadens the category of “enemy combatants” to include potentially anyone, even American citizens, who “purposefully supported” hostilities against the United States. Under the new law, any “competent tribunal” can declare a person to be an enemy combatant, including those set up by the president or the secretary of defense. The bill was also a direct contradiction of the Supreme Court’s ruling in Hamdan v. Rumsfeld. In one motion, Congress legalized torture, abdicated any possibility of holding the administration accountable for its excesses, and marginalized the entire judicial branch.

Even though United States remains a procedural democracy, I think Schell’s alarm is justified. Even if we are not over the brink yet, the very plausibility of a permanent undermining of the Constitution is disturbing. What distinguishes the “war on terrorism” from all other wars is that it is, by definition, endless. If we today suspend portions of the Constitution in the name of this war, they may never be reinstated. The situation in the United States, of course, is quite different from Nazi or Stalinist totalitarianism, but we must recognize the high stakes of the current constitutional crisis.

The detainee bill is only the most recent example. Schell enumerated a checklist, culled from Arendt, of the conditions for totalitarianism that we have already met: a system of secret concentration camps set up by the military and the intelligence services, de facto suspension of the separation of powers, single-party rule, the suspension of accountability, the consolidation of executive power and, of course, an empire abroad.

Throughout, the Arendtians at the conference stressed the difference between constitutional republicanism and other forms of government, like authoritarianism and empire. Today, in the later years of the Bush administration, scholars are asking the question of whether the United States will remain a republic. I do not think that America has ever fully lived up to its constitutional promise — there is too much slavery, inequality and flashes of imperialism in our past. The United States should be a republic, and not an empire. At stake in this year’s elections is the future of this normative aspiration.

Some Republicans and Democrats are willing to suspend this dream of small ”r” republicanism and small “d” democracy. Our generation has never seen a Congress exercise its power to check and balance the executive. We are too young to have seen the end of the Vietnam War and Watergate, and we are too young to remember Iran-Contra. We witnessed the Republicans instrumentalize impeachment for narrowly partisan aims in their war against Bill Clinton, and many of us were outraged when Republicans and many Democrats put up no opposition to the Bush administration’s militaristic lunge.

The republic is in crisis. The only chance we have to see accountability is for a new Congress to be elected in November. And our new representatives and senators will have to take their jobs with extraordinary seriousness. Imagine a future where the United States fulfills its republican dream, and remember back to the urgent writing of Hannah Arendt.

Jared Malsin is a senior in Berkeley College. This is his first regular column.

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