Civil Disobedience in the Age of Trump

Reading Hannah Arendt’s Crises of the Republic in the Age of Trump: A Symposium

Hannah Arendt’s Crises of the Republic is not so much a book as a collection, published by Harcourt Brace Jovanovich in 1972, of three essays and an interview that first appeared, individually, in the years between 1969 and 1971. Three of the pieces were first published in The New York Review of Books, and the fourth, the essay on civil disobedience, was first published in the New Yorker . Even though the words “crisis” or “crises” do not appear in the titles of any of these pieces, all of them clearly address what Arendt considered to be a constellation of forces that together represented a severe test of “the American Republic.”

This symposium contains essays by Mary Dietz, William E. Scheuerman, Christian Volk, Seyla Benhabib, and Jeffrey C. Isaac that engage with the obvious and meaningful resonances between Crises of the Republic and the present. They were originally presented in August at the American Political Science Association’s annual meeting in Boston, in a panel organized by William Scheuerman and moderated by Cidgem Cidam.

Arendt’s quirky but brilliant essay “Civil Disobedience” — first published in The New Yorker and later included in Crises of the Republic — speaks directly to our present political situation. Of course, that situation poses many novel and perhaps unprecedented challenges. Nonetheless, key features of Arendt’s defense of civil disobedience, based on a lecture given at a conference in New York City devoted to the question “Is Law Dead?”, seem presciently relevant to the “Age of Trump.”

Arendt diagnosed a relationship of mutual dependence — a symbiosis  — between “extra-legality from above,” i.e., legally and constitutionally dubious acts by high-level officials, especially those situated within the executive branch, and “extra-legality from below,” i.e., grassroots, politically motivated lawbreaking. The latter category, of course, potentially includes many different forms of political “resistance,” but like Arendt, I view civil disobedience as its most significant variety. Although commentators tend to neglect this point, Arendt suggested that only if we acknowledge this relationship of mutual dependence (or symbiosis) can we properly understand civil disobedience. As I hope to suggest in what follows, she was right to do so.

So where exactly can we find evidence for the symbiosis? Arendt’s essay bluntly announces that the US faces a political emergency: “[a]n emergency is certainly at hand when the established institutions of a country fail to function properly and its authority loses power” (pp. 101-2). This is no Schmittian emergency, where the existential identity of an (allegedly) “homogeneous” people is under siege, but instead an identifiably republican emergency, in which the fundaments of self-government are assaulted by powerful political figures, something Arendt thought was transpiring even prior to Watergate. What did she specifically have in mind? The “undeclared war in Vietnam; the growing influence of secret agencies on public affairs;… attempts to deprive the Senate of its constitutional powers,” as well as President Nixon’s illegal invasion of Cambodia (pp. 74-5). She proceeded to characterize the emergency as one where “the normal channels of change no longer function, and grievances will not be heard or acted upon,” with the government aggressively pursuing legally and constitutionally dubious acts: “the government… has embarked upon and persists in modes of action whose legality and constitutionality are open to grave doubt,” generating a “constitutional crisis of the first order” (pp. 74, 89). That crisis, she concluded, derived substantially from unchecked executive power, including the executive’s “openly or thinly veiled threats” to the First Amendment, its attack on the separation of powers, and hateful demonization of political opponents — most notably, Vice President Agnew’s description of anti-war protestors as “vultures” and “parasites” (p. 75).

Now some of this sounds disturbingly familiar. Indeed, Arendt’s diagnosis offers a useful starting point for analyzing political trends under the Trump Administration.

We too face a political emergency, and arguably one more severe — as other contributors to this symposium note — than the republican crisis Arendt diagnosed in the early seventies. Her essay remains relevant, I think, in part because she viewed civil disobedience as an appropriate and indeed necessary response to the emergency, and even more specifically, to its “top-down” illegal and unconstitutional contours. Civil disobedience — for Arendt, an identifiably political type of action, and thus not resting on moral conscience or having a directly legal basis — is, of course, also extra-legal; it entails lawbreaking. However, it is undertaken by citizens, engaged in grassroots “action in concert,” and motivated by some sufficiently palpable commitment to the republic’s common good. Civil disobedience is not simply justified or perhaps appropriate but necessary because the republic’s usual political pipelines have been badly clogged to such a degree that it becomes difficult to expect effective redress from them. Extra-legality from below, in sum, constitutes legitimate defensive political action engendered by extra-legality from above.[1] It has been forced upon republican citizens because the regime’s illegal acts obstruct the ordinary political process.

This all remains pertinent: the present-day US political system is in fact badly broken. Ordinary channels do not provide sufficient or even minimally acceptable opportunities to deliberate or participate meaningfully. Systematic voter suppression by the GOP, in conjunction with its absurdly partisan gerrymandering (both still unchecked by the Supreme Court’s right-wing majority), mean that the political game is now badly rigged against the political opposition. Our system is also broken because of executive-level illegalities — most shockingly, the Trump campaign’s cooperation with the Russians during the 2016 election, followed by President Trump’s aggressive efforts to discredit proper investigations into that cooperation. If that is not a frontal attack on the basic integrity of the republican political process, it is hard to say what would be.[2]

Arendt’s essay also identifies a second reason why civil disobedience is not just potentially justifiable but politically imperative.

The essay alludes to several aspects of what the social theorist Hartmut Rosa has recently dubbed “social acceleration,” that is, the constant speed-up or acceleration that characterize many core elements of contemporary society. “Civil Disobedience” aptly acknowledges “the unprecedented rate of change in our times,” a pace of change that necessarily poses challenges to the legal and constitutional order (p. 80). Why? As Arendt acknowledged, we legitimately expect from law that it provides some measure of stability or constancy. The dilemma is that in a dynamic society subject to constant change, the requisite measure of legal stability is going to become ever more difficult to achieve: social acceleration, on the one side, and legal stability, on the other, inevitably come into ever sharper conflict. Under the conditions of our high-speed society, law inevitably lags behind rapid-fire social change.

“Civil Disobedience” proceeds to suggest that civil disobedience could play a fruitful role in filling the resulting gap. Recalling a century of post-Civil War failures to guarantee basic rights to black Americans, the essay observes that the Fourteenth Amendment only became political reality when “movements of civil disobedience… brought about a drastic change in the attitudes of both black and white citizens” (p. 81). What general lesson might we draw? “The law can indeed stabilize and legalize change once it has occurred, but the change itself is always the result of extra-legal action” (p. 80). Civil disobedience will often prove necessary if the legal and constitutional order is going to catch up to contemporary needs. Without extra-legal protest, we otherwise likely face massive discontinuities between our rigid constitutional and legal order, on the one hand, and dynamic society and the pressing political challenges it poses, on the other.

Arendt’s point here also seems relevant. Major elements of our constitutional system are not only outdated — think of the electoral college, the absurdly unrepresentative US Senate, our idiosyncratic selection process for Supreme Court Justices — but were arguably designed to minimize possibilities for far-reaching constitutional change. Article V, constitutional lawyers tell us, is arguably unmatched worldwide in generating impediments to peaceful constitutional change. So especially in the US we are going to have to rely on civil disobedience: too often, it’s the only way to prod — as not only Arendt but also Dr. Martin Luther King, who frequently disparaged the “horse-and-buggy pace” of the US political system, grasped — our Model T political system into overdue political and constitutional reform, reform we need if we’re going to update that model and perhaps finally trade it in for a new, more contemporary one.

This idea of a symbiosis between extra-legality “from above” and “from below” might understandably worry some readers. After all, it risks obscuring qualitative differences separating lawbreaking by government officials from grassroots civil disobedience. Do we really want to treat Trump’s (or Nixon’s) lawbreaking as structurally congruent with that of their activist opponents?

Of course, Arendt did not follow that path. Much of her essay is devoted to explaining how civil disobedience can be clearly distinguished from executive extra-legality. In her view, executive extra-legality typically undermines republican government. In contrast, civil disobedience — when properly conceived and practiced — can save and indeed revitalize it.

First, she declared: “It is my contention that civil disobedients are nothing but the latest form of voluntary associations, and thus… in tune with the oldest traditions of this country” (p. 96). Following Alexis de Tocqueville, Arendt interpreted free political associations as a linchpin of republican government. Civil disobedience thus directly embodies the American constitutional order’s republican spirit and its underlying “organizing principles of action,” principles of action that take on a concrete form when citizens voluntarily come together and engage in joint action, even when such action may involve lawbreaking. Civil disobedience, in short, rests on a republican logic of political action. The same cannot be said, Arendt believed, for executive extra-legality. [3]

Second, Arendt criticized some liberal-legalist accounts of civil disobedience — specifically, well-meaning but misguided attempts to interpret it as directly based on legal or constitutional grounds (for example, First Amendment free speech protections). There is no evidence she was familiar with John Rawls’ or Ronald Dworkin’s sophisticated liberal defenses of civil disobedience. Rather, she was responding to liberal jurists who, rather naively, endeavored to outfit civil disobedience with a directly legal status, in the process obscuring its core extra-legal qualities.

Now this has encouraged some commentators to read Arendt as breaking with any claim that civil disobedience presupposes something significant about law.

That view is wrong. She clearly says that civil disobedience depends on a specific “concept of law” (p. 83), one whose contours she locates in the American Revolution and, specifically, in its republican and horizontal (and not vertical) notion of the social contract, where the right to dissent — and, if necessary, break the law — is acknowledged (p. 83). Accordingly, the final section of “Civil Disobedience” has a great deal to say about the differences between vertical and horizontal contracts. Although I cannot elaborate on this point here, we should read that discussion as a major amendment to her rather pessimistic reflections about the fate of American republicanism in On Revolution (1963) . Despite her anxieties about the “crises of the republic,” by the early 1970s Arendt glimpsed the possibility that civil disobedience might provide one way to revitalize and perhaps save America’s fragile republican experiment.

This point remains relevant as well. Arendt wanted to hold on to the venerable idea that civil disobedience should show evidence for what Dr. King called “the very highest respect for law,” though her views about the law were of course very different from his. Civil disobedience needs to embody and symbolically exemplify respect for law—in Arendt’s account, for a properly republican notion of law.

As we respond to the dire political crisis the US now faces, those of us engaging in “resistance” to the corrupt and illegitimate Trump regime should keep this in mind: if politically motivated lawbreaking is going to help save our republic, we need to make sure that it can be plausibly interpreted — and not just by its partisan sympathizers — as embodying an egalitarian republican notion of law.

William E. Scheuerman is Professor of Political Science at Indiana University, Bloomington.