Legitimacy and Fabrication

In 1776, the American revolutionaries were amazed by the opportunity inde­pendence offered to engage in what Gordon Wood describes as the provocative challenge that was somehow providentially directed at them.^[234] They were every­where ‘thrilled at the prospect of forming their own government.

It is these very frequent references to framing, forming, moulding, erecting and such that bring us back to Hannah Arendt.

Similarly, the colonial charters provided for structures of government, but they invariably and quite emphatically asserted royal authority for doing so. It was the king who did the framing ‘by our royal will and pleasure', the charter simply documenting and certifying it, and specifically delegating authority to the colonial leaders to carry it out.^[244] Rhode Island's Royal Charter of 1663 is entirely typical in this respect, declaring that King Charles II, who ‘by our will and pleasure... and our especial grace, certain knowledge, and mere motion. have ordained, constituted and declared' that the petitioners ‘shall be... a body corporate and politic'.^[245] The charter creates the offices of governor and others, a judicial system and a legislative body, each with duties specified, but these are created by ‘mere motion', by the grace and sheer will of the sovereign.^[246] It is a rhetoric of will, not of fabrication.

The early American constitutions in contrast did not designate the frame of government as handed down from a higher authority. How was it that this notion of framing governments simply by the language of a written document was so widely and enthusiastically accepted as an objectively legitimate means of consolidating the revolution? It was in part owing to writing and printing. By the eighteenth century, printing was widely perceived as affirming a document's cred­ibility, to some extent because the text could be relied upon as stable and enduring, and because of the relative ease and cheapness of promulgation.^[247] This helped to confirm the central and overriding purpose of constitutions: ‘written documents as barriers to encroaching power'.^[248] James Cannon of Pennsylvania anxiously asserted that in order to prevent constitutional rights from being ‘lost forever', they must be ‘written down in immutable documents’. ^[249] This was a flashpoint in the debates between federalists and anti-federalists over whether the rights and princi­ples of constitutions ‘actually have to be specified and written down in order to be in force', reflecting, Gordon Wood notes, ‘a basic ambiguity in the American mind about the nature of law that was carried into the Revolution’^[250] But constitutions in their capacity as frames of government were everywhere understood as necessarily written, since they were meant to withstand anticipated challenges to the people's liberties, when the documents would be invoked during inevitable disputes over interpretation and application.

That the early American constitutions were written and printed does not, of course, itself account for the extraordinary confidence the revolutionary era had in the legitimacy of, as it were, constructing governments on paper. That it was extraordinary, that there was nothing inherently automatic about written consti­tutions as effective consolidators of revolutions, is evidenced by the revolution in France and that country's repeated (and mostly failed) creation of constitutions - some 14 in the 85 years after 1789.

The question remains: why were the early written constitutions so widely and enthusiastically accepted as the legitimate instruments to consolidate the American Revolution? While Hannah Arendt largely failed, as we have seen, to account for the consolidation phase of the American Revolution, I believe she does offer an explanation elsewhere in her work on the human condition, but not addressed in On Revolution or her other discussions of revolution. We may find it in Arendt’s concept of fabrication and its unique role in the public life of a secular polity.^[251] She argues that the powerful, unprecedented forces of seculari­sation degraded the public realm to the point where we live in a condition of ‘worldlessness'. We no longer have or believe in an enduring polis that is a place for action and for the talking about and remembering actions.^[252] We no longer accept that there are great words and deeds that stand out as singular events and disrupt the endless, futile cycles of daily life, words and deeds that make a world. In this worldless view of modern, mass society, all events are seen as merely parts of processes. ‘ The modern concept of process... separates the modern age from the past more profoundly than any other single idea. To our modern way of think­ing nothing is meaningful in and by itself.'^[253]

Because in the modern era nature is the standard by which humans observe themselves, the study of nature - natural science - has become the foundation for all thought. It renders intellectual legitimacy to other systems of thought, and systems that do not pay allegiance to it are on the defensive and at risk of being marginalised. The power of modern science lies in its rejection of anything human. The trouble is, for Arendt, that without a public realm, humans can have no conception of an external reality: ‘ The reality of the world is guaranteed by the presence of others.'^[254] The weird consequence of this is that modern science accounts not for the external world, general opinion notwithstanding, but for a private one whose existence no one can be sure of.

Sensible reality itself is, Arendt argues, dissolved into the incoherent data of sense perception, so that humans are ‘ ultimately imprisoned in a non-world of meaningless sensations that no reality and no truth can penetrate’ ^[256] This world- lessness of the subjective, the darkness of the private, ‘the playing of the mind with itself',^[257] is for Arendt the primary datum of the modern era. ‘Man, whenever he tries to learn about things which neither are himself nor owe their existence to him, will ultimately encounter nothing but himself, his own constructions, and the patterns of his own actions.'^[258] Science itself appears to yield certainty where other knowledge seems so contingent only because ‘the sheer cognitive concern of consciousness with its own content... must yield certainty, because here nothing is involved except what the mind has produced itself’^[259]

An important consequence is that our own minds can construct whatever world we wish and accept it as reality. ‘We can take almost any hypothesis and act upon it, with a sequence of results in reality which not only make sense but work. This means quite literally that everything is possible not only in the realm of ideas but in the field of reality itself.'^[260] Thomas Hobbes (who like Descartes acknowledged his dependence on Galileo and Kepler) knew that understand­ing is knowing how something is made: ‘ Where is no generation...

For Arendt, then, in a world where the decline of the polis raises barriers to true action, we are left with fabrication, so that we ‘substitute making for action in order to bestow on the realm of human affairs the solidity inherent in work and fabrication’.^[265] There is, Arendt notes, a line of thought extending back to Plato expressing uneasiness about the unpredictable and fragile nature of action as the central value of the political realm, so that the Western understanding of politi­cal communities has always been menaced by the suspicion of action and by an accompanying desire to substitute fabrication for action.^[266] Arendt argues that fabrication rose to become a predominant value in the modern era, evidenced by the crisis of secularisation and the scientific revolution it engendered. Arendt saw that the consequence, that ‘everything is possible, engendered the disasters of the twentieth century. These included the totalitarian regimes, the embodiment of the ‘abyss of the possible, with the regimes’ total domination and limitless capac­ity for mass crimes, feasible in good part owing to normal people who simply do not believe the monstrosities of totalitarian systems, since they ‘don’ t know that everything is possible’.^[267]

However, Arendt does not take into account the prominent place of this new ethos of making in the Enlightenment’s striking self-assurance that it could, through sheer “rational reliance on the efficacy of energetic action, remake their world and diminish its many evils through the application of scientific method and its discoveries. This was ‘a genuine and far-reaching novelty in human affairs’. Now, ‘for the first time in history, confidence was the companion of real­ism rather than a symptom of the Utopian imagination, ^[268] The widely perceived, rarely opposed, legitimacy of the early American constitutions meshed with the equally widespread belief that new governments can be made from scratch, so to speak, without posing any challenge to the legitimacy of these governments. The language of fabrication functioned as a legitimating rhetoric because fabrica­tion was the primary frame, the cognitive model by which founding a new body politic was understood as both possible and legitimate. To paraphrase Hobbes, where there is no generation, there no legitimacy is perceived. For the people of revolutionary America, a written constitution meant ‘the active making of a new order, as opposed to its gradual emergence in the course of a continual historical development’. This pointed directly to ‘the theoretical foundations of modernity which presume that the structure and values of the political order are neither innate nor revealed by God, but rationally fabricated by men’.^[269] To the extent that violence, through the Revolutionary War, played a role, this is consistent with the nature of fabrication, which begins with acts of violence - cutting down a tree, say, to make a chair - though the violence is a means to that end, a means to consolidate order. For Arendt, the revolution in America was the exception, not showing ‘the same combination of the old Roman enthusiasm for the foun­dation of a new body politic with the glorification of violence as the only means of “making” it’.^[270]

The American Revolution’s relative absence of violence and the contribution of that absence to the Revolution’s consolidation, which so impressed Arendt, have been accounted for by historians pointing to what they believe was the evolutionary nature of events in America. John Phillip Reid, for example, writes that America’s constitutional arguments against Britain were consistently based on principles already established and ‘familiar’ because American constitutional claims were all derived from former and current British constitutions, or the British imperial constitution.^[271] Others have similarly seen the early revolutionary constitutions as actually a re-forming, out of already-constituted town governments in already- constituted colonies.^[272]

But this sudden ‘obsession with constitution making at the inception of the American Revolution’^[273] cannot be adequately explained by seeking continuities with the past. Such continuities fail to account for the consolidation of the revolu­tion, that is, for the role of the early constitutions in affirming the newly framed governments’ legitimacy and, owing to their legitimacy, their stability. It was the acts of fabricating that were crucial in this respect. Although Arendt does not make the explicit connection, for her, as Jeremy Waldron puts it, ‘that politics need housing, and that building such housing can be equated with the framing of a constitution - this is an image that recurs throughout Arendt’s writings’. Whatever images she uses - furniture, fences and boundary walls, bricks and mortar - ‘always the emphasis is on artificial structures... which exist as features of a world that men have made for themselves’.^[274]

Arendt is not consistent in terms of whether she sees constitution-making as fabricating or as acting.^[275] But fabricating is more central to her political thought than observers often note, with their greater interest in her concept of action itself, of her (literally) dramatic ‘agonistic conception of politics - politics as a stage for action and distinction’, as well as in her yearning for the ancient polis.^[276] This is owing largely to her neglect, already discussed here, in failing to explain just how the early constitution-making succeeded in consolidating the American Revolution, in framing stable governments with enduring institutions whose legitimacy was not subject to challenge, while many later revolutions - for Arendt all of them - were complete, often disastrous, failures in just this consoli­dation. One element of the early constitutions to which she pays little attention is that the frames of government in these constitutions all comprised specifically and carefully defined institutions. Habermas makes the connection: ‘Owing to its innovative potential, the domain of praxis is highly unstable and in need of protection. In societies organized around a state, this is looked after by political institutions.'^[277] Yet, Arendt acknowledges that rights could be protected only by such institutions and also acknowledges that these institutions were designed so that their powers could be checked and balanced, chiefly through the separation of powers.^[278]

Institutions are the crucial element in the consolidation of a revolution, and they, not assertions of rights, are what are unprecedented in early American constitution-making. The futility of declaring rights in ‘theatrical proclamations' (Waldron's phrase) was the basis of Arendt's criticism of the inefficacy of the French Declaration of the Rights of Man and the Citizen and later such proclama­tions. But ‘the moment human beings... had to fall back on their minimum right, no authority was left to protect them and no institution was willing to guaran­tee them'.^[279] Rights ‘need to be built into the civic structures'. ^[280] Rights themselves were widely understood, and argued, as having always existed, whether or not enumerated in a constitution. Constitutions emphatically were not seen as in and by themselves creating rights ex nihilo. Revolutionary-era Americans understood their constitutions framing institutions that protected these rights and, perhaps more important for Arendt, creating an enduring civic realm without which rights would be meaningless abstractions. Indeed, the early constitutions were what Preuss calls institutionalist: ‘Institutionalist constitutions... institutionalize the capacity of the people to form and enforce their will in post-revolutionary times.'^[281] Once again, Arendt remains above dealing with the nuts and bolts of constitu­tionally established institutions and their role in revolutionary consolidation, her world of abstractions, as one critic put it, ‘ largely uncontaminated by mundane things'. Nonetheless, she is engaged, if indirectly, ‘with quite familiar issues about institutions, and. how important structure is, even in her most abstract charac­terizations of human freedom'.^[282]

The constitution-making and its institution-building, the acts of foundation that so interested Arendt, could not have contributed so centrally to consolidating the American Revolution unless they were perceived as legitimate. Their legiti­macy rose from the perception of them as fabricated and so not handed down by some external, higher and transmundane authority, whether divine or royal or tradition. It was in this sense that the revolutionaries so often thought of them­selves as being in a state of nature. The people of Massachusetts, for example, during the development of their first constitution, ‘ imagined themselves creating government for the first time, as if revolution had cast them back into a state of nature wherein they would reestablish government’.^[283] Arendt does not explain this in terms of her concept of fabrication since she falls back on ‘the venerable figure of the contract’ and the contract theory of natural law.^[284] Jurgen Habermas, in criticising her for this approach, argues that Arendt is deficient in failing to test her concepts of speech and action (what he insightfully calls her ‘anthropology of communicative action’).^[285] This is, perhaps, because she is not quite willing to proffer a relation between action and fabrication, which, on the one hand, she sees as fundamentally exclusive principles of the human condition and, on the other, argues that making can substitute for action ‘ in order to bestow upon the realm of human affairs the solidity inherent in work and fabrication’. ^[286] Mainly, though, Arendt sticks to the sharp distinction between action and fabrication, probably in order to avoid diluting her dramatic, agonistic and character-revealing notion of action by having to acknowledge that action can be a mere means to an end, lead­ing to ‘something’, and so be conducive to fabrication.

My argument here is that the American revolutionaries, in the face of a poten­tial crisis of legitimacy inherent in any attempt to consolidate a revolution, adopted an unprecedented mode of action that was indeed an act of fabrication. By this act, they could legitimately found a constitutional order, a body politic whose institu­tions would in turn be perceived, acknowledged and accepted as legitimate, and thereby stable and enduring, and so comprise a consolidation of their revolution. More specifically, the outcomes of the legislatures and conventions that developed the early constitutions were speech acts, and what those speech acts fabricated were constitutional orders. ‘What is crucial in their [the founders’] act of founding is linguistic. In J.L. Austin’s terms, they used language that might appear denota­tive... but is actually performative.’ ^[287] What allowed the founders’ ‘performative language’ to succeed? ‘How can we explain its being taken up by the populace as constituting an adequate foundation for a new body politic?’ ^[288] Arendt explains only that the American revolutionaries, in what she believed is the only success­ful attempt at doing so, ‘founded a completely new body politic without violence and with the help of a constitution’. ^[289] She seems to view a constitution as some­what marginal, a mere device, which provided ‘help’ In fact, constitutions were, and remained, the core of the body politic and of the legitimacy of the American Revolution’s consolidation. It is this that needs explanation.

The legitimacy of the constitution-making arose in great part out of the role that fabrication played in modern secular thinking. However, we need to look at how this legitimacy, which is always a function of appearances, was commu­nicated, applying what Habermas calls Arendt’s ‘communicative praxis’ The problem is that a revolution, which by its nature is illegitimate, is burdened with communicating the legitimacy of any attempted consolidation. Surprisingly little attention has been given to the communication of legitimacy. Studies of legiti­macy tend pretty consistently towards exposing social and economic forces that lie behind claims to legitimacy, especially to show that legal and political institu­tions ‘adopt rules which serve the dominant interest groups in society’ ^[290] This view downgrades legitimacy to window-dressing to cover up the exercise of ‘real’ power.

Speech acts and fabrication, that is, a message and its context, affect each other dynamically and actually help create each other. The basic principle of linguistic pragmatics, that a sign has meaning only within context, is of course true. But equally true is that context - the world ‘out there’ - has meaning only in relation to the sign. This rejects the older positivist notion that words and sentences somehow contain meaning, what Gerald Graff calls ‘the fallacy of semantic immanence’ ^[291] The constructivist view of the dynamics of language rightly asserts that ‘to speak, to interact with others verbally, is thus to construct the world, to constitute it, not merely to mirror it in words’.

If communication were simply some objective event within an objective world of context, then communication could be observed against a static background of world/context. However, there exists no Newtonian fixed point in an abso­lute space of context from which a message may be observed and studied as it moves through contextual space. Moreover, the context, the space through which the message takes effect, is relative to the message. There is no communication without perception of the context, but there is no perceiving context without communication. Neither the message alone nor the context alone has reality; only the message-context continuum does. In other words, there exists no objective message or objective context, but there exists an objective relation between the two. This is communication. A message cannot exist outside its context. There is no outside for it to exist in.

This throws some light on the operation of Arendt’s communicative praxis and its place in the consolidation of the American Revolution. That we have some confidence that our utterances can be communicated is wholly owing to our common presence in a space of shared values and ends. It is the essence of space, as Merleau-Ponty said, to be already constituted,^[292] and we communicate with others in terms of our and their place within the already-constituted spaces of institutions. In other words, the spaces in which we share our presence with others are pre-eminently institutional. Conversely, the institutional contexts are reified by speech. Communication supports the ‘selective maintenance of relatively stable strictures of images and associations that stem from institutional structures and policies’.^[293] ‘Our capacity for communication depends on mutual acceptance of a complex of conventions whose visibility and continuity are guaranteed institution­ally. Utterances become speech acts only when they are put forth in the presence of others.'^[294] We communicate with others in terms of our and their places within the space of institutions.

Action, then, and specifically speech acts (for this is what the constitutional conventions put forth) did fabricate the legitimate institutions that consolidated the American Revolution. The self-assurance with which the Americans of the revolutionary era enthusiastically engaged in constitution-making was grounded in the modern ethos of making not only as a means of understanding reality, but as a means of acting to consciously make a new reality both legitimate and stable by virtue of speech acts - the constitution-making itself - and without the need for reference to divine or royal or traditional authority to secure legitimacy. It never happened before.