Francis Fukuyama has a new essay up on “The Decay of American Political Institutions.” Fukuyama begins with a basic point that is undeniable, and is artfully made manifest in George Packer’s National Book Award Winning The Unwinding: “Many political institutions in the United States are decaying.” There are many reasons for that failure. But in Fukuyama’s analysis, two reasons stands out: First, the American penchant for addressing political problems through law, and second, the legalized corruption of interest groups. What unites these two culprits in Fukuyama’s grand synthesis is that both are born out of what he sees as a fundamentally American distrust of government.
Distrust of government means, Fukuyama writes, that American politics has elevated the judiciary to a position of power unlike other democracies. And this has led our political institutions to decay.
The decay in the quality of American government has to do directly with the American penchant for a state of “courts and parties”, which has returned to center stage in the past fifty years. The courts and legislature have increasingly usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies has led to an explosion of costly litigation, slow decision-making and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government. Ironically, out of a fear of empowering “big government”, the United States has ended up with a government that is very large, but that is actually less accountable because it is largely in the hands of unelected courts.
Fukuyama knows bureaucracy can be problematic—the rule of nobody, in Arendt’s formulation—but at least bureaucrat rule is rule. In his telling, the problem is that U.S. has developed a huge bureaucracy that we don’t trust and thus limit through lawsuits, injunctions, and constitutional challenges. So we have the worst of both worlds, a large unelected and anonymous bureaucracy that is itself disempowered and neutered by an even more powerful unelected and anonymous judiciary.
Because there is “too much law,” the bureaucracy doesn’t work. What is more, the combined power of an anonymous bureaucracy and an anonymous judiciary has led to our present crisis of representative democracy, one in which Americans of all political persuasions feel that government is a foreign occupying power that is unanswerable to them. This leads in turn to a distrust of all government, a cynicism that “further reduces the quality and effectiveness of government by reducing bureaucratic autonomy.”
The fact that Americans distrust government means that they place increasing judicial and legislative roadblocks in front of governmental decisions. There is the famous multiplication of agencies and competing authorities, which offers multiple points for influence by lobbyists. As long as so many different agencies have the power to veto or slow down governmental action, government is stymied. “The longstanding distrust of the state that has always characterized American politics had led to an unbalanced form of government that undermines the prospects of necessary collective action. It has led to vetocracy.” Lobbyists thus have an outsized power to capture authorities and disproportionately impact legislation, which furthers cynicism about government. These problems are deeply ingrained in American values and in our Constitution, which makes them unsolvable. Which is the depressing note upon which Fukuyama ends his essay:
Americans regard their Constitution as a quasi-religious document. Persuading them to rethink its most basic tenets short of an outright system collapse is highly unlikely. So we have a problem.
What is striking is how Fukuyama is unable to find resources in the American Constitutional system that might reinvigorate our political institutions. It is as if the American distrust of government means that American democracy is unsalvageable. At times of partisanship, it will lead to Civil War or sclerosis. There is no alternative.
It is a mistake—although one commonly made—to understand the U.S. Constitution as one dominated by a mistrust of governmental power and thus marked by institutions designed to limit governmental power. The genius of the American Constitution, as Hannah Arendt argues, is not the limitation of power, but the multiplication of powers. More important than the three branches of the Federal government in Arendt’s account is the preservation of multiple levels of federal, state, county, city, and village power. The Congress’ power was limited not simply by the President and the Judiciary, but by the states and local authorities. The grant of powers to Congress was limited and expansion of national power was to be constrained by the power of local institutions.
What Arendt saw in a way Fukuyama ignores is that Americans don’t distrust power so much as they distrust the concentration and centralization of power. It his been quintessentially American for citizens to engage in government, especially local government, and to take active part in public debates about political questions. From their arrival in the New World, Americans formed councils, engaged in public affairs, and empowered democratic institutions. The federalist elements of the Constitution provide ample support for vibrant democratic and local institutions.
Beyond the judicializaiton of politics and the rise of a corruption by lobbyists, another cause of the present decay of American politics is the increasingly national approach to government and the hollowing out of local institutions. There are many other causes for the increasing concentration of power and the loss of local institutional power, but there are plenty of resources for reinvigorating local self-governmental institutions in the American political tradition and in the Constitution itself. Yes, “we have a problem.” But there are always ways forward.
Francis Fukuyama’s analysis of our current political decay is powerful and important. It is your weekend read.
On Thursday and Friday Oct. 3-4, the Hannah Arendt Center will host its 6th Annual International Conference, “Failing Fast: The Educated Citizen in Crisis.”
At a time of blistering technological and cultural change, reformers want schools to prepare students for the future—but which future? And despite the polarizing polemics over curricular change and the learned arguments mounted by the most earnest reformers whatever their politics, we must admit that we have no idea where our increasingly virtual reality will take us next month, let alone in a decade. Which skills and knowledge will be needed? What brain enhancements will be available? Handwringing in the public square over whether children should still be taught cursive is much ado about nothing when, if futurists are correct, we soon may no longer need to learn how to die.
If we can no longer count on the ways of the past to guide us in a brave—or terrifying—new world, education must evolve with it. As such, thinking people must ask themselves how that evolution should be handled, considered, and undertaken.
In “The Crisis in Education," Hannah Arendt writes: "education can play no part in politics, because in politics we always have to deal with those who are already educated.” Arendt worried that when politicians talk about educating voters, they are really seeking unanimity. Political education sounds like indoctrination, which threatens the plurality of opinion at the core of intellectual life and the politics that protects it.
Against politics in its basest form, Arendt saw education as “the point at which we decide whether we love the world enough to assume responsibility for it.” The educator must love the world and believe in it if he is to introduce young people to a world worthy of respect. In this sense, education is conservative—it conserves the world as it has been given. But education is also revolutionary, insofar as teachers must realize that the young people they nurture are newcomers whose fate is to change the world. Arendt argued that teachers must humbly teach what is; in this way they prepare students to transform what is into what might be.
Arendt shares Ralph Waldo Emerson's view that “He only who is able to stand alone is qualified for society.” Emerson’s imperative of self-reliance resonates with Arendt’s imperative to think for oneself. Education, Arendt insists, must risk allowing people their unique and even unpopular viewpoints, eschewing even well intentioned conformism and seeking, instead, to nurture independent minds. Education prepares the youth for politics by bringing them into a common world as courageous, independent, and unique individuals.
In the early years of our republican experiment, the American yeoman farmer participated in Town Hall meetings. Today, few of us have the experience or the desire to govern. Are we suffering an institutional failure to make clear to graduates that participation in governance is a personal responsibility? Or is our withdrawal from politics the conscious result of modern individualism now liberated from the demands of politics by a virtual technological reality? Whatever the cause, elites imagine that the common people are no longer qualified for self-government; and the people increasingly distrust the educated elite that has consistently failed to deliver the dream of a well-managed technocratic welfare state.
In the most literate and technologically advanced society in all history, we have produced citizens who are politically sterile. If it’s true that we learn by doing, most Americans have little experience with politics. With the exception of serving on juries, few engage in civic service. Voting is the only public activity demanded of citizens in our democracy. It takes little effort; and still, few vote. The old ideal of the citizen democracy is in crisis.
“Failing Fast: The Educated Citizen in Crisis” asks how we can re-invigorate the cultural and educational institutions that have nurtured public-spiritedness that is the bedrock virtue of American constitutional democracy. In an increasingly global world, do we need a common public language? Is college education necessary for engaged citizenship? Should politically involved citizens have knowledge of the arts and practical skills like building and fixing things? What, in the 21st century, is an educated citizen?
We invite you to join us for the Conference. You can register here.
If you can’t make it to Bard in person, you can watch the conference via live webcast here.
And to prepare for the conference, here are a series of essays and blog posts from the last 12 months on the topic of education. These essays are your weekend reads.
"Any period to which its own past has become as questionable as it has to us must eventually come up against the phenomenon of language, for in it the past is contained ineradicably, thwarting all attempts to get rid of it once and for all. The Greek polis will continue to exist at the bottom of our political existence...for as long as we use the word 'politics.'"
-Hannah Arendt, "Walter Benjamin: 1892-1940"
Some years ago a mentor told me a story from his days as a graduate student at a prestigious political science department. There was a professor there specializing in Russian politics and Sovietology, an older professor who loved teaching and taught well past the standard age of retirement. His enthusiasm was palpable, and he was well-liked by his students. His most popular course was on Russian politics, and towards the end of one semester, a precocious undergraduate visited during office hours: “How hard is it to learn Russian,” the student asked, “because I’d really like to start.” “Pretty hard,” he said, “but that’s great to hear. What has you so excited about it?” “Well,” said the student, “after taking your course, I’m very inspired to read Marx in the original.” At the next class the professor told this story to all of his students, and none of them laughed. He paused for a moment, then somewhat despondently said: “It has only now become clear to me….that none of you know the first thing about Karl Marx.”
The story has several morals. As a professor, it reminds me to be careful about assuming what students know. As a student, it reminds me of an undergraduate paper I wrote which spelled Marx’s first name with a “C.” My professor kindly marked the mistake, but today I can better imagine her frustration. And if the story works as a joke, it is because we accept its basic premise, that knowledge of foreign languages is important, not only for our engagement with texts but with the world at large. After all, the course in question was not about Marx.
The fast approach of the Hannah Arendt Center’s 2013 Conference on “The Educated Citizen in Crisis” offers a fitting backdrop to consider the place of language education in the education of the citizen. The problem has long been salient in America, a land of immigrants and a country of rich cultural diversity; and debates about the relation between the embrace of English and American assimilation continue to draw attention. Samuel Huntington, for example, recently interpreted challenges to English preeminence as a threat to American political culture: “There is no Americano dream,” he writes in “The Hispanic Challenge,” “There is only the American dream created by an Anglo-Protestant society. Mexican Americans will share in that dream and in that society only if they dream in English.” For Huntington English is an element of national citizenship, not only as a language learned, but as an essential component of American identity.
This might be juxtaposed with Tracy Strong’s support of learning (at least a) second language, including Latin, as an element of democratic citizenship. A second language, writes Strong (see his “Language Learning and the Social Sciences”) helps one acquire “what I might call an anthropological perspective on one’s own society,” for “An important achievement of learning a foreign language is learning a perspective on one’s world that is not one’s own. In turn, the acquisition of another perspective or even the recognition of the legitimacy of another perspective is, to my understanding, a very important component of a democratic political understanding.” Strong illustrates his point with a passage from Hannah Arendt’s “Truth and Politics”: “I form an opinion,” says Arendt, “by considering a given issue from different viewpoints, by making present to my mind the standpoints of those who are absent: that is, I represent them.”
Hannah Arendt’s deep respect for the American Constitution and American political culture, manifest no less (perhaps even more!) in her criticism than her praise, is well known. After fleeing Nazi Germany and German-occupied France, Arendt moved to the United States where she became a naturalized citizen in 1951. And her views on the relation between the English language and American citizenship are rich and complex.
In “The Crisis in Education” Arendt highlights how education plays a unique political role in America, where “it is obvious that the enormously difficult melting together of the most diverse ethnic groups…can only be accomplished through the schooling, education, and Americanization of the immigrants’ children.” Education prepares citizens to enter a common world, of which English in America is a key component: “Since for most of these children English is not their mother tongue but has to be learned in school, schools must obviously assume functions which in a nation-state would be performed as a matter of course in the home.”
At the same time, Arendt’s own embrace of English is hardly straightforward. In a famous 1964 interview with she says: “The Europe of the pre-Hitler period? I do not long for that, I can tell you. What remains? The language remains. […] I have always consciously refused to lose my mother tongue. I have always maintained a certain distance from French, which I then spoke very well, as well as from English, which I write today […] I write in English, but I have never lost a feeling of distance from it. There is a tremendous difference between your mother tongue and another language…The German language is the essential thing that has remained and that I have always consciously preserved.”
Here Arendt seems both with and against Huntington. On one hand, learning and embracing English—the public language of the country—is what enables diverse Americans to share a common political world. And in this respect, her decision to write and publish in English represents one of her most important acts of American democratic citizenship. By writing in English, Arendt “assumes responsibility for the world,” the same responsibility that education requires from its educators if they are to give the younger generation a common world, but which she finds sorely lacking in “The Crisis of Education.”
At the same time, though, Arendt rejects the idea that American citizenship requires treating English as if it were a mother tongue. Arendt consciously preserves her German mother tongue as both an element of her identity and a grounding of her understanding of the world, and in 1967 she even accepted the Sigmund Freud Award of the German Academy of Language and Poetry that “lauded her efforts to keep the German language alive although she had been living and writing in the United States for more than three decades” (I quote from Frank Mehring’s 2011 article “‘All for the Sake of Freedom’: Hannah Arendt’s Democratic Dissent, Trauma, and American Citizenship”). For Arendt, it seems, it is precisely this potentiality in America—for citizens to share and assume responsibility for a common world approached in its own terms, while also bringing to bear a separate understanding grounded by very different terms—that offers America’s greatest democratic possibilities. One might suggest that Arendt’s engagement with language, in her combination of English responsibility and German self-understanding, offers a powerful and thought-provoking model of American democratic citizenship.
What about the teaching of language? In the “The Crisis in Education” Arendt is critical of the way language, especially foreign language, is taught in American schools. In a passage worth quoting at length she says:
“The close connection between these two things—the substitution of doing for learning and of playing for working—is directly illustrated by the teaching of languages; the child is to learn by speaking, that is by doing, not by studying grammar and syntax; in other words he is to learn a foreign language in the same way that as an infant he learned his own language: as though at play and in the uninterrupted continuity of simple existence. Quite apart from the question of whether this is possible or not…it is perfectly clear that this procedure consciously attempts to keep the older child as far as possible at the infant level.”
Arendt writes that such “pragmatist” methods intend “not to teach knowledge but to inculcate a skill.” Pragmatic instruction helps one to get by in the real world; but it does not allow one to love or understand the world. It renders language useful, but reduces language to an instrument, something easily discarded when no longer needed. It precludes philosophical engagement and representative thinking. The latest smartphone translation apps render it superfluous.
But how would one approach language differently? And what does this have to do with grammar and syntax? Perhaps there are clues in the passage selected as our quote of the week, culled from Arendt’s 1968 biographical essay about her friend Walter Benjamin. There, Arendt appreciates that Benjamin's study of language abandons any “utilitarian” or “communicative” goals, but approaches language as a “poetic phenomenon.” The focused study of grammar develops different habits than pragmatist pedagogy. In the process of translation, for example, it facilitates an engagement with language that is divorced from practical use and focused squarely on meaning. To wrestle with grammar means to wrestle with language in the pursuit of truth, in a manner that inspires love for language—that it exists—and cross-cultural understanding. Arendt was famous for flexing her Greek and Latin muscles—in part, I think, as a reflection of her love for the world. The study of Greek and Latin is especially amenable to a relationship of love, because these languages are hardly “practical.” One studies them principally to understand, to shed light on the obscure; and through their investigation one discovers the sunken meanings that remain hidden and embedded in our modern languages, in words we speak regularly without realizing all that is contained within them. By engaging these “dead” languages, we more richly and seriously understand ourselves. And these same disinterested habits, when applied to the study of modern foreign languages, can enrich not only our understanding of different worldviews, but our participation in the world as democratic citizens.
The detention facility in Guantanamo Bay, Cuba hangs over the United States and now the Obama administration like a cloud of acid rain. In recent months hunger strikes once again have brought the injustice of the camp, the inhumane treatment of its inhabitants, and the indefinite detention of its inmates to the attention of the world. The camp is now an indelible blot on the United States, both on our reputation abroad, as well as upon our self-image as a land of constitutional republicanism. Above all it is a meaningful challenge to our self-respect.
Most of the 779 people that Wikipedia says were brought to Guantanamo were never charged with a crime. Of the fewer than 200 who remain, some no doubt are terrorists and criminals; others, equally as clearly, were unjustly captured, imprisoned, tortured. They are now being held outside rules of law and in violation of our legal and constitutional traditions of freedom. No doubt there are inconvenient questions about what to do with these men. But they are men under our collective care and they are owed more than being kept like animals in pens in purgatory.
President Obama has announced once again his decision to close the camp. We wish him the courage to do what is right. At this moment, it is worth recalling the case of Mohammed Jawad, the first Guantanamo detainee to testify under oath and to a military commission about being tortured by his American captors. Last month there was a dramatic reading of statements made by Jawad's lawyer, David Frakt, juxtaposed with statements made by the case's lead prosecutor, Darrel Vandeveld who left the military in order to help free Jawad. The reading was held at the Pen World Voices Festival of International Literature. In their statements, both men use the language of Constitutionality to suggest that, by torturing detainees such as Jawad, "America," as Frakt puts it, "lost a little of its greatness."
Here is what Vandeveld, a lifelong military man, writes of his choice to testify in favor of Jawad:
In 2007, I volunteered to prosecute detainees at Guantanamo in the U.S. military commissions. I was assigned as the lead prosecutor in several cases, including the case of Mohammed Jawad, a young man from Afghanistan. While I was a prosecutor, David Frakt helped me to find and expose gross human rights abuses of Mohammed and other detainees by the U.S. government. In September 2008, I became convinced that the prosecution of Mohammed was unjust and that the military commissions were grossly flawed. I requested to be relieved and reassigned to other duties. After stepping down from the prosecution, I worked with David Frakt to expose detainee abuse, to secure Mohammed’s release and bring about much-needed reforms to the U.S. military commissions.
Vandeveld served 24 years in the army, winning a bronze star for valor in Iraq. After his service he went to law school and became a military lawyer. His decision to ask to be relieved from his prosecution duties was, he writes, simply doing his duty: “I did it because I believe in truth, justice, the rule of law, and our common humanity. I did it for Mohammed Jawad, I did it because it was my duty, and I did it for us all.”
As the debate about closing Guantanamo heats up, this is a good time to acquaint oneself with the case of Mohammed Jawad. The transcript from the staged discussion between David Frakt and Darrel Vandeveld is a good place to begin. We are all indebted to The Mantle for publishing it. It is your weekend read.
Over the course of the past two decades, the political idiom of liberalism has substantially expanded its global reach and dominance. In the vast majority of the world’s existing states, principles of individual rights and collective recognition have been or are being enshrined in constitutions and other legal codes, and actors in the public sphere and the realm of civil society are adopting liberal discourse in order to press their claims for equality and freedom. The recent Arab Spring is only one of the most recent instantiations of this larger trend.
Yet even as we acknowledge liberalism’s dominance, we should not overlook those settings where it still (and ironically) carries a counter-hegemonic charge. One such locale is the Republic of Turkey, ostensibly one of the most stable and democratic states in the wider Middle East. Here a variety of Islamic organizations have relied on liberal imaginings in their efforts to challenge the state’s anti-clerical model of secularism.
This Islamic recourse to liberalism is the central concern of Jeremy Walton’s intriguing article in the most recent American Ethnologist, “Confessional Pluralism and the Civil Society Effect.” Walton pays particular attention to the work of four Islamic NGOs in Istanbul and Ankara, all of which have adopted the language of confessional pluralism in their efforts to obtain recognition from the state and secure their inclusion in Turkish public life.[i] These organizations define “religion” as a nonpolitical, voluntary mode of social and ethical life that legitimately, indeed necessarily, takes different forms. They also insist that these varied modes of life deserve acknowledgement and protection on the basis of “the ostensibly universal values of liberty and equality.”
When viewed from the perspective of Turkey’s party politics, these NGOs make strange bedfellows. Three of the organizations analyzed by Walton represent Alevism, a syncretic minority tradition that can be broadly defined by its emphasis on Twelver Shi’a history and belief, its incorporation of Central Asian mystical and shamanistic practices, and its distinctive ritual performances. Alevis have typically supported the Republican People’s Party (CHP, the party established by Mustafa Kemal Atatürk) because its staunch secularism has appeared to offer a bulwark against Sunni majoritarianism and discrimination. The fourth organization, meanwhile, is a Sunni association inspired by the contemporary Turkish theologian Fethullah Gülen and his project of universal religious dialogue. It also epitomizes the recent emergence of the Sunni Muslim bourgeoisie, the constituency that has played a pivotal role in the ascendance of the Justice and Development Party (AKP) under Prime Minister Recep Tayyip Erdoğan. Thanks to its overwhelming success in local and national elections over the past decade, the AKP has effectively supplanted the CHP as Turkey’s preeminent political party.
Yet as Walton rightly notes, these NGOs’ seemingly obvious political differences belie their common turn to the liberal rhetoric of pluralism and collective recognition. All of them desire public acknowledgement of their own (and others’) communities and identities, and all thereby challenge the presumption of ethnolinguistic and religious homogeneity that has prevailed in Turkish governmental discourse since the founding of the Republic in 1923. In addition, all of these organizations question the state’s long-standing effort not only to define and regulate the legitimate practice of religion (especially Sunni Islam), but also to limit religious expression to the private sphere. These rather paradoxical governmental imperatives, which remained largely unchallenged in Turkey until the 1990s, can be traced to the laicist model of secularism that the Republic adopted from the French Jacobin tradition.
In subtle or dramatic ways, all of these NGOs seek to divert Turkish secularism from its previous path. One of the Alevi organizations, for example, seeks a mode of pluralism that would grant to Alevis the same privileges—state funding for houses of worship, inclusion in the mandatory religion classes taught in public schools—that the state has historically allocated to Sunni Islam. Another Alevi association, by contrast, favors an “American-style” secularism that would limit or even prohibit state intervention in religious affairs. The Sunni organization, meanwhile, seeks to promote tolerance and public dialogue across confessional boundaries in a manner that departs markedly from the state’s efforts to privatize religious expression. Significantly, the idiom of liberalism is flexible enough to accommodate these varied and not always compatible projects.
At the same time, the liberal language of confessional pluralism creates tensions and dilemmas for the very organizations that seek to mobilize it. Above all, claims for collective recognition presume coherent and “authentic” (i.e., long-standing, non- or pre-political) religious identities as the necessary ground for communal acknowledgement and equal protection. As Walton convincingly relates, it is precisely such coherence and authenticity that prove elusive for many Islamic NGOs. Alevi associations in particular are defined by intense arguments over the very definition of Alevi identity. Does Alevism constitute a distinct and more or less uniform tradition of its own? What precisely is its relationship with Islam? Does Alevism even constitute a “religion” as the concept is commonly understood, or is it rather a body of folklore, a philosophical and political orientation, or an ethnicity? Alevi associations disagree sharply on the answers to these questions, even as they share a common discursive logic.
Walton is somewhat less persuasive, however, when he turns to Islamic NGOs’ relationship to the state and state governance. In his reading, these associations engage in a form of “nongovernmental politics” that does not aspire to occupy the position of a governing agency. In fact, they contribute to what Walton, drawing on the work of Timothy Mitchell, calls “the civil society effect”: the romantic notion that civil society constitutes “a self-evident domain of freedom and authenticity” wholly autonomous from the state. I follow Walton’s reasoning when he notes that the NGOs he analyzes have displayed an increasing skepticism toward Turkey’s dominant model of secularism and its major political parties, including the CHP and the AKP. I believe he oversteps, however, when he suggests that many if not all of these associations dismiss political society and the state. To my mind, the very language of liberalism adopted by these NGOs indicates that they care a great deal about the state and its policies. Very much in the spirit of Arendt’s celebrated pronouncements in The Origins of Totalitarianism, they grasp that rights and recognition, if they are to have real substance, must be backed and warranted by the state’s governmental power.
This wrong turn notwithstanding, Walton’s argument makes for stimulating reading. Perhaps above all, it offers a sharp challenge to the still common presumption that Islam and modern politics are hermetically separate, fundamentally irreconcilable domains. Instead, as Walton subtly demonstrates, they “authorize, animate, challenge, and contextualize each other in contextually specific ways.”
[i] For the sake of easy reading, I do not dwell on the NGOs by name, but the Alevi associations include the Cem Foundation, the Hacı Bektaş Veli Anatolian Cultural Foundation, and the Ehl-i Beyt Foundation. The Sunni association aligned with Gülen is the Journalists and Writers Foundation.
The Arendt Center recently hosted Professor Zephyr Teachout to speak about Citizens United v. FEC and campaign finance reform. The talk was in honor of Constitution Day, which Professor Teachout joyfully informed us may very well be unconstitutional. We carried on.
Teachout began her talk by announcing that the "First Amendment is a terrible thing." Less provocatively, she argues that the First Amendment plays a "dangerous role" in our constitutional culture. Above all, she presented her argument that the Supreme Court's increasing reliance on the First Amendment to invalidate campaign finance laws is, ironically, used to shut down meaningful public debate around the proper role of lobbying in our politics.
She began by telling a story of the Supreme Court case Trist v. Child from 1874. The case involves Mr. Trist who had a claim against the U.S. Government for about $15,000 (about $100,000 in current dollars). Trist hired Child, a lawyer, to represent him and convince Congress to honor its debt. Among other things, Child encouraged Trist to have his friends write to Congressman threatening not to vote for them if they didn't honor this debt to Trist. Child also personally lobbied Congressman. He eventually succeeded in getting Congress to appropriate Trist's money.
Trist, however, refused to pay Child the fee agreed to in their contract. Child sued Trist to get his agreed upon money.
In the Supreme Court decision refusing to enforce the contract, the Court holds that Trist need not pay Child; a number of reasons are given, a few very technical. But the majority of the opinion by Justice Swayne rejects the legality of lobbying with a broad brush. Trist need not honor his contract with Child, Swayne writes, because there was no valid contract. In short, the original contract hiring Child as a lobbyist was immoral and illegal, and thus unenforceable. Justice Swayne argues that the very immorality of the practice of lobbying nullifies the contract between Trist and Child.
Teachout helpfully describes the issue this way. Child says something like: Our contract was just like a contract for me to sell you a car and now you don't want to pay me for the car now that you have it. Trist responds that, in Teachout's colorful analogy,
No, this is like we made a contract for prostitution, and you can't go to the cops after we made a contract for prostitution and get them to enforce that contract. Because lobbying is like prostitution. It is so corrupt that there is no way courts are going to enforce it.
Writing for the Supreme Court, Justice Swayne puts it this way:
The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.
If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.
There are two remarkable things about Justice Swayne's argument. First, as Teachout notes in her talk, there was nothing remarkable about it in 1874. Many states and governments throughout the U.S. made lobbying illegal. It was seen as an act of corruption. And few if any courts in the U.S. would find this unusual, at least before the turn of the 20th century.
The second remarkable thing to note is how utterly remarkable Justice Swayne's argument is today. To speak of the millions of lobbyists in the US as "adventurers who make market of themselves" as offending the "moral sense of every right-minded man" is a painful reminder of how far our political system has fallen. Not only is the moral prohibition against lobbying something of the past, but also the idea that the Supreme Court would invalidate contracts based on lobbying is nearly unimaginable.
The reason for this change in the legal and even moral status of lobbying is, Teachout argues, the rise of free-speech jurisprudence in the 20th century. Specifically, the Court's acceptance of the basic claim freedom of speech is the fundamental foundation of our democratic system has made lobbying not only legal, but morally defensible. If democracy depends on a marketplace of ideas, then having corporations and individuals hire lawyers and public relations firms to buy and sell influence in politics is at the very foundation of democratic governance. What Teachout forces us to consider is that our elevation of the First Amendment to foundational status in our constitutional firmament is predicated on a political theory that founds democracy on the unfettered marketplace of ideas. If we are to take back our government from corporate adventurers and their lobbyists, we will need to rethink our commitment to free speech, at least as the Court currently understands it.
Teachout's provocative talk attacks less freedom of speech itself than the Court's elevation of free speech to the first amongst all constitutional provisions—the foundational right in our constitutional and democratic system. She traces the rise of free speech jurisprudence to the point where, today, free speech is the paradigmatic right in our democracy. Free speech has become equated with democracy, so that "free speech is democracy."
It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values.
Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.
This view that free speech is the fundamental bastion of democracy is the basis of Justice Kennedy's decision in Citizens United. In Kennedy's opinion, laws regulating campaign finance regulate speech, and not just force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship. Which is why Kennedy can worry that "The censorship we now confront is vast in its reach."
What he means is that all those corporations regulated by the campaign finance reform law invalidated by Citizens United—including large multinationals and also small mom and pop stores and even unions and non-profit corporations—are prohibited from expressing their views about political candidates during an election. In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy."
It is helpful to recall Justice Felix Frankfurter's concurring opinion in U.S. v. Congress of Industrial Organizations. The Smith Act had forbidden unions to use funds to pay for politicking, very much like the limitations on corporate funding in the 2002 Bipartisan Campaign Reform Act. In U.S. v. CIO, the Court refused to rule on the Constitutional question of whether the Congress can forbid unions from political speech. Frankfurter, however, does consider it. He argues that we must take seriously the evil of corporate and union speech in politics. The corruption of elections and federal officials by the expenditure of large masses of aggregated wealth But that evil, he counters, "is not one unmixed with good." For Frankfurter,
To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.
Replace "Labor unions" with "corporations." That is what Justice Kennedy did in Citizens United. What he said is that corporations have a voice in our political landscape, just as do unions and non-profits. When such corporate entities engage in speech, there is a danger of corruption. But we cannot deny their speech is politically important. Instead of then balancing those interests in a practical way, Justice Kennedy simply said that the First Amendment insists that political speech never be abridged. Our Constitutional system, he argued, demands that the marketplace of ideas be allowed to work unimpeded.
The overriding desire to protect political speech proceeds under the assumption, with Oliver Wendell Holmes Jr., that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.” What Zephyr Teachout helps to make clear is that this elevation of free-speech to the first amongst constitutional provisions is fundamentally at odds with the desire to regulate political speech to keep politics free from corruption. If we want to get serious about fighting corruption in politics, we need to take seriously the need to question the now unquestionable faith that democracy is founded upon freedom of speech.
To fight against Citizens United and uphold the legal rejection of campaign finance limitations requires that we break the bi-partisan stranglehold that an extreme view of the First Amendment currently has on our constitutional jurisprudence. Only once we do so can we return to a meaningful public debate about when lobbying is and when it is not corrupting. And only once we free campaign finance laws from the First Amendment can we, as we must, have a serious discussion about how much money distorts and corrupts our political process.
These are difficult issues, and weakening the scope and impact of the First Amendment is risky. As Teachout argues, it is a risk we must take to save our democratic system.
“The highest laws of the land (America) are not only the constitution and constitutional laws, but also contracts.”
-Hannah Arendt, Denktagebuch, p. 131
Having published The Origins of Totalitarianism, Arendt turned her attention to the country around her. In a sequence of entries in her Denktagebuch for September 1951, she starts by referring to America as “the politically new” – these are thoughts that will eventually result in her argument in On Revolution . Her analysis has often been criticized from an historical point of view, especially as she refers to the Constitution as being the first to be established “without force, without ruling (archein) and being ruled (archesthai). “ Whatever the validity of these criticisms, they strike me as missing an essential point of her concerns. Arendt is trying to work out what she a few pages later calls “the central question of the coming (künftigen) politics,” a problem she sees as lodged in “the problem of the giving of laws.” (ibid, 141). Her aim is to describe a political (i.e. humanly appropriate) system that would not rest upon will and in particular on the will of the sovereign. “That I must have power (Macht) to be able to will, makes the problem of power into the central political fact of all politics that are grounded on sovereignty – all, that is, with the exception of the American.” (idem)
Her concern in these pages (130-143) centers around what a human society would be that was truly political. Her version of America is her entry into this question. What is striking about her discussion in the intervening (and other) pages is that she approaches this question explicitly through the lens of European philosophy. Thus she is attempting an answer to the question of “can we determine the particular excellence of the American polity by viewing it through the lenses of European thought?” The point is not to Europeanize America: it is to see if America does not in some manner constitute a potential instantiation of what has been thought in Europe over the nineteenth and twentieth centuries.
The sequence of European thinkers she invokes is important. She first mentions Marx and then Nietzsche, each of whom she sees as part of and as makers of the “end of Western philosophy.” Marx is held to have inverted Hegel, Nietzsche the same for Plato. The point of her analysis of Marx and Nietzsche is to assert that they released thought from its bond to the “Absolute.” Indeed: to hold to the idea of an Absolute is to “make possible in the present unjust and bestial behavior.” (ibid, 133). As we know, this will be an ever-returning theme in her work. She expects to find in America the elements of the political that does not rest on an “absolute.”
At what might one look to find this vision of a non-absolute political? Nietzsche provides the opening to an answer. We are to look not to his doctrine of the revaluation of values but to his discussion of promising in the second essay of the Genealogy of Morals. She quotes: “To breed an animal with the right to make promises – is that not … the real problem of humans?” For Arendt, the foundation of a new “morality” lies in the right to make a promise; the promise makes possible human relations based on contract. And the grounding on contract, as she writes in the Denktagebuch, was for her the particular excellence of the American polity.
What is the implication of Arendt's claim that contract is the “highest law” and particular excellence of America? One answer is revealed by the end of extended quotation of Nietzsche’s Genealogy of Morals where he indicates that the person who has the right to make promises can “ für sich als Zukunft gut sagen zu können,”a phrase that might be rendered as “able to give himself as answer for the future.” In Arendt’s gloss, this means that if in making a contract (which is what a promise is) one pledges that each will remain true to him-or herself as the person making the contract, then each has made his or her own being the foundation for a political space.
Such a grounding or foundation is not based either on will or on any external absolute. It is a matter, as the signers of the Declaration made clear, that we “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Temporally speaking, this means that what one did in the past remains alive as the present. Our political present will thereby be tied to the historical, although not, she notes, in a “weltgeschichtliche” [world-historical: i.e. transcendental] manner.
To make the implications of this clearer, she immediately turns to a consideration of Max Weber’s distinction between the “ethic of responsibility” (which she holds to be the foundation of the pragmatism and genius of American politics) as opposed to the “ethic of conviction,” which, she says, allows for anything as we cannot know “until the day of the Last Judgment” if our conviction be correct. The implication here is that if we base our polity on the conviction of the supposed correctness of our moral judgments (as opposed to our ability to be responsible to ourselves) we will be able to justify anything, as the validation for our claim can be infinitely postponed. (One has but to look at the claims made about bringing democracy to Iraq). Indeed, Arendt sees “central question of our time” to be a change in our ability to make valid moral judgments, that is ones the correctness of which is not postponed indefinitely. (ibid 138). She now turns to an examination of how various thinkers have dealt with the problem of moral judgment. After she worked her way through a partial rejection of the manners in which Hegel, Nietzsche, and the Kant of the Critique of Practical Reason respond to this main question, she turns to the Critique of the Power of Judgment. Those thoughts are not developed at this time in the Denktagebuch -- but they will concern her for the rest of her life.
What is striking here is how the approach from European philosophy brings out the importance of what is new in the American experiment. As Hamilton wrote in the first Federalist:
It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
To which, in our present day, one may only wonder if at some point a “wrong election“ has not been made.
-Tracy B. Strong (UCSD)