The Courage to Do What is Right
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.”
Mohammah Jawad
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.
-RB
Islamic and Liberal Intersections
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.”
-Jeffrey Jurgens
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[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.
Do Revolutionaries Always Establish a Dictatorship?
“If it is true that all thought begins with remembrance, it is also true that no remembrance remains secure unless it is condensed and distilled into a framework of conceptual notions within which it can further exercise itself.”
-Hannah Arendt, On Revolution
With these words Arendt complains, in her magnificent book about the French and the American Revolution, On Revolution, that the essential elements of the foundation of freedom in the former north-American colonies were not kept alive theoretically and therefore forgotten by the time of an apolitical workers and consumers society. What was forgotten were such things as the pursuit of public happiness, the formation of power by federalism, the origins of the senate (in the Roman senate) as the seat of political authority, etc... Instead, politics and its institutions came to be perceived as the arena of money and power, of intrigues and blockades. By contrast, the French Revolution animated many thinkers and imitators to develop a conceptual framework: the revolution of the poor against exploitation and oppression, the fight for freedom, equality and fraternity, the predecessor and example of all revolutions thereafter, etc. For Arendt, in spite of her critique of the revolution’s aftermath in North America, these are misleading concepts that deny the immanent reason for the French revolution’s failure: the political inexperience of the revolutionaries, the transformation of virtue into terror, the swarming of the poor into public institutions, and the incapacity to proceed from liberation to a lasting constitution of freedom.
Flickr via stargardener
Revolutions à la française seem to end up in a reign of terror. Is the dictatorship of Castro in Cuba a coincidence? Is Hugo Chavez’ elimination of the second chamber of parliament and the restriction of freedom of opinion in Venezuela also a coincidence? Or perhaps the projection of personal fancy? No, says the Argentinian political scientist Claudia Hilb. These are because of the concept of the radical creation of social equality, which is only possible at the cost of political freedom. Hilb shows, citing Arendt, that “it is perfectly true, and a sad fact indeed, that most so-called revolutions, far from achieving the constitutio libertatis, have not even been able to produce constitutional guarantees of civil rights and liberties, the blessings of ‘limited government’, and there is no question that in our dealings with other nations and their governments we shall have to keep in mind that the distance between tyranny and constitutional, limited government is as great as, perhaps greater than, the distance between limited government and freedom.” (On Revolution)
Claudia Hilb in her “Silencio, Cuba. La izquierda democrática frente al régimen de la Revolución Cubana“ (Buenos Aires 2010) develops a critical framework of conceptual notions which sympathizers of radical social change do not dare to develop, given the discrepancy between their hopes for freedom and equality and the often gloomy subsequent reality. Confronted with criticism on Cuba, they try to defend the regime in Cuba with a “yes, but”. Yes, democracy and civic rights are missing, but there are social achievements like high literacy, general access to health care, and the absence of extreme poverty. Yes, Cuba is poor, but there are no slums like in Buenos Aires. These answers conceal the fact that compared with other Latin American states; Cuba fell from a leading position to a place at the back since the revolution in 1959. Moreover, the defenders attribute Cuba’s economic failures to the boycott by the United States, denying the structural disaster of the Cuban economy on even its own terms. Finally, these defenders color and excuse all this as a “tropical socialism” with its music and the “romantic” ruins that are Havana.
Flickr via flippinyank
The thesis of Hilb: radical equalization of social conditions was made possible by establishing total domination. For her, the real equivalent is not freedom and equality but dictatorship and equality. Therefore, the missing civic rights as well as the prohibition of leaving the country are less incidental concomitants than a sign of the absolute concentration of power. Dictatorship and equality are inherent components of this form of government itself. Therefore, the dictatorship not only violates certain human rights but also does not recognize human rights as such. They are incompatible with the establishment of, and control through, radical equality, rendering democracy and plurality null.
Hilb describes how Castro from the beginning worked on centralization of power, eliminating revolutionary comrades in the party and armed forces as well as in trade unions and student organizations, elevating only his loyal comrades on unity lists in elections. Trade union and student movements were subordinated to his party.
Likewise the cultural sector was brought into line, not so quickly but just as thoroughly. The shameful self-accusation of the poet Heberto Padilla in 1970 became well known. Radical social change required an increasing concentration of power to eliminate all troubling discussions and deviations.
Social organizations like the trade unions and the Committees for the Defense of the Revolution (CDR) were transformed step by step from organizations of mobilization into organizations of control. The trade unions, as “transmissions belts” for revolutionary force, were no longer organizations defending the working class but had the task to imposing voluntary work and intensifying production. The CDRs became instruments to prevent sabotage and control the private life of everyone. With the economic decline in 1970 temporary “re-education camps” were established. During three years 25,000 “antisocial elements” were detained, among them many homosexuals, religious activists, and prostitutes. The film “Before Nights Falls” (2000) based on the novel of the Cuban poet Reinaldo Arenas describes this time.
Claudia Hilb reminds us of the governmental theory of the French political thinker Montesquieu, in an analysis reminiscent of Arendt’s in On Revolution.
Hilb describes Montesquieu’s analysis of fear as the key principle on which action is based under a tyranny. Fear does not automatically lead to obedience; both fear and obedience must be created, in the Cuban case, according to Hilb, by the arbitrary rule of the party. The Cuban constitution gives the party the power over the state and subordinates law under the political power. He who does not behave in conformity with the party consequently becomes a law breaker. Secondly, fear is created by revolutionary virtue, enforcing conformism in forms of behavior through the party as an unlimited instrument of power. And thirdly, fear is caused by shame. The political regime tacitly tolerates the many violations of law and thefts of public property to guarantee a life above subsistence level. This tolerated life of illegality and lying makes the population constantly vulnerable to blackmail through the shame of possible exposure.
Hilb invites Cuba’s defenders to open their eyes to reality in order to work on a framework of notions that would include how to constitute freedom so that freedom and social justice can be balanced to mutual advantage.
- Wolfgang Heuer
Federalism and the Crisis of Politics
Federalism should not be a partisan issue. This has been forgotten as the Federalist Society has turned federalism into a rhetorical sledgehammer to bludgeon liberal policies. But rightly understood, federalism is about freedom.
Federalism promotes freedom for at least two reasons. First, because citizens will only act and speak in public when they believe their actions will be seen and heard.
The smaller the stage, the more likely is action to be meaningful. If freedom and action are the same, as Arendt writes, then we should be wary of the erosion of federalism. Only when local political institutions have meaningful power will they attract citizens to become politically involved. The danger in the loss of federalism today is the increasing sense that individual citizens have little if any power, which leads to cynicism and apathy.
We can see this cynicism and apathy, surprisingly, in Occupy Wall Street. The fact that Occupy Wall Street became a protest movement, and not an alternative locus of power, is at least partly the result of the fact that local power structures have been rendered increasingly impotent by the vampire squid of national power. As people rightly feel ever-more alienated from political institutions that can make a difference, they retreat from politics. Why did Occupy eschew local politics? Why did it seek a megaphone on the national stage instead of working in the pits of village, town, and state politics? Because everyone knows that the power of local institutions has been decimated. The result is a feeling of powerlessness and hopelessness; the present response is to embrace an ethic of permanent protest as the only meaningful way to personal empowerment. But the elevation of protest to the apogee of political action in Occupy Wall Street is, unfortunately, just another example of the vanishing of politics in our time.
The second way federalism promotes freedom is through constitutional structure. The best way to prevent government from attaining totalitarian or tyrannical power is, as Arendt argues, to multiply the sources of political power. Arendt credits the United States Constitution because it created not only the division of powers on the federal level, but also the constitutional federalism of the early Republic. By empowering states, counties, towns, and villages, the United States Constitution ensured that nearly every citizen would have both opportunity and reason to act in public and to engage in politics.
Arendt’s thoughts on the freedom found in federalism come to mind as I’ve been reading—at the urging of my colleague David Kettler—the classic Small Town in Mass Society, by Arthur J. Vidich and Joseph Bensman. Originally published in 1958, Small Town in Mass Society is still an important and now sadly forgotten book. The argument, in short, is that local towns and villages are losing their distinctiveness. Studying class, religion, power, and politics in small town America, Vidich and Bensman argue that local governments are voluntarily abandoning the political powers they constitutionally possess and thus emptying their lives of meaningful political engagement.
What Vidich and Bensman find is a fundamental contradiction between the way that small town culture sees itself and the way it actually exists in mass society. In their self-image, the residents of “Springdale”—the name for the town they study— think of themselves as a community. They distinguish themselves from “urban dwellers” who are anonymous. They imagine that “Here no man counts more than any other.” “It is unthinkable for anyone to pass a person on the street without exchanging greetings;”
“Almost all of rural life receives its justification on the basis of the direct and personal and human feelings that guide people’s relations with each other.” And, above all, the Springdale residents of rural New York see themselves as independent from urban-mass society:
While he realizes that machinery and factory products are essential to his standard of life and that taxation and agricultural policy are important, he feels that he is independent of other features of industrial and urban life, or, better, that he can choose and select only the best parts. The simple physical separation from the city and the open rural atmosphere make it possible to avoid the problems inherent in city life.
Against this feeling of independence, Vidich and Bensman argue that small towns are actually part of and integrated into mass society to an extent that their self-image cannot and will not admit. Against the view that Springdalers can choose those parts of mass society they want and reject the rest, Vidich and Bensman argue that they are more influenced and subjected to mass society.
In almost all aspects of culture, even to speech forms, and including technology, literature, fashions and fads, as well as patterns of consumption, to mention a few, the small town tends to reflect the contemporary mass society. Basically, a historically indigenous local culture does not seem to exist.
For our purposes, one telling section of Small Town in Mass Society is called “The Political Surrender to Mass Society.” While Springdale has a local government and possesses the power of taxation and governance, the authors argue that the town seeks at nearly every turn to abdicate self-governance. Examples include:
•“Solutions to the problem of fire protection are found in agreements with regionally organized fire districts.”
•The town prefers to have its road signs provided in standard form by state agencies “without cost to the taxpayer[s]” in Springdale.
•Springdale accepts the state’s rules and regulations on roads built and maintained by the state. It works with the foreman of the state highway maintenance crew to have his teams clear village roads, thus saving the expense of organizing and paying for this as a town.
• State construction programs “present local political agencies with the alternative of either accepting or rejecting proposed road plans and programs formulated by the state highway department.”
•The town at every point adjusts its actions to the regulations and laws defined by state and federal agencies; or they accede to the rule of these outside agencies because the agencies have the power to withhold subsidies.
What Springdale actually does in its own politics is forego self-governance and submit itself to outside control. It repeatedly accepts grants of aid offered by the state and subsidies by the state, even when such aid comes with strings and demands for control. The result is that the “village board in Springdale accepts few of the powers given to it. Instead, it orients its action to the facilities and subsidies controlled and dispensed by other agencies and, by virtue of this, forfeits its own political power.” What is more, this economic and political dependence leads to a “habituation to outside control to the point where the town and village governments find it hard to act even where they have the power.”
For Vidich and Bensman, the loss of local power leads to a psychologically damaging sense of dependence on outside agencies, bureaucracies, and governments.
“State police, regionally organized fire districts, state welfare agencies, the state highway department, the state youth commission, the state conservation department—these agencies and others are central to the daily functioning of the village.” There is a “pattern of dependence,” according to which the “important decisions are made for Springdale by outside agencies.” On the one hand, Springdalers resent these services provided by outsiders because they negate the local villagers’ self image as independent. But the villagers accept these services “because they are free or because acceptance of them carries with it monetary grants-in-aid for the local community.”
The conclusion Vidich and Bensman reach is that the Springdale town government does increasingly little. It seeks whenever possible to avoid providing services itself—e.g. snow or garbage removal. Instead, it seeks to have these services provided by the state in order to avoid having to raise taxes. The ultimate result is the “avoidance of innovation and the minimization of decision.” The village “tends to limit its function to the conduct of routine “housekeeping” business.” “It is a common complaint among all groups in the community that the village board does nothing.”
This political irrelevance at the local level is radical change from the American tradition of citizen democracy. When Alexis de Tocqueville visited America in the 19th century, he was impressed by the active participation of citizens in local government. 100 years later, when Hannah Arendt arrived in the United States, she too was amazed by the sense of common citizens that their voice mattered in politics.
Shortly after Arendt’s arrival, she traveled to a provincial town in Massachusetts to live with a family as a way of learning everyday English and experiencing something of American mores. While she had little in common with this family whose puritanical ways clashed with her own, she was captivated by them and by what Antonia Grunenberg has called their republican self-consciousness.
Arendt described her host family to Karl Jaspers as "thoroughly average people—what would have been called 'petty bourgeoisie' in Germany." And yet, these average Americans embodied the American love of freedom that so impressed Arendt. As she wrote to Jaspers shortly after they resumed contact in 1946:
There is much I could say about America. There really is such a thing as freedom here and a strong feeling among many people that one cannot live without freedom. The republic is not a vapid illusion, and the fact that there is no national state and no truly national tradition creates an atmosphere of freedom or at least one not pervaded by fanaticism. (Because of the strong need the various immigrant groups feel to maintain their identity, the melting pot is in large part not even an ideal, much less a reality.) Then, too, people here feel themselves responsible for public life to an extent I have never seen in any European country. For example, when all Americans of Japanese descent were locked up willy-nilly in concentration camps at the beginning of the war, a genuine storm of protest that can still be felt today went through the country. I was visiting with an American family in New England at the time. They were thoroughly average people--what would have been called 'petty bourgeoisie' in Germany—and they had, I'm' sure, never laid eyes on a Japanese in their lives. As I later learned, they and many of their friends wrote immediately and spontaneously to their congressmen, insisted on the constitutional rights of all Americans regardless of national background, and declared that if something like that could happen, they no longer felt safe themselves (these people were of Anglo-Saxon background, and their families had been in this country for generations), etc.
The extraordinary embrace of political freedom in America had a flip side, namely social oppression: To allow people local rule and governance means that parochial and racist communities can oppress minorities and impose socially conservative mores. There is a fundamental tradeoff between political freedom and social oppression. But Arendt thought the choice was easy: social oppression is simply a cost of what she came to see as the miracle of America.
For Arendt, America embodied, in Leon Botstein’s words, "a federal system of government not based on race or designed to rectify social inequalities, but established to ensure political equality among all citizens, to maintain the freedom of the public realm, social differences notwithstanding."
America, in Arendt's writing and especially in her book On Revolution, is an enduring image of public freedom that so animates her life-long thinking.
Occupy Wall Street failed for many reasons. Above all, however, it failed because even at a time when our democratic and representative institutions are seen as corrupt and broken, OWS offered no meaningful alternative. It failed, therefore, in the basic requirement of any truly revolutionary political movement: to pick up power when it is lying the streets, as Arendt writes in On Violence. And one reason it did so is that we have all lost the basic experience of citizenship and freedom that Arendt so valued when she arrived in America. If we are to resurrect such a practice and habit of citizen-politics, we need to reinvigorate local politics. But we can only do that if we reclaim federalism as a matter of freedom outside of partisan debates.
One first step is to confront honestly and clearly the depth of the loss of political power in America. This has become difficult because federalism and local power have been politicized and polarized. We need to move beyond that. To do so, there are few better books that Small Town in Mass Society. It is your weekend read. And if you cannot get the book, take a look at their article The New Middle Classes: Their Cultures and Life Styles.
For other posts on the connection between Federalism, Power, and Freedom, see “Power, Persuasion, and Organization” and “The Supreme Court as Truthteller.”
-RB
Reflections on an Inaugural Address
I watched President Obama’s second Inaugural Address with my seven-year-old daughter. She had just completed a letter to the President—something she had been composing all week. She was glued to the TV. I found myself tearing up at times, as I do and should do at all such events. “The Star Spangled Banner” by Beyonce was… well, my daughter stood up right there in the living room, so I followed suit. The Inaugural Poem by Richard Blanco began strong—I found the first two stanzas powerful and lyrical.
The invocation of “One sun rose on us today,” is Whitmanesque, as is: “My face, your face, millions of faces in morning’s mirrors.” That second verse really grabbed me:
My face, your face, millions of faces in morning’s mirrors,
each one yearning to life, crescendoing into our day,
pencil-yellow school buses, the rhythm of traffic lights,
fruit stands: apples, limes, and oranges arrayed like rainbows
begging our praise. Silver trucks heavy with oil or paper—
bricks or milk, teeming over highways alongside us,
on our way to clean tables, read ledgers, or save lives—
to teach geometry, or ring-up groceries as my mother did
for twenty years, so I could write this poem.
I was hooked here, with Blanco’s rendition of a motley American life guided by a rising sun. But the poem dragged for me. I lost the thread. Still, I am so grateful for the continued presence of poetry at inaugural events. They remind us that the Presidency and the country is more than policy and prose.
In the President’s speech itself, there was too much politics, some prose, and a bit of poetry. There were a few stirring lines affirming the grand dreams of the United States. His opening was pitch perfect:
Each time we gather to inaugurate a President we bear witness to the enduring strength of our Constitution. We affirm the promise of our democracy. We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional -- what makes us American -- is our allegiance to an idea articulated in a declaration made more than two centuries ago:
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”
Storytelling, Hannah Arendt knew, was at the essence of politics. The President understands the importance and power of a story and the story of America is one of the dream of democracy and freedom. He tells it well. Some will balk at his full embrace of American exceptionalism. They are right to when such a stand leads to arrogance. But American exceptionalism is also, and more importantly, a tale of the dream of the Promised Land. It is an ever-receding dream, as all such dreams are. But that means only that the dream must be kept alive. That is one of the purposes of Presidential Inaugurations, and President Obama did that beautifully.
Another stirring section invoked the freedom struggles of the past struggles for equality.
We, the people, declare today that the most evident of truths –- that all of us are created equal –- is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.
The President, our nation’s first black President now elected for a second term, sought to raise the aspiration for racial and sexual equality to the pantheon of our Constitutional truths. Including the struggles of gay Americans—he mentioned gay rights for the first time in an inaugural address—the President powerfully rooted the inclusivity of the American dream in the sacred words of the Declaration of Independence and set them in the hallowed grounds of constitutional ideals.
When later I saw the headlines and the blogs, it was as if I had watched a different speech. Supposedly the President offered an “aggressive” speech. And he came out as unabashedly liberal. This is because he mentioned climate change (saying nothing about how he will approach it) and gay rights. Oh, and many saw it as unabashedly liberal when the President said:
For we, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it. We believe that America’s prosperity must rest upon the broad shoulders of a rising middle class. We know that America thrives when every person can find independence and pride in their work; when the wages of honest labor liberate families from the brink of hardship. We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American; she is free, and she is equal, not just in the eyes of God but also in our own.
How is it “liberal” to value the middle-class and pride in work? There was nearly nothing in this talk about the poor or welfare. It was about working Americans, the people whose labor builds the bridges and protects are people. And it was about the American dream of income and class mobility. How is that liberal? Is it liberal to insist on a progressive income tax? Granted, it is liberal to insist that we raise revenue without cutting expenses. But where was that said?
And then there are the swarm of comments and critiques about the President’s defense of entitlements. Well here is what he said:
We understand that outworn programs are inadequate to the needs of our time. So we must harness new ideas and technology to remake our government, revamp our tax code, reform our schools, and empower our citizens with the skills they need to work harder, learn more, reach higher. But while the means will change, our purpose endures: a nation that rewards the effort and determination of every single American. That is what this moment requires. That is what will give real meaning to our creed. We, the people, still believe that every citizen deserves a basic measure of security and dignity. We must make the hard choices to reduce the cost of health care and the size of our deficit. But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future. (Applause.) For we remember the lessons of our past, when twilight years were spent in poverty and parents of a child with a disability had nowhere to turn.
If I read this correctly, the President is here saying: We spend too much on health care and we need to cut our deficit. Outworn programs must change and we need innovation and technology to improve our schools even as we reduce the cost of education. We must, he says, “make the hard choices to reduce the cost of health care and the size of our deficit.” Yet we must do so without abandoning the nation’s creed: the every American has equal worth and dignity. This is a call for changing and rethinking entitlements while cutting their cost. It is pragmatic and yet sensible. How is it liberal? Is it now liberal to believe in social security and Medicare? Show me any nationally influential conservative who will do away with these programs? Reform them, yes. But abandon them?
More than a liberal, the President sounded like a constitutional law professor. He laid out broad principles. We must care for our fellow citizens. But he left open the way that we might do so.
Perhaps the most problematic section of the President’s speech is this one:
We do not believe that in this country freedom is reserved for the lucky, or happiness for the few. We recognize that no matter how responsibly we live our lives, any one of us at any time may face a job loss, or a sudden illness, or a home swept away in a terrible storm. The commitments we make to each other through Medicare and Medicaid and Social Security, these things do not sap our initiative, they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great.
Here the President might sound liberal. But what is he saying? He is raising the entitlement programs of the New Deal to Constitutional status, saying that these programs are part of the American way of life. He is not wrong. No Republican—not Reagan, not Romney, not Paul Ryan—proposes getting rid of these programs. They have become part of the American way of life.
That said, these programs are not unproblematic. The President might say that “these things do not sap our initiative, they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great.” But saying it does not make it true. There are times when these programs care for the sick and unfortunate. And yet there are no doubt times and places where the social safety net leads to taking and weakness. It is also true that these programs are taking up ever more of our national budget, as this chart from the Government Accounting Office makes clear.
The President knows we need to cut entitlements. He has said so repeatedly. His greatest liability now is not that he can’t control opposition Republicans. It is that he doesn’t seem able or willing to exert leadership over the members of his own party in coming up with a meaningful approach to bring our entitlement spending—spending that is necessary and rightly part of our constitutional DNA—into the modern era. That is the President’s challenge.
The problem with President Obama’s speech was not that it was liberal. Rather, what the President failed to offer was a meaningful example of leadership in doing what he knows we must do: Rethinking, re-imagining, and re-forming our entitlement programs to bring them into the modern era.
-RB
Campaign Finance Laws and the First Amendment
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.
To see why, I encourage you to watch Zephyr Teachout's talk here. You can also read the essay on which the talk is based here. Together, they are your weekend reads.
—RB
Withered Public, Disappearing Private
“What is necessary for the pubic realm is to shield it from the private interests which have intruded upon it in the most brutal and aggressive form.”
-Hannah Arendt
In 1973, Hannah Arendt was invited to participate in a series of conferences on the Humanities and Public Policy issues funded by the National Endowment for the Humanities to be held at Columbia University. The first, scheduled for February 1974, was on the topic of “Private Rights and the Public Good,” and Arendt gave a speech in response to a paper on the subject given by Charles Frankel, a Professor of Philosophy and Public Affairs at Columbia University. (The original note cards of her presentation are available to researchers at the Library of Congress and can be viewed digitally online.)
Part of the grant’s requirements included taping the sessions and providing the Endowment with a transcript of all proceedings. Arendt objected to being taped and indicated she could do no more than present her oral commentaries; she had no time to develop a fuller paper. The organizers of the conference and Arendt reached a compromise: they would prepare a transcript of her comments from the tape; the tape would stay in the possession of Columbia University and no use would be made of the transcript, other than filing it with the Endowment as required, without Arendt’s express permission.
Some months after the conference, the coordinator of the conference sent Arendt the edited transcript, along with his wishes for her speedy recovery: while Arendt was in Scotland for the second of the Gifford Lectures, she had suffered a major heart attack. Unhappy with the transcription, Arendt indicated she still had her notes and would prepare something from them, adding that she thought this would present her thoughts more clearly, “even though these notes are written down in a rather apodictic style.” She had her secretary type up a version of the notes and then made a few additional minor changes and sent them to Columbia University.
“Notes on the Discussion of Professor Charles Frankel’s Paper...” provides several succinct insights into Arendt’s critical distinctions between public and private, which are especially germane to today’s political situation.
“Every individual by virtue of his citizenship receives a sort of second life in addition to his private life. He belongs to two orders of existence. Throughout his life he moves within what is his own, and what is common to him and his fellow man.” Public happiness was something that could only be attained “in public, independent of...private happiness.”
Today, Arendt bemoaned, the opportunities for experiencing this public happiness by participating in public life had shrunk, adding, “The voting box can hardly be called a public place.” It was better represented in the activities of a jury. But the paradigmatic “public right” for Arendt was the right to peaceable assembly provided by the First Amendment to the Constitution. Its exercise was still evident in “voluntary association”, she remarked, “of which the civil disobedience groups were an outstanding examples.” Arguably, it has been more recently evident in dimensions of the Occupy Wall Street movement and its iterations. (Though, for interesting commentary and documentary materials on this see Cindy Weber’s recent essay in Open Democracy). But what was definitely not an example of the exercise of public rights was the degeneration of peaceable assembly into “lobbying,” which Arendt saw as “the organization of private interest for the purpose of public political influence.
Evidence from the current campaign suggests that the bipartisan perversion of public into private interests continues at an obscene pace. A recent article in The New Yorker provided some frightening facts: The impact of the 2010 Supreme Court case, Citizens United v. Federal Election Commission has meant that “very wealthy Americans have begun wielding increasingly disproportionate power in U.S. politics...A pool of only 2100 people has given a total of 200 million dollars to the 2012 campaigns and their Super PACs—fifty-two million dollars more than the combined donations of the two and a half million voters who have given two hundred dollars or less. In other words, the top .07 per cent of donors are exerting greater influence on the 2012 race than the bottom 86%.” (August 27, 2012)
What this means, using Arendt’s terminology, is that only a tiny portion of private interests will exert tremendous political influence. Not only has the public realm shrunk; the private realm of influencing politics has all but disappeared for everyone except the very few. Entering the voting booth in 2012 will mean exercising your private right to choose between one form of oligarchy or another. What then of public life? How can it be restored?
Arendt was typically vague about what to do about the influence of oligarchies on public and private life. “Neither the capitalist system [nor] the socialist system respects ownership any more—inflation and devaluation of currency are capitalist modes of appropriation—although both, in different ways, respect acquisition,” she wrote in the same speech. As to the consequences of enshrining acquisition as a principle of social organization, Arendt had nothing but criticism—see The Human Condition for this. To protect private life, we must “restore ownership to private individuals under conditions of modern production.” And what is necessary for public life to be restored is “to shield it against the private interests which have intruded upon it in the most brutal and aggressive form.” Yet all recent legislation that would have restored “ownership” or secured the public realm against brutalization by private interests seem to disappeared from the legislative agenda.
Is it time to call upon the 99% to boycott the election entirely? What other act of civil disobedience would be adequate to the task of renewing public life and salvaging it from its bastardization at the hands of greedy private interests?
-Kathleen B. Jones
The Highest Law of the Land
“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)
Roberts’ Opinion—Taxation Will Set You Free
The Wall Street Journal, The New York times, and Guernica—it seems everyone is excoriating John Roberts' opinion upholding the health insurance mandate in the Affordable Care Act. The WSJ calls the precedent Roberts set "grim." The Journal, in another editorial, writes that Roberts' decision is "is far more dangerous, and far more political, even than it first appeared last week." Roberts has, the WSJ argues, substituted "one unconstitutional expansion of government power [the commerce clause] for another [the taxing power]," and, in doing so, rearranged "the constitutional architecture of the U.S. political system."
In Guernica, Ciara Torres-Spelliscy, argues that "Closer inspection of the actual written opinion shows Roberts gave those who want to hem in Congress’s power everything they wanted." Torres-Spelliscy agrees with the WSJ that, in her words, Roberts "provided the blueprint for a radical rebalancing of powers among the three branches." But while the WSJ thinks Roberts is expanding governmental power, Torres-Spelliscy argues he is radically constricting it.
What both sides in this debate get right is that Roberts' opinion is deeply important and that it will likely change the way that the U.S. Federal Government interacts with citizens. That said, for those concerned with freedom within a constitutional government, as was Hannah Arendt, Roberts' opinion offers much to be excited about. It deserves greater and more serious consideration than it has so far been given.
Roberts' opinion begins with an eminently sensible manifesto for judicial restraint. Like his hero Oliver Wendell Holmes Jr., Roberts believes the Court should defer to Congress except in those cases where the legislation cannot be squared with the Constitution. The devil is always in the details of such a squaring, but at a time of ideological posturing, Roberts' opinion is a welcome read:
Our permissive reading of [Congress' enumerated powers] is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgment. those decision are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Whatever one thinks of Roberts' actual legal opinion, the statesmanship he evinces is welcome. In the most politically sensitive case since Bush v. Gore, Roberts defused a potential explosion threatening to undermine the Supreme Court's legitimacy. As the Arendt Center's Bard colleague Walter Russell Mead writes, "in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward." The introductory pages of the Roberts opinion offer a balanced and at times inspired primer in Constitutional interpretation and U.S. Constitutional history.
Beyond the near pitch-perfect tone, Roberts' opinion offers much to be thankful for. It is one of the most legally important opinion the Court has handed down in decades. It seems worth making a few points.
1. Many have derided Roberts for considering the mandate payment a tax when the legislation called it penalty. Let's give him credit for speaking frankly. It really was a tax. The Congress simply didn't want to call it a tax for political reasons. The mandate is a payment required to be made to the Treasury, collected by the IRS, with no Criminal or Social Stigma of wrongdoing attached to it. Roberts did not have to call it a tax, but he did so on the principle of judicial restraint, interpreting the statute in a way most likely to maintain its constitutionality. That is the role of a Supreme Court in a constitutional republic.
The distinction Roberts employs to call the mandate a tax makes total sense. He says that a payment is a penalty when non-payment is considered a wrong. If you speed and pay a ticket, you have committed a misdemeanor. That is a penalty, not a tax. But when the payment is simply made without any claim that the action generating the payment is wrong, that is a tax. So, if you purchase cigarettes or a speed boat, you pay a special tax. It is your choice.
In the case of the mandate, the Affordable Care Act says that if you don't purchase insurance, you pay a certain amount to the treasury. That amount is less than you would normally pay for insurance in many circumstances. Thus the legislation expects and imagines people for whom the payment is lower than purchasing insurance to actually pay the payment rather than purchase insurance. This is evidence for Roberts that there is no stigma associated with the payment and that it really is functioning as a tax rather than as a penalty. There is no sense of a wrong. Despite what Congress said for political purposes, Roberts is on good grounds to call the mandate payment a tax.
2. Roberts blazes a new path on which the federal government can continue to regulate the actions of citizens. The Congress must now increasingly justify its regulatory initiatives by appeal to the power to tax rather than the power to regulate commerce. While this may seem merely a semantic distinction, it is not a meaningless difference. And this is the heart of the real importance of Roberts' opinion.
If the mandate payment had been upheld under the commerce clause (as Justice Ginsburg's dissent advocated), then the government would have been permitted to do anything it wanted or needed to do in order to achieve its ends of creating a health care system. For example, Congress could have simply required people to purchase health care. You may think that is what Congress did. But according to Roberts, such a requirement is no longer constitutional. Instead, what the Congress did was say: "You have a choice. You can buy health insurance or you can forego buying health insurance and pay a tax to support the health insurance market."
What is the difference? Under the commerce clause, the government can tell you what to do (buy insurance) and it can punish you if you do not do so. Under the taxing power, all the government can do is require people to pay money into the treasury. This is not a meaningless difference.
While the power to tax can be terrible and the power to tax is also in certain cases the power to destroy, this is not usually the case. When taxes are reasonable and not destructive, an individual charged with buying insurance or paying a tax can always choose to pay the tax and not buy insurance.
This is the emancipatory thrust of Roberts' opinion. By shifting the Congressional authorization from Commerce to Taxation, he has struck a surprising balance between freedom and the government's power to influence behavior. On the one hand, it is now significantly harder to justify congressional authority over individuals that will compel them to act in a certain way. On the other hand, Congress can pursue its ends by taxation rather than by regulation.
3. To make it clear just what it is that Roberts allowed, he offers an example that I think is helpful.
Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.”
Roberts is right here. The real reason to like his opinion is that by shifting the authorization from commerce to taxation, Roberts affirms the federal government's right to influence behavior but weakens the federal government's authority to compel citizen behavior. His argument is that it is more consistent with federal limits and the protection of freedom to allow the government to tax us then to regulate us.
There are still many unanswered questions here. It is unclear how impactful Roberts opinion will be in the future. But he has offered an alternative to the ever-expanding use of the commerce power to justify intrusive federal regulations, while still asserting that the federal government does have the power to motivate and behavior through its power to tax.
It is rare to read a Supreme Court opinion that is as surprising as it is thoughtful. It is also worth doing so. Robert's opinion is your weekend read.
-RB
To Deliberate Upon the Public Affairs
“‘[T]he revolution was effected before the war commenced,’ not because of any specifically revolutionary or rebellious spirit but because the inhabitants of the colonies were ‘formed by law into corporations, or bodies politic,’ and possessed ‘the right to assemble … in their town halls, there to deliberate upon the public affairs."
—Hannah Arendt, quoting John Adams, in On Revolution
These remarks represent casual, back-of-the-envelope thoughts. The question they pose is: what would the Occupy movement, or something like it, have to look like in order to succeed in altering the structure of American governance? This assumes that the goal of Occupy is, or should be, to change the structure of American governance, and it assumes an idea of what “the structure of American governance” means, which I will try to explain. My answer to that question—what would Occupy have to look like—can be summed up in a few words: it would have to stop being a movement of the left. As a thought experiment, I propose to imagine an Occupy movement without leftism, and with the goal of changing the structure of governance.
The first thing to work out is wherein the leftism of Occupy actually consists. It does not consist in espousing the interests of the poor—or attacking the interests of the rich. Wealth is neither liberal nor conservative by nature, and wealth in today’s America flows alternately to Republicans and Democrats. Right-wing movements can be populist as well, and garner the support of the economically marginal. Wealth looks after its own interests and treats politics as secondary—which is why the catchphrase of the Occupy movement, “the 99 percent,” theoretically constitutes an appeal to both left and right. It is supposed to be a call to unite along economic rather than political lines. This—“Forget politics and unite for your common economic interest!”—is what I take to be the intended message of Occupy. Those who primarily hear this intended message thus think that Occupy is a new kind of populist movement, having left behind the identity politics of liberalism for a unifying, class-based cause.
Photo by Giles Clarke
But whatever you make of this intended message, there is also an effective message of Occupy, somewhat different from its intended one. The effective message of Occupy proceeds, inevitably, from the demographic composition of the movement. Is it plain for anyone beholding an Occupy rally to see that its membership is drawn from the educated, bourgeois, liberal left; that other contingents (sympathetic Ron Paulites, unionists, etc.) are essentially tokens; and that the members of the real economic underclass are present only on the other side of the fast food counter, selling burritos to hungry protestors. At a march I attended in Chicago, I could stand in one spot and see signs proclaiming dozens of demands: that we go green, withdraw from foreign wars, respect women and minorities, legalize gay marriage, realize that “we are one with the cosmos”—and, oh yes, punish the banks while we’re at it. I happen to agree, at least in some sense, with most of these demands (oneness with the cosmos being one that I would have to find out more about before deciding on), but I was puzzled by their presence. I asked myself: are these particular demands separable from the core economic message? It seems they ought to be, and in theory they are, but here the concrete trumps the theoretical. Get rid of all the people holding those “Regulate x” and “Legalize y” signs at the Occupy rally, and you will have gotten rid of most of the movement. Occupy pursues its universalism as a process of expansion from a preexisting social base. It is like a Facebook group that keeps adding members (in fact, it is that, literally). But this process has natural limits, which Occupy has probably already reached.
So Occupy has its economic message (“the 99 percent”), and it has its social message. The social message is: “Join the left! We liberals have everybody’s best interests at heart, and our concern is with economic justice for the 99 percent.
All you have to do to be part of our movement is to drop your uneducated prejudices—your racism, xenophobia, homophobia, chauvinism, et cetera. Then, once you have become educated liberals, we can move beyond liberalism and fight together for our economic interests!” In the very act of asserting its universalist economic agenda, Occupy reinscribes the particularist demands of the liberal left as prerequisites for participation.
Better than trying to cleanse the economic message of those distracting particularist agendas would be instead to think beyond the economic message itself. What would it mean for Occupy to think at the level of the political? The question of defining the political as such is a point that risks involving Arendt scholars, somewhat uncharacteristically, in long, subtle, almost scholastic discussions; but for our purposes, the answer is easy enough. It would mean to think about constitutions.
A constitution can be a written document embodying the “higher law of the land”—but it need not be. A constitution can just as well consist in an unwritten tradition (as in Great Britain), or, as Arendt reminds us, in an institution such as the Roman senate (or perhaps, in our day, the loya jirga)—a political body that lasts just as long as it is cared for and maintained. (Similarly, a written constitution lasts only as long as people choose to obey it.) A successful revolution—this is the thrust of Arendt’s On Revolution—is one which does not stop at the point of liberating people from oppression, which might be of an economic or a political kind. Occupy aims at economic liberation. A successful revolution, on the other hand, puts its main energy into constitution-making, and results in the creation of lasting institutions, bodies politic that function and endure.
Founding, constituting, instituting: this would be the business of a truly political and, I think, a truly successful Occupy movement. These activities are by nature genuinely public and open to all comers without prerequisite. They might take various concrete forms. Lawrence Lessig advocates holding mock constitutional conventions across the country, with the eventual aim of demonstrating the effectiveness of the process as carried out by ordinary citizens and encouraging state legislatures to invoke Article V of the U.S. constitution and call a new federal convention. Another model would be to simply begin holding unconditional open meetings, publicized and accessible to all, neighborhood by neighborhood, “to deliberate upon the public affairs” until some structure of governance begins to emerge, good leaders come forward, actions are taken. While both these models have their idealistic aspects, both have some realistic aspects as well. We have barely begun to think through the possibilities, but we will eventually need to do the patient work of reconstituting the republic.
-Stephen Haswell Todd
Roberto Unger: A Wartime Economy Without a War
"Ouch."
With that simple yet evocative Facebook status update, I was led this week on a journey into my intellectual past.
The link attached to the painful interjection led to a video by Roberto Mangabeira Unger. It is a provocative video titled "Beyond Obama." It calls for progressives to work for the defeat of Presidential Barack Obama in the 2012 election. Some will welcome this and others will decry it. Today, I want to understand where Unger's call comes from.
Unger is one of those renaissance men who continually pop up in the most unexpected and extraordinary places. He has been, for many years, a professor of law at Harvard Law School. While there he taught anHarvard wrote widely on law, politics, and philosophy. His book Knowledge and Politics called to me and inspired me to dream of the possibility of a better world. Unger was also the intellectual godfather of the school of critical legal studies. When I was studying law and philosophy with Austin Sarat in the 1980s, Unger was one of my intellectual heroes.
The premise of critical legal studies is that law and legal concepts like rights or constitutions are neither natural nor scientific, but expressly political. Unger sought a political-legal approach that permits the "loosening of the fixed order of society." If legal rights were once seen as objective and neutral, Unger sought to employ law as a tool to transform society. What is needed, he writes, is a "deviationist doctrine" that employs law to "disrupt established institutions and forms of social practice that have achieved the insulation and have encouraged the retrenchment of social hierarchy and division that the entire constitution wants to avoid."
In other words, rights and laws must be mobilized to upset outmoded institutions; what makes Unger different is that he is not an anarchist or opposed to law and government. On the contrary, he imagines his program a "superliberalism."
Tied to his legal work, Unger's general philosophy speaks the language of the imagination. Life, Unger affirms, is always fleeting, and yet is "always something higher than it was before." His work sought to "establish a new system of thought that sweeps away the difficulties" of the present. Against theoretical critiques that muster partial assaults on liberal ideas, Unger demands that we comprehend and replace the entirety of liberalism as a psychological, economic, and political system. He thinks big and paints in broad strokes.
As ambitious as Unger is, he never loses himself in abstract theory. Thus it was not a surprise when he took leave from Harvard and became a minister of strategic affairs in Brazil. Serving under President Luiz Inácio Lula da Silva, Unger was styled a "minister of ideas." He described his role as transforming “imagination into the possible.”
Unger is now back at Harvard Law School, but he is still engaged with politics. His mystique and renown are so great on the left in the U.S. that the fact that he had taught Barack Obama when the future was a Harvard Law student, lent imaginative left-wing credibility to the pragmatic Illinois Senator.
It thus came as a shock—to some—when a video by Unger flashed around the Internet last week, in which Unger calmly and yet mercilessly criticized President Obama. For the future of the United States, Unger argues, President Obama must be defeated. He says this starkly:
President Obama must be defeated in the coming election. He has failed to advance the progressive cause in the United States.
And he continues raising the stakes:
Unless [President Obama] is defeated, there cannot be a context for the reorientation of the Democratic party as the vehicle of a progressive alternative in the country.
Most on the left will ignore Unger's warning. That would be a mistake.
Unger argues that President Obama and the left (and also the right) have fundamentally misunderstood the nature of the current financial and political crisis. The left and the president see the crisis as a typical recession; their doctrinaire answer is Keynsianism, stimulus to get us over the hump and return the economy to health. But the truth is very different. Here is Unger's analysis:
The country stopped producing at competitive prices enough goods and services that the rest of the world wants. It then tried to escape the consequences of this failure by living as if the failure had not occurred. It put a fake credit democracy in place of the property owning democracy that it turned into an ever more distant ideal. The government bribed, placated, and finally abandoned the people, instead of equipping them.
Governments at all levels in the United States and also in Europe and Japan have basically told their citizens that everything will be alright. They kept borrowing and spending to support an unsustainable standard of living without ever insisting that the money be used to make goods and services that other people actually would buy. The result is that we have an economic system that simply cannot continue without government stimulus in the form of debt. And that cannot continue indefinitely.
In three lectures on Keynsianism, Unger argues that both right and left economists have adopted a vulgar Keynsianism, which holds that,
A crisis brought on by too much confidence, too much credit, and too much spending requires for a fix more confidence, more credit, and more spending.
In his critique of Keynsianism, Unger sounds a bit like Hunter Lewis who gave the keynote lecture to the Arendt Center's 2009 Conference on The Intellectual Origins of the Financial Crisis. In his talk, which will soon be published in September in the forthcoming volume of the same name, Lewis argued:
The policies of George W. Bush and Barack Obama have come directly out of Keynes’s playbook. Consequently they have that paradoxical, stand common sense on its head, flavor. For example, we are told that: The Crash of '08 was caused by too much debt. We will therefore solve it by adding more debt.
But where Lewis argues for a certain austerity, Unger's critique of Keynsianism leads in a different direction. What is needed is not mere stimulus, he argues, but massive institutional experiments in the widening of educational and economic opportunity.
The basic insight is simple. It is a mistake to think that Keynsian stimulus got us out of the Great Depression. Stimulus failed throughout the 1930s. What got us out of the Great Depression in the 1940s was a bold, broad-based, and massive deployment of resources in the association of governments with private producers to fight WWII.
The question Unger forces us to ask today is: How can we have a wartime economy without a war?
President Obama has not asked such a question. Instead, he has simplified his economic program into a vulgar Keynsian support for stimulus. In Unger's words, President Obama has done the following:
He has spent trillions of dollars to rescue the moneyed interests and left workers and homeowners to their own devices.
He has subordinated the broadening of economic and educational opportunity to the important but secondary issue of health care.
He has disguised his surrender with an empty appeal to tax justice.
He has delivered the politics of democracy to the rule of money.
He has reduced justice to charity.
His policy is financial confidence and food stamps.
He has evoked politics of handholding, but no one changes the world without a struggle.
Unless he is defeated, there cannot be a context for the reorientation of the Democratic party as the vehicle of a progressive alternative in the country.
This is a damning critique. While Unger admits that there will be costs and consequences for progressive from a Republican presidency, he calculates that those costs are worth the risk if they might lead to a truly innovative and bold rethinking of politics.
Outside the progressive and conservative calculus, what is important in Unger's message is his analysis of the cowardly approaches of both parties today as well as his call for a bold and new way forward. What Unger wants is to "broaden the gateways of access to the vanguards of innovative knowledge-based production." He argues that we must "disseminate advanced experimental productive practices among the small and medium sized business that form the backbone of the real economy." Above all, we must seek not just stimulus, but renewal.
In other words, what Unger is calling for is a President with vision and character to lead us to a new place. The way out of our crisis is neither stimulus nor austerity, but a war economy without a war, an economy driven by the collective pursuit of commonly agreed upon ideas and actions. Against the false debate between austerity and stimulus, what is needed is courage and risk, the willingness to aim high, and most importantly the preparedness to suffer and struggle in the collective effort to bring a new economy and a new nation into being.
Artist: Jacek Yerka
Such an effort to re-imagine and rebuild the nation requires a leader or leaders. It will not happen on its own through the consensus politics of Occupy Wall Street. Nor will it come from the cowardly austerity of the Tea Party or from the stand-pat conventionalism of liberal Keynsianism.
One wonders where real, unifying leaders might come from — leaders, in the words of David Foster Wallace, who “help us overcome the limitations of our own individual laziness and selfishness and weakness and fear and get us to do better, harder things than we can get ourselves to do on our own.” Such leaders seem unlikely to develop under the current system where candidates utter consultant-tested platitudes designed to offend no one. The question is: How can our overly cautious and hyper-critical age encourage the kind of bold action that Arendt saw was necessary in politics?
The Arendt Center's Fall 2012 Conference is titled "Does the President Matter?" The title does not ask the conventional question: does it matter if a Republican or a Democrat is elected? Of course it matters, in some ways, and not in others.
Rather, the conference title is meant to provoke the Arendtian question: What would a human politics look like in the 21st century?
Hannah Arendt believed that freedom requires courage. Political leaders, she argued, are those who act in unexpected ways and whose actions are so surprising and yet meaningful as to inspire citizens to re-imagine a common purpose. Active leadership is unpredictable; since a leader inserts a new idea into the world, no one can predict or control how that idea will change the world. Leadership is therefore as risky as it is rare. For Arendt, freedom demands such leadership if life is to remain surprising, new, and human.
Leadership can of course be dangerous, but politics is, for Arendt, always a risky and uncertain endeavor. The great virtue of Robert Unger's recent call to turn away from President Obama's conventional politics is that he asks and challenges us to conceive and actualize a politics that is bold rather than cowardly. Given our current predicaments, that may be our only hope.
As the heat oppresses our bodies on this summer weekend, free your soul and spend 8 minutes watching Robert Mangabeira Unger's essay: Beyond Obama. His video is your weekend "read."
-RB
The Supreme Court No Longer Reigns Supreme
Polling often confirms the obvious, but sometimes it is important to be faced with the fact. The NY Times does just today when it reports,
Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views. Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.
The loss of respect for the Court is important. Hannah Arendt understood that the Supreme Court was the only institution in American Democracy that could offer stability and authority to the vagaries of democratic will. The Court is the institution that stands above politics, or at least it used to.
For Arendt, the "great measure of success" of the American experiment in government was the founding of a "new body politic stable enough to survive the onslaught of centuries to come." Arendt writes that the success of American Constitutional Republicanism was secured "the very moment when the Constitution began to be "worshipped." The worship of the Constitution meant that the Court decisions where cloaked in a patina of authority. The Court spoke not for itself, nor for the democratic people, but for the American People constituted as a Republic.
The importance of the Supreme Court was that it lacked power and thus stood outside of politics.
Institutionally, it is lack of power, combined with permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court. And this authority is exerted in a kind of continuous constitution-making, for the Supreme Court is indeed, in Woodrow Wilson's phrase, 'a kind of Constitutional Assembly in continuous session.
The Court was both a truthteller that stood outside politics and, equally essential, a model of free and reasoned discussion about the core constitutional issues of the day.
The decline of the Supreme Court has a long history. It begins with the innovation of the Justices issuing long and reasoned decisions, something that only becomes common in the early 20th century. The long opinions and multiple dissents pierced the veil of authority and showed the Court to resemble bickering legislatures more than reasonable jurists. Franklin Delano Roosevelt's court-packing scheme further politicized the Court, as did the activism of the Warren Court. But it was only in the 1980s and the bitter confirmation battles along with the litmus tests for judges on issues like abortion and affirmative action that has produced a Court that sees itself as an increasingly politicized body. The Bush v. Gore intervention that decided the 2000 election and most recently the Citizens United decision that made unconstitutional a century-long practice of limiting the influence of money in elections have stripped the Court of its last veneer of authority.
The loss of authority may not be reversible, but nor is it a minor event. How we respond to the loss of the Court's authority—with denial, with an effort to return the Court to its prior glory, with an ever-more partisan and thoughtless politics, or with a concerted effort to create new institutions that will conserve and deepen the sense of who we are as a nation—will go a long way to determining whether the United States' will persist as a beacon of freedom and stability.
-RB
The End of Democracy in Detroit?
It was Winston Churchill who said that democracy was the worst form of government, except for all the others. We have been living in passive agreement with Churchill's witticism for half a century. But slowly, harrowingly, fatalistically, people around the world are giving up on democracy.
Greece, the birthplace of democracy, and Italy (well, it's Italy) are now both governed by unelected technocratic governments charged with carrying out austerity programs that democratically elected leaders would not or could not bring about.
According to Gillian Tett, the Financial Times columnist, "the situation calls for very firm, forward-looking action that is almost impossible in a rowdy democratic political system at the moment." Tett is not alone in seeing the failure of democratic leadership in crises and the inability of democratic politicians to allocate pain and sacrifice amongst their constituents.
We in the United States are showing a similar predilection to trade democracy for technocratic management. Michigan is at the forefront of this trend. Governor Rick Snyder has been aggressive in appointing emergency managers to take control of city finances. In Pontiac, Flint, Benton Harbor and other Michigan cities, the mayors and town councils have been fired and rendered obsolete, replaced by a manager appointed by the governor.
In New York, Nassau County is now under the rule of an "oversight board" that controls its budget and finances. In Michigan, financial managers have the power to void labor contracts, privatize public services, and dismiss elected officials. These managers serve at the will of the governor, but they have no set term.
Tomorrow we may learn whether Detroit, Michigan's biggest and once proudest city, will also succumb to an emergency manager. The only alternative, it seems, is a consent decree with the State that will turn the city over to a manager jointly selected by the city and the state from a slate of candidates approved by the governor. The problem, once again, is that democratic governments have simply been unable to make the hard decisions needed. The result is that Detroit is bankrupt and in need of a state bailout and the state is treating Detroit like the spoiled child it is, just as the European Union treats Greece and Italy. Money will come, but only if the children agree to be treated like children.
I can only point out so many times that Wall Street bankers also acted like spoiled children, but they received their bailouts and undeserved bonuses without the demeaning financial oversight. Hypocrisy, however, is not an argument for or against such oversight, even if it does reveal that there are issues beyond simple economic calculation at play. In Europe, there are prejudices against the laziness of southern peoples, and here in the U.S. racial prejudices are no doubt active, as can be seen by one commentator's likening Detroit's citizens to addicts:
As those of us in surrounding communities watch the ongoing tragedy unfolding in Detroit, we really need to hope that this once great city can stop its decline, and begin to recover. But just like with an alcoholic, the city's so-called leaders must first admit they have a problem, and that they are unable to fix it on their own. Unfortunately, they do not appear to have reached that point yet. I guess a nice way of putting it would be to say that they are in denial.
Patronizing rhetoric aside, the basic problem is that the people of Detroit—like the people of Greece and Italy—are unwilling to govern themselves and are welcoming technocrats to take over that task. We witness once again how easily people will abandon democratic freedoms for the promise of a bailout. The current argument in Detroit is less about whether to give up self-government—a foregone conclusion—but how much money Detroit can extract in the deal for doing so.
The Romans had a provision in their law for the appointment of a dictator during emergencies, especially at war. A dictator, as Andreas Kalyvas reminds us, was not a tyrant. A dictator in Roman law was a 'temporary tyranny by consent' while a tyrant was a 'permanent dictator.' The Roman Republic recognized that crises required decisive action that a sprawling democracy was frequently unable to muster. The dictator was not illegal, but was a constitutionally approved office that was appointed for a set term, after which time power would revert back to the people. In other words, a dictator was a constitutionally regulated and democratically agreed upon safety valve for the failures of democracy.
Modern democracies have largely avoided such emergency powers, and for good reasons. It seems, however, that such resistance is fading. Will it be until we have no choice but to appoint an emergency financial manager to do the job we won't do for ourselves? But then again, who would appoint such a person?
For Hannah Arendt, this was and remains a crucial question. For human beings are political beings who actualize their freedom in public action with others. The entire premise of what Arendt once called the "dictatorial intervention" is to replace politics with the temporary tyranny of the educator. It is to admit our immaturity and call for a tyrant who will treat us as children. And yet that is, precisely, what it seems we want.
-RB
Jacques Ranciere and Hannah Arendt on Democratic Politics
Politics today is democratic politics. While history has not ended and democracy is not universal, there is no doubt that the spirit of our age is democratic. From France and the United States in the 18th century, to the European revolutions of 1848, to decolonialization in the 20th century, the fall of the Iron Curtain in 1989, and the Arab Spring of 2011, one cannot mistake the fact: politics in the modern world tends toward democracy.
But what is democracy? In his essay, "Does Democracy Mean Something?", Jacques Rancière offers one particularly compelling answer, one that is illustrative of the fate of global politics. Democracy, Rancière writes, is most fundamentally a paradoxical politics. On the one hand, democracy names democratic government. It is good government, or a legitimate order, a form of governmental order that is legitimate and just because it is founded upon democratic principles of equality and self-government. On the other hand, democracy means freedom, the rejection of rule by others, and the demand for the rule of the people by the people.
The democratic paradox is that democracy understood as freedom and the rule by people always threatens to destabilize and revolutionize democratic government that offers itself as a legitimate order. And democratic government—if it is to remain a government—requires the reduction of the revolutionary democratic excess of democratic individualism and the demand for popular rule.
We can of course see this paradoxical essence of democracy in the Occupy Wall Street movement. As Mayor Mike Bloomberg repeatedly emphasized, our democratic government allows protest and individual expression and we must permit the voices of those with whom we disagree. At the same time, Bloomberg argued that democratic government sets limits on those dissenting voices, authorizes regulations upon them, and, eventually, requires that they respect the authority and order of the existing democratic establishment. From this governmental perspective, the messy aspects of personal democracy and democratic individualism—the call to mobilize the people to pursue their plural and discordant interests—is a threat to good democratic government.
Democracy, in Rancière's words, is a power that at once legitimates and de-legitimates. Democracy promises the transparency and self-government that is necessary to legitimate government today. And yet it also insists upon unruly individualism and dissent that must be limited and contained in order to ensure a democratic state.
Beyond the democratic paradox, Rancière argues that true democratic politics is on the side of the messy, individualist, and disruptive aspect of democracy. His word for this is "dissensus," and Rancière insists that "democracy implies a practice of dissensus, one that it keeps re-opening and that the practice of ruling relentlessly plugs." Democracy, in other words, is the practice of disrupting all statist orders, even democratic state orders. It is an "anarchic principle" and "insofar as it is anarchic it precludes the self-grounding of politics." Politics, democratic politics, modern politics, is unavoidably open and anarchic.
In his analysis of the paradoxical nature of democracy and the priority of dissensus, Rancière reflects much that is in the work of Hannah Arendt. Both Rancière and Arendt oppose politics to philosophy, since philosophy trades in truths that shut down politics, which is about opinions. Rancière, as does Arendt, defines politics as a form of action—politics is an activity of people, in the plural, and not simply of states. And if Rancière sees political action as manifesting "dissensus," Arendt insists that political action be spontaneous and capable of beginning something new into the world. Which is why Arendt argues that "the modern concept of revolution, inextricably bound up with the notion that the course of history suddenly begins anew, that an entirely new story, a story never known before, is about to unfold" is at the very center of modern democratic politics.
The centrality of revolution to Arendt's thought means that "the idea of freedom and the experience of a new beginning should coincide." Because politics is by its nature revolutionary action, Arendt refuses to call it democracy, because democracy is—like all "cracy's"—derived from the Greek kratein, expressing rule and order. Democracy, as majority rule, opposes revolutionary action, and is, therefore, "simply another form of rulership." As does Rancière, Arendt insists that freedom demands that we move beyond democracy as simply a form of government.
Similarities aside, Rancière builds his theory of dissensus in opposition to Hannah Arendt's work. In both "Does Democracy Mean Something?" and "Who Is the Subject of the Rights of Man?" Rancière explicates his idea of politics as dissensus against Arendt's revolutionary politics.
In "Who is the Subject of the Rights of Man?", Rancière locates his split with Arendt around her division of the political from the social. In line with many who read Arendt as erecting rigid boundaries between the social, the political and the private, Rancière worries that "Arendt's rigid opposition between the realm of the political and the realm of private life" sets up an exclusive realm from which the people must be kept out. By excluding the world of private and economic and social concerns from the lofty realm of politics, Arendt, pace Rancière, depoliticizes politics by cleansing it of the people and their voices.
Such readings of Arendt make rigid her rich descriptions of the political, social, and private realms; they offer a pale representation of the fire that burns brightly in Arendt's writing. It is common today to imagine that Arendt makes strict distinctions between political and non-political activities, just as it widespread to think that the divisions between labor, work, and action in The Human Condition are impenetrable. Yes Arendt distinguishes the political from the social. But that does not at all mean that economic and social interests are never political. Of course, as Arendt concedes often, some level of social security is part of the political realm. Her point is simply that such social concerns are at odds with freedom, which is the true aim of political action.
In "Does Democracy Mean Something?", Rancière offers a better and more meaningful distinction between himself and Arendt. Here, he makes clear his view that "democracy cannot consist in a set of institutions." Institutions, he argues, mean nothing in themselves. "The reason for this is that one and the same constitution and set of laws can be implemented in opposite ways depending on the sense of the 'common' in which they are framed." Rancière's point is, on one level, obvious. At times, the constitution and the laws are invoked to stifle debate and dissent. At other times they are called upon to enable and further the call for new political institutions. In themselves, the constitution and the laws are not decisive.
But Rancière goes further. Not only are political institutions not decisive in politics, they occupy the field of politics with a claim to legitimacy and thus delimit and shrink "the political stage." By establishing what is constitutional and legal protest and who can protest and who is even a citizen, the institutions of politics limit politics in "a biased way." They police the boundaries and access to politics "in the name of the purity of the political, the universality of the law or the distinction between political universality and social particularity."
In his suspicion of institutions, Rancière does indeed depart from Arendt in a meaningful way. For Arendt, modern politics, as revolutionary politics, means a free and new founding of freedom. What distinguishes revolutions from rebellions is that while rebellions merely liberate one from rule, revolutions found new institutions that nurture freedom. At the core of Arendt's political thinking is her insistence that freedom cannot exist outside of institutions. As had Montesquieu before her, Arendt saw that "power and freedom belong together."
The genius of the American Revolution in Arendt's telling is that it found what she calls a new experience of power. This American experience of power "was embodied in all institutions of self-government throughout the country." It goes back to the Mayflower Compact drawn up on the ship and signed by the first settlers upon landing, an act that displays their
obvious confidence that they had in their own power, granted and confirmed by no one and as yet unsupported by any means of violence, to combine themselves together into a 'civil Body Politik' which, held together solely by the strength of mutual promise 'in the Presence of God and one another', supposedly was powerful enough to 'enact, constitute, and frame' all necessary laws and instruments of government.
From out of the basic experience of power through mutual action with others, the American colonists developed their institutions of town halls, constitutional conventions, and local government in townships, counties, and states. Since written laws cannot control power, but "only power arrests power," freedom depends upon institutions that can continually give birth to new centers and sources of power. What the new experience of American power meant was that there could not be and could never be in the United States a single highest and irresistible power that could exert its rule over the others. The states would limit the federal government; the federal government would contest state power; legislative power limits executive power; judicial power bridles the legislature; and new forms of power in voluntary organizations, political clubs, and advocacy groups all limit the power of professional politicians. Together, this diffusion of power in the United States meant the "consistent abolition of sovereignty within the body politic of the republic, the insight that in the realm of human affairs sovereignty and tyranny are the same."
Unlike Rancière for whom institutions are biased watchmen patrolling the entry into politics, Arendt sees the institutions of self-government as the common world within which plural citizens congregate, talk, and act. Without such institutions, there would be no public space, no commons, in which politics happens. Politics needs not only revolution and dissensus, but also some prior consensus—an acknowledgement of the facts of the political world we are born into. From there one can, and sometimes must, resist and revolt.
Rancière sees all consensus, all that is common, as exclusionary, violent, and apolitical. But the common world itself is not oppressive and anti-political. It is, what it is, and the first requirement of politics is that one reconciles oneself to the world we share with others. That is not giving in to the system, but is, rather, the very possibility of political and revolutionary action.
Rancière's engagement with Arendt is one of the most important in modern political theory. You can read Jacques Rancière's "Does Democracy Mean Something?" here.
I also encourage you to buy the Dissensus, Rancière's book that includes "Does Democracy Mean Something?" and also "Who is the Subject of the Rights of Man?". Buy it here.
And as a bonus, if you want a different take on the relationship between Arendt and Rancière, you can read Adam Schapp's essay on the topic here.
-RB
‘Absolute’ Beginning
"From this, it follows that it is futile to search for an absolute to break the vicious circle in which all beginning is inevitably caught, because this ‘absolute’ lies in the very act of beginning itself. In a way, this has always been known, though it was never fully articulated in conceptual thought for the simple reason that beginning itself, prior to the era of revolution, has always been shrouded in mystery and remained an object of speculation. "
-Hannah Arendt, On Revolution
I have always had the feeling that all of the problems of political legitimacy can be summed up by the above quote. How could political foundation be legitimized, that originary act of an order that pretends to be, in itself, legitimate? This question which in the political science of our time seems proper only to modernity appears in Arendt’s quote as proper to every foundation of an order.
In her work Arendt is particularly careful to distinguish power, and indeed, the origin of power, from authority, and the foundation of authority. What really interests me in this distinction is that at the same time as Arendt highlights that power is reliant on the human capacity to act in concert, she understands that this capacity - in order to contribute to the formation of lasting institutions - needs to in some way find stabilization in an element outside the actuality of power. Although from the earliest ages to the era of modern revolutions this stabilization has longed to settle itself upon an extra-political source, in the latest instance it cannot but be referred to the very human capacity to begin. Thus, it is in the preservation and transmission of the beginning in itself that we find – as in the Roman experience of authority or in the worship of the Constitution in the American Revolution – the only truly political foundation for authority, that is, the only truly political stabilization for the preservation of power which arises from the action of men.
Therefore Arendt tells us that the human capacity of beginning is itself the only source of power, and that absolutes can only vicariously give an answer to the vicious circle of beginning. And yet, she also teaches us that new beginnings rightly long for a source of law from where to derive a lasting authority so as to be able to offer some (instable) stability to a political realm which is built on the pure actuality of human – all too human - power.
-Claudia Hilb
Legislating Memories of Violence
The Constitutional Council, France’s highest court, will soon issue a ruling with significant implications for how we think about free speech, violence, and collective memory. The ruling, due by the end of February, will determine whether French lawmakers can criminalize the denial of the Armenian genocide in the Ottoman Empire during World War I.
Legislation to this effect passed the French National Assembly in December 2011 and the Senate just last month, but the Council agreed to rule on the constitutionality of the provision after inquiries from dozens of parliamentarians. President Nicolas Sarkozy has indicated that he will sign the bill into law if and when it reaches his desk, but he cannot do so until the court announces its decision. The geopolitical implications of this ruling are potentially far-reaching, for it may decisively shape Turkey’s relationship with the European Union and other states in the Middle East. But the ruling’s cultural and philosophical ramifications are significant as well, for they raise important questions about public discourse and collective memory not simply within but also across national boundaries.
The bill that would criminalize Armenian genocide denial was introduced in the National Assembly by Valérie Boyer, a parliamentarian from Marseilles who is affiliated, like Sarkozy, with the center-right Union for a Popular Movement. It would require a year in jail and a fine of 45,000 Euros (approximately $59,000) for “those who have praised, denied, or roughly and publicly downplayed genocidal crimes, crimes against humanity, and war crimes.” Significantly, the legislation does not specifically mention the mass killings of Armenians, but the only other instance of genocide recognized by the French government is the Holocaust, and its denial is already defined as a criminal act under another law. Despite the bill’s generic formulation, then, its effective point of reference is rather targeted.
Members of the French opposition have charged that the bill constitutes a cynical effort to curry favor with the country’s sizable Armenian population in advance of this spring’s presidential elections. Foreign Minister Alain Juppé, meanwhile, has opposed the legislation because he believes it will hinder efforts to maintain Turkish cooperation on urgent matters of state, including Iran’s nuclear ambitions and the ongoing government crackdown in Syria.
But the bill’s proponents deny that they have any ulterior motives in either the national or international arena: Boyer insists that genocide is a general human concern that stands “over and above politics,” while Sarkozy asserts that the bill is in “no way aimed at any state or people in particular.” In this respect, the legislation and its overt rationale are consistent with an important strand of the French republican tradition, one that equates the nation and polity with a commitment to universal principles.
Given the state’s ideological position, it should come as no surprise that Turkish responses to the legislation have been hostile. The national government, led by the center-right Justice and Development Party, has suspended many of Turkey’s diplomatic, economic, and military relations with France, and Prime Minister Recep Tayyip Erdoğan has dismissed the bill as an instance of “evident discrimination, racism, and massacre of free speech.” In addition, Erdoğan has accused France of its own unacknowledged genocide during the era of colonial rule in Algeria, while other lawmakers have insisted that France has failed to confront its unseemly role in the 1994 genocide in Rwanda. Far from regarding the legislation as a universalist condemnation of genocide and genocide denial, then, Turkish state officials have treated it as a direct attack on their national self-regard, and they have been quick to accuse the French government of a pernicious double standard: Sarkozy and his colleagues want Turkey to reckon with its burdened past when France has not scrutinized its own violent (post)colonial history.
On the one hand, I sympathize with the bill’s impulse to engage with past instances of violence. Remembrance of traumatic pasts is not a zero-sum game: attention to one instance of collective violence, such as the murder, deportation, and starvation of Armenians in the Ottoman Empire, does not prevent or preclude attention to others, such as the assault, torture, and killing that accompanied French colonial domination in Algeria. In fact, as Michael Rothberg suggests, the remembrance of past violence across national and/or imperial contexts “has the potential to create new forms of solidarity and new visions of justice.”
On the other hand, I am uncomfortable with the premise that certain forms of public discourse, even those associated with the denial of genocide, should be prohibited by law. I am too committed to liberal thinking to believe that this kind of restriction on free public speech is acceptable, and I have my doubts that it will actually encourage a reasoned understanding—and condemnation—of collective violence in the past, present, and future.
In particular, I am very concerned that this legislation, if it indeed becomes law, will have a chilling effect on ongoing discussion and debate in Turkey.
Turkish state and public institutions have grown a bit more receptive to Kurdish grievances over the past decade, and in November 2011 Prime Minister Erdoğan took the remarkable step of apologizing for army and air force attacks that killed nearly 14,000 Kurds in Dersim (now known as Tunceli) from 1936 to 1939. To be sure, Erdoğan issued this apology as police and military personnel were detaining hundreds if not thousands of Kurdish activists in the state’s renewed counterinsurgency campaign. But we should not neglect the fact that such a pronouncement would have been unthinkable only a few years ago. How ready will Erdoğan’s government be to acknowledge other elements of Turkey’s fraught past if France criminalizes denial of the Armenian genocide? Not very, I suspect.
In the end, then, I support concerted public engagement with the nature and extent of the Armenian genocide in France, Turkey, and elsewhere. Precisely for this reason, however, I also oppose the criminalization of Armenian genocide denial.
For more discussion of the transnational politics of memory, I highly recommend Michael Rothberg’s book Multidirectional Memory: Remembering the Holocaust in an Age of Decolonization (Stanford University Press, 2009).
- Jeff Jurgens
A Brief History of Campaign Finance
The NY Times penned one of those editorials Wednesday that makes one wonder who is home. The Times takes President Obama to task for forming a Super PAC--or for having someone form a Super PAC for him, because we know there is no coordination between the Super PAC and the Super PAC's beneficiary. As cynical as the current Super PAC frenzy is, and as disheartening as the crush of money being spent by the Republican Super PACs and hoarded by Karl Rove's Super PAC is, what would be served by President Obama refusing to feed at the trough? Recall, he is the first Presidential candidate since 1974 to opt out of the public matching funds system. The idea that he might run as an anti-big-money candidate is hard to imagine, so how could he meaningfully run a campaign claiming on principle to be opposed to the influence of big money, as the Times editorial suggests.
I am in Berlin where on Monday I gave a Keynote Talk to open the State of the World Week in Berlin, sponsored by the European College of Liberal Arts of Bard. My talk was on the Citizen United court case, the case that opened the door to Super PACs. I'll be blogging more about Campaign Finance Reform as the election progresses. But for now, here is a short excerpt of one part of my talk that offered a condensed history of Campaign Finance and Campaign Finance Reform in the United States.
We can divide the history of Campaign finance in the U.S. into 7 stages.
1. The first stage is the pre-History involving the 1787 Constitutional Convention. As Zephyr Teachout has shown, "Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened." Teachout and Lawrence Lessig have argued that there was a strong sense among the founding fathers that the great threat to new Constitution was corruption. And they have pointed to a number of practical responses to that threat in the Constitution itself. These include Article I, Section 6, Clause 2, which prevents members of Congress from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure. The point was to prevent members of Congress from using their posts to enrich themselves and their friends.
Another innovation aimed to prevent corruption was the decision to have those in the House of Representatives serve only for two years. According to Teachout and Lessig, this was designed to counter the formation of bonds between legislators and the President. By turning over the members of the House on a regular basis, it would be less likely that the Representatives would form strong alliances with members of the Executive branch, thus helping to maintain their independence. The founding fathers would surely be astounded by the incumbent advantages apparent today.
2. The Second stage of American campaign finance history runs from the passage of the Constitution until the election of Andrew Jackson in 1828. In early U.S. elections, most campaign expenses were paid directly by the candidates using their own money. Such expenses were relatively minimal, going toward an occasional campaign pamphlet and, sometimes, for food and drink at rallies. As Bradley Smith writes, "Though free from the "corrupting" effects of money, elections in this early period were generally contested by candidates representing aristocratic factions standing for election before a relatively small, homogeneous electorate of propertied white men."
3. The financing of American political campaigns begins to become interesting in 1828, with the election of Andrew Jackson. Jackson's presidency is rightly seen as the true beginning of modern American democracy. And Jackson's campaign for President was the first presidential campaign that appealed directly to the voters and not simply to party elites. Jackson's campaign was organized by Martin van Buren (who later served as his Vice President and thereafter as President). Van Buren was one of the original machine politicians from New York who created the machine concept Boss William Tweed would perfect later in the century at Tammany Hall. What Van Buren did for Jackson was to organize a campaign aimed at the people. This cost money. And what he and Jackson did was to raise money from those who were seeking jobs in the government. This was the beginning of the spoils system, whereby political campaigns were funded by current and prospective government employees; these employees in turn expected to be rewarded with jobs once their candidate won the election.
4. The spoils system lasted until the passage of the Pendleton Act, in 1883, which inaugurates the fourth stage of the development of campaign finance. The Pendleton Act professionalized the Federal Civil Service, instituting an exam for entry into the service and outlawing the Spoils system. The result was that campaign funds from federal officeholders dried up, and politicians needed new sources of funds. The obvious sources were wealthy individuals and corporations. And oh boy did corporations jump into the breach. By the late 19th century, the government was giving grants of land and cash to corporations, and in return the corporations were generously funding political campaigns. In 1888 40%, of Republican national campaign funds came from Pennsylvania manufacturing and business interests. By 1904, 73% of Teddy Roosevelt's presidential campaign funds were raised from corporate contributions. (I take these numbers from Bradley Smith). The age of corporate funded campaigns was here, and it has never left.
5. Once he was elected, Teddy Roosevelt made it a priority to reform the broken campaign financing system that he had exploited so well. With his support, Congress passed the Tillman Act in 1907, which made illegal all campaign contributions from corporations. The Tillman Act opens the Fifth stage of the development of Campaign Finance Reform in the United States.
While the Tillman Act carried penalties for its violation, it instituted no enforcement mechanism. The result is that not much changed. To take only one legendary example, in 1968 and 1972 Clement Stone contributed up to $10 million to President Richard Nixon's Presidential campaigns. Stone's contributions caused a scandal that, together with the outrage over Watergate, led Congress to finally institute a serious attempt at campaign finance reform.
6. The key moment of modern campaign finance reform is the passage of the Federal Election Campaign Act (FECA) in 1974, and the Supreme Court's partial upholding and partial overturning of that law in Buckley v. Valeo in 1976. In the wake of Watergate and the loss of trust in government, the Congress passed FECA which: limited individual contributions to individual candidates to $1,000; limited the amount candidates could spend on a campaign; established a system of public financing of campaigns that required a voluntary limit on campaign expenditures; required that candidates, parties, PACs and groups engaging in express advocacy disclose their fund-raising and spending; and created the Federal Elections Commission, to regulate and enforce the new rules.
In a landmark decision that still controls all legal approaches to the regulation of campaign financing, the Supreme Court in Buckley v. Valeo upheld the disclosure requirement and the limits on individual contributions. It also upheld the limits on campaign spending when those limits were voluntary and in conjunction with the decision to accept public financing. But the Court struck down compulsory limits on spending both by individual candidates and by PACs and other groups. While the Court recognized that limits on campaign spending were a kind of censorship that limited the rights of people and corporations to speak about the most central political issues of the day, it also acknowledged "large contributions threaten the integrity of our system of representative democracy." Because large contributions, especially to individual candidates, at the very least appear to suggest a kind of quid pro quo corruption, the Court accepted that Congress has the right to censor such expressions of support. More general expenditures not given to or coordinated with a specific candidate were, the Court argued, not examples of the kind of corruption that would allow Congress to override the fundamental free speech interests of individuals and corporations who would want to influence the political debate. Thus, post-Buckley, the rule was: The Constitution limits censorship of political activity, political speech and political spending on campaigns. Any limit is censorship that violates the First Amendment. And yet the Court carved out One Narrow Exception: speech or activity that either is or gives the appearance of quid pro quo corruption could be regulated and banned.
In the aftermath of Buckley v. Valeo, money continued to pour into politics. Candidates and their supporters made use of "soft money," money given to political parties and other groups and thus not subject to the limits imposed on individual contributions to individual candidates. PACS began to bundle large sums of money that, while not individual contributions to candidates, nevertheless carried the tint of influence peddling. In the year 1993-94, the Democratic Party received $45 Million dollars in "soft money" and the Republic Party received $59 Million. By 1999-2000, the numbers were $92 Million and $244 Million respectively. In 2001-2002, the Democratic Party took in $200 Million and the Republicans $421 Million.
7. The failure of FECA to stem the tsunami of money in elections led Congress to try again, and in 2002 it passed the Bi-Partisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act—the seventh and until now final stage of the effort to regulate campaign finance in the United States. The main innovation of BRCA was to prohibit unlimited soft money contributions by corporations and unions. And it was this provision that was held to be unconstitutional by the Supreme Court in the now infamous case of Citizens United v. FEC.
The core of the Citizens United ruling was Justice Anthony Kennedy's argument that "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." For Kennedy, "The censorship we now confront is vast in its reach." What he means is that the law bans all those corporations—including large multinationals and also small mom and pop stores and even non-profit corporations—from expressing their views about political candidates for either 30 or 60 days leading up to 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." Here Kennedy channels Felix Frankfurter, who in the 1941 case of U.S. v.s. Congress of Industrial Organizations, wrote:
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.
U.S. v. C.I.O. dealt with the anti-Union Smith Act, which forbade unions and corporations from using treasury funds to pay for politicking. In this regard, the Smith Act was very much like 2002 Bipartisan Campaign Reform Act. While the majority of the Court refused to consider the Constitutional Question and decided the case on narrow grounds, Frankfurter did. In his telling, the Court must take seriously the evil that Congress sought to address: namely, the corruption of elections and federal officials by the expenditure of large masses of aggregated wealth. And yet, Frankfurter saw that "the claimed evil is not one unmixed with good." The expression of corporate or union speech in elections is, he writes, a good thing! "The expression of bloc sentiment has always been an integral part of our democratic and legislative processes." Replace "Labor unions" with "corporations." That is what Kennedy did.
-RB
Why and What You Should Know About the NDAA
On New Year’s Eve President Obama, despite serious reservations, signed into law a bill that has generated much controversy and charged rhetoric over the last few weeks. That annual bill, the National Defense Authorization Act, specifies the budget and expenditures for the Department of Defense. But the 2012 NDAA is not restricted to the technicalities of the budget. Embedded within the act, as carefully broken down by Glenn Greenwald in an article for Salon, are several sections enabling indefinite military detention without trial and expanding the scope of the War on Terror even further.
The section in question, “Subtitle D- Counterterrorism,” codifies the following:
- The indefinite detention, without trial, by the military and under military rather than civilian jurisdiction, of certain classes of persons;
- The persons covered by the Bill include not only persons who are part of terrorist groups, but also those who offer substantial support to terrorist groups, a vague standard that in recent cases has been applied to lawyers and human rights activists;
- U.S. Citizens are, in certain circumstances, also subject to indefinite detention by the military;
- The use of funds to build a facility in the US for Guantánamo detainees and the transferring of those detainees to the US for any reason is prohibited, rendering the closing of Gitmo impossible.
Some argue that the NDAA merely codifies detention authority that the administration and the military have already claimed, both in their actions and in the 2001 Authorization for Use of Military Force. This argument does hold some weight, particularly because the NDAA’s purposeful ambiguity, as well as Obama’s stated concern about “certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” makes it difficult to determine exactly how the provisions will be used.
But even if it is the case that the NDAA does not constitute a major change in policy (which Greenwald and others dispute), the fact that the NDAA’s provisions put the legislative weight of Congress behind such policy is no small tragedy. From the ACLU to Human Rights Watch to Ron Paul (who called one of its earlier versions “a slip into tyranny”), the NDAA has been denounced for its frightening disregard for the rule of law and the US Constitution. ACLU’s executive director, Anthony D. Romero, had particularly strong words about the bill’s signing:
President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law…We are incredibly disappointed that President Obama signed this new bill into law even though his administration has already claimed overly broad detention authority in court. Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.
Sadly, what is clear is that the NDAA further entrenches what was already unjust and legally questionable policy. The fact that the bill passed both the Senate and the House, as well as avoided a presidential veto, is unfortunately not a testament to its validity or harmlessness, but to just how much compromising of constitutional values we’ve let ourselves swallow.
The NDAA is the latest manifestation of the crisis mentality that has gripped Washington since the so-called War on Terror began. It seems that we are living in a chronic state of emergency, in which a policy as un-American as indefinite detention is justified simply by claiming that it is keeping us safe. As Elaine Scarry writes in her recent book Thinking in an Emergency, there is an unspoken presumption in times of emergency that either one can think or one can act. We bypass deliberation exactly when it becomes most necessary. Arendt agreed, believing that in exceptional times deliberation and judgment must come to the forefront in all political matters. For her, the faculty of judgment is not the ability to know right and wrong abstractly, but the ability to tell right from wrong, in a given situation.
In the case of NDAA, Congress has washed its hands of its responsibility to think, to determine what is right and wrong in this War of Terror. Instead Congress and the President have handed off authority to the military to use as it sees fit, taking refuge in the bill’s ambiguous phrasing to avoid having to take a real stand. In their unwillingness to say, in law, that indefinite detention is wrong, our politicians have made what was an implicit policy an explicit statement: this is what America does.
You can read Glenn Greenwald’s article here, the ACLU’s statement here, and Obama’s written statement on the detention provisions here.
-Anna Hadfield
Representation in Absentia-Jeffrey Champlin
“Political thought is representative. I form an opinion by considering a given issue from different viewpoints, by making present to my mind the standpoint of those who are absent; that is, I represent them.”
-Hannah Arendt, “Truth and Politics,” Between Past and Future
When Arendt first refers to political representation, we might think we are on familiar ground. After all, the question of how to move from the citizen to the representative was a vexing problem for the founders of the United States, one that resulted in the creation of the House of Representatives and Senate. The Great Compromise was a way of balancing the representation of small and large states, and the troubling Three-Fifths Compromise sought to guarantee representation to the southern states while preserving slavery. Today, the debate over the influence of lobbyists, political donations, and corporate personhood speaks to a renewed concern over how politicians can best represent the interests of voters.
Arendt does address questions of political representation of this sort in her detailed examination of the move from the late colonial period to the passage of the Constitution in On Revolution. In the above quote, she speaks of “political thought” in terms of the mental process of an individual—one who asks himself, "what would others who are absent think?" Moving from the objective statement of the first sentence to the subjective “I” of the second, she performs what she explains, bringing us inside the mind of someone who thinks through representation. The political subject does not hold on to essential or deeply rooted beliefs, but instead considers one position and then another. One might think of a sequence in a movie that switches between subjective angles, showing how a number of characters view a scene without ever moving back to an objective angle that shows them from outside. The effort of representative thinking is, first, to think from as many viewpoints as possible. This is, at least in part, what Arendt means by "enlarged thinking."
It is important to emphasize that representation does not simply repeat or copy the multiple points of view of others. One does not, for example, ask others what they think and then consider it. Instead, she says those to whom the standpoint belongs are “are absent.” Since they are not there, a space opens in which I can create a version of their view in my mind.
Rather than re-presentation in the strict sense, it is a matter of creatively presenting. In representing all of those who are absent, I must then seek to make a judgment and judge what opinion all of those people would and should share. In such a way, political thought, as representational thought, requires that I make judgments about what all people should agree upon.
From here we would want to move to a careful study of Arendt’s claim that Kant’s aesthetic third Critique, the Critique of Judgment, has important political implications that Kant himself never recognized. A condensed version of this argument in Between Past and Future speaks of "wooing," or persuading, others from one's individual position. An example might be drawn from the Occupy Wall Street movement, which has gained attention in part as a platform for individual stories about injustice. From an Arendtian point of view, the success of the movement would depend on making personal insights universal by imaginatively listening to others. In this way, one does not merely tell of one's own experience but represents the truth. Of course, to speak of representing the truth here requires that we guard against traditional prejudices. For Arendt the truth and the universal are not pre-given but constructed through action an not eternal but rather exist for a determinite period of time.
-Jeffrey Champlin
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