In the most recent NY Review of Books, David Cole wonders if we've reached the point of no return on the issue of privacy:
“Reviewing seven years of the NSA amassing comprehensive records on every American’s every phone call, the board identified only one case in which the program actually identified an unknown terrorist suspect. And that case involved not an act or even an attempted act of terrorism, but merely a young man who was trying to send money to Al-Shabaab, an organization in Somalia. If that’s all the NSA can show for a program that requires all of us to turn over to the government the records of our every phone call, is it really worth it?”
Cole is beyond convincing in listing the dangers to privacy in the new national security state. Like many others in the media, he speaks the language of necessary trade-offs involved in living in a dangerous world, but suggests we are trading away too much and getting back too little in return. He warns that if we are not careful, privacy will disappear. He is right.
What is often forgotten and is absent in Cole’s narrative is that most people—at least in practice—simply don’t care that much about privacy. Whether snoopers promise security or better-targeted advertisements, we are willing to open up our inner worlds for the price of convenience. If we are to save privacy, the first step is articulating what it is about privacy that makes it worth saving.
Cole simply assumes the value of privacy and doesn’t address the benefits of privacy until his final paragraph. When he does come to explaining why privacy is important, he invokes popular culture dystopias to suggest the horror of a world without privacy:
More broadly, all three branches of government—and the American public—need to take up the challenge of how to preserve privacy in the information age. George Orwell’s 1984, Ray Bradbury’s Fahrenheit 451, and Philip K. Dick’s The Minority Report all vividly portrayed worlds without privacy. They are not worlds in which any of us would want to live. The threat is no longer a matter of science fiction. It’s here. And as both reports eloquently attest, unless we adapt our laws to address the ever-advancing technology that increasingly consumes us, it will consume our privacy, too.
There are two problems with such fear mongering in defense of privacy. The first is that these dystopias seem too distant. Most of us don’t experience the violations of our privacy by the government or by Facebook as intrusions. The second is that on a daily basis the fact that my phone knows where I am and that in a pinch the government could locate me is pretty convenient. These dystopian visions can appear not so dystopian.
Most writing about privacy simply assume that privacy is important. We are treated to myriad descriptions of the way privacy is violated. The intent is to shock us. But rarely are people shocked enough to actually respond in ways that protect the privacy they often say that they cherish. We have collectively come to see privacy as a romantic notion, a long-forgotten idle, exotic and even titillating in its possibilities, but ultimately irrelevant in our lives.
There is, of course, a reason why so many advocates of privacy don’t articulate a meaningful defense of privacy: It is because to defend privacy means to defend a rich and varied sphere of difference and plurality, the right and importance of people actually holding opinions divergent from one’s own. In an age of political correctness and ideological conformism, privacy sounds good in principle but is less welcome in practice when those we disagree with assert privacy rights. Thus many who defend privacy do so only in the abstract.
When it comes to actually allowing individuals to raise their children according to their religious or racial beliefs or when the question is whether people can marry whomever they want, defenders of privacy often turn tail and insist that some opinions and some practices must be prohibited. Over and over today, advocates of privacy show that they value an orderly, safe, and respectful public realm and that they are willing to abandon privacy in the name of security and a broad conception of civility according to which no one should have to encounter opinions and acts that give them offense.
The only major thinker of the last 100 years who insisted fully and consistently on the crucial importance of a rich and vibrant private realm is Hannah Arendt. Privacy, Arendt argues, is essential because it is what allows individuals to emerge as unique persons in the world. The private realm is the realm of “exclusiveness,” it is that realm in which we “choose those with whom we wish to spend our lives, personal friends and those we love.” The private choices we make are guided by nothing objective or knowable, “but strikes, inexplicably and unerringly, at one person in his uniqueness, his unlikeness to all other people we know.” Privacy is controversial because the “rules of uniqueness and exclusiveness are, and always will be, in conflict with the standards of society.” Arendt’s defense of mixed marriages (and by extension gay marriages) proceeds—no less than her defense of the right of parents to educate their children in single-sex or segregated schools—from her conviction that the uniqueness and distinction of private lives need to be respected and protected.
Privacy, for Arendt, is connected to the “sanctity of the hearth” and thus to the idea of private property. Indeed, property itself is respected not on economic grounds, but because “without owning a house a man could not participate in the affairs of the world because he had no location in it which was properly his own.” Property guarantees privacy because it enforces a boundary line, “ kind of no man’s land between the private and the public, sheltering and protecting both.” In private, behind the four walls of house and heath, the “sacredness of the hidden” protects men from the conformist expectations of the social and political worlds.
In private, shaded from the conformity of societal opinions as well from the demands of the public world, we can grow in our own way and develop our own idiosyncratic character. Because we are hidden, “man does not know where he comes from when he is born and where he goes when he dies.” This essential darkness of privacy gives flight to our uniqueness, our freedom to be different. It is privacy, in other words, that we become who we are. What this means is that without privacy there can be no meaningful difference. The political importance of privacy is that privacy is what guarantees difference and thus plurality in the public world.
Arendt develops her thinking on privacy most explicitly in her essays on education. Education must perform two seemingly contradictory functions. First, education leads a young person into the public world, introducing them and acclimating them to the traditions, public language, and common sense that precede him. Second, education must also guard the child against the world, care for the child so that “nothing destructive may happen to him from the world.” The child, to be protected against the destructive onslaught of the world, needs the privacy that has its “traditional place” in the family.
Because the child must be protected against the world, his traditional place is in the family, whose adult members return back from the outside world and withdraw into the security of private life within four walls. These four walls, within which people’s private family life is lived, constitute a shield against the world and specifically against the public aspect of the world. This holds good not only for the life of childhood but for human life in general…Everything that lives, not vegetative life alone, emerges from darkness and, however, strong its natural tendency to thrust itself into the light, it nevertheless needs the security of darkness to grow at all.
The public world is unforgiving. It can be cold and hard. All persons count equally in public, and little if any allowance is made for individual hardships or the bonds of friendship and love. Only in privacy, Arendt argues, can individuals emerge as unique individuals who can then leave the private realm to engage the political sphere as confident, self-thinking, and independent citizens.
The political import of Arendt’s defense of privacy is that privacy is what allows for meaningful plurality and differences that prevent one mass movement, one idea, or one opinion from imposing itself throughout society. Just as Arendt valued the constitutional federalism in the American Constitution because it multiplied power sources through the many state and local governments in the United States, so did she too value privacy because it nurtures meaningfully different and even opposed opinions, customs, and faiths. She defends the regional differences in the United States as important and even necessary to preserve the constitutional structure of dispersed power that she saw as the great bulwark of freedom against the tyranny of the majority. In other words, Arendt saw privacy as the foundation not only of private eccentricity, but also of political freedom.
Cole offers a clear-sighted account of the ways that government is impinging on privacy. It is essential reading and it is your weekend read.
Justice Kennedy’s majority opinion in United States v. Windsor did much more than declare unconstitutional section 3 of the Defense of Marriage Act. It did more than affirm the right of states to allow gay marriage; it went beyond insisting that the Federal Government must recognize those lawful unions. Kennedy’s opinion, as Justice Scalia sees clearly and Justice Roberts strives futilely to deny, argues forcefully that depriving gay people of the right to marry is an affront to their basic human dignity. In making this argument, Kennedy opens two doors. First, he signals that the same 5-4 majority might very well uphold a challenge to those presently existing state laws that deny gay people the right to marry. He also takes one more step in the evolution of dignity as a meaningful legal ideal.
Justice Kennedy invokes the word “dignity” 11 times in his short majority opinion. When states recognize the validity of same-sex marriages, as New York does, they confer dignity on that personal and enduring bond.
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas. By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.
The marital status, Kennedy continues, “is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” To recognize same-sex marriages as New York and other states have done is to dignify same-sex unions.
Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
The converse of such dignified recognition is, of course, the denial of dignity when same-sex marriages are not affirmed. The Defense of Marriage Act, or DOMA, “seeks to injure the very class New York seeks to protect.” The injury is understood in a few ways. First, it denies gay people the equal protection of the laws:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
But Kennedy goes far beyond the claim that DOMA violates equal protection. He adds that the Defense of Marriage Act is a violation of dignity.
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
Kennedy’s statement should be obvious, and to bring the point home he elaborates on the indignity of DOMA. The statute
humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Kennedy’s reasoning here is hard to limit to simply those states that have passed laws legalizing gay marriage. The point is that gay couples across the country are living together and raising children in matrimony. If marriage confers dignity on the act of living together and raising a family, than the denial of marriage is a denial of dignity. It does seem likely that Kennedy’s opinion signals that the Court is ready to invalidate state laws prohibiting gay marriage. What is undeniable is that Kennedy’s opinion is another step in the introduction of dignity as a meaningful idea in U.S. Constitutional law.
Justice Kennedy’s decision in United States v. Windsor is well worth reading. You can skip section II, which addresses technical legal questions of standing. The rest, however, is compelling reading. There are few legal decisions to really celebrate these days. This is one that merits attention. It is your weekend read.
The re-election of Barack Obama is a milestone. Barack Obama will always be remembered as the first black President of the United States. He will now also be remembered as the first black two-term President, one who was re-elected in spite of nearly 8% unemployment and a feeling of deep unease in society. He is the black President who was re-elected because he seemed, to most Americans, more presidential, more trustworthy, and more likable than his opponent—a white, Mormon, representative of the business elite. Whatever you want to say about this election, it is difficult to deny that the racial politics of the United States have now changed.
President Obama's re-election victory and his distinguished service have made the country a better place. The dream of America as a land of equality and the dream that our people will not be judged by the color of their skin but by the content of their character—these dreams, while not realized, are closer to being realized today because of Barack Obama's presidency and his re-election.
There are some who don't see it that way. There is a map going around comparing the 2012 electoral college vote to the civil war map. It is striking, and it shows with pictorial clarity, that the Republic strongholds today are nearly identically matched with the states of the Confederacy 150 years ago. For some, this is an indictment not only of the Republican Party, but also of the United States. The argument made on Facebook and beyond is that the country is still deeply divided racially; that this election brought out the deep-seated racism underlying the country.
There is also the fact that Twitter apparently was awash in profoundly racist commentary after the election. According to the blog Floating Sheep, the worst of the racist commentary was concentrated in states that Mitt Romney won. Mississippi and Alabama were the states with the largest number of racist tweets on election night.
This could be evidence of a real racial problem. But I don't see it that way. Of course there are some people who are less trusting of a black President. But around the country, voters approved gay marriage, Latinos voted in record numbers, women swept into office, and we re-elected a black President to a second term. To see this election as a confirmation of racist intransigence is overly pessimistic.
Yes, Mitt Romney won the white vote, but he received 59% of the white vote; not exactly a landslide given that the country has real problems. Among white voters over 65, Romney received 61% of the vote. But among white voters under 29, he received only 51% of the vote, a sure sign of things to come. And the white vote was only 72% of the national vote, a record low. As David Simon writes in "Barack Obama and the Death of Normal":
The country is changing. And this may be the last election in which anyone but a fool tries to play — on a national level, at least — the cards of racial exclusion, of immigrant fear, of the patronization of women and hegemony over their bodies, of self-righteous discrimination against homosexuals. ... This election marks a moment in which the racial and social hierarchy of America is upended forever. No longer will it mean more politically to be a white male than to be anything else. Evolve, or don’t. Swallow your resentments, or don’t. But the votes are going to be counted, more of them with each election. Arizona will soon be in play. And in a few cycles, even Texas. And those wishing to hold national office in these United States will find it increasingly useless to argue for normal, to attempt to play one minority against each other, to turn pluralities against the feared “other” of gays, or blacks, or immigrants, or, incredibly in this election cycle, our very wives and lovers and daughters, fellow citizens who demand to control their own bodies.
This is all good news.
And yet, we should not celebrate too loudly. Race still matters in these United States. How it does and why is changing, and will continue to change.
Amidst the progress, one fact remains stubbornly true: black Americans still lag behind white Americans in metrics of education, employment, income, and success. Nearly 5% of black men are in prison in the United States, compared to 1.8% of Hispanic men and .7% of white men.
More than 70% of babies born to black mothers are born out-of-wedlock. When looked at honestly, the problem with race in this country remains stark. It is too big a problem to be swept under the carpet.
And yet that is what is happening. The Obama Presidency has not been kind to blacks. Here is how Frederick C. Harris puts it in the New York Times before the election:
[F]or those who had seen in President Obama’s election the culmination of four centuries of black hopes and aspirations and the realization of the Rev. Dr. Martin Luther King Jr.’s vision of a “beloved community,” the last four years must be reckoned a disappointment. Whether it ends in 2013 or 2017, the Obama presidency has already marked the decline, rather than the pinnacle, of a political vision centered on challenging racial inequality. The tragedy is that black elites — from intellectuals and civil rights leaders to politicians and clergy members — have acquiesced to this decline, seeing it as the necessary price for the pride and satisfaction of having a black family in the White House.
Walter Russell Mead makes a similar point in a rich essay published in The American Interest over the summer. He writes:
Many hoped that the election of the first African-American President of the United States meant a decisive turn in the long and troubled history of race relations in the United States. And indeed President Obama’s election was a signal success for the American racial settlement of the 1970s. But at the moment of its greatest success, that settlement—call it the Compromise of 1977—was beginning to unravel, as evidenced by the fact that President Obama’s nearly four years in office to date have witnessed decades of economic progress and rising political power in black America shifting into reverse.
The housing bubble and its crash have disproportionately impacted black and Latino Americans, who most recently achieved the dream of home ownership. And the loss of jobs in manufacturing and public unions have disproportionately impacted blacks, since these were important routes through which black Americans have entered the middle class. The results for blacks in this country are harrowing. As Mead reports:
Black unemployment under President Obama hit 16.2 percent (June 2011). The median net worth of black households collapsed, falling by 59 percent between 2005 and 2010, wiping out twenty years of progress and plunging to levels not seen since Ronald Reagan’s first term. By comparison, the net worth of white households only fell by 18 percent from 2005 to 2010. The gap between black and white net worth doubled during the Great Recession, and the “wealth gap” between the races rose; the median white household had 22 times the net worth of the median black household. Moreover, the damage to black prospects will not soon be repaired. Indeed, if we now (as seems likely) face a prolonged period of austerity and restructuring in government, there will be fewer job openings and stagnant or falling wages and benefits in the middle-class occupations where blacks have enjoyed the greatest success.
What is more, those national statistics like unemployment, exclude inmates in our nation's penitentiaries. Were we to add the 5% of black men in prison into those cumulative statistics, the situation would look even more perilous.
Mead's essay, The Last Compromise, is essential reading. He argues that race relations in America are marked by three main historical compromises. The first compromise, in 1787, is well known. Including the counting of slaves as three fifths of a citizen and the granting of slave states equal representation in the Senate, this original compromise allowed the country to emerge as a democracy without dealing with the obvious scar of slavery.
The Civil War led to what Mead calls the second major compromise on Race that moved the nation forward without actually granting rights to blacks. In the compromise of 1877,
the white South accepted the results of the Civil War, acknowledging that slavery, secession and the quest for sectional equality were all at an end. The South would live peacefully and ultimately patriotically in a union dominated by Northern capitalists. White Southerners might complain about Northern banks and plutocrats (and they did for decades), but they would not take up arms. For its part, the North agreed to ignore some inconvenient constitutional amendments of the Reconstruction period, allowing each Southern state to manage race relations as its white voters saw fit. In particular, the North allowed the South to deny blacks the vote while counting them for representational purposes.
As Mead writes, this compromise was a disaster for blacks. And yet, there was some progress. Denied the vote and made second-class citizens in much of the country, and faced with continued violence and oppression, blacks could, nevertheless, work to create a small and thriving middle class.
The compromise of 1877 last about 100 years until, in the midst of the Civil Rights Movement, a new compromise emerged. This compromise of 1977 brought with it desegregation of public institutions, affirmative action, the entry of blacks into government and civil service, voting rights, and the chance for success. But it came with a dark side. As Mead summarizes:
At its core, the compromise offered blacks unprecedented economic opportunity and social equality, but it also allowed for the stern and unrelenting repression of inner-city lawlessness and crime. Blacks who were ready, willing and able to participate in the American system found an open door and a favoring wind; blacks who for whatever reason were unable or unwilling to “play by the rules” faced long terms in prisons where gang violence and rape were routine.
The election of President Obama shows the promise and the limits of our current state of race relations. On the one hand, black Americans in the middle and upper classes live in a society that if it is not color blind, is at least open to success, entrepreneurship, and leadership by black Americans. On the other hand, the misery of the black poor continues, largely invisible. This is not simply a racial matter, since it is poverty in general, and not only black poverty, that is ignored. There are many impoverished white people. But it would be dishonest to deny the racial components of poverty.
The 2012 election is a milestone. It proves that 2008 was not a fluke, and it shows that most of the United States will vote for the candidate they feel is better, no matter that candidate's race. This is an enormous achievement and one to celebrate. In many ways the future looks bright. But that is no excuse to refuse an honest confrontation of the problems many black Americans continue to have. President Obama has largely avoided the issue of race, for obvious reasons. It is time to insist that we bring the issue to light.
One good way to begin is to read The Last Compromise by Walter Russell Mead. It is well worth the price of subscription to The American Interest. It is your weekend read.
A German Court this week declared that circumcision is illegal. The court decided that the time immemorial Jewish law—the mark of a Jewish boy's covenant with God—is an inhumane act that does "grievous bodily harm" to young Jews and Muslims (the case actually originated when the parents of a four-year-old Muslim boy had him circumcised). But the Court's ruling went further. According to Der Spiegel:
The court ruled that the child's right to physical integrity is more important than the parent's basic rights. The ruling stated that a mother's or father's right to freedom of religion as well as their right to determining how they raise their child would not be limited if they were forced to wait and allow their child to decide for himself if he wanted to be circumcised. The ruling states a child's right to self-determination should come first.
The regional court in Cologne, Germany, held that the "fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents." You can read about the decision here.
This is an amazing decision for many reasons, not the least of which is that a court in Germany has basically said that Jewish and Muslim families do not have a right to practice their religious obligations, which for Jews include the requirement of circumcision as a mark of their covenant with God. A Jewish father who does not circumcise his son on the 8th day after birth is in violation of basic Jewish commandments. This prohibition on what is a fundamental matter of Jewish law and practice is especially shocking given Germany's history.
The blogosphere has erupted over the anti-Jewish and anti-Muslim implications of the decision, even as the U.S. mainstream press has ignored it. You can find a helpful and typically smart recap of the dispute over at ViaMeadia.
Beyond the questions of antisemitism and Islamophobia, the decision to outlaw circumcision reveals the frequently overlooked conflict between human rights and the basic rights of privacy. The German court's decision imagines the parental rights to practice religion as a right to privacy—to determine how to raise their child. Against this right it balances the child's human right to bodily integrity. And the court decides the matter on the side of human rights over the right of privacy.
This conflict between human rights and privacy recalls Hannah Arendt's essay "Reflections on Little Rock." Arendt's essay on the school desegregation controversy has been roundly criticized. It has been less well understood. Arendt's argument against forced-federal desegregation turns on her worry about the private realm. She makes four arguments:
1. Arendt is in favor of politically invalidating all laws supporting segregation.
2. She is against forced desegregation of social discrimination that in places such as vacation spots, which she argues are not relevant to the public life. In such spaces, integration may be desirable, but it is not publicly necessary.
3. She supports forced desegregation of social worlds that are publicly necessary (buses and hotels in business districts). Schools would of course usually fit here.
4. But Arendt is against forced integration of schools. Schools are different. Why? Because education is a question of how a parent raises his or her children, and this is the quintessential private right.
Arendt's rejection of forced school integration was not based on a social defense of all discrimination since she clearly thinks that some kinds of discrimination are subject to forced integration. Instead, her rejection of forced school integration is based on her insistence on the need to preserve private rights. For many, her argument does not take seriously enough the public role of education. But Arendt insisted that education must be seen as part of the private sphere.
For Arendt, there is no more basic private right than the right to raise one's children as one sees fit. Since education of one's children is the quintessential private right, Arendt reasons that to deprive people of such a right is to eradicate the very idea of an inviolable sphere of the private realm. If we can tell people how to educate their children, what can't we tell them about how to live their private lives?
Arendt clearly understands education as a private practice. It is in this sense similar to the rights of religious practice and circumcision that, likewise, go to the fundamental authority of parents to raise their children as they see fit. It is important to be vigilant against the rise of antisemitism and Islamophobia, and those who have been critical of the German Court's decision are right. But there is a more pressing threat that this decision raises, which is the desire to continually restrict or eviscerate the realm of the private in the name of humane and efficient regulation.
Private rights are deeply important. It is in the private realm where young people grow up and are led into the world by parents, teachers, and friends. If we value plurality, difference, and individuality, it is essential that we protect the private realm—that world in which individuals are formed in their singularity and uniqueness. As well meaning as human rights advocates may be, they are antagonistic to the private realm. They will forever seek to impose a world of humane conformity at the expense of the singularity suffering. This is the tension that Arendt provokes us to consider.
It is in such conflicts between the private and the social realms that Arendt takes her stand against the social conformity of the regulatory state. She makes fine distinctions that are too frequently overlooked. Thus, she defends the absolute right of mixed marriage (and also by extension gay marriage) as important rights to live privately and uniquely—since these are rights to live privately as one wishes. It is justified for the federal government to overturn discriminatory anti-miscegenation laws. She rejects federal intervention to combat discrimination in vacation spots, but supports such a federal role in matters of buses, hotels and business districts. But she would surely not defend the federal imposition of the right to bodily integrity when it interferes with the right to raise one's child as one wants.
Reading Arendt reminds us that the real controversy in the German Court's decision is less about antisemitism (although it is about that too) and more about the danger that a human rights agenda seeking to eradicate suffering poses to freedom and meaningful difference. It is easy (and right) to get riled up about antisemitism. It is also fairly easy (and right) to speak up for the right to circumcise one's children for religious reasons. What is more difficult, and thus even more necessary, is defending private and often unpopular uniqueness from the social conformism of those who would eradicate suffering in the name of human rights.
There is no more clear-headed articulations of the need for a private sphere of uniqueness than Hannah Arendt's essay "Reflections on Little Rock." It is, this fourth of July weekend, your weekend read.