**This post was originally published on November 15, 2013**
It is now more than 50 years since Hannah Arendt published Eichmann in Jerusalem. It is neither her best nor her most important book, yet it does contain essential and important insights. Above all, it offers us the example of a man who, as Arendt saw and understood him, moved fairly seamlessly from being an anti-Semite to a genocidal murderer. Arendt asked: How is it that Eichmann and others like him morphed so easily from an anti-Semite to a mass murderer?
Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.
Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:
The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation? In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations. Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.
It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:
Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.
Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.
The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.
Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:
The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.
Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:
But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.
The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.
Indeed my opinion now is that evil is never “radical,” that it is only extreme, and that it possesses neither depth nor any demonic dimension. It can overgrow and lay waste the whole world precisely because it spreads like a fungus over the surface. It is ‘thought-defying,’ as I said, because thought tries to reach some depth, to go to the roots, and the moment it concerns itself with evil, it is frustrated because there is nothing.
-Hannah Arendt, letter to Gershom Scholem
Recent commentators have marked the 50th anniversary of Stanley Kubrick’s bleak nuclear satire, Dr. Strangelove, by noting that the film contained quite a bit more reality than we had thought. While national security and military officials at the time scoffed at the film’s farfetched depictions of a nuclear holocaust set off by a crazed general, we now know that such an unthinkable event would have been, at least theoretically, entirely possible. Yet there is another, deeper sense in which Kubrick’s satire puts us in touch with a reality that could not be readily depicted through other means.
The film tells the story of a rogue general who, at the height of the Cold War arms race, launches a nuclear attack that cannot be recalled, which leads to the destruction of most of humanity in a nuclear holocaust. These are events that we would conventionally describe as “tragic,” but the film is no tragedy. Why not? One answer, of course, is the comic, satirical touch with which Kubrick treated the material, his use of Peter Sellers to play three different characters, and his method of actually tricking his actors into playing their roles more ridiculously than they would have otherwise. But in a deeper sense, Stranglove is about the loss of a capacity for the tragic. The characters, absorbed in utter banalities as they hurtle toward collective catastrophe, display no real grasp of the moral reality of their actions, because they’ve lost contact with the moral reality of the world they share. Dr. Strangelove, then, is a satire about the impossibility of tragedy.
In order to think about what this might mean, it’s helpful to turn to the idea, famously invoked by Hannah Arendt at the end of Eichmann in Jerusalem, of the banality of evil. As Arendt stressed in a later essay, the banality of evil is not a theory or a doctrine “but something quite factual, the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology, or ideological conviction in the doer, whose only personal distinction was perhaps extraordinary shallowness.” Eichmann was no villainous monster or demon; rather, he was “terrifyingly normal,” and his chief characteristic was “not stupidity but a curious, quite authentic inability to think.” The inability to think has nothing to do with the capacity of strategizing, performing instrumental calculations, or “reckoning with consequences,” as Hobbes put it. Rather, thinking has to do with awakening the inner dialogue involved in all consciousness, the questioning of the self by the self, which Arendt says dissolves all certainties and examines anew all accepted dogmas and values.
According to Arendt, the socially recognized function of “clichés, stock phrases, adherence to conventional, standardized codes of expression and conduct” is to “protect us against reality”; their function is to protect us against the claim that reality makes on our thinking. This claim, which awakens the dissolving powers of thought, can be so destabilizing that we all must inure ourselves to some degree against it, so that ordinary life can go on at all. What characterized Eichmann is that “he clearly knew of no such claim at all.” Eichmann’s absorption in instrumental and strategic problem solving, on the one hand, and clichés and empty platitudes on the other, was total. The absence of thought, and with it the absence of judgment, ensured a total lack of contact with the moral reality of his actions. Hence the “banality” of his evil resides not in the enormity of the consequences of his actions, but in the depthless opacity of the perpetrator.
The characters in Dr. Strangelove are banal in precisely this sense. All of them—from the affable, hapless president, the red-blooded general, the vodka-swilling diplomat, the self-interested advisors and Dr. Strangelove himself—are silly cardboard cutouts, superficial stereotypes of characters that any lack depth, self-reflection or the capacity for communicating anything other than empty clichés. They are missing what Arendt called “the activity of thinking as such, the habit of examining and reflecting upon whatever happens to come to pass, regardless of specific content and quite independent of results…” They also lack any contact with the moral reality of their activity. All of their actions takes place in an increasingly claustrophobic series of confined spaces carefully sealed off by design: the war room, the military base, the bomber cockpit. The world—Arendt’s common world of appearances that constitutes the possibility of narrative and story telling—never appears at all; reality cannot break through.
The presence of some of Arendt’s core themes in Kubrick’s film should not come as a surprise. Although she dedicated very little attention in her published works to the problem of nuclear war, in an early draft of a text that would later become The Human Condition, Arendt claimed that two experiences of the 20th century, “totalitarianism and the atomic bomb – ignite the question about the meaning of politics in our time. They are fundamental experiences of our age, and if we ignore them it is as if we never lived in the world that is our world.” Moreover, the culmination of strategic statecraft in social scientific doctrines mandating the nuclear arms race reflects on some of the core themes Arendt identified with political modernity: the emergence of a conception of politics as a strategic use of violence for the purposes of protecting society.
Niccolò Machiavelli, a thinker for whom Arendt had a lot of admiration, helped inaugurate this modern adventure of strategic statecraft by reframing politics as l’arte della stato – the art of the state, which unlike the internal civic space of the republic, always finds itself intervening within an instrumental economy of violence. For Machiavelli the prince, shedding the persona of Ciceronian humanism, must be willing to become beastly, animal-like, to discover the virtues of the vir virtutis in the animal nature of the lion and the fox. If political modernity is inaugurated by Machiavelli’s image of the centaur, the Prince-becoming-beastly, Strangelove closes with a suitable 20th century corollary to the career of modern statecraft. It is the image of the amiable, good-natured “pilot” who never steers the machines he occupies but is himself steered by them, finally straddling and literally transforming himself into the Bomb. It is an image that, in our own age of remote drone warfare and the possible dawning of a new, not yet fully conceivable epoch of post-human violence, has not lost its power to provoke reflection.
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.