By Peter Baehr
“I do not doubt that in the very long run, the whole of Asia will fall under Chinese influence but not necessarily under Chinese domination.”
-- Hannah Arendt, Between Friends: The Correspondence of Hannah Arendt and Mary McCarthy 1949-1975
The People’s Republic of China (PRC) is fertile territory for Arendt scholars. But, as President Xi Jinping visits the United States this week, where are they? Students of Arendt are acute observers of unfolding refugee crises, human rights abuses, ethnic cleansing and a myriad of other ills. China, on the other hand, has almost entirely escaped their notice. No one can claim it is not visible.
Ernst Cassirer is an oft-neglected thinker in contemporary continental philosophy. He is typically eclipsed by Martin Heidegger, whom he faced in the now famous disputation at Davos, Switzerland in the spring of 1929, which had such a dramatic effect on continental philosophy that the young Emmanuel Levinas, who attended the debate, felt as if he were "present at the creation and end of the world". In spite of Cassirer's attempt to make his three-volume Philosophie der symbolischen Formen (1923-1929) more accessible to an English speaking audience through a concise redaction in An Essay on Man (1944), he remains a marginal figure in contemporary philosophy.
However, Ned Curthoys, a researcher at the Australian National University's School of Cultural Inquiry, has recently recovered a latent conversation between Cassirer and Hannah Arendt that casts new light on the impact and significance of his work.
Arendt's vigorous annotations in her copy of Cassirer's An Essay on Man indicate that she was a diligent and consistent reader of Cassirer. Her personal library housed in the Arendt Collection at Bard College contains over a dozen titles by Cassirer. Most Cassirer’s works in Arendt's personal library contain heavy annotations and marginalia, which suggest a critical and substantive engagement with Cassirer's work. Although Arendt's references to Cassirer in her major works are sparse—once in her essay "The Concept of History: Ancient and Modern" in Between Past and Future, and four times in The Human Condition—it is clear that Cassirer had an influence on Arendt's postwar writings. The question is: What was the extent of this influence?
Curthoys has recently taken up this question and offers a persuasive argument that Arendt's philosophy of history and her philosophical anthropology were shaped significantly by her reading of Cassirer. Curthoys' early essays on Arendt explored the political significance of narrative in her work and her use of "thought-figures," like Charlie Chaplin, Franz Kafka, Karl Jaspers, Walter Benjamin, and Isak Dinesen, all of whom attempted to subvert the authoritative discourses of their times by means of counter-narratives. Curthoys discerns the marks of a German émigré consciousness in Arendt's postwar writings that suggests an intellectual dialogue with other German émigrés like Karl Jaspers, Walter Benjamin, and Ernst Cassirer. He foregrounds Arendt's status as a conscious pariah and engages in a postcolonial reading of her work that highlights her development of a counter-narrative to the Eurocentric metanarratives of her age.
More recently, Curthoys has begun excavating a latent conversation between Arendt and Cassirer. In his essay, "The Pathos and Promise of Counter-History: Hannah Arendt and Ernst Cassirer's German-Jewish Historical Consciousness" (in Power, Judgment, and Political Evil,), Curthoys explores Arendt's philosophy of history, and argues that she found a "counter-history" in Walter Benjamin and Ernst Cassirer that allowed her to challenge the Eurocentric discourse on history that had rendered her an outsider, a pariah. It is precisely this location outside the dominant identities and political narratives of Europe, Curthoys avers, that served as Arendt's Ansatzpunkt, or starting point, and allowed her to engage in a recursive investigation of history.
What is most significant in this essay is Curthoys' claim that Arendt's engagement with Cassirer's "philosophy of symbolic forms" was instrumental in the development of her philosophy of history, and his suggestion that it led to her reconsider Cassirer's defense of neo-Kantianism in the Davos debate, a reconsideration that Curthoys sees as the impetus for Arendt's return to Kant in her final years. This engagement was not a wholesale adoption of Cassirer's approach to history, Curthoys argues, but a critical and creative renewal of his thought.
Curthoys has extended this exploration of the connection between Arendt and Cassirer in a subsequent article titled, "Ernst Cassirer, Hannah Arendt, and the Twentieth-Century Revival of Philosophical Anthropology." Curthoys argues that Arendt's focus on philosophical anthropology in The Human Condition, Men in Dark Times, The Life of the Mind, and her final lectures on Kant is the result of her ongoing critical engagement with Cassirer's work. At the heart of this article is Curthoys’ assertion that Cassirer's theory of symbolic forms is refracted in Arendt's notion of a common world. Cassirer had argued in his Philosophie der symbolischen Formen that human beings are symbolic animals that express themselves in systems of signs, which mediate reality in networks of meaning. These systems of signs take form in language, myth, religion, art, science, and history. Readers of Patchen Markell's "Arendt's Work: On the Architecture of The Human Condition" will recall his claim that "work" plays a mediating role, which resonates with Cassirer's notion of symbolic forms.
Curthoys' investigation and recovery of the intellectual conversation between Arendt and Cassirer is compelling, but more needs to be done to make this influence explicit. Curthoys' new book The Legacy of Liberal Judaism: Ernst Cassirer's and Hannah Arendt's Hidden Conversation (Forthcoming in September 2013, Berghahn Books) promises to offer more evidence for Arendt's creative development of Cassirer's thought. Curthoys' research opens up a new line of inquiry into the wider connections between Arendt and the German-Jewish intellectual tradition and offers further confirmation of her fidelity to Jewish thought in general.
-John Douglas Macready (University of Dallas)
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.