**This post was originally published on June 11th, 2012**
"The alternative to forgiveness, but by no means its opposite, is punishment, and both have in common that they attempt to put an end to something that without interference could go on endlessly. It is therefore quite significant, a structural element in the realm of human affairs, that men are unable to forgive what they cannot punish and that they are unable to punish what has turned out to be unforgivable."
-- Hannah Arendt, The Human Condition
George Zimmerman returned to jail in 2012 two days after his bond was revoked for intentionally deceiving the court about his financial situation. The speed and promptness of this re-incarceration stands in marked contrast to the six weeks that passed between Zimmerman's lethal shooting of Trayvon Martin and his arrest and arraignment on charges of second-degree murder.
HannahArendt.net, an online peer reviewed journal has issued a call for papers for their upcoming 'Justice and Law' edition being released in August of this year.
With this topic we wish to participate in current debates insofar as they deal with the juridification of politics as a form of depoliticizing socio-political problems and/or to identify phenomena of dehumanization and exclusion, where the dual nature of justice and law is overlooked.
Francis Fukuyama has a new essay up on “The Decay of American Political Institutions.” Fukuyama begins with a basic point that is undeniable, and is artfully made manifest in George Packer’s National Book Award Winning The Unwinding: “Many political institutions in the United States are decaying.” There are many reasons for that failure. But in Fukuyama’s analysis, two reasons stands out: First, the American penchant for addressing political problems through law, and second, the legalized corruption of interest groups. What unites these two culprits in Fukuyama’s grand synthesis is that both are born out of what he sees as a fundamentally American distrust of government.
Distrust of government means, Fukuyama writes, that American politics has elevated the judiciary to a position of power unlike other democracies. And this has led our political institutions to decay.
The decay in the quality of American government has to do directly with the American penchant for a state of “courts and parties”, which has returned to center stage in the past fifty years. The courts and legislature have increasingly usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies has led to an explosion of costly litigation, slow decision-making and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government. Ironically, out of a fear of empowering “big government”, the United States has ended up with a government that is very large, but that is actually less accountable because it is largely in the hands of unelected courts.
Fukuyama knows bureaucracy can be problematic—the rule of nobody, in Arendt’s formulation—but at least bureaucrat rule is rule. In his telling, the problem is that U.S. has developed a huge bureaucracy that we don’t trust and thus limit through lawsuits, injunctions, and constitutional challenges. So we have the worst of both worlds, a large unelected and anonymous bureaucracy that is itself disempowered and neutered by an even more powerful unelected and anonymous judiciary.
Because there is “too much law,” the bureaucracy doesn’t work. What is more, the combined power of an anonymous bureaucracy and an anonymous judiciary has led to our present crisis of representative democracy, one in which Americans of all political persuasions feel that government is a foreign occupying power that is unanswerable to them. This leads in turn to a distrust of all government, a cynicism that “further reduces the quality and effectiveness of government by reducing bureaucratic autonomy.”
The fact that Americans distrust government means that they place increasing judicial and legislative roadblocks in front of governmental decisions. There is the famous multiplication of agencies and competing authorities, which offers multiple points for influence by lobbyists. As long as so many different agencies have the power to veto or slow down governmental action, government is stymied. “The longstanding distrust of the state that has always characterized American politics had led to an unbalanced form of government that undermines the prospects of necessary collective action. It has led to vetocracy.” Lobbyists thus have an outsized power to capture authorities and disproportionately impact legislation, which furthers cynicism about government. These problems are deeply ingrained in American values and in our Constitution, which makes them unsolvable. Which is the depressing note upon which Fukuyama ends his essay:
Americans regard their Constitution as a quasi-religious document. Persuading them to rethink its most basic tenets short of an outright system collapse is highly unlikely. So we have a problem.
What is striking is how Fukuyama is unable to find resources in the American Constitutional system that might reinvigorate our political institutions. It is as if the American distrust of government means that American democracy is unsalvageable. At times of partisanship, it will lead to Civil War or sclerosis. There is no alternative.
It is a mistake—although one commonly made—to understand the U.S. Constitution as one dominated by a mistrust of governmental power and thus marked by institutions designed to limit governmental power. The genius of the American Constitution, as Hannah Arendt argues, is not the limitation of power, but the multiplication of powers. More important than the three branches of the Federal government in Arendt’s account is the preservation of multiple levels of federal, state, county, city, and village power. The Congress’ power was limited not simply by the President and the Judiciary, but by the states and local authorities. The grant of powers to Congress was limited and expansion of national power was to be constrained by the power of local institutions.
What Arendt saw in a way Fukuyama ignores is that Americans don’t distrust power so much as they distrust the concentration and centralization of power. It his been quintessentially American for citizens to engage in government, especially local government, and to take active part in public debates about political questions. From their arrival in the New World, Americans formed councils, engaged in public affairs, and empowered democratic institutions. The federalist elements of the Constitution provide ample support for vibrant democratic and local institutions.
Beyond the judicializaiton of politics and the rise of a corruption by lobbyists, another cause of the present decay of American politics is the increasingly national approach to government and the hollowing out of local institutions. There are many other causes for the increasing concentration of power and the loss of local institutional power, but there are plenty of resources for reinvigorating local self-governmental institutions in the American political tradition and in the Constitution itself. Yes, “we have a problem.” But there are always ways forward.
Francis Fukuyama’s analysis of our current political decay is powerful and important. It is your weekend read.
“Having said this, I must deal immediately and at some length with the question of violence.”
“Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”
—Hannah Arendt citing Conor Cruise O’Brien, On Violence
Nelson Mandela gave one of the great speeches of 20th century at his trial before the South African Supreme Court in Pretoria in 1964. Mandela’s speech is best remembered for the ringing conclusion in which he articulates the ideals of free and democratic life as that “ideal for which I am prepared to die.” Six months after Martin Luther King Jr. delivered his “I have a dream speech” from the Mall in Washington, DC, Mandela ended his own speech before being sentenced to life imprisonment with these words:
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.
Mandela died yesterday and he will be rightly remembered for both his vision and his courage.
I want to focus on another aspect of his legacy, however, the question of violence. Often forgotten by those who quote only the final paragraph of Mandela’s speech, much of his speech is an exploration of the need for and proper revolutionary use of violence. Indeed, after a brief introduction in which Mandela reminds the Court that he holds a bachelor’s degree, that he is a lawyer, and that he was raised to revere his tribal forebears who fought in defense of their fatherland, he comes to the question of violence. “Having said this,” he says, “I must deal immediately and at some length with the question of violence.”
What follows is one of the most thoughtful and subtle reflections on the strategic and moral complications of violence we have. It is worth citing at length, and even this summary barely does Mandela justice. But here is Mandela’s argument for a limited campaign of violence in response to the violence of the South African state:
I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the whites.
I admit immediately that I was one of the persons who helped to form Umkhonto we Sizwe, and that I played a prominent role in its affairs until I was arrested in August 1962….
In order to explain these matters properly, I will have to explain what Umkhonto set out to achieve; what methods it prescribed for the achievement of these objects, and why these methods were chosen. I will also have to explain how I became involved in the activities of these organisations.
I deny that Umkhonto was responsible for a number of acts which clearly fell outside the policy of the organisation, and which have been charged in the indictment against us. I do not know what justification there was for these acts, but to demonstrate that they could not have been authorised by Umkhonto, I want to refer briefly to the roots and policy of the organisation.
I have already mentioned that I was one of the persons who helped to form Umkhonto. I, and the others who started the organisation, did so for two reasons. Firstly, we believed that as a result of Government policy, violence by the African people had become inevitable, and that unless responsible leadership was given to canalise and control the feelings of our people, there would be outbreaks of terrorism which would produce an intensity of bitterness and hostility between the various races of this country which is not produced even by war. Secondly, we felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the government. We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence.
But the violence which we chose to adopt was not terrorism…..
I must return to June 1961. What were we, the leaders of our people, to do? Were we to give in to the show of force and the implied threat against future action, or were we to fight it and, if so, how?
We had no doubt that we had to continue the fight. Anything else would have been abject surrender. Our problem was not whether to fight, but was how to continue the fight. We of the ANC had always stood for a non-racial democracy, and we shrank from any action which might drive the races further apart than they already were. But the hard facts were that fifty years of non-violence had brought the African people nothing but more and more repressive legislation, and fewer and fewer rights. It may not be easy for this court to understand, but it is a fact that for a long time the people had been talking of violence - of the day when they would fight the white man and win back their country - and we, the leaders of the ANC, had nevertheless always prevailed upon them to avoid violence and to pursue peaceful methods. When some of us discussed this in May and June of 1961, it could not be denied that our policy to achieve a non-racial state by non-violence had achieved nothing, and that our followers were beginning to lose confidence in this policy and were developing disturbing ideas of terrorism.
It must not be forgotten that by this time violence had, in fact, become a feature of the South African political scene. There had been violence in 1957 when the women of Zeerust were ordered to carry passes; there was violence in 1958 with the enforcement of cattle culling in Sekhukhuniland; there was violence in 1959 when the people of Cato Manor protested against pass raids; there was violence in 1960 when the government attempted to impose Bantu authorities in Pondoland. Thirty-nine Africans died in these disturbances. In 1961 there had been riots in Warmbaths, and all this time the Transkei had been a seething mass of unrest. Each disturbance pointed clearly to the inevitable growth among Africans of the belief that violence was the only way out - it showed that a government which uses force to maintain its rule teaches the oppressed to use force to oppose it. Already small groups had arisen in the urban areas and were spontaneously making plans for violent forms of political struggle. There now arose a danger that these groups would adopt terrorism against Africans, as well as whites, if not properly directed. Particularly disturbing was the type of violence engendered in places such as Zeerust, Sekhukhuniland, and Pondoland amongst Africans. It was increasingly taking the form, not of struggle against the government - though this is what prompted it - but of civil strife amongst themselves, conducted in such a way that it could not hope to achieve anything other than a loss of life and bitterness.
At the beginning of June 1961, after a long and anxious assessment of the South African situation, I, and some colleagues, came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the government met our peaceful demands with force.
This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political struggle, and to form Umkhonto we Sizwe. We did so not because we desired such a course, but solely because the government had left us with no other choice. In the Manifesto of Umkhonto published on 16 December 1961, which is exhibit AD, we said:
"The time comes in the life of any nation when there remain only two choices - submit or fight. That time has now come to South Africa. We shall not submit and we have no choice but to hit back by all means in our power in defence of our people, our future, and our freedom."
This was our feeling in June of 1961 when we decided to press for a change in the policy of the National Liberation Movement. I can only say that I felt morally obliged to do what I did….
Four forms of violence were possible. There is sabotage, there is, there is terrorism, and there is open revolution. We chose to adopt the first method and to exhaust it before taking any other decision.
In the light of our political background the choice was a logical one. Sabotage did not involve loss of life, and it offered the best hope for future race relations. Bitterness would be kept to a minimum and, if the policy bore fruit, democratic government could become a reality. This is what we felt at the time, and this is what we said in our manifesto (exhibit AD):
"We of Umkhonto we Sizwe have always sought to achieve liberation without bloodshed and civil clash. We hope, even at this late hour, that our first actions will awaken everyone to a realisation of the disastrous situation to which the nationalist policy is leading. We hope that we will bring the government and its supporters to their senses before it is too late, so that both the government and its policies can be changed before matters reach the desperate state of civil war."
The initial plan was based on a careful analysis of the political and economic situation of our country. We believed that South Africa depended to a large extent on foreign capital and foreign trade. We felt that planned destruction of power plants, and interference with rail and telephone communications, would tend to scare away capital from the country, make it more difficult for goods from the industrial areas to reach the seaports on schedule, and would in the long run be a heavy drain on the economic life of the country, thus compelling the voters of the country to reconsider their position.
Attacks on the economic life-lines of the country were to be linked with sabotage on government buildings and other symbols of apartheid. These attacks would serve as a source of inspiration to our people. In addition, they would provide an outlet for those people who were urging the adoption of violent methods and would enable us to give concrete proof to our followers that we had adopted a stronger line and were fighting back against government violence.
In addition, if mass action were successfully organised, and mass reprisals taken, we felt that sympathy for our cause would be roused in other countries, and that greater pressure would be brought to bear on the South African government.
This then was the plan. Umkhonto was to perform sabotage, and strict instructions were given to its members right from the start, that on no account were they to injure or kill people in planning or carrying out operations.
It is strange today to hear politicians of all stripes praising Mandela for his statesmanship when they, for years, condemned his embrace of violence and arrested those in the U.S. who—following Mandela’s own tactics—chained themselves to fences to oppose the U.S. government’s support of the apartheid regime in South Africa. It is true that Mandela lived numerous lives. As a young man, he was part of a royal tribal household. As a young adult, he was a lawyer. Later he was a non-violent leader. Still later, he turned to limited and rationalized use of violence. For 27 years he paid for his crimes in prison and then emerged a statesman, one committed to reconciliation, freedom, and multicultural democracy. Finally, when he stepped down from the Presidency after one term he helped assure South Africa’s democratic future and became an elder statesman in the truest sense of the word.
To understand the complexities of Mandela’s limited turn to sabotage (as opposed to terrorism in his words), it is helpful to consider Hannah Arendt’s essay On Violence, originally published in the New York Review of Books in 1969. Violence, writes Arendt, is at root instrumental. It is a means to an end. And sometimes, violence can yield positive and even moderate results, Arendt claims, citing Conor Cruise O’Brien: “Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”
As did Mandela, Arendt well understood that violence can be a useful and important means in struggles for justice. She points to numerous of examples where violence has worked to promote justice: “France would not have received the most radical bill since Napoleon to change its antiquated education system if the French students had not rioted; if it had not been for the riots of the spring term, no one at Columbia University would have dreamed of accepting reforms; and it is probably quite true that in West Germany the existence of ‘dissenting minorities is not even noticed unless they engage in provocation.’” Violence can, and often does, make injustice visible to a citizenry that is blind to it. Because violence can “serve to dramatize grievances and bring them to public attention,” violence can serve the cause of reform and also of justice.
We must take Arendt and Mandela’s point seriously. Violence is a means to an end. Violence can work. “No doubt, ‘violence pays.’” Violence can yield results.
But Arendt is not an advocate for violence. Violence can pay, she writes, but “the trouble is that it pays indiscriminately.” And this is where the use of violence becomes dangerous.
The danger in using violence as a means is that when “applied to human affairs,” violence as a means has a tendency to overwhelm whatever good ends towards which it aims. Too often, violence will lead those in power to respond with sham reforms designed to end violence. They will seek the path of least resistance, instituting reforms that are often the wrong reforms. Arendt offers the example of the way that the student university protests of the 60s led to new courses in Swahili and “admitting students without the necessary qualifications” instead of real reform of the entire educational system.
What is more, violence—precisely because it is effective—has a tendency to promote more violence in response. If violence in the name of justice doesn’t achieve its ends quickly, the likely result is not justice, but more violence: “The practice of violence, like all action, changes the world, but the most probable change is to a more violent world.”
To read Mandela’s speech from 1964 is to encounter someone who thought through the promise and danger of violence in precisely the rational way that Arendt call for. The question we should ask is whether the turn to violence by the ANC in South Africa—even the limited, rational, and property-oriented violence Mandela embraced—promoted or retarded the cause for reform? Was it the ANC’s violence that led, 30 years later, to the reform of South Africa? Or was it Mandela’s dignity in prison and his emergence as a force for peace and reconciliation? Let’s celebrate Mandela as a hero this week. But let’s also ask: Was he right about violence?
Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
Magnus Carlsen—just 22 years old—beat Viswanathan Anand (the reigning world chess champion) this week at the World Chess Championships in Chennai, India. There has been much excitement about Carlsen’s victory, and not simply because of his youth. As Joe Weisenthal writes, Carlsen’s win signifies the emergence of a new kind of chess. Behind Carlsen’s victories is what is being called his “nettlesomeness.” I encountered the idea in an essay by Joe Weisenthal, who himself quotes Tyler Cowen: “Carlsen is demonstrating one of his most feared qualities, namely his “nettlesomeness,” to use a term coined for this purpose by Ken Regan. Using computer analysis, you can measure which players do the most to cause their opponents to make mistakes. Carlsen has the highest nettlesomeness score by this metric, because his creative moves pressure the other player and open up a lot of room for mistakes. In contrast, a player such as Kramnik plays a high percentage of very accurate moves, and of course he is very strong, but those moves are in some way calmer and they are less likely to induce mistakes in response.” Read more about nettlesome chess and humanity on the Arendt Center Blog.
Lincoln Caplan has an excellent essay on Judge Learned Hand in the NYRB this weekend. Hand was one of the most influential legal minds in the United States. Here is Caplan: “To Hand, law’s role is to help shape common purpose and reflect the will of the people as part of the compact between them and their government. He was a small “d” democrat. Case by case, he saw his job as weighing competing views of the law and its application to the facts and working his way toward the best outcome in the circumstances. His psyche, outlook, and practice aligned to make him a model of a restrained judge…. “The spirit of liberty,” he said, “is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded….””
Matthew Davis, in a piece that's part memoir and part profile, describes his relationship with the Syrian writer Khalid Khalifa, who is, even now, still working from Damascus. Although Davis's description of his time in and eventual deportation from Syria is striking, and his worry for his friend is palpable, in his conclusion he suggests something that is too easily forgotten: life, for Khalid and Damascus both, goes on, even as Syria appears to be crumbling. “Ever since the war began in January 2011, I had little doubt that Khaled Khalifa would remain in Syria, in Damascus, his paradise, to help usher in the new ideas he spoke passionately about in Iowa City. More than two years on, however, I wonder whether this ending will change, too. Khaled’s health is failing; he is depressed; he has been barred from leaving the country. I get none of this from him, only those close to him. From him, I get positive emails, an optimism as much at Khaled’s core as his rotund gut and passion for writing. Khaled’s fourth novel was recently published in Cairo. I’ve also heard that Qasabji is still open, Nabil still serving arak and beer, albeit at a higher price.”
Reviews of the movie "Hannah Arendt" have been thinly veiled opportunities to rehash old scores and attach Arendt once more for her reputed sins. That is why David Rieff’s review in The Nation this week is welcome. It offers meaningful praise for the film, with detailed accounts of what Rieff likes, while also offering serious-minded criticisms. From there, Rieff moves on to the question of the controversy itself. Rieff has little love for Arendt or, in the end, “Hannah Arendt.” I may disagree on both accounts, but he is fair-minded. “For entirely understandable and legitimate reasons, both philosophical and (though she almost certainly would have denied it) biographical, Arendt believed that the Shoah was not only the greatest crime in human history (a claim for which an argument can unquestionably be made), but an unprecedented one. The concluding pages of Eichmann in Jerusalem are suffused with her fear that, as she put it, “once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been.” For Arendt, Eichmann was nothing less than a new type of criminal, one who “commits his crimes under circumstances that make it well-nigh impossible for him to know or feel he is doing wrong.” But it is not clear that she was right.”
William Weaver, the esteemed translator of Italian works including novels by Umberto Eco, Alberto Moravia, Eugenio Montale, Oriana Fallaci, Ugo Moretti, Carlo Emilio Gadda, Elsa Morante, Pier Paolo Pasolini and Italo Svevo died this past week. “Bill Weaver,” as he was known on campus, taught at Bard from 1992-2002. I never met Weaver, but he looms large in the world of the Hannah Arendt Center. The Center is housed in what we refer to as the “Mary McCarthy House,” because Arendt’s close friend Mary McCarthy lived there during both her stays teaching at Bard College. But most of my senior colleagues still refer to our dwelling as the “Bill Weaver House,” since Weaver lived there for 10 years and hosted many a dinner party there during his time on campus. As Bard’s President Leon Botstein wrote, “His contribution to the literary and cultural life of the College was extraordinary. It is through him that the College received the endowment that created the Bard Fiction Prize.” You can read his obituary in the New York Times, which quotes from this 2000 interview in The Paris Review. “Some of the hardest things to translate into English from Italian are not great big words, such as you find in Eco, but perfectly simple things, buon giorno for instance,” he said. “How to translate that? We don’t say ‘good day,’ except in Australia. It has to be translated ‘good morning,’ or ‘good evening,’ or ‘good afternoon’ or ‘hello.’ “You have to know not only the time of day the scene is taking place, but also in which part of Italy it’s taking place,” he continued, “because in some places they start saying buona sera — ‘good evening’ — at 1 p.m. The minute they get up from the luncheon table it’s evening for them. So someone could say buona sera, but you can’t translate it as ‘good evening’ because the scene is taking place at 3 p.m. You need to know the language, but, even more, the life of the country.”
The movie "Hannah Arendt" has just been released on DVD and features an extensive insert booklet produced by the Hannah Arendt Center!
Become a member of the Hannah Arendt Center and get your copy in time for the holidays!
Learn more here.
The jury trial is, as Alexis de Tocqueville understood, one essential incubator of American democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
If the experience of sitting in judgment as a juror is a bulwark of our democratic freedoms, we should be worried. As Albert W. Dzur writes, the jury trial, once the “standard way Americans handled criminal cases,” is now largely absent from the legal system. The jury trial “has been supplanted by plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term. In addition to cost and efficiency, justice officials worry about juror competence in the face of scientific and technical evidence and expert testimony, further diminishing the opportunity for everyday people to serve.”
Dzur offers a clear case for the disappearance of the jury trial:
[J]uries in the United States today hear a small fraction of cases. In 2005 the Bureau of Justice Statistics reported that juries heard 4 percent of all alleged criminal offenses brought before federal courts. State courts match this trend. Legal scholars Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor discovered a 15 percent decline in total criminal jury trials in state courts over the last 30 years, compared with a 10 percent decline in criminal bench trials, in which a judge issues the verdict. They also found a 44 percent decline in civil jury trials compared with a 21 percent decline in civil bench trials.
So what does the retreat of Jury trials signify? For Dzur, the answer is that the jury system is an important part of our justice system because it performs a “constructive moral function,” by which he means that juries “force widespread sobriety about the real world of law and order.” Juries can challenge “official and lay attitudes regarding the law. This sobering quality of juries is particularly needed now.” Here is how Dzur characterizes more fully the “sobering quality of juries”:
A juror treats human beings attentively even while embedded within an institution that privileges rationalized procedures. Not advocates, prosecutors, or judges, jurors are independent of court processes and organizational norms while also being charged with judicial responsibility of the highest order. Their presence helps close the social distance between the parties and the court. The juror, who contributes to what is a political, juridical, and moral decision, becomes attuned to others in a way that triggers responsibility for them. Burns notes how jurors’ “intense encounter with the evidence” helps them engage in self-criticism of the “overgeneralized scripts” about crime and criminal offenders they may have brought with them into the courtroom.
In other words, juries are institutional spaces where citizens have the time to attentively consider fundamental moral and legal questions outside of the limelight and sequestered from public opinion, government pressure, and the media circus. Since juries are the institutions where we practice moral judgment, Dzur argues that the loss of juries means that “we are out of practice. Lay citizens no longer have opportunities to play decisive roles in our justice system.”
The recent jury decision in the George Zimmerman case is an example of a jury resisting popular calls for guilt and making a sober judgment that the facts of the case were simply not proven beyond a reasonable doubt. Juries can also resist the government, as might happen if Edward Snowden would return to the United States and put himself on trial before a jury. Such a jury could, and very well might, exonerate Snowden, exercising its fundamental right of jury nullification in the interest of justice. Snowden’s refusal to return is, in some part, a result of the diminished practice of moral judgment reflected in the diminishment of the jury.
Jury judgments are at times surprising and can, in extraordinary cases, go against the letter of the law. But the unpredictability of jury verdicts makes them neither irrational nor thoughtless. They are often intolerant and unfair, but this makes them neither racist nor unjust. Amidst the unquestioned hatred of all discrimination, we have forgotten that discrimination, the art of making relevant distinctions, is actually the root of judging. In our passion for rationality and fairness, we sacrifice judgment, and with judgment, we abandon our sense of justice.
What acts of judgment exemplified by juries offer are an ideal of justice beyond the law. Plato called it the idea of the good. Kant named it the categorical imperative. Arendt thought that judgment appealed to common sense, “that sense which fits us into a community with others.” What all three understood is that if morality and a life lived together with others is to persist, we need judgments that would invoke and actualize that common moral sense, that would keep alive the sense of justice.
For your weekend read, take a look at Dzur’s report on the loss of the juries. Also, you might revisit my own essay on this theme, “Why We Must Judge,” originally published in Democracy: A Journal of Ideas.
After months in which university after university signed on to the bandwagon for Massive Open Online Courses called MOOCs, the battle over the future of education has finally begun. This week Duke University pulled out of EdX, the Harvard/MIT led consortium of Massive Open Online Courses called MOOC’s.
The reason: Its faculty rebelled. According to The New York Times,
While [Duke provost Peter] Lange saw the consortium as expanding the courses available to Duke students, some faculty members worried that the long-term effect might be for the university to offer fewer courses — and hire fewer professors. Others said there had been inadequate consultation with the faculty.
The Times also reports that faculty at Amherst College, my alma mater and former employer, voted against joining EdX. Again, the faculty saw danger. My former colleagues worried that the introduction of online courses would detrimentally impact the quality and spirit of education and the small liberal arts college. They also, as our friends over at ViaMeadia report, worried that MOOCs would “take student tuition dollars away from so-called middle-tier and lower-tier” schools, pushing their colleagues at these institutions out of their jobs.
And that brings us to ground zero of the battle between the faculty and the MOOCs: San Jose State University. San Jose State has jumped out as a leader in the use of blended online and offline courses. Mohammad H. Qayoumi, the university's president, has defended his embrace of online curricula on both educational and financial grounds. He points to one course, "Circuits & Electronics," offered by EdX. In a pilot program, students in that course did better than students in similar real-world courses taught by San Jose State professors. Where nearly 40% of San Jose students taking their traditional course received a C or lower, only 9% of students taking the EdX course did. For Qayoumi and others, such studies offer compelling grounds for integrating MOOCs into the curriculum. The buzzword is “blended courses,” in which the MOOCs are used in conjunction with faculty tutors. In this “flipped classroom,” the old model in which students listen to lectures in lecture halls and then do assignments at home, is replaced by online lectures supplemented by discussions and exercises done in class with professors. As I have written, such a model can be pedagogically powerful, if done right.
But as attractive as MOOCs may be, they carry with them real dangers. And these dangers emerge front and center in the hard-hitting Open Letter that the philosophy department at San Jose State University has published addressed to Michael Sandel. Sandel is the Harvard Professor famous for his popular and excellent course “Justice,” that has been wowing and provoking Harvard undergraduates for decades. Sandel not only teaches his course, he has branded it. He sells videos of the course; he published a book called Justice based on the course, and, most recently, created an online video version of the course for EdX. San Jose State recently became one of the first public universities in the country to sign a contract paying for the use of EdX courses. This is what led to the letter from the philosophers.
The letter begins by laying out the clear issue. The San Jose Philosophy department has professors who can teach courses in justice and ethics of the kind Sandel teaches. From their point of view, “There is no pedagogical problem in our department that JusticeX solves, nor do we have a shortage of faculty capable of teaching our equivalent course.” In short, while some students may prefer a course with a famous Harvard professor, the faculty at San Jose State believe that they are qualified to teach about Justice.
Given their qualifications, the philosophy professors conclude that the real reason for the contract with EdX is not increased educational value, but simply cost. As they write: "We believe that long-term financial considerations motivate the call for massively open online courses (MOOCs) at public universities such as ours.
In short, the faculty sees the writing on the wall. Whatever boilerplate rhetoric about blended courses and educational benefit may be fashionable and necessary, the real issue is simple. Public universities (and many private ones as well) will not keep paying the salaries of professors when those professors are not needed.
While for now professors are kept on to teach courses in a blended classroom, there will soon be need for many fewer professors. As students take Professor Sandel’s class at universities around the country, they will eventually work with teaching assistants—just as students do at Harvard, where Professor Sandel has pitifully little interaction with his hundreds of students in every class. These teaching assistants make little money, significantly less than a tenured or even a non-tenured professor. It is only a matter of time before many university classes are taught virtually by superstar professors assisted by armies of low-paid onsite assistants. State universities will then be able to educate significantly more students at a fraction of the current cost. For many students this will be a great boon—a certified and possibly quality education at a cheap price. For most California voters, this is a good deal. But it is precisely what the faculty at San Jose State fear. As they write:
We believe the purchasing of online and blended courses is not driven by concerns about pedagogy, but by an effort to restructure the U.S. university system in general, and our own California State University system in particular. If the concern were pedagogically motivated, we would expect faculty to be consulted and to monitor quality control. On the other hand, when change is financially driven and involves a compromise of quality it is done quickly, without consulting faculty or curriculum committees, and behind closed doors. This is essentially what happened with SJSU's contract with edX. At a press conference (April 10, 2013 at SJSU) announcing the signing of the contract with edX, California Lieutenant Governor Gavin Newsom acknowledged as much: "The old education financing model, frankly, is no longer sustainable." This is the crux of the problem. It is time to stop masking the real issue of MOOCs and blended courses behind empty rhetoric about a new generation and a new world. The purchasing of MOOCs and blended courses from outside vendors is the first step toward restructuring the CSU.
The San Jose State philosophy professors are undoubtedly correct. We are facing a systematic transformation in higher education in this country and also in secondary education as well. Just as the Internet has revolutionized journalism and just as it is now shaking the foundations of medicine and law, the Internet will not leave education alone. Change seems nigh. Part of this change is being driven by cost. Some of it is also being driven by the failures and perceived failures of our current system. The question for those of us in the world of higher education is whether we can respond intelligently to save the good and change out the bad. It is time that faculties around the country focus on this question and for that we should all be thankful to the philosophy professors at San Jose State.
The Open Letter offers three main points to argue that it is bad pedagogy to replace them with the blended course model of MOOCs and teaching assistants.
First, they argue that good teaching requires professors engaged in research. When professors are engaged in active research programs, they are interested in and motivated by their fields. Students can perceive if a professor is bored with a class and students will always learn more and be driven to study and excel by professors who feel that their work matters. Some may wonder what the use of research is that is read by only a few colleagues around the world, but one answer is that such research is necessary to keep professors fresh and sharp. We all know the sad fate of professors who have disengaged from research.
Second, the philosophy professors accept the argument of many including myself that large lectures are not the best way to teach. They teach by the Socratic method, interacting with students. Such classes, they write, are much better than having students watch Professor Sandel engage Socratically with faculty at Harvard. Of course, the MOOC model would still allow for Socratic and personal engagement, just by much lower paid purveyors of the craft. The unanswered question is whether low-paid assistants can be trained to teach well. The answer may well be yes.
Third, the philosophy faculty worry about the exact same moral justice course being taught across the country. We can already see the disciplinary barricades being drawn. It may be one thing to teach Math to the whole country from one or two MOOCs, but philosophy needs multiple perspectives. But how many? The philosophy professors suggest that their highly diverse and often lower-middle-class students have different experiences and references than do Professor Sandel’s Harvard students. They can, in the classroom, better connect with these students than Professor Sandel via online lectures.
The points the San Jose State philosophy professors raise are important. In many ways, however, their letter misses the point. Our educational system is now structured on a few questionable premises. First, that everyone who attends college wants a liberal arts education. That is simply not true. Many students simply want a credential to get a job. If these students can be taught well and more cheaply, we should help them. There is a question of whether we need to offer everyone the same kind of highly personalized and expensive education. While such arguments will be lambasted as elitist, it is nevertheless true that not everyone wants or needs to read Kant closely. We should seek to protect the ability of those who do—no matter their economic class—and also allow those who don’t a more efficient path through school.
A second questionable premise is that specialization is necessary to be a good teacher. This also is false. Too much specialization removes one from the world of common sense. As I have argued before, we need professors who are educated more generally. It is important to learn about Shakespeare and Aristotle, but you don’t need to be a specialist in Shakespeare or Aristotle to teach them well and thoughtfully to undergraduates. This is not an argument against the Ph.D. It is important to study and learn an intellectual tradition if you are going to teach. But it is an argument against the professionalization of the Ph.D. and of graduate education in general. It is also an argument against the dominance of undergraduate curriculum by professionalized scholars.
Third, and perhaps most importantly, is the premise that everyone needs to go to college. If we put a fraction of the resources we currently spend on remedial education for college students back into public high schools in this country, we could begin the process of transforming high school into a serious and meaningful activity. For one thing, we could begin employing Ph.D.s as high school teachers as are many of the emerging early colleges opening around the country.
I am sympathetic to the philosophy professors at San Jose State. I too teach a course on Justice called “The Foundation of Law: The Quest for Justice.” It is a course quite similar and yet meaningfully different from Michael Sandel’s course on Justice. I believe it is better, no offense meant. And I would be upset if I were told next year that instead of teaching my course I would be in effect a glorified TA for Professor Sandel. I hope it doesn’t come to that, but I know it might.
The only response for those whose jobs are being replaced by computers or the Internet is to go out and figure out how to do it better. That is what happened to journalists who were fired in droves. Many quit voluntarily and began developing new models of journalism, including blogs that have enriched our public discourse and largely rejuvenated public journalism in this country. Blogs, of course, are not perfect, and there is the question of how to make a living writing one. But enterprising bloggers like Andrew Sullivan and Walter Russell Mead are figuring that out. So too are professors like Michael Sandel and Andrew Ng.
We need educators to become experimental these days, to create small schools and intensive curricula within larger institutions that make the most of the personal interaction that is the core of true pedagogy. If that happens, and if teachers offer meaningful education for which students or our taxpayers will pay, then our jobs will be safe. And our students will be better for it. For this reason, we should welcome the technology as a push to make ourselves better teachers.
The Open Letter to Michael Sandel deserves a response. I hope Professor Sandel offers one. Until then, I recommend that this beautiful Spring weekend you read the letter from the San Jose State Philosophy Department. It is your weekend read.
Power is actualized only where word and deed have not parted company, where words are not empty and deeds not brutal, where words are not used to veil intentions but to disclose realities, and where deeds are not used to violate and destroy but to establish relations and create new realities.
-Hannah Arendt, The Human Condition
Arendt’s conception of power is one of the most subtle and elusive features of her political theory. Here Arendt poses the problem of power in terms of power’s loss, of powerlessness, which is also what she calls “the death of political communities.”
What is powerlessness? What, exactly, is lost when power is lost?
There are many ways to become powerless in the world of twenty-first century politics. In the United States we often imagine that citizens would be powerless without their constitutional rights – the vote, free speech, due process. In and around the world’s many war zones, the loss of military protection seems to produce a very different kind of powerlessness, one that is linked to both our physical vulnerability to violence as human beings and the persistence of violence between sovereign states (and within them.) There is also the powerlessness that seems to follow from the dislocations or migrations of peoples, a condition that Arendt calls mass homelessness, which may come from the movement of peoples across borders or the redrawing of borders across peoples. Poverty appears to be another form of powerlessness altogether, one that disrupts our capacity to appropriate nonhuman nature through labor and work and thereby sustain our lives. Arendt argues that mass destitution, alongside mass homelessness, is a form of powerlessness that is peculiar to the political condition of the modern age.
Many other kinds of powerlessness can be added to this list. The list is disturbing not only for its variety and length, but also because the felt urgency of each danger invites us to elevate one or two above the others, so that we risk settling for powerlessness of several kinds in order to secure power in one or two “emergency” domains. We choose between the power of kill lists and drone strikes and the power of due process for Americans accused of terrorism. We weigh our powerlessness in the face of global warming against the powerlessness caused by the Great Recession, where the hoped-for “recovery” will be defined by consumption-led “growth,” rendered tangible by lower gas prices and more crowded shopping malls. Or, we may think that US power in the globalizing world of free trade and faster capital flows is dependent upon “securing our national borders,” achieved through the quasi-militarization of immigration enforcement. Hard choices are the stuff of politics - they are supposed to be what power is all about - but the dilemmas of modern powerlessness are peculiarly wrenching in large part because they are not readily negotiable by political action, by those practices of public creativity and initiative that are uniquely capable of redefining what is possible in the common world. Rather, these “choices” and others like them seem more like dead-ends, tired old traps that mark the growing powerlessness of politics itself.
The death of the body politic, which can only occur by way of the powerlessness of politics itself, is Arendt’s main concern in the above quote. In contrast to Hobbes, Rousseau, Weber, and Habermas, among others, Arendt distinguishes power from domination, strength, rationality, propaganda, and violence. Located within the open and common world of human speech and action, power reveals its ethical and political limits when it is overcome by deception, empty words, destruction, and “brutality.” Rooted in the human conditions of natality and plurality, and constituted by the gathered actions of many in a public space of appearance, power exists only in its actualization through speech and deed. Like action, power depends upon the public self-disclosure of actors in historical time. Actors acting together with other actors generate power. Yet because we do not know “who” we disclose ourselves to be in the course of collective action, or what the effects of our actions will turn out to mean in the web of human stories, power itself is always “boundless and unpredictable,” which in part explains its peculiar force. Given its boundlessness and unpredictability, power cannot be stored up for emergencies, like weapons or food and water, nor kept in place through fixed territories, as with national sovereignty. Power therefore co-exists only uneasily with machpolitik. Power can overcome violence and strength through the gathered voices and acts of the many; it can also be destroyed (but not replaced) through the dispersal of the many and the dissolution of the space of appearance. In-between gathering and dispersal, power is preserved through what Arendt calls “organization,” the laws, traditions, habits, and institutions that sustain the space of appearance during those interims when actors disperse temporarily and withdraw back into the private realm, only to reappear later.
For Arendt, the loss of power is the loss of our capacity to act with others in a way that generates, sustains, and discloses a common world. Powerlessness is marked by the receding of public spaces. This may occur, for example, through the gentle decline of a formally constituted public realm into the technocratic shadows of the social, or through the brutal sovereign repression of spontaneously emergent spaces of appearance. In both cases, our ethical and political incapacities to act together, and the philosophical inability to recognize power when we see it, are at the root of modern political powerlessness. Power-seekers, on Arendt’s view, would be well advised to cultivate a deeper political appreciation for both the immaterial force and fragility of human natality, plurality, and public space, which will be lost when power is mistaken for its rivals, like reason, strength, violence, or sovereignty.
Hannah Arendt spoke of having acquired, through her life, a "love of the world." When writing about education she argues that "education is the point at which we decide whether we love the world enough to assume responsibility for it." And in politics, she insists, we must care for and love the world more than oneself. What then is the world?
The world is related to human making and to the things and artifacts that human beings make. What defines the things of a world is that those things gather individuals together.
In the public realm, a politician is that person who speaks and acts in such a way that those around him come to see those institutions and values that they share and treasure. The common world is the world that emerges when a plurality of people bind themselves to stories, traditions, institutions, rituals, and practices that they share and that they love. Like a table that unites those who sit around it in a common conversation or feast, the common world brings different people together. It stands between them, both joining and separating them.
In the private realm, a world is founded in property, and property has an essential role in the public realm too. For property is what one owns, what is proper to one, and thus defines one over against others in the common world. Property provides the boundaries between people and also serves as the boundary between the commonality of the public realm and the uniqueness of the private realm. It is no accident that original Greek word for law, nemein, also means to distribute and to possess, as well as to dwell. Property, in English, also names the laws of propriety, what is right and given to each.
In both the public and the private realms the world consists of things that endure. Worldly things must not only be common. They must also last. Since we must love the world more than our own lives—since we must be willing to pursue the world as an ideal and sacrifice ourselves to the glory and good of the world we share with others—the world must offer us the promise of permanence and thus immortality.
How are to understand the worldly conditions of permanence and immortality? We might ask: What is a house?
This is one of the many questions at issue in Jonathan Franzen's essay "House For Sale," about his return to his mother's house in Webster Grove, Missouri to sell the house after her death. Here is how Franzen describes his mother's house.
This was the house where, five days a month for ten month, while my brothers and I were going about our coastal lives, she had come home alone from chemotherapy and crawled into bed. The house from which, a year after that, in early June, she had called me in New York and said she was returning to the hospital for more exploratory surgery, and then had broken down in tears and apologized for being such a disappointment to everyone and giving us more bad news. The house where, a week after her surgeon had shaken his head bitterly and sewn her abdomen back up, she'd grilled her most trusted daughter-in-law on the idea of the afterlife, and my sister-in-law had confessed that, in point of sheer logistics, the idea seemed to her pretty far-fetched, and my mother, agreeing with her, had then, as it were, put a check beside the item "Decide about the afterlife" and continued down her to-do list in her usual pragmatic way, addressing other tasks that her decision had rendered more urgent than ever, such as "Invite best friends over one by one and say goodbye to them forever." This was the house from which, on a Saturday morning in July, my brother Bob had driven her to her hairdresser, who was Vietnamese and affordable and who greeted her with the words "Oh, Mrs. Fran, Mrs. Fan, you look terrible," and to which she'd returned, an hour later, to complete her makeover, because she was spending long-hoarded frequent-flyer miles on two first-class tickets, and first-class travel was an occasion for looking her best, which also translated into feeling her best; she came down from her bedroom dressed for first class, said goodbye to her sister, who had traveled from New York to ensure that the house would not be empty when my mother walked away from it—that someone would be left behind—and then went to the airport with my brother and flew to the Pacific Northwest for the rest of her life. Her house, being a house, was enough slower in its dying to be a zone of comfort to my mother, who needed something larger than herself to hold on to but didn't believe in supernatural beings. Her home was the heavy (but not infinitely heavy) and sturdy (but not everlasting) God that she'd loved and served and been sustained by, and my aunt had done a very smart thing by coming when she did.
Franzen offers us a house in many valences.
It was where his mother lived. Where she was sick. Where she thought about dying and God. Where she recovered from surgery and made herself up. Above all, it was his mother's house. Later he writes that the house was "my mother's novel, the concrete story she told about herself." In this house she "pondered the arrangement of paintings on a wall like a writer pondering commas." It was a house in which she showed herself. It was thus an invitation. And "she wanted you to want to stay."
The problem is that Franzen does not want to stay in his mother's house. He grew up in the house, but he resents it. The house his mother made, was filled with "sturdy and well made" furniture that "my brothers and I couldn't make ourselves want." He has fled the house and returns only to remove those photos that for his mother made the house hers, to act like a conqueror, he admits, and repossess the house from his mother. But only to then sell it.
If Mrs. Fanzen's house is her novel and if it was a house in which she both concealed and showed herself, her son's house in NYC is something else entirely. Here is how Franzen describes his own dwelling place:
I now owned a nice apartment on East Eighty-first Street. Walking in the door, after two months in California, I had the sensation of walking into somebody else's apartment. The guy who lived here was apparently a prosperous middle-aged Manhattanite with the sort of life I'd spent my thirties envying from afar, vaguely disdaining, and finally being defeated in my attempts to imagine my way into. How odd that I now had the keys to this guy's apartment.
House for sale is, amongst other themes like the loss of religion, the loss of family, and the loss of the American middle class, about the loss of the American house. It is also therefore, in an Arendtian vein, a story about the loss of our world, the property that both hides and nurtures our souls and separates and distinguishes us from our fellow citizens. Denuded of our habitus and property, we are defenseless against the conformity of society. Without desks and bookshelves passed down over generations that fit us, over and against our choices, into a private world, we are consumers who build a temporary bulwark whether styled by Ikea or the local antique store. Such a house is not meant to last and to be passed down across the generations. It will be used and, eventually, sold or walked away from. With nothing that defines us in a lasting and immortal vein, our lives have no depth or meaning beyond our accomplishments. There is no weight or law that claims us and obligates. We are free, but free, unsure why we are here or what it all means.
I recently encountered Jonathan Franzen's essay within an extraordinary theatrical experience. The play "House For Sale" is based on his essay by the same name.
It has been adapted for the stage by Daniel Fish. I have now been to see it twice. The play is hilarious, brutal, and shattering. It makes Franzen's essay come alive in ways miraculous and uplifting. The final scene itself is worth dropping every plan you have, flying to NYC, and rushing to the Duke Theatre on 42nd St. to catch it. I can't recommend this highly enough. But hurry, it is playing for only a few more performances. You can buy tickets here.
Or, if you simply can't get to NYC, buy The Discomfort Zone, Franzen's book of essays in which "House For Sale" originally appeared. It is your weekend read.
“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)
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.