Hannah Arendt Center for Politics and Humanities
13Dec/120

Tuning Out, Heroism, and the Power of Example

I received an email from an old friend this weekend. She has been deeply affected by the death of Ki Suck Han, the New York man who was pushed off a subway platform near Times Square—and abandoned by all his fellow passengers, before being run over by an oncoming train. She wrote:

The subway death was on my mind all day long yesterday, I was devastated about it. I once worked for the MTA Arts for Transit, maybe that's why. Nobody stepped forth (the platform wasn't empty before the guy fell on the tracks), at least moved forward, rather than back. In that photo the man is all alone facing that train, everyone has moved back and away to make space for the accident to unfold unhindered, out of the zone of implication. We're all so afraid of danger, and even afraid of the fear itself.

Forty Seven people were killed after being hit by trains in 2011—I know this from the helpful signs in the subways that remind us to be careful.

We all know about Ki Suck Han because in the 22 seconds between when he was pushed on the tracks and when a train pinned him against the platform, a New York Post photographer snapped dozens of pictures of him. One of those pictures was then published on the front page of the NYC tabloid.

There has been near universal condemnation of the Post, with a few exceptions. The photographer too has been harangued, accused of taking pictures rather than running to save the man. But the platform had not been empty and another waiting rider actually filmed the argument Ki Suck Han had been having with the man who later pushed him to the tracks. All these passengers fled the scene, moved to the other end of the platform. No one went to help Ki Suck Han. In 22 seconds, no one acted the hero.

“What,” my friend asked, “might Hannah Arendt say about the fact that no one helped a person in need?”

I hazard to say or think I know what Hannah Arendt would have thought or said. I respond to all such queries simply: Hannah Arendt was nothing if not surprising and provocative and more brilliant than I am. I have no special insight into what she would have thought.

What I can do is try to think about how her thinking, her provocative and insistent determination to think what we are doing, helps us today to make sense of ethical and political events like this tragic death. Along those lines, here are a few thoughts.

First, we should not draw too many conclusions from one event. While no heroes showed themselves in this circumstance, there are unsung heroes every year who risk their lives to save people around the world, and even in New York Subways. In fact, just last weekend Doreen Winkler saved two people from an oncoming train in New York City. You can read about Winkler’s heroic acts here and here. And if you want to be inspired by truly heroic acts of daring subway rescues, watch this video from Korea.

Second, the unwillingness to play the hero in this situation reminds me of what Arendt names the loss of our sense of a common world. It is the common world—a world that used to be imagined and held together by tradition and authority—that provides a public space in which actions are remembered. Pericles could say with confidence that the Athenian polis would remember the deeds of its heroes, just as the American revolutionaries could hope that their heroic deeds would live on in monuments, song, and poetry.

Monuments in Washington and around the nation testify to the common world that shares in the memory of great acts—acts that strike people as both surprising and worthy of glory and support. It is the power and promise of memory in the common world that both holds out examples of the glory of heroism and also promises to bring the hero immortality, something more lasting than life and security. There is little faith today that someone who is a hero will be remembered longer than someone who cuts people to bits or dances naked on TV. Heroism is one of many avenues to 15 minutes of fame. So there is no strong sense of acting courageously getting you anything.

Third, the loss of the common world is part and parcel of the retreat into loneliness. I was having dinner with another friend recently who told me of his new resolution, to listen to more music on his Iphone on the way to and from work. I recall once reading Oliver Wendell Holmes Jr.’s letters and being in awe of his reports to friends of the books he was reading, his continuing education as he put it. My friend saw his headphone-wearing study of music in the same vein. And yet, there is a difference. Walking with headphones, even more than reading in the subway or playing books on tape in the car, is a way of tuning out of the world around you. People get lost in their own world, ignoring the sights, sounds, and faces that pass them by.

My conversation with my music-studying friend also called to mind a recent email sent by the Bard College Rabbi. Rabbi David Nelson worried that more and more our young people, in the spirit of urban dwellers, “walk around campus much of the time avoiding eye contact, which is another way of saying that they avoid looking one another directly in the face.” For the rabbi, the loss of eye contact and real face-time is dangerous and corrupting. He writes:

Those who have spent time living in densely populated urban areas are accustomed to the polite avoidance of eye contact, in crowded elevators, crowded rush-hour subway trains, and similar crowded venues. This is a way to maintain separateness and privacy in an environment where the density of the population threatens our ability ever to feel alone and unobserved. This is exactly the behavior that we see on campus. But we are not an anonymous, densely populated urban tangle. We are--or we ought to be--an intentional, involved, caring community. And our students' assiduous avoidance of one another's faces is at least a sign of, and perhaps a cause of, the widespread sense that this is a place where it's hard to really connect with others.

The proliferation of headphones began decades ago with the Sony Walkman craze and continues unabated with the Ipod and Iphone. People walk around listening to music or books or podcasts. And many are proud of this development, rationalizing their anti-social behavior by arguing to themselves that they are bettering themselves, learning, or expanding their minds. This may be true. But the retreat from personal contact and the eye contact with our fellow travelers must also weaken our connection to others. It is a cold and distant world, one in which we are less and less entangled with and personally related to those around us.

Our actions are ever more calculating and less instinctive. In such instances, calculation will stop you from acting. You need to feel it. It is no accident that nearly every subway hero who jumps on the tracts to rescue someone says that they didn’t think about it but simply acted.

Above all, the un-heroic action in the subway last week reminds us of the increasing rarity of action. Heroism is never normal. It is, by definition, extra-ordinary and surprising, which is why it is glorified and remembered. It thus thrives on a world that rewards and celebrates heroic acts. Hannah Arendt saw, however, that rare deeds would be ever rarer in the modern age. The primary reason for this is that in large societies, rare deeds lose their rarity and distinction. There are at least two reasons for this decline in great deeds.

First, the law of large numbers means that all action is predictable. We know that most people will not act spontaneously to save a passenger in need; but we also know that a certain percentage of people will. Actions of heroism are not mundane, but they are expected. That is why it was so shocking and surprising that no one acted. When someone does act heroically, like Doreen Winkler, few newspapers reported it. Heroism in the subway promises very little acclaim.

Second, heroism requires a common world in which one’s great deed will be remembered. Without the promise or the expectation that heroic acts will be immortalized, the risk of action is rarely balanced by the reward. In a calculating society, heroism rarely seems to justify the risk.

Thankfully, however, there are exceptions to these dispiriting trends. There are moments of unexpected heroism that do break through the standardization of our social expectations and become examples of heroic action. One recent example of this is Newark Mayor Cory Booker’s racing into a burning house to save his neighbor. At a time when we expect so little from our public figures who refuse to risk even bucking opinion polls, Booker’s public heroism was shocking. The power of his example, and of those who act as he does, keeps the ideal of heroism alive at a time when it is ever more rare and unexpected. Because action interrupts the everyday and the normal, it is, Arendt writes, the “one miracle-working faculty of man.” Action introduces greatness and glory into the world, makes us take notice, and calls us then to gather around the beauty of the glorious act; action, heroic action, is what constantly refreshes and re-orients us toward the common world that we share together.

-RB

 

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
19Oct/122

Campaign Finance Laws and the First Amendment

The Arendt Center recently hosted Professor Zephyr Teachout to speak about Citizens United v. FEC and campaign finance reform. The talk was in honor of Constitution Day, which Professor Teachout joyfully informed us may very well be unconstitutional. We carried on.

Teachout began her talk by announcing that the "First Amendment is a terrible thing." Less provocatively, she argues that the First Amendment plays a "dangerous role" in our constitutional culture. Above all, she presented her argument that the Supreme Court's increasing reliance on the First Amendment to invalidate campaign finance laws is, ironically, used to shut down meaningful public debate around the proper role of lobbying in our politics.

She began by telling a story of the Supreme Court case Trist v. Child from 1874. The case involves Mr. Trist who had a claim against the U.S. Government for about $15,000 (about $100,000 in current dollars). Trist hired Child, a lawyer, to represent him and convince Congress to honor its debt. Among other things, Child encouraged Trist to have his friends write to Congressman threatening not to vote for them if they didn't honor this debt to Trist. Child also personally lobbied Congressman.  He eventually succeeded in getting Congress to appropriate Trist's money.

Trist, however, refused to pay Child the fee agreed to in their contract. Child sued Trist to get his agreed upon money.

In the Supreme Court decision refusing to enforce the contract, the Court holds that Trist need not pay Child; a number of reasons are given, a few very technical. But the majority of the opinion by Justice Swayne rejects the legality of lobbying with a broad brush.  Trist need not honor his contract with Child, Swayne writes, because there was no valid contract. In short, the original contract hiring Child as a lobbyist was immoral and illegal, and thus unenforceable. Justice Swayne argues that the very immorality of the practice of lobbying nullifies the contract between Trist and Child.

Teachout helpfully describes the issue this way. Child says something like: Our contract was just like a contract for me to sell you a car and now you don't want to pay me for the car now that you have it. Trist responds that, in Teachout's colorful analogy,

No, this is like we made a contract for prostitution, and you can't go to the cops after we made a contract for prostitution and get them to enforce that contract. Because lobbying is like prostitution. It is so corrupt that there is no way courts are going to enforce it.

Writing for the Supreme Court, Justice Swayne puts it this way:

The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.

There are two remarkable things about Justice Swayne's argument. First, as Teachout notes in her talk, there was nothing remarkable about it in 1874. Many states and governments throughout the U.S. made lobbying illegal. It was seen as an act of corruption. And few if any courts in the U.S. would find this unusual, at least before the turn of the 20th century.

The second remarkable thing to note is how utterly remarkable Justice Swayne's argument is today. To speak of the millions of lobbyists in the US as "adventurers who make market of themselves" as offending the "moral sense of every right-minded man" is a painful reminder of how far our political system has fallen. Not only is the moral prohibition against lobbying something of the past, but also the idea that the Supreme Court would invalidate contracts based on lobbying is nearly unimaginable.

The reason for this change in the legal and even moral status of lobbying is, Teachout argues, the rise of free-speech jurisprudence in the 20th century. Specifically, the Court's acceptance of the basic claim freedom of speech is the fundamental foundation of our democratic system has made lobbying not only legal, but morally defensible. If democracy depends on a marketplace of ideas, then having corporations and individuals hire lawyers and public relations firms to buy and sell influence in politics is at the very foundation of democratic governance. What Teachout forces us to consider is that our elevation of the First Amendment to foundational status in our constitutional firmament is predicated on a political theory that founds democracy on the unfettered marketplace of ideas. If we are to take back our government from corporate adventurers and their lobbyists, we will need to rethink our commitment to free speech, at least as the Court currently understands it.

Teachout's provocative talk attacks less freedom of speech itself than the Court's elevation of free speech to the first amongst all constitutional provisions—the foundational right in our constitutional and democratic system. She traces the rise of free speech jurisprudence to the point where, today, free speech is the paradigmatic right in our democracy. Free speech has become equated with democracy, so that "free speech is democracy."

It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values.

Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.

This view that free speech is the fundamental bastion of democracy is the basis of Justice Kennedy's decision in Citizens United. In Kennedy's opinion, laws regulating campaign finance regulate speech, and not just force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship. Which is why Kennedy can worry that "The censorship we now confront is vast in its reach."

What he means is that all those corporations regulated by the campaign finance reform law invalidated by Citizens United—including large multinationals and also small mom and pop stores and even unions and non-profit corporations—are prohibited from expressing their views about political candidates during an election. In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy."

It is helpful to recall Justice Felix Frankfurter's concurring opinion in U.S. v. Congress of Industrial Organizations. The Smith Act had forbidden unions to use funds to pay for politicking, very much like the limitations on corporate funding in the 2002 Bipartisan Campaign Reform Act.  In U.S. v. CIO, the Court refused to rule on the Constitutional question of whether the Congress can forbid unions from political speech. Frankfurter, however, does consider it. He argues that we must take seriously the evil of corporate and union speech in politics. The corruption of elections and federal officials by the expenditure of large masses of aggregated wealth But that evil, he counters, "is not one unmixed with good." For Frankfurter,

To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.

Replace "Labor unions" with "corporations." That is what Justice Kennedy did in Citizens United. What he said is that corporations have a voice in our political landscape, just as do unions and non-profits. When such corporate entities engage in speech, there is a danger of corruption. But we cannot deny their speech is politically important. Instead of then balancing those interests in a practical way, Justice Kennedy simply said that the First Amendment insists that political speech never be abridged. Our Constitutional system, he argued, demands that the marketplace of ideas be allowed to work unimpeded.

The overriding desire to protect political speech proceeds under the assumption, with Oliver Wendell Holmes Jr., that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.” What Zephyr Teachout helps to make clear is that this elevation of free-speech to the first amongst constitutional provisions is fundamentally at odds with the desire to regulate political speech to keep politics free from corruption.  If we want to get serious about fighting corruption in politics, we need to take seriously the need to question the now unquestionable faith that democracy is founded upon freedom of speech.

To fight against Citizens United and uphold the legal rejection of campaign finance limitations requires that we break the bi-partisan stranglehold that an extreme view of the First Amendment currently has on our constitutional jurisprudence.  Only once we do so can we return to a meaningful public debate about when lobbying is and when it is not corrupting. And only once we free campaign finance laws from the First Amendment can we, as we must, have a serious discussion about how much money distorts and corrupts our political process.

These are difficult issues, and weakening the scope and impact of the First Amendment is risky. As Teachout argues, it is a risk we must take to save our democratic system.

To see why, I encourage you to watch Zephyr Teachout's talk here. You can also read the essay on which the talk is based here. Together, they are your weekend reads.

—RB

Roger Berkowitz
Roger Berkowitz is Associate Professor of Political Studies and Human Rights at Bard College, and Academic Director of the Hannah Arendt Center for Politics and the Humanities. He is also the author of "Gift of Science: Leibiniz and the Modern Legal Tradition", as well as co-editor of "Thinking in Dark Times: Hannah Arendt on Ethics and Politics".
17Jan/120

Oliver Wendell Holmes Jr. on Thinking

"Your business as thinkers is to make plainer the way from something to the whole of things; to show the rational connection between your fact and the frame of the universe."

-Oliver Wendall Holmes Jr.

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.