Hannah Arendt Center for Politics and Humanities
6Dec/131

Nelson Mandela & Hannah Arendt on Violence

ArendtWeekendReading

“Having said this, I must deal immediately and at some length with the question of violence.”

—Nelson Mandela

 “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.

mandela

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.

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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?

Take the time this weekend to read the entirety of Mandela’s speech, It is your weekend read. And if you have more time, review Arendt’s essay “On Violence,” which is available here.

-RB

11Jan/130

Infinitely Intoxicating

Louis Pasteur once wrote:

I see everywhere in the world, the inevitable expression of the concept of infinity…. The idea of God is nothing more than one form of the idea of infinity. So long as the mystery of the infinite weighs on the human mind, so long will temples be raised to the cult of the infinite, whether it be called Bramah, Allah, Jehovah, or Jesus…. The Greeks understood the mysterious power of the hidden side of things. They bequethed to us one of the most beautiful words in our language—the word ‘enthusiasm’—En Theos—“A God Within.” The grandeur of human actions is measured by the inspiration from which they spring. Happy is he who hears a god within, and who obeys it. The ideals of art, of science, are lighted by reflection from the infinite.

To bear a god within is not an easy task for us mortals. The god within—even more so than the god without—demands to be obeyed. Having a god inside us—or Socrates like a daimon on our shoulder—is no recipe for happiness.

It can lead to unbearable obligation and even to martyrdom. And, if the god is a muse, it can lead to the travails of the artist.

All great art and all great artists are consumed by the infinite. As Oscar Wilde once wrote, “We are all in the gutter, but some of us are looking up at the stars.” Those are the artists, the ones who amidst the muck feel part of something higher, something everlasting, the infinite.

The great enemy of the infinite is reason. Reason is calculating. It is rational. It is logical. It insists that everything is knowable and comprehensible. Ends justify means. And means can achieve ends. Reason insists on explanation. The self—the mystery—must be made knowable.

David Brooks in the NY Times today lauds the entry of behavioral psychology into politics and policy. We want to know, he writes, how to get people to vote and how to get congress to cut the deficit. If science can tell us how what to put in their drinking water, how to frame the question, what books to read to them in vitro, or how to rewire their brains to be rational, wouldn’t that make policy all the more reasonable? Wouldn’t that be a good thing? 

Science can make us more rational. That of course is the dream of people like Ray Kurzweil as well as the social scientists who insist that humans can be studied like rats. Let’s not object to the fact. We can be studied like rats and that is what university social science departments around the country and the world are doing everyday. This research is eminently useful, as Brooks rightly remarks. If we employ it, we can be made to be more reasonable.

What the rationalization of humanity means, however, is not a question science can answer. Max Weber began the study of the rationalization of mankind when he proposed that the rise of the enlightenment and the age of reason was bringing about an “Entzauberung” or a “de-magicification” of the world. Capitalism emerged at this time for a number of reasons, but one main reason, Weber understood, was that capitalism provided in the profit motive rational and objective criteria for measuring human endeavors. The problem, as Weber so well understood, is that the elevation of reason and rationality brought about the devaluation of all highest values—what Nietzsche would call nihilism. This is because reason, derived from ratio, is always a relation. All values are relative. In such a world, nothing is infinite. Stuck amidst the relations of means and ends, everything is a calculation. All is a game. There is no purpose or meaning to the game of life. As we become more rational, we also become less consumed by the infinite. That is the true danger of the rise of the social sciences and our rationality-consumed culture that insists that all human behavior be made understandable so that it can be made better.

In The Human Condition, Hannah Arendt is concerned with the way that the rise of reason and rationality is challenging the quintessence of the human condition—at least as that human condition has been experienced and known since the dawn of humanity. The rise of the social sciences, she writes over and over, are subjecting the mystery and fecundity of human action to the law of large numbers. While each and every human action may in itself be surprising and mysterious, it is nevertheless true that studied in groups and analyzed over time, human action does fall into comprehensible patterns. The more we study and know these patterns, the more we come to think of humans as predictable animals rather than surprising and spontaneous selves. This sociological and psychological reduction of man to animal is very much at the heart of what Arendt is opposing in her book.

Nowhere is the rationality of our times more visible than in the victory of labor and the marginalization of art. We are, all of us, laborers today. That is why the first question we ask others we meet is: What do you do?  Our labor defines us. It gives our lives meaning in that it assigns us a use and a value. Even professors, judges, and presidents now say regularly: this is my job. By which we mean, don’t blame us for what we do. Don’t hold me to some higher standard. Don’t expect miracles. It is our job to do this. We do this to make a living.

The one group in society who is at times excepted from this reduction to labor is artists. But even the artist is today is taken less and less seriously. Insofar as artists are enthusiasts consumed with the infinite, they are ignored or viewed as marginal. Art is reduced to playfulness. A hobby. “From the standpoint of “making a living,” every activity unconnected with labor becomes a “hobby.””  And those artists who are taken seriously, whose work is bought and sold on the art market, turn artistic work into the job of making a living.

 Art, Arendt writes, is a process of magic. Citing a poem by Rainer Maria Rilke, she insists that the magic of art is the artist’s transfiguration of something ordinary—the canvas, clay or word—into something extraordinary, an expression of the infinite in the finite world of things.

Because art figures the infinite, poetry is the “most human” of the arts and the art that “remains closest to the thought that inspired it.” The poem, of all artworks, is the most lasting because its medium is the least subject to decay. It is the closest expression of the infinite we humans possess.

Ralph Waldo Emerson, whose resonance with Arendt in so many things has been too infrequently remarked, agrees that poetry is the art form in which the individual artist can access and figure in the world a public and common truth. In “The Poet,” Emerson writes:

It is a secret which every intellectual man quickly learns, that beyond the energy of his possessed and conscious intellect, he is capable of a new energy (as of an intellect doubled on itself ), by abandonment to the nature of things; that, beside his privacy of power as an individual man, there is a great public power on which he can draw by unlocking, at all risks, his human doors and suffering the ethereal tides to roll and circulate through him: then he is caught up into the life of the universe; his speech is thunder; his thought is law, and his words are universally intelligible as the plants and animals. The poet knows that he speaks adequately, then, only when he speaks somewhat wildly, or, “with the flower of the mind”; not with the intellect used as an organ but with the intellect released from all service…inebriated by nectar. As the traveler who has lost his way throws his reins on his horse’s neck and trusts to the instinct of the animal to find his road, so must we do with the divine animal who carries us through this world. For if in any manner we can stimulate this instinct, new passages are opened for us into nature, the mind flows into and through things hardest and highest, and the metamorphosis is possible. This is the reason why bards love wine, mead, narcotics, coffee, tea, opium, the fumes of sandalwood and tobacco, or whatever other species of animal exhilaration. All men avail themselves of such means as they can to add this extraordinary power to their normal powers, and to this end they prize conversation, music, pictures, sculpture, dancing, theaters, traveling, wars, mobs, fires, gaming, politics, or love, or science, or animal intoxication, which are several coarser or finer quasi-mechanical substitutes for the true nectar, which is the ravishment of the intellect by coming nearer to the fact.

I take this quotation from Emerson’s “The Poet” from an exceptional recent essay by Sven Birkirts. The essay appears in the latest edition of Lapham’s Quarterly, an entire issue focusing on the merits and need for inebriation.

As Birkirts writes:

For Emerson, the intoxication is not escape but access, a means of getting closer to “the fact,” which might, with heartfelt imprecision, be called life itself. What he means by “public power,” I think, is something like what Carl Jung and others later meant by the phrase collective unconscious, the emphasis falling on the unconscious, that posited reservoir of our shared archetypes and primordial associations—that which reason by itself cannot fathom, for it is, in essence, antithetical to reason.

Birkirt’s reflects not only on the need for inebriation in the pursuit of artistic infinity, but also on the decreasing potency of intoxicants today. For him, the rise of the mass market in art, the globalization of experience, the accessibility of all information all have made the world smaller, knowable, and accountable. What is lost in such access is precisely the portal to the infinite.

Artistically and in almost every other way ours has become a culture of proliferation. Information, perspectives, as well as the hypercharged clips and images of our global experience are within the radius of the keystroke. Nothing is unspoken, nothing is unaccounted. Every taste is given a niche and every niche is catered to. Here, one might argue, is more material than ever; here are opportunities for even greater acts of synthesis. But I am skeptical. Nietzsche wrote in Thus Spoke Zarathustra, “Nothing is true, everything is permitted.” The temptation is to invert the phrases and ascribe causality: where everything is permitted, nothing is true. Where nothing is true, where is the Emersonian fact to be found? This bears directly on the artist’s task. The idea that writers can keep producing grandly synthesizing or totalizing work—that has the ring of truth, of mattering—is debatable.

Birkirt’s essay may not be the intoxicant of your choice this weekend, but it should be. It is your weekend read. And you might check out the surprising selection at the bar at Lapham’s Quarterly as well.

And for those with time to spare: Arthur Koestler, from whom I first learned of the Louis Pasteur quote at the top of this essay, was consumed with the connection between intoxication and the infinite. I have discussed Koestler’s pursuit of the infinite at length. You can read that discussion here.

-RB

13Jul/120

Roberts’ Opinion—Taxation Will Set You Free

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.

-RB

11May/121

Moral Leadership and the New Era of Responsibility

I had the pleasure of discussing and debating at a Hannah Arendt Center event last night with John Cassidy, staff writer of The New Yorker and author of How markets fail : the logic of economic calamities as well as Dot.con : the greatest story ever sold. The topic was the presidential election.

I asked Cassidy about Matt Taibbi's recent comment that Obama was going to win the election easily. Actually, Taibbi's phrasing was more colorful:

But this campaign, relatively speaking, will not be fierce or hotly contested. Instead it'll be disappointing, embarrassing, and over very quickly, like a hand job in a Bangkok bathhouse. And everybody knows it. It's just impossible to take Mitt Romney seriously as a presidential candidate.

The view that Obama will cruise to victory is widespread. Cassidy largely affirmed it, although he rightly said that much depends on the continued economic recovery. If the economy turns south again, that plays into Romney's claim that he as a businessman is better able to right the ship of commerce.

I am no prognosticator. I think the election will be quite close and do not think Obama will win in a landslide. But where I really differ with Cassidy and Taibbi is over the question of whether Romney is an interesting candidate and on what he is running. To my mind, this election will be decided less on policy and social issues and more around a moral debate. It is here that Romney becomes interesting.

The President of the United States is not first and foremost a policy maker. He (or she one day) is the moral leader of the nation. FDR knew this well. As he once said:

The Presidency is preeminently a place of moral leadership. All our great Presidents were leaders of thought at times when certain historic ideas in the life of the nation had to be clarified.

The United States is at an inflection point. The 20th century has had three great presidential moments. In the 1930s, amidst the depression, FDR led the country down a new path and helped create the modern welfare state. In the 1950's, Eisenhower, a Republican, did not seek to roll back the New Deal and confirmed the new direction of the nation. Ronald Reagan's presidency was the beginning of an effort to resist the welfare state. We are now in a strange limbo, where much of the country has embraced the conservative credo while still remaining addicted to and desirous of their particular welfare perks. This is an untenable situation in the long run.

Obama is a defender of the status quo, but his defense is timid and pragmatic. He doesn't really believe in the welfare state as a moral good so much as a pragmatic necessity. It is all about budgets and saving money and rational arguments. We must, he tells us, spend now so that we can cut later. What will we cut later? Does he believe that everyone should have a pension in addition to social security? Should Wall Street bankers have  received bonuses in 2009 after they were bailed out by taxpayers? Should they have been fired? Should public pensions be honored or cut? Should we have unlimited taxpayer supported healthcare after we retire at 63 or 65 and then live for decades afterward? Should people who bought homes they can't afford be given new mortgages so that they can stay in their homes? On all of these questions, the President has offered technocratic answers rather than moral visions. Amidst an economic but also a moral crisis, the President has not been a leader.

If Romney wins the election, it will not be because he has better jobs policies or economic policies. It will be because people see in him a leader. His one strength, whatever you think of him personally or politically, is his history of leadership. He did build one of the largest and most successful private companies in the United States. He did win the governorship of one of the country's most liberal states and govern effectively with democratic legislators. And he did take over a failing Olympic Games in Salt Lake City and made it a success. People downplay these accomplishments and say there is no evidence he can lead as President. That is of course true.  But the promise that he can lead is the key to Romney's appeal.

On one level, this is an election between two pragmatic, centrist, technocrats. They differ on much and most deeply on social issues. They also differ on taxes (especially on taxing the wealthiest amongst us). These are important differences. But most people do not vote on policy.

The election will be decided on who makes the better claim to being able to lead the country. Obama is still searching for his theme and what he wants to accomplish. He of course is a deeply intelligent and moral man. On social issues, he can be a leader, as his endorsement (finally) of same-sex marriage proves. But the election will not likely be decided on social issues.

So what is the moral issue at stake in this election? It is clear. Romney and the Republicans are saying: we have spent too much, taken on too much debt, and lived beyond our means. Government programs, however well meaning, have not made us better off. We need to retrench. Romney has defended a very minimal welfare state to stop people from starving, but he clearly doesn't have much sympathy for people who are poor, unemployed, and homeless. His moral promise is a return to an America of individualism that promotes success and tolerates failure. It is a moral vision that galls many liberals and even some conservatives, and yet it clearly has enthralled many Tea Party enthusiasts around the nation.

Obama's moral issue is, thus far, fairness and inequality. It is simply wrong and unfair that the very wealthy are paying so little in taxes while the middle class is struggling. And he is undoubtedly right. But a Buffet Rule, as justified as it surely is, is too small an idea to build a campaign around. Obama is hemmed in by his own unwillingness to moralize the economy. He will not take on the wealthy, and his instincts are to work with Wall Street, not against them and to value individual responsibility over government support.  He is simply constitutionally unable to take a populist tack. He cannot give the speech FDR gave in 1936 where FDR said:

We had to struggle with the old enemies of peace: business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.

They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.

Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me – and I welcome their hatred.

So if Obama is not going to become a populist, what option is left?

Over three years ago in his inaugural address, Obama called for a "new era of responsibility." He talked about shared sacrifice. He talked about living within our means and admitting that we were living beyond ourselves. He said:

Our challenges may be new.  The instruments with which we meet them may be new.  But those values upon which our success depends -- honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism -- these things are old.  These things are true.  They have been the quiet force of progress throughout our history.

What is demanded, then, is a return to these truths.  What is required of us now is a new era of responsibility -- a recognition on the part of every American that we have duties to ourselves, our nation and the world; duties that we do not grudgingly accept, but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character than giving our all to a difficult task.

This is the price and the promise of citizenship.  This is the source of our confidence -- the knowledge that God calls on us to shape an uncertain destiny.  This is the meaning of our liberty and our creed, why men and women and children of every race and every faith can join in celebration across this magnificent mall; and why a man whose father less than 60 years ago might not have been served in a local restaurant can now stand before you to take a most sacred oath.  (Applause.)

His inauguration is the last time that Obama really set out a far-reaching moral argument that responds to the economic crisis and the crises of our times. The vision he then hinted at was one of shared sacrifice towards a renewal of American values. One that admitted with the Republicans that we had promised ourselves too much, had lived beyond our means, and had become too entitled in our expectations. It was a vision that returned an ethic of work and grit, but also one that affirmed American ideals of fairness and justice.

It is the vision that most Americans seemingly affirm, that involves both a pullback of entitlement programs and a progressive increase in taxes. It is a moral vision of common sense. It may be too late for President Obama to embrace that vision again. And yet a meaningful articulation of a new era of responsibility is, quite possibly, the path to a vision of moral leadership open to the President.

It is worth taking a look back at Obama's inaugural speech. It is your weekend read.

-RB

Note: Matt Taibbi is a Bard graduate ('92.)

26Mar/121

Some Reflections on Anoka-Hennepin

“And do we intend to have our political battles fought out in the school yards?”

—Hannah Arendt, “Reflections on Little Rock”

Within the last two years, nine teenage students in Minnesota’s Anoka-Hennepin public school district have committed suicide (and many more have attempted to). The driving force behind this “epidemic” is the persecution, by other children at the district’s middle and high schools, of students perceived to be gay.

The persecution is encouraged by prominent local individuals and organizations, and until recently was allowed to continue by virtue of a school district policy of nonintervention.

That much was reported, in much greater and highly affecting detail, in Sabrina Rubin Erdely’s February 2 article in Rolling Stone, “One Town’s War on Gay Teens.” The most recent developments were taken up by The New York Times: the federal government has finally intervened in the name of civil rights, forcing the Anoka-Hennepin district to adopt new anti-harassment policies and to agree to five years of monitoring by the departments of Justice and Education.

Setting aside the particular minority group concerned, the immediate question in Anoka in 2012 is the same as in Little Rock in 1957: can a socially unwanted minority be excluded, by a combination of official policy and casual intimidation, from public education? Hannah Arendt’s difficult answer to the Little Rock question (difficult because prejudice had nothing to do with it, and she thus had no common cause with those who answered in the same way) was: yes, because the school is a social space subject to the laws of free association, not a political space subject to the laws of equality. What Arendt insists on is that the government must not “burden children, black and white, with the working out of a problem which adults … have confessed being unable to solve themselves.” Hence her outrage that the push for desegregation had begun in the schools, rather than where she urgently wanted to see racial equality realized, namely in marriage law. (Would her insistence on the fundamental political right “to marry whom I please” extend to gay marriage? An interesting but tangential question.)

I do not think Arendt would be similarly able to dismiss the situation in Anoka as not politically relevant, because the social conflict playing itself out there is inseparable from a set of political conditions to which Arendt’s own thoughts on government call our urgent attention. In scenes reminiscent of her Origins of Totalitarianism, the public sphere has been so utterly vacated of authority that the social has become the political to dizzying effect, and even the official agents of the government appear as just another social interest group struggling to exercise power on the ground. Local officials act in accordance with whatever group happens to have the upper hand at the moment; the prevailing law is not written down; and in the midst of this, a new tactic of political violence emerges with startling effectiveness.

Children make the ideal agents of this violence, not because they do not realize the violence they are doing—on the contrary—but because, being children, they instinctively know how to carry out this violence against other children, which adults never could, and because they lack the moral impulse to stop it, in other words, the ability to think for themselves. In harrying those of their peers who have been designated as “gay,” they are precisely not thinking for themselves.

They are being cruel, as children will be, but in order for their cruelty to take on the degree of directedness and organization that it has—for it to become conscious of “gays” as a group to be eliminated—adults logically have to be thinking for them. Indeed, the decision to remove homosexuality from the schools came from parents and from the prominent local antigay movement. At first it was merely a decision to remove any talk of homosexuality, to silence anyone who might defend homosexuals. There was no need for the adults in question to envision the violent path things would take from there. There was no conspiracy to speak of. Once the objective of removing “gay influence” was in place, the children themselves knew how best to achieve it; among them, as Erdely documents, there was never any doubt that the object of the game was to force “gay” kids to kill themselves.

Thus a peculiar combination of town hall strategy and schoolyard tactics spontaneously generated a form of organized, fatal violence for which, amazingly, nobody is directly responsible. Besides the parents and the children, the third set of  (non)agents in this scenario is of course the school employees. I’d like to focus in on the particular reasons for their inaction, because they reveal the heart of this problem, the baffling failure of authority and of political structure.

The district policy that specifically prevented school staff and teachers from intervening to stop the antigay harassment in school was referred to as a “neutrality policy.” In official language, “neutrality” consisted in the stipulation that “homosexuality not be taught/addressed as a normal, valid lifestyle.” The vagueness of this language notwithstanding, the real effect of the “neutrality” policy consisted in its becoming an unwritten law. The official language was never published in any official district policy handbook, never conveyed to employees in writing at all; after its adoption, the policy was promulgated purely by word of mouth. This already incredible circumstance allowed the interpretation of the policy to expand even further, to the point where it was understood that adults in the schools were not to mention homosexuality in any context whatsoever, under the threat of losing their jobs. This meant that when confronted with instances of anti-gay harassment, they would reliably err on the side of inaction, out of concern that any action they might take could be held against them.

What governed the teachers’ conduct was thus more rumor than policy, but the enormous influence that the antigay movement wields over the Anoka-Hennepin school board, not to mention the broader local community, meant that the threats were real. The “neutrality” policy was drafted by the antigay movement, submitted to the school board, and adopted with no changes. At no point, then, did elected officials engage in legislating this policy. There are, to be sure, strong ties between the local antigay movement and the region’s congressional representative, Michelle Bachmann, but these ties do not lead through the political structure; they stem from Bachmann’s involvement in private organizations.

This means that a public official had both the motive (sympathy with the antigay movement) and the means (though, I must note, there is no extant allegation that she exercised them in this case; probably, she did not have to) to act upon local school policy as a private, interested party. All the while, the proper local authority over this type of policy—the elected district school board—functioned at every turn not as an independent deliberating and decision-making body but as a symbolic functionary. That they voted, five to one, to accept the recent agreement with the Department of Justice only underscores the total helplessness of their proceedings, since they had also voted to institute the “neutrality” policy in the first place. They merely perceived that for a moment, the Justice Department had the upper hand, and aligned themselves with the temporarily prevailing authority.

In this light, statements such as that of the district superintendent that “[w]e have people on the left and the right, and we’re trying to find common ground on these issues” can be rephrased as: we have no way of deciding between our public duties and the demands placed upon us by private interest groups. In fact, the federal government is perceived in Anoka-Hennepin as just another private interest group, included among the “people on the left.” The reaction to the recent Justice Department settlement was to immediately frame it in terms of the local power struggle: an effort to “abolish conservative moral beliefs,” as a local activist told the Times. This points to another weakness of the government’s intervention: what is the likelihood that a future Department of Justice (perhaps under the administration of a conservative Republican president, say) will decline either to follow up on this agreement or to take similar action should the situation in Minnesota replicate itself elsewhere?

To reiterate: what ultimately allowed political violence to enter the schools was the fact that the teachers declined to intervene, and the teachers did so because if they acted in accordance with their public duty (which would obviously be to protect their students’ physical safety), they risked real retribution at the hands of private groups wielding effective power over them. Faced with a choice between their own financial security and the physical security of their students, teachers tended to prioritize their own interests. This is a perfect concrete instance of the phenomenon of “polycracy” that Greg Moynahan discussed in a recent essay on this site. Polycracy, which Arendt described in The Origins of Totalitarianism, arises when multiple instances of authority place demands on a person to act in multiple different ways, and the person in question is unable to discern which authority has the higher claim on her obedience. In general, when one’s public office calls on one to act in a way that might be damaging to one’s social position, one ought to be able to declare without much hesitation that the public good has the higher claim on one’s obedience. But under conditions of polycracy, such criteria for deciding vanish, replaced in every particular instance by an unspoken calculation of which authority wields de facto power over the others. In Anoka-Hennepin, the power was with the antigay movement. The fact that it has just now shifted to the federal government—where it seems unlikely to remain for long—does not address the underlying vacuum of authority, especially of local authority.

One final remark. The persecution of “gay” students in Minnesota, as elsewhere, was never really about their sexuality as such. Not all of the targeted students were “really” homosexual—as if teenagers’ sexual orientations were that stable to begin with. As Arendt emphasizes in “Little Rock,” a minority group must appear as such within a larger body politic; it is quite literally their perceptible appearance (voice, skin color, etc.) that determines their separate status. What marks so-called “gay” kids as different is obviously not their sexual activity. It is other kinds of behavior: the way they dress, talk, and otherwise express their individuality. The victims of antigay harassment are almost always described in terms that have nothing to do with sexuality as such: they are “sensitive,” “offbeat,” “stylish,” “bookish,” “musical,” etc. These are the attributes that other children use to identify them as targets. I wonder if what antigay movements really want to eliminate from the public sphere is not precisely these qualities, which can be found in individuals of all sexual preferences, and which together point to the more fundamental qualities that Arendt most prized in human beings: individuality and thinking.

Thinking is connected to fundamental human difference and individuality, both in that people differ from each other fundamentally with respect to their way of thinking and in that it is by thinking that we puzzle over and come to grips with everything that distinguishes us from one another. “Gay” behavior was, in this case, a visible expression of original thinking. Truly original thought is always found in a minority of people, and the attempt to make minorities disappear is secretly the attempt to make original thinking disappear.

-Stephen Haswell Todd

 

19Mar/120

Human Rights Project Presents Joanne Mariner

The Human Rights Project at Bard College

Presents Joanne Mariner

"Counterterrorism and Armed Conflict: A Legal Typology"

She will speak tonight, March 19, 2012 at 5PM, in RKC 103 at Bard College.

Joanne Mariner is the Rita Hauser Director of Hunter College's Human Rights Program.  Before joining Hunter in January 2011, she spent 15 years at Human Rights Watch, most recently as the director of the organization’s Terrorism and Counterterrorism Program. An expert on counterterrorism laws and policies, Mariner has researched and written about indefinite detention, administrative measures such as “control orders,” criminal prosecutions of suspected terrorists, and government efforts to stem the flow of funds to militant groups. In 2006, she testified before the European Parliament about CIA activities in Europe. She is a member of the Council on Foreign Relations and on the board of advisors of the International Centre for Counter-Terrorism – The Hague and the International Justice Resource Center.

During her tenure at Human Rights Watch, she covered a wide variety of other issues, documenting war crimes in Colombia, Kosovo and Darfur, political violence in Haiti, and prison conditions in Hong Kong, among others.  She has published widely on human rights issues, conducted advocacy before the U.N. and regional human rights bodies, and appeared on national media such as ABC News, NPR, BBC World, and C-SPAN.  She drafted Human Rights Watch's 1999 submission to the House of Lords in the Pinochet case, and is the author of a ground-breaking 2001 report on prison rape that helped lead to the passage of national legislation to address the problem. In 2005, she received the American Society of International Law's Distinguished Women in International Law award.

Before joining Human Rights Watch, Mariner served as a law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. She graduated from Barnard College and received a JD from Yale Law School.