The Deprivations of Privacy
"The emergence of society—the rise of housekeeping, its activities, problems, and organizational devices—from the shadowy interior of the household into the light of the public sphere, has not only blurred the old borderline between private and political, it has also changed almost beyond recognition the meaning of the two terms and their significance for the life of the individual and the citizen. Not only would we not agree with the Greeks that a life spent in the privacy of "one's own" (idion), outside the world of the common, is "idiotic" by definition, or with the Romans to whom privacy offered but a temporary refuge from the business of the res publica; we call private today a sphere of intimacy whose beginnings we may be able to trace back to late Roman, though hardly to any period of Greek antiquity, but whose peculiar manifoldness and variety were certainly unknown to any period prior to the modern age. "
-Hannah Arendt, The Human Condition
Here are the titles of some recent posts on the Deeplinks Blog, which is published by the Electronic Frontier Foundation, America's leading organization advocating for citizens' digital rights:
- Who's Tracking Your Reading Habits? An E-Book Buyer's Guide to Privacy, 2012 Edition
- Ninth Circuit Gives the A-OK for Warrantless Home Video Surveillance
- Attempt to Modernize Digital Privacy Law Passes the Senate Judiciary Committee
- NASA's Data Valdez: Thousands of Employees' Personal Information Compromised in Embarrassing Data Breach
- Don't Be a Petraeus: A Tutorial on Anonymous E-Mail Accounts
- ECPA and the Mire of DC Politics: We Shouldn't Have to Trade Video Privacy to Get Common Sense Protections of Our Email
- EFF to Supreme Court: Limit Release of Driver Info
- Do Not Track Update: Professor Peter Swire to Co-Chair W3C Tracking Protection Working Group
- Reform to Require Warrant for Private Online Messages Up for Vote, but Down on Privacy
- Jones Meant What It Said: EFF Urges Court to Stop Warrantless GPS Tracking
Privacy is far from the only issue addressed by the EFF, but this list does account for 10 out of 16 posts appearing on the Deeplinks Blog between November 21st and 29th of this year. And concerns about invasions of privacy surface repeatedly in regard to Facebook's data mining of user profiles and updates, Google tracking and analysis of search queries (not to mention their indiscriminate street view photography, monitoring of wifi signals, and use of gmail address books), and Apple's tracking of the whereabouts and movements of iPhone users (also done by Android and other mobile systems). Companies are known to monitor their employee's internet use, email, and some even demand access to their social media accounts. Law enforcement and other government agencies (foreign and domestic) seek access to citizens' email and text messages and records of websites visited and documents downloaded. Personal messages, photos, and videos are forwarded and distributed without permission. Sites like Wikileaks publish secret government and corporate documents. Hackers break into databases, steal information, take credit card numbers and banking information, and in the ultimate invasion of privacy, engage in identity theft.
As much as the modern understanding of privacy seems to be under assault on account of new media and digital technologies, it's also true that many of us readily reveal personal information via online profiles and posts, post our personal photographs and video recordings, divulge our location through Foursquare and social media status updates, enable GPS tracking on our mobile devices in order to take better advantage of various apps and services, enter credit and debit card numbers on websites assuming that they are secure, and treat email, instant messaging, and SMS as if they were absolutely inviolable channels of communication.
Privacy is being consumed. Online, our privacy is consumed by the advertising, marketing, and public relations industries, while we in turn are encouraged to serve ourselves up as personal brands (as befits cattle). But through social media, we ourselves also consume other people's private lives, perusing their profiles, attending to their status updates, looking through their photographs, listening to their podcasts, watching their uploaded videos. Online we participate in a great orgy of consumption, as personal and intimate details are freely exchanged. On television, we consume the privacy of a select few, but in the age of the internet, paralleling our online devotion to following the lives of ordinary people just like ourselves, we have the relatively new genre of reality TV, which serves us up real housewives and biggest losers, bachelors and bachelorettes, apprentices and survivors, amazing racers and American idols. We are cast in the role of Big Brother, but not in the Orwellian mode of surveillance in the service of social control, but rather in a trivialized form of peeping tom titillation, spying for its own sake, the pure pleasure of voyeurism as another instance of the consumption of privacy. It's a short step from ogling others to googling them.
There is nothing new about our consumption of private lives. What is new is the extent to which it is being carried out. We are in the process of fulfilling Andy Warhol's prophecy that in the future everyone will be famous, but only for fifteen minutes, or was it only for fifteen people? Without a doubt, fame and fandom are being leveled and democratized as never before, as the erosion of privacy that has long been the price of fame for celebrities has now been extended to everyone who has an online presence. We have long grown accustomed to consuming the privacy of famous individuals in the form of celebrity gossip distributed through online services such as TMZ, through television programming such as Entertainment Tonight, and through print media such as the supermarket tabloids and People magazine (not to mention the fact that all too often this type of content is featured by legitimate news media). Celebrity is a phenomenon that's older than television, but television's emphasis on the up-close and personal, the way that the small screen favors the close-up, lends itself to unveiling of intimate detail and expression. As much as he was an icon of hardcore broadcast journalism, Edward R. Murrow pioneered the format of bringing television cameras into the homes of celebrities in Person to Person, a program he hosted from 1953 to 1959. As television came to dominate the media environment of the late 20th century, the proliferating presence of cameras and microphones made private life all but impossible for celebrities. It is no accident that the term paparazzi traces its origins back to the same year that the Kennedy-Nixon debates signaled the beginning of image politics, 1960 (the term is derived from a character named Papparzo, a news photographer, from Federico Fellini's famous film, La Dolce Vita). Is it any accident that the synonym for television set is monitor, as television's basic function is the monitoring or surveillance of the environment?
But to be fair, while television, and before it radio, allowed audiences to view the outside world while remaining themselves unobserved, providing a kind of two-way mirror (aka a one-way window) on events, they also have constituted an intrusion of the outside world into private homes, and thereby contributed to the erosion of the private sphere. And long before the internet, the adoption of the telephone allowed strangers as well as friends and relatives to invade our privacy at any hour of the day or night, interrupting even the most intimate of activities (before the widespread use of answering machines, some referred to this phenomenon as telephonus interruptus).
Over the course of the 20th century, the increasing presence of cameras and microphones have subjected private life to increasingly greater public exposure, but more generally the wiring of the environment (the environment in effect wearing a wire) and the unimpeded flow of wireless transmissions permeating the very air that we breathe has placed privacy under increasing assault. In the aftermath of Watergate, Marshall McLuhan noted that on account of the electronic media, "the entire planet has become a whispering gallery, with a large portion of mankind engaged in making its living by keeping the rest of mankind under surveillance." McLuhan held Arendt in high esteem, and he incorporated Arendt's observation that the ancient Greeks viewed the private individual as an idiot, noting that modern ideas about privacy are an aberration, rather than a natural and universal human understanding about how we should live our lives.
It often comes as a revelation to individuals not familiar with the Constitution of the United States to learn that there is no specific articulation of a right to privacy in the Bill of Rights or elsewhere, and that privacy rights are the product of judicial interpretation of, for example, the Fourth Amendment protection against "unreasonable searches and seizures."
This absence is not an oversight on the part of the founders of the American republic, but rather a reflection of the fact that the modern concept of privacy was a novelty in the late 18th century. And as surprising as this may be, the ancient Greek understanding of private life typically comes as a shock. As Arendt goes on to explain:
In ancient feeling the privative trait of privacy, indicated in the word itself, was all-important; it meant literally a state of being deprived of something, and even of the highest and most human of man's capacities. A man who lived only a private life, who like the slave was not permitted to enter the public realm, or like the barbarian had chosen not to establish such a realm, was not fully human. We no longer think primarily of deprivation when we use the word "privacy," and this is partly due to the enormous enrichment of the private sphere through modern individualism.
The root meaning of privacy is the same as privative and deprived, as lacking a role in or access to the public arena. For Arendt, privacy provides the space for the individual's thoughtful contemplation, but must serve as a backstage region, to use Erving Goffman's dramaturgical metaphor, for the staging of public action, political activity involving collective deliberation and cooperation.
Underlying this is the essential point that the public and the private are interdependent, which is why "the barbarian," or member of a tribal society, has neither. Conceptions of both the public and the private are tied to the nascent notion of the individual, of identity separate from the group, which only began to form following the introduction of writing and the advent of literacy. Writing, as Eric Havelock put it, "separates the knower from the known," allowing for objective distance from one's tradition and tribe, and from one's own thoughts. This inward turn opens the door to the idea of the private individual, while the act of reading and writing itself require a degree of isolation. Readers read alone and apart from one another, even if they read the exact same text at the exact same time. Listeners constitute a group, a collectivity, as an audience (which is a singular noun, whereas readers are plural). A public then is dependent on the existence of the private individual, as the public is composed of individuals who govern themselves because they can think for themselves, speak their own minds, and deliberate as equals. Equality too is linked to writing, as it is with the introduction of codified law made possible by writing that we gain the idea that we are all equal in relation to the same set of rules and commandments. Public and private then have their roots in antiquity, but do not become fully formed until the modern era, following the introduction of the printing press, which also opened the door for the modern ideology of individualism.
As public and private have a common origin, so too are they commonly at risk due to the same forces. Politically, totalitarianism seeks to remove all of the barriers that make private life possible, at the same time that the public sphere is dismantled to create a single homogenous field of power through surveillance. Economically, in ancient Greece, the center of public life was the agora, which also served as the marketplace, but only a few years before Arendt published The Human Condition, the modern marketplace began to be referred to as the private sector, as corporations usurped the human invention of private identity, and have systemically undermined the last vestiges of the public sphere as they seek to create a single homogenous field of consumption through the manufacture of desire. We might well wonder why corporate executives for the most part have been allowed to escape the heavy media scrutiny that political leaders and other celebrities are subjected to? Why are they allowed to hold on to the privilege of privacy where other prominent (and not so prominent) members of society are not? Wouldn't we all be better off if they were held to the same standards of transparency now required of politicians and government officials?
Underlying the general blurring and dissolution of the private and the public that we have been experiencing is the electronic media environment, which has undermined, superseded, and shortcircuited the media environment associated with literacy and print. In place of individualism, which was based on the compartmentalization of private life kept separate from the public sphere, we have personalization, which involves providing open access to personal data, history, and activity, and the persona itself. In the absence of boundaries, honesty becomes of the highest value, but it's typically the honesty of self-disclosure, narcissistic self-revelation in the interests of self-promotion, as when celebrities go on talk shows to confess to personal problems as part of what is, or seems to be, an image revitalization strategy. Openness in communication is treasured, even though indiscriminate openness can be damaging rather than healing depending on the context and manner in which it is approached. Transparency is put forth as a basic principle for internet activity, and while awareness that we are being observed generally results in more ethical behavior than would otherwise occur, there are times when some amount of secrecy in politics is needed for successful negotiation.
Arendt teaches us that the modern concept of private and public is not immutable, and having changed before can and is changing again. And having been born the year before Arendt published The Human Condition, I am not entirely comfortable with the increasing loss of the distinction between the public and private, nor can I completely relate to the post-individualism of younger generations. But given our current trajectory, our options may be limited to living with surveillance carried out by powerful entities such as governments and corporations, or meeting surveillance with sousveillance, to use the term popularized by University of Toronto political scientist Ronald Deibert, with citizens pointing their cameras back at the cameras pointing at them. Or more generally, our best option may be to work for a transparent society, to use author David Brin's notion, where our personal sacrifice of privacy is compensated for by transparency on the part of the rich and powerful. If we must be deprived of the boundary between private life and public activity, and instead live and work in glass houses, let's make sure no one gets to gets to mirror theirs, just because they have a great deal of silver.
-Lance Strate
Corruption Takes Root
What is the essence of corruption? This is a question raised by the recent Supreme Court jurisprudence around Citizens United v. FEC. For Justice Kennedy and the Court has concluded, as a matter of law, that only quid pro quo corruption is corruption. An out and out bribe is corrupting, but throwing a congressman a $100,000 party or treating them to fancy meals and trendy restaurants, that is just exercising the right to freely speak with one's elected representatives. That such lavish expenditures come with expectations is, the Court insists, improvable and simply part and parcel of our democratic system.
In Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It, Lawrence Lessig explores fully the impact of such "soft" corruption. He writes that the enemy we face today is not a Hitler or even the good Germans who would enable a Hitler. "Our enemy," Lessig writes, "is the good Germans (us) who would enable a harm infinitely less profound, yet economically and politically catastrophic nonetheless. A harm caused by a kind of corruption. But not the corruption engineered by evil souls. Indeed, strange as this might sound, a corruption crafted by good souls. By decent men. And women." Such a crime, he insists, is banal, but "not the banal in the now-overused sense of Hannah Arendt's The Banality of Evil—of ordinary people enabling unmatched evil (Hitler's Germany). Our banality is one step more, well, banal."
Lessig is right to worry that Arendt's phrase is overused, but what is more banal in the banality he so penetratingly describes in his book? In any case, his book better describes the kind of endemic corruption that infects our political system than any other. It should be read.
It is also important to remember that real corruption still exists in our world. It may be more a rarity at a time when one can accomplish so much corruption through legal means, but examples of bold and brazen corruption remain.
Lance Armstrong's web of corruption that silenced and intimidated dozens of his colleagues for over a decade is one example of how corruption can succeed, against all odds, but only for a time. Rumors of Armstrong's drug use floated around for a decade, and yet he still denies it. It took years for the web of deceit to break. As the NY Daily News wrote in an excellent review of the scandal:
The Armstrong myth was so lucrative that suppressing the truth came to require an endless behind-the-scenes campaign to bully and intimidate people into silence. Some of it bordered on gangsterism. Some of it was dressed up in the respectable wardrobe of elite law firms. But mostly it was just hot air - a fact that by 2010 had become clear enough to Floyd Landis that he stepped up and burst the bubble, blowing the whistle on the whole big fraud.
We tend to ignore corruption because it seems so inconceivable in our age of transparency. Corruption requires that the truth be kept hidden. This is extremely difficult and possible only through force and violence and even terror. But eventually, the truth comes out. As Hannah Arendt wrote in another context, "holes of oblivion do not exist." Eventually, the truth will emerge, no matter how many interests and how much money and violence is spent in the futile effort to prevent that from happening.
What brings to mind these brief reflections on the continued efficacy of corruption as well as its eventual failure is an article recently published in The Nation on the Hershey Trust. The author of the story is Ric Fouad, who is also a member of the Arendt Center's Board of Advisors. He is a graduate of the Milton Hershey School and together with a handful of other activists has been fighting a lonely battle against what he sees as the corruption of the Hershey Trust's Board, a fight that for him is inspired by Hannah Arendt's insistence on both truth, courage, and public action.
A little background. Milton Hershey was not just a brilliant chocolatier who had a radical vision of making chocolate—previously marketed only to the wealthy—available to the masses. He was also profoundly philanthropic. Unable to have children, Hershey left his entire personal fortune to the Hershey Trust, whose mission was to administer The Milton Hershey School, a school that Hershey founded to help and educate orphaned boys—the school is now coed and serves children with living parents. That fortune is now worth nearly $8 billion.
By his own account, Milton Hershey's life work would be to help orphaned children, whose plight touched him deeply. Hershey wanted his school to bring orphans into a revolutionary new kind of school, free from industrial buildings common to orphanages. The children were to live in beautiful homes in a bucolic paradise on 12,000 acres of land. They were to work on farms to learn character and attend a school that includes a vocational curriculum as well and have great teachers. It had all the potential to be an extraordinary facility set in truly magnificent settings.
So what is not to like? Well, for one thing, the Hershey Trust has been under investigation for six years, with no resolution and amidst plenty of accusations and charges about misspent funds and broken trust. The bucolic community-wide children's home was telescoped into a crowded centralized campus; the farms were all closed; the vocational program barely survives; and the poorest children, wards of the court, and foster care children came to be rejected in favor of what the administrators deemed a "better" class of child. Local developers made tens of millions in the process.
Tasked with administering the Milton Hershey School, the Trust's incredible resources enabled it to do much else besides. This could be an amazing opportunity to do good. It could also and become a magnet for powerful and connected people who finagled their ways onto the Hershey Trust board in order to access and control the vast wealth the Hershey Trust possessed. And that is what the article in The Nation, as well as numerous investigative articles here, here, and here, in The Philadelphia Inquirer, have alleged. You can also watch Ric Fouad's Harvard Law School lecture "Hershey's Broken Trust" here.
In Republic, Lost, Lessig writes:
The great threat to our republic today comes not from the hidden bribery of the Gilded Age, when cash was secreted among members of Congress to buy privilege and secure wealth. The great threat today is in plain sight. It is the economy of influence transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is that it discriminates against all sides to favor itself.
As true as that is about government, it is also true for cycling legends and political clubs. When corruption of all kinds pervades institutions throughout our society, it is only natural that cynicism abounds and we lose faith in the process of government as well as in the integrity of business. It is time to take corruption seriously in this country, and not explain it away as something that happens elsewhere in less civilized and less democratic countries.
You can read an excerpt of Lessig's Republic, Lost... here, at Amazon.com, where you can also buy his book.
-RB
Defining American Democracy Differently
How do our understandings of democracy shape how we imagine racial equality and the means by which it might be achieved? That was the question posed by Maribel Morey at the most recent lunchtime talk at the Arendt Center. Morey is currently a fellow at the New York University School of Law, and she has recently completed her dissertation in the Department of History at Princeton University. Building upon her research on the Swedish economist and social theorist Gunnar Myrdal, Morey offered an incisive comparative reading of Myrdal’s book An American Dilemma (1944) and Hannah Arendt’s essay “Reflections on Little Rock” (1959).
As became evident in the course of her talk, these texts posit different visions of democracy in the U.S., and they come to different conclusions about a central feature of the civil rights era: the federally enforced integration of public schools in the segregated South.
Myrdal was a strong advocate of such government intervention. In his argument, the premises and principles of American democracy effectively demand the racial integration of schools and other institutions, and it is legitimate for the federal government to enforce such integration for the sake of America’s ongoing democratic life. This position insists that education constitutes a crucial public resource provided by the state, and it proposes that inequitable access to this resource limits individual and collective participation in the political realm. Indeed, Myrdal goes even further by contending that discrimination and segregation violate the very “American creed”—the liberal commitment to equality and fair treatment—that makes national co-existence possible. Since its initial publication, Myrdal’s position has exerted a deep influence on U.S. public discourse: it played a key role in civil rights activism in the 1950s and ‘60s, and it figured prominently in the Supreme Court’s Brown vs. Board of Education decision.
Arendt was also committed to the project of political equality in the U.S., but she parts ways with Myrdal by sharply questioning the legitimacy of federally enforced integration. On the one hand, she objects to this form of intervention because it “burden[s] children, black and white, with the working out of a problem which adults for generations have confessed themselves unable to solve”. Government-mandated integration thereby inserts young people into a political struggle for which they are not prepared and to which they do not properly belong. On the other hand, Arendt takes issue with the way that federally mandated integration transgresses the boundaries that ought to be maintained between the realms of political, social, and private life.
These boundaries are necessary, in Arendt’s argument, because polity, society, and privacy are defined by different animating principles. Politics is defined by the principle of equality: all adult citizens enjoy the same right to vote and be voted into office, and no differences should exist in their ability to participate in the polity. By contrast, the social realm is characterized by the principle of discrimination: social relations follow the adage “like attracts like,” according to Arendt, and individuals are therefore entitled to associate—and not associate—with others along the lines of profession, class origin, ethnicity, level of education, and other vectors of difference. Finally, the private realm is defined by the principle of exclusiveness: individuals choose the people with whom they will spend their lives on the basis of those people’s unique qualities, and the government should and indeed must assure “the rights of every person to do as he pleases within the four wall of his own home.”
Arendt charges that state action in the service of racial integration is acceptable when it attacks the legal enforcement of discrimination in the political realm. One of her key differences with Myrdal, however, lies in the fact that she does not regard the education provided by the school as necessary for political participation. Indeed, she does not ultimately consider the school to be a “political” institution at all. To be sure, the state has the right to prescribe educational content that will prepare children for future work and citizenship. But in Arendt’s argument government cannot dictate the forms of association and social life that emerge in school, and it cannot infringe on parents’ rights to bring up their children as they deem appropriate. These points lead her to a rather provocative conclusion: “to force parents to send their children to an integrated school against their will means to deprive them of rights which clearly belong to them in all free societies—the private right over their children and the social right to free association.”
As Roger Berkowitz writes in his essay "Solitude and the Activity of Thinking," Arendt's argument is grounded on her belief that a vibrant private realm is a constitutive need of a free political society. Without a strong protection of the private realm where people can grow to be different, unique, and self-thinkers, there will be no true plurality, which is the condition for action and politics. The price for plurality, she writes, is that we allow for people to live freely in private. It is for this reason that Arendt argues against anti-miscegenation law and why she would insist on the right to gay marriage. For Arendt, there is nothing more constitutive of privacy than the right to raise one's children as one wishes. For the state to forcefully require parents to send their children to a specific kinds of school means, she writes, that there would be no meaningful realm of privacy left—which would endanger the plurality she understands is the pre-condition of politics. As Berkowitz writes:
What offends Arendt in the Little Rock case is not the ideal of desegregation, but the danger that well-intentioned governmental attacks on social discrimination will erode the walls of privacy that nourish the possibility of thinking and of acting—and thus of plurality. Since the space for solitary thought depends on the protection of a vibrant private realm, the protection of privacy is a necessary first step in the cultivation of thoughtful political action.
Given the controversial nature of Arendt’s position, it should come as no surprise that much of the discussion turned on the questions her essay leaves unanswered. For example, many audience members wondered about the connections between private upbringing, social discrimination, and political equality. What is it that enables or requires citizens to forego the discrimination they practice in social life so that they might recognize other citizens as equals?
For that matter, how is it possible for people to transcend those aspects of their familial socialization that might hinder them from participating in politics without prejudice?
Other listeners focused on the two writers’ divergent intellectual predilections. As several of them noted, Myrdal’s work reveals a basic confidence in the ability of government, working in tandem with enlightened social science, to conceive and implement policies that further democratic freedoms. Arendt, on the other hand, betrays a much more skeptical stance not only on power of the state, but also on the capacity of social scientists (like Myrdal) to guide productive social and political interventions.
Finally, discussion turned to one point where Arendt, despite the contentious nature of her remarks, might be developing a more interesting view of democratic societies than Myrdal. As Morey noted in the Q and A, Myrdal’s reflections on democracy are ultimately premised on the existence of a national Volk defined by broad moral and cultural commonality. Prejudice and discrimination are pernicious, in his reading, because they prevent racial minorities from complete integration into the nation and its defining sense of peoplehood. Arendt’s vision, by contrast, adopts a much more guarded stance toward “conformism” of this sort. Indeed, “Reflections on Little Rock” proposes that people have a strong right to their opinions and sentiments in the private and social realms, even when those opinions and sentiments are deeply unpalatable in the wider public sphere and polity. As a result, Arendt’s notion of democracy appears to allow much greater room for the existence and maintenance of difference.
On the whole, then, Morey’s talk cast thoughtful light on the work of these two thinkers. It sought neither to venerate nor to dismiss their claims wholesale, but instead probed the many differences in their starting points and claims. In the end, Myrdal and Arendt’s positions seemed so divergent that it was hard not to regard them as “two ships passing in the night”—despite their common abhorrence of racial segregation.
You can view Maribel Morey's talk and the ensuing discussion on the Hannah Arendt Center website, here.
Maribel Morey's essay, "Reassessing Hannah Arendt's 'Reflections on Little Rock' (1959)" was published in the Journal of Law, Culture, and the Humanities. You can sign in with a password to read the article here.
-Jeff Jurgens
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
Withered Public, Disappearing Private
“What is necessary for the pubic realm is to shield it from the private interests which have intruded upon it in the most brutal and aggressive form.”
-Hannah Arendt
In 1973, Hannah Arendt was invited to participate in a series of conferences on the Humanities and Public Policy issues funded by the National Endowment for the Humanities to be held at Columbia University. The first, scheduled for February 1974, was on the topic of “Private Rights and the Public Good,” and Arendt gave a speech in response to a paper on the subject given by Charles Frankel, a Professor of Philosophy and Public Affairs at Columbia University. (The original note cards of her presentation are available to researchers at the Library of Congress and can be viewed digitally online.)
Part of the grant’s requirements included taping the sessions and providing the Endowment with a transcript of all proceedings. Arendt objected to being taped and indicated she could do no more than present her oral commentaries; she had no time to develop a fuller paper. The organizers of the conference and Arendt reached a compromise: they would prepare a transcript of her comments from the tape; the tape would stay in the possession of Columbia University and no use would be made of the transcript, other than filing it with the Endowment as required, without Arendt’s express permission.
Some months after the conference, the coordinator of the conference sent Arendt the edited transcript, along with his wishes for her speedy recovery: while Arendt was in Scotland for the second of the Gifford Lectures, she had suffered a major heart attack. Unhappy with the transcription, Arendt indicated she still had her notes and would prepare something from them, adding that she thought this would present her thoughts more clearly, “even though these notes are written down in a rather apodictic style.” She had her secretary type up a version of the notes and then made a few additional minor changes and sent them to Columbia University.
“Notes on the Discussion of Professor Charles Frankel’s Paper...” provides several succinct insights into Arendt’s critical distinctions between public and private, which are especially germane to today’s political situation.
“Every individual by virtue of his citizenship receives a sort of second life in addition to his private life. He belongs to two orders of existence. Throughout his life he moves within what is his own, and what is common to him and his fellow man.” Public happiness was something that could only be attained “in public, independent of...private happiness.”
Today, Arendt bemoaned, the opportunities for experiencing this public happiness by participating in public life had shrunk, adding, “The voting box can hardly be called a public place.” It was better represented in the activities of a jury. But the paradigmatic “public right” for Arendt was the right to peaceable assembly provided by the First Amendment to the Constitution. Its exercise was still evident in “voluntary association”, she remarked, “of which the civil disobedience groups were an outstanding examples.” Arguably, it has been more recently evident in dimensions of the Occupy Wall Street movement and its iterations. (Though, for interesting commentary and documentary materials on this see Cindy Weber’s recent essay in Open Democracy). But what was definitely not an example of the exercise of public rights was the degeneration of peaceable assembly into “lobbying,” which Arendt saw as “the organization of private interest for the purpose of public political influence.
Evidence from the current campaign suggests that the bipartisan perversion of public into private interests continues at an obscene pace. A recent article in The New Yorker provided some frightening facts: The impact of the 2010 Supreme Court case, Citizens United v. Federal Election Commission has meant that “very wealthy Americans have begun wielding increasingly disproportionate power in U.S. politics...A pool of only 2100 people has given a total of 200 million dollars to the 2012 campaigns and their Super PACs—fifty-two million dollars more than the combined donations of the two and a half million voters who have given two hundred dollars or less. In other words, the top .07 per cent of donors are exerting greater influence on the 2012 race than the bottom 86%.” (August 27, 2012)
What this means, using Arendt’s terminology, is that only a tiny portion of private interests will exert tremendous political influence. Not only has the public realm shrunk; the private realm of influencing politics has all but disappeared for everyone except the very few. Entering the voting booth in 2012 will mean exercising your private right to choose between one form of oligarchy or another. What then of public life? How can it be restored?
Arendt was typically vague about what to do about the influence of oligarchies on public and private life. “Neither the capitalist system [nor] the socialist system respects ownership any more—inflation and devaluation of currency are capitalist modes of appropriation—although both, in different ways, respect acquisition,” she wrote in the same speech. As to the consequences of enshrining acquisition as a principle of social organization, Arendt had nothing but criticism—see The Human Condition for this. To protect private life, we must “restore ownership to private individuals under conditions of modern production.” And what is necessary for public life to be restored is “to shield it against the private interests which have intruded upon it in the most brutal and aggressive form.” Yet all recent legislation that would have restored “ownership” or secured the public realm against brutalization by private interests seem to disappeared from the legislative agenda.
Is it time to call upon the 99% to boycott the election entirely? What other act of civil disobedience would be adequate to the task of renewing public life and salvaging it from its bastardization at the hands of greedy private interests?
-Kathleen B. Jones
Does the President Matter?
“Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.”
—Hannah Arendt, What is Freedom?
This week at Bard College, in preparation for the Hannah Arendt Center Conference "Does the President Matter?", we put up 2 writing blocks around campus, multi-paneled chalkboards that invite students to respond to the question: Does the President Matter? The blocks generated quite a few interesting comments. Many mentioned the Supreme Court. Quite a few invoked the previous president, war, and torture. And, since we are at Bard, others responded: it depends what you mean by matters.
This last comment struck me as prescient. It does depend on what you mean by matters.
If what we mean is, say, an increasing and unprecedented power by a democratic leader not seen since the time of enlightened monarchy, the president does matter. We live in an age of an imperial presidency. The President can, at least he does, send our troops into battle without the approval of Congress. The President can, and does, harness the power of the TV, Internet, and twitter to bypass his critics and reach the masses more directly than ever before. The president can, and does, appoint Supreme Court Justices with barely a whimper from the Senate; and the president’s appointments can, and do, swing the balance on a prisoner’s right to habeas corpus, a woman’s right to choose, or a couple’s right to marry.
And yet, what if by matter, we mean something else? What if we mean, having the power to change who we are in meaningful ways? What if by matter we mean: to confront honestly the enormous challenges of the present? What if by matter we mean: to make unpredictable and visionary choices, to invite and inspire a better future?
On the really big questions—the thoughtless consumerism that degrades our environment and our souls; the millions of people who have no jobs and increasingly little prospect for productive employment; the threat of devastating terrorism; and the astronomical National Debt: 16 trillion and counting for the US. -- That is $140,000 for each taxpayer. -- Add to that the deficiency in Public Pension Obligations (estimated at anywhere from $1 to $5 trillion.) Not to mention the 1 trillion dollars of inextinguishable student debt that is creating a lost generation of young people whose lives are stifled by unwise decisions made before they were allowed to buy a beer.
This election should be about a frank acknowledgement of the unsustainability of our economic, social, and environmental practices and expectations. We should be talking together about how we should remake our future in ways that are both just and exciting. This election should be scary and exciting. But so far it’s small-minded and ugly.
Around the world, we witness worldwide distrust and disdain for government. In Greece there is a clear choice between austerity and devaluation; but Greek leaders have saddled their people with half-hearted austerity that causes pain without prospect for relief. In Italy, the paralysis of political leaders has led to resignation and the appointment of an interim technocratic government. In Germany, the most powerful European leader delays and denies, trusting that others will blink every time they are brought to the mouth of the abyss.
No wonder that the Tea Party and Occupy Wall Street in the US, and the Pirate Parties in Europe share a common sense that liberal democratic government is broken. A substantial—and highly educated—portion of the electorate has concluded that our government is so inept and so compromised that it needs to be abandoned or radically constrained. No president, it seems, is up to the challenge of fixing our broken political system.
Every President comes to Washington promising reform! And they all fail. According to Jon Rauch, a leading journalist for The Atlantic and the National Journal, this is inevitable. He has this to say in his book Government's End:
If the business of America is business, the business of government programs and their clients is to stay in business. And after a while, as the programs and the clients and their political protectors adapt to nourish and protect each other, government and its universe of groups reach a turning point—or, perhaps more accurately, a point from which there is no turning back. That point has arrived. Government has become what it is and will remain: a large, incoherent, often incomprehensible mass that is solicitous of its clients but impervious to any broad, coherent program of reform. And this evolution cannot be reversed.
On the really big questions of transforming politics, the President is, Rauch argues, simply powerless. President Obama apparently agrees. Just last week he said, in Florida: "The most important lesson I've learned is that you can't change Washington from the inside. You can only change it from the outside."
A similar sentiment is offered by Laurence Lessig, a founding member of Creative Commons. In his recent book Republic 2.0, Lessig writes:
The great threat today is in plain sight. It is the economy of influence now transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is not that it discriminates in favor of one side and against the other. The single most salient feature is that it discriminates against all sides to favor itself. We have created an engine of influence that seeks not some particular strand of political or economic ideology, whether Marx or Hayek. We have created instead an engine of influence that seeks simply to make those most connected rich.
The system of influence and corruption through PACs, SuperPacs, and lobbyists is so entrenched, Lessig writes, that no reform seems plausible. All that is left is the Hail Mary idea of a new constitutional convention—an idea Lessig promotes widely, as with his Conference On the Constitutional Convention last year at Harvard.
For Rauch on the Right and Lessig on the Left, government is so concerned with its parochial interests and its need to stay in business that we have forfeited control over it. We have, in other words, lost the freedom to govern ourselves.
The question "Does the President Matter?" is asked, in the context of the Arendt Center conference, from out of Hannah Arendt's maxim that Freedom is the fundamental raison d'etre of politics. In "What is Freedom?", Arendt writes:
“Freedom is actually the reason that men live together in political organization at all. Without it, political life as such would be meaningless. The raison d’être of politics is freedom.”
So what is freedom? To be free, Arendt says, is to act. Arendt writes: "Men are free as long as they act, neither before nor after; for to be free and to act are the same.”
What is action? Action is something done spontaneously. It brings something new into the world. Man is the being capable of starting something new. Political action, and action in general, must happen in public. Like the performing arts—dance, theatre, and music—politics and political actions requires an audience. Political actors act in front of other people. They need spectators, so that the spectators can be drawn to the action; and when the spectators find the doings of politicians right, or true, or beautiful, they gather around and form themselves into a polity. The political act, the free act must be surprising if it is to draw people to itself. Only an act that is surprising and bold is a political act, because only such an act will strike others, and make them pay attention.
The very word politics derives from the Greek polis which itself is rooted in the Greek pelein, a verb used to describe the circular motion of smoke rings rising up from out of a pipe. The point is that politics is the gathering of a plurality around a common center. The plurality does not become a singularity in circling around a polestar, but it does acknowledgement something common, something that unites the members of a polity in spite of their uniqueness and difference.
When President Washington stepped down after his second term; when President Lincoln emancipated the slaves; when FDR created the New Deal; when President Eisenhower called the Arkansas National Guard into Federal Service in order to integrate schools in Little Rock; these presidents acted in ways that helped refine, redefine, and re-imagine what it means to be an American.
Arendt makes one further point about action and freedom that is important as they relate to the question: Does the President Matter? Courage, she writes, is "the political virtue par excellence." To act in public is leave the security of one's home and enter the world of the public. Such action is dangerous, for the political actor might be jailed for his crime or even killed. Arendt's favorite example of political courage is Socrates, who was killed for his courageous engagement of his fellow Athenians. We must always recall that Socrates was sentenced to death for violating the Athenian law.
Political action also requires courage because the actor can suffer a fate even worse than death. He may be ignored. At least to be killed for one's ideas means that one is recognized as capable of action, of saying and doing something that matters. To be ignored, however, denies the actor the basic human capacity for action and freedom.
One fascinating corollary of Arendt's understanding of the identity of action and freedom is that action, any action—any original deed, any political act that is new and shows leadership—is, of necessity, something that was not done before. It is, therefore, always against the law.
This is an insight familiar to readers of Fyodor Dostoevsky. In Crime and Punishment Raskolnikov says:
Let's say, the lawgivers and founders of mankind, starting from the most ancient and going on to the Lycurguses, the Solons, the Muhammads, the Napoleons, and so forth, that all of them to a man were criminals, from the fact alone that in giving a new law they thereby violated the old one.
All leaders are, in important ways, related to criminals. This is an insight Arendt and Nietzsche too share.
Shortly after we began to plan this conference, I heard an interview with John Ashcroft speaking on the Freakonomics Radio Show. He said:
"Leadership in a moral and cultural sense may be even more important than what a person does in a governmental sense. A leader calls people to their highest and best. ... No one ever achieves greatness merely by obeying the law. People who do above what the law requires become really valuable to a culture. And a President can set a tone that inspires people to do that."
My first reaction was: This is a surprising thing for the Attorney General of the United States to say. My second reaction was: I want him to speak at the conference. Sadly, Mr. Ashcroft could not be with us here today. But this does not change the fact that, in an important way, Ashcroft is right. Great leaders will rise above the laws in crisis. They will call us to our highest and best.
What Ashcroft doesn't quite say, and yet Arendt and Dostoevsky make clear, is that there is a thin and yet all-so-important line separating great leaders from criminals. Both act in ways unexpected and novel. In a sense, both break the law.
But only the leader's act shows itself to be right and thus re-makes the law. Hitler may have acted and shown a capacity for freedom; his action, however, was rejected. He was a criminal, not a legislator. Martin Luther King Jr. or Gandhi also broke the laws in actions of civil disobedience. Great leader show in their lawbreaking that the earlier law had been wrong; they forge a new moral and also written law through the force and power of moral example.
In what is perhaps the latest example in the United States of a Presidential act of lawbreaking, President George W. Bush clearly broke both U.S. and international law in his prosecution of the war on terror. At least at this time it seems painfully clear that President George W. Bush's decision to systematize torture stands closer to a criminal act than an act of great legislation.
In many ways Presidential politics in the 21st takes place in the shadow of George W. Bush's overreach. One result is that we have reacted against great and daring leadership. In line with the spirit of equality that drives our age, we ruthlessly expose the foibles, missteps, scandals and failures of anyone who rises to prominence. Bold leaders are risk takers. They fail and embarrass themselves. They have unruly skeletons in their closets. They will hesitate to endure and rarely prevail in the public inquisition that the presidential selection process has become.
These candidates, who are inoffensive enough to prevail, are branded by their consultants as pragmatists. Our current pragmatists are Products of Harvard Business School and Harvard Law School. Mr. Romney loves data. President Obama worships experts. They are both nothing if not faithful to the doctrine of technocratic optimism, that we with the right people in charge we can do anything. The only problem is they refuse to tell us what it is they want to do. They have forgotten that politics is a matter of thinking, not a pragmatic exercise in technical efficiency.
Look at the Mall in Washington: the Washington monument honors our first President, the Jefferson Memorial, the Lincoln Memorial, the Memorial to Franklin Delano Roosevelt. There is not a monument to any president since FDR. And yet, just 2 years ago we dedicated the Martin Luther King Memorial. It doesn't seem like an accident that the leaders of the Civil Rights Movement were not politicians. Our leaders today do not gravitate to the presidency. The presidency does not attract leaders. Bold leaders today are not the people running for office.
Yet, people crave what used to be called a statesman. To ask: "Does the President Matter?" is to ask: might a president, might a political leader, be able to transform our nation, to restore the dignity and meaning of politics? It is to ask, in other words, for a miracle.
At the end of her essay, "What is Freedom?", Hannah Arendt said this about the importance of miracles in politics.
Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.
She continued:
It is men who perform miracles—men who because they have received the twofold gift of freedom and action can establish a reality of their own.
I don't know if the president matters.
But I know that he or she must. Which is why we must believe that miracles are possible. And that means we, ourselves, must act in freedom to make the miraculous happen.
In the service of the not-yet-imagined possibilities of our time, our goal over the two days of the conference days was to engage in the difficult, surprising, and never-to-be-understood work of thinking, and of thinking together, in public, amongst others. We heard from philosophers and businessmen, artists and academics. The speakers came from across the political spectrum, but they shared a commitment to thinking beyond ideology. Such thinking is itself a form of action, especially so in a time of such ideological rigidity. Whether our meeting here at Bard gives birth to the miracle of political action--that is up to you. If we succeeded in thinking together, in provoking, and in unsettling, we perhaps sowed the seeds that will one day blossom into the miracle of freedom.
-RB
Watch Roger's opening talk from the conference, "Does the President Matter?" here.
The Supreme Court No Longer Reigns Supreme
Polling often confirms the obvious, but sometimes it is important to be faced with the fact. The NY Times does just today when it reports,
Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views. Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.
The loss of respect for the Court is important. Hannah Arendt understood that the Supreme Court was the only institution in American Democracy that could offer stability and authority to the vagaries of democratic will. The Court is the institution that stands above politics, or at least it used to.
For Arendt, the "great measure of success" of the American experiment in government was the founding of a "new body politic stable enough to survive the onslaught of centuries to come." Arendt writes that the success of American Constitutional Republicanism was secured "the very moment when the Constitution began to be "worshipped." The worship of the Constitution meant that the Court decisions where cloaked in a patina of authority. The Court spoke not for itself, nor for the democratic people, but for the American People constituted as a Republic.
The importance of the Supreme Court was that it lacked power and thus stood outside of politics.
Institutionally, it is lack of power, combined with permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court. And this authority is exerted in a kind of continuous constitution-making, for the Supreme Court is indeed, in Woodrow Wilson's phrase, 'a kind of Constitutional Assembly in continuous session.
The Court was both a truthteller that stood outside politics and, equally essential, a model of free and reasoned discussion about the core constitutional issues of the day.
The decline of the Supreme Court has a long history. It begins with the innovation of the Justices issuing long and reasoned decisions, something that only becomes common in the early 20th century. The long opinions and multiple dissents pierced the veil of authority and showed the Court to resemble bickering legislatures more than reasonable jurists. Franklin Delano Roosevelt's court-packing scheme further politicized the Court, as did the activism of the Warren Court. But it was only in the 1980s and the bitter confirmation battles along with the litmus tests for judges on issues like abortion and affirmative action that has produced a Court that sees itself as an increasingly politicized body. The Bush v. Gore intervention that decided the 2000 election and most recently the Citizens United decision that made unconstitutional a century-long practice of limiting the influence of money in elections have stripped the Court of its last veneer of authority.
The loss of authority may not be reversible, but nor is it a minor event. How we respond to the loss of the Court's authority—with denial, with an effort to return the Court to its prior glory, with an ever-more partisan and thoughtless politics, or with a concerted effort to create new institutions that will conserve and deepen the sense of who we are as a nation—will go a long way to determining whether the United States' will persist as a beacon of freedom and stability.
-RB
The Supreme Court as Truthteller
I spent an exciting day at the College of Arts and Letters at Stevens Institute of Technology. Along with Matthias Bormuth, Morris Kaplan, and our host Michael Steinman, we enjoyed a wide-ranging discussion centering around Hannah Arendt's essay Truth and Politics, but reaching deep into Arendt's thinking about law and politics as well.
Much of the discussion at our seminar discussed the status of the Supreme Court as a truthteller. Arendt saw the great innovation of the American form of government to be the shift of the seat of authority to the Supreme Court. By authority, Arendt means that pre-political claim of obedience that flows from tradition, religion, or possibly from charisma. In Rome authority was located in the Senate, and the Senators
"held their authority because they represented, or rather reincarnated, the ancestors whose only claim to authority in the body politic was precisely that they had founded it, that they were the 'founding fathers'. Through the Roman Senators, the founders of the city of Rome were present..."
In America, authority was vested in the Supreme Court. The Justices, like the Roman Senators, hold their authority because they had no power themselves, since they "'possessed neither Force nor Will but merely judgment.'" The Justices' authority comes not from power, but from their being linked back to the founders as interpreters of the founding moment, thus as a continuation of the constitutional convention in permanent session.
How the Supreme Court and its justices tie themselves back to the founding moment as reincarnations of the founding fathers partakes, of course, of the mysterious. The initial success of the American Constitution resulted from the founders causing the US Constitution to be worshipped. This worship depended upon and allowed an ambiguity to persist in the sense and understanding of the Constitution, on its becoming both ‘an endurable objective thing’, on the one hand, and yet one that could be approached from many angles and many interpretations. It must be amendable and changeable, and yet impervious to any subjective states of mind or influences of will.
The miracle of the Constitution’s foundational authority – it being worshipped as both a text and a continual reincarnation of the founding revolutionary act – is made possible only by a prior miracle – the miracle of beginning. As Arendt argues throughout her work, all men ‘are equipped for the logically paradoxical task of making a new beginning’. As beginners, we men are uniquely capable of understanding the mysterious way in which a beginning can also rest on ancient and unyielding foundations. Since men are themselves, as part of the human condition, beginners who can and do appear in the world to start things anew – since men are thrown into the world that we must respond to – thus are we uniquely open to the idea of finding in the first and foundational act not only an arbitrary deviation but also an authoritative principle.
For men, therefore, the act of beginning anew is not an arbitrary deviation from the foundation. The foundation is in the past, and yet it remains a forceful part of everyday practice. The beginning, Arendt argues, ‘carries its own principle within itself, or, to be more precise, that beginning and principle, principium and principle, are not only related to each other, but are coeval’. As beginners, men are open to the claim of the beginning and foundation as an origin that carries with itself a principle and thus simultaneously allows for augmentation and conservation.
Arendt's locating of authority in the Supreme Court is part and parcel of her respect for the American Constitution and for federalism. The seat of American freedom is, in Arendt's understanding, the diffusion of powers and the refusal of absolute sovereignty in the American system of government.
It is, I think, worth recalling that the present arguments about the Affordable Care Act before the Supreme Court concern precisely this question of federalism. If the Court holds the Act unconstitutional, it will be because we live in a constitutional republic defined by the separation of powers including the division of power between a centralized national government and de-centralized state governments. According to this theory, liberty is best protected by diffusing power. The federal government has the right to regulate commerce. But to hold that people who do not purchase health care are engaged in interstate commerce is to say that the government can regulate anything we do, even non-commercial activities, simply by insisting that we buy something and then calling it commerce. By this theory, the act removes any and all limits on federal power and violates the constitutional idea of the diffusion and separation of powers.
I have no idea what Arendt would have thought of the Affordable Care Act. Clearly the Act is both flawed and ambitious, and it carries both much that is good and some that is less so.
But it does seem undeniable that the Affordable Care Act is a significant expansion of governmental power, both the power of the federal government over the states as well as the power of government over individuals. It confirmation would be another step in the long chain of 20th century cases eroding the separation of powers that Arendt held so important a bulwark for human freedom.
As the debate around the Affordable Care Act rages on, and as the judges retire to their chambers to commune with our ancestors, it is well worth your time to revisit Chapter Four of Hannah Arendt's defense of On Revolution. It is your weekend read. Click here to download.
-RB
Contending with Youth Crime
There has been much attention paid to the arguments before the Supreme Court concerning the 2010 health care law. And such attention is entirely justified, for the upcoming decision will have a decisive impact on the availability and quality of medical care for millions of Americans. But we should not forget another question that has recently come before the Court: whether it is constitutional for states to sentence juvenile offenders to life without the possibility of parole.
This case raises important questions not only about the purpose of criminal prosecution and incarceration, but also about our conceptions of personhood and the legal, moral, and other boundaries we construct between youth and adulthood. These issues have been on my mind a great deal these days: as part of my work with the Bard Prison Initiative, I am currently teaching a writing-oriented anthropology course entitled “Youth and Youth Politics” to two groups of incarcerated students. But they came even more pointedly to the fore as I was listening to the March 24th edition of NPR’s “All Things Considered.” This broadcast reported on a recent gathering that brought families of victims together with families of offenders sentenced to life without parole for crimes they committed as teenagers. Significantly, all those in attendance hope that the Supreme Court would declare such sentences unconstitutional.
If you have not already heard the report, I would recommend that you take a listen (and not merely read the text available on the NPR website). Aside from the power of the emotions expressed, I appreciate the way it neatly outlines and complicates the terms of debate. On the one hand, it presents the viewpoint of Scott Burns, head of the National District Attorneys Association, who sketches the potential reasons for long criminal sentences in starkly dichotomous terms. “Is it the goal [of prosecution and incarceration] to rehabilitate someone to see if they change? Or is the goal to do justice for the victims and others?” He inclines to the latter position, as is evident in the brief he filed that urged the Court not to overturn life sentences without parole.
On the other hand, the NPR report also includes the perspective of people like Mary Johnson, a mother whose son was shot and killed at a party by a sixteen-year-old boy. In the immediate aftermath, she regarded her son’s killer as an “animal”: “I wanted him charged with first-degree murder, imprisoned for the rest of his life.” But she now contends that retribution and rehabilitation cannot be easily separated from one another, and she suggests that offenders should not be defined for the entirety of their lives by the crimes they committed as young people.
This report does not offer nuanced arguments for one position or another on the constitutionality of life sentences without parole. But by providing a vivid account of how some people have sought to work through, and live with, the conundrums of “juvenile crime,” it offers a useful starting point for reflecting on our own moral intuitions.
You can listen to the excerpt here.
-Jeff Jurgens
A Brief History of Campaign Finance
The NY Times penned one of those editorials Wednesday that makes one wonder who is home. The Times takes President Obama to task for forming a Super PAC--or for having someone form a Super PAC for him, because we know there is no coordination between the Super PAC and the Super PAC's beneficiary. As cynical as the current Super PAC frenzy is, and as disheartening as the crush of money being spent by the Republican Super PACs and hoarded by Karl Rove's Super PAC is, what would be served by President Obama refusing to feed at the trough? Recall, he is the first Presidential candidate since 1974 to opt out of the public matching funds system. The idea that he might run as an anti-big-money candidate is hard to imagine, so how could he meaningfully run a campaign claiming on principle to be opposed to the influence of big money, as the Times editorial suggests.
I am in Berlin where on Monday I gave a Keynote Talk to open the State of the World Week in Berlin, sponsored by the European College of Liberal Arts of Bard. My talk was on the Citizen United court case, the case that opened the door to Super PACs. I'll be blogging more about Campaign Finance Reform as the election progresses. But for now, here is a short excerpt of one part of my talk that offered a condensed history of Campaign Finance and Campaign Finance Reform in the United States.
We can divide the history of Campaign finance in the U.S. into 7 stages.
1. The first stage is the pre-History involving the 1787 Constitutional Convention. As Zephyr Teachout has shown, "Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened." Teachout and Lawrence Lessig have argued that there was a strong sense among the founding fathers that the great threat to new Constitution was corruption. And they have pointed to a number of practical responses to that threat in the Constitution itself. These include Article I, Section 6, Clause 2, which prevents members of Congress from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure. The point was to prevent members of Congress from using their posts to enrich themselves and their friends.
Another innovation aimed to prevent corruption was the decision to have those in the House of Representatives serve only for two years. According to Teachout and Lessig, this was designed to counter the formation of bonds between legislators and the President. By turning over the members of the House on a regular basis, it would be less likely that the Representatives would form strong alliances with members of the Executive branch, thus helping to maintain their independence. The founding fathers would surely be astounded by the incumbent advantages apparent today.
2. The Second stage of American campaign finance history runs from the passage of the Constitution until the election of Andrew Jackson in 1828. In early U.S. elections, most campaign expenses were paid directly by the candidates using their own money. Such expenses were relatively minimal, going toward an occasional campaign pamphlet and, sometimes, for food and drink at rallies. As Bradley Smith writes, "Though free from the "corrupting" effects of money, elections in this early period were generally contested by candidates representing aristocratic factions standing for election before a relatively small, homogeneous electorate of propertied white men."
3. The financing of American political campaigns begins to become interesting in 1828, with the election of Andrew Jackson. Jackson's presidency is rightly seen as the true beginning of modern American democracy. And Jackson's campaign for President was the first presidential campaign that appealed directly to the voters and not simply to party elites. Jackson's campaign was organized by Martin van Buren (who later served as his Vice President and thereafter as President). Van Buren was one of the original machine politicians from New York who created the machine concept Boss William Tweed would perfect later in the century at Tammany Hall. What Van Buren did for Jackson was to organize a campaign aimed at the people. This cost money. And what he and Jackson did was to raise money from those who were seeking jobs in the government. This was the beginning of the spoils system, whereby political campaigns were funded by current and prospective government employees; these employees in turn expected to be rewarded with jobs once their candidate won the election.
4. The spoils system lasted until the passage of the Pendleton Act, in 1883, which inaugurates the fourth stage of the development of campaign finance. The Pendleton Act professionalized the Federal Civil Service, instituting an exam for entry into the service and outlawing the Spoils system. The result was that campaign funds from federal officeholders dried up, and politicians needed new sources of funds. The obvious sources were wealthy individuals and corporations. And oh boy did corporations jump into the breach. By the late 19th century, the government was giving grants of land and cash to corporations, and in return the corporations were generously funding political campaigns. In 1888 40%, of Republican national campaign funds came from Pennsylvania manufacturing and business interests. By 1904, 73% of Teddy Roosevelt's presidential campaign funds were raised from corporate contributions. (I take these numbers from Bradley Smith). The age of corporate funded campaigns was here, and it has never left.
5. Once he was elected, Teddy Roosevelt made it a priority to reform the broken campaign financing system that he had exploited so well. With his support, Congress passed the Tillman Act in 1907, which made illegal all campaign contributions from corporations. The Tillman Act opens the Fifth stage of the development of Campaign Finance Reform in the United States.
While the Tillman Act carried penalties for its violation, it instituted no enforcement mechanism. The result is that not much changed. To take only one legendary example, in 1968 and 1972 Clement Stone contributed up to $10 million to President Richard Nixon's Presidential campaigns. Stone's contributions caused a scandal that, together with the outrage over Watergate, led Congress to finally institute a serious attempt at campaign finance reform.
6. The key moment of modern campaign finance reform is the passage of the Federal Election Campaign Act (FECA) in 1974, and the Supreme Court's partial upholding and partial overturning of that law in Buckley v. Valeo in 1976. In the wake of Watergate and the loss of trust in government, the Congress passed FECA which: limited individual contributions to individual candidates to $1,000; limited the amount candidates could spend on a campaign; established a system of public financing of campaigns that required a voluntary limit on campaign expenditures; required that candidates, parties, PACs and groups engaging in express advocacy disclose their fund-raising and spending; and created the Federal Elections Commission, to regulate and enforce the new rules.
In a landmark decision that still controls all legal approaches to the regulation of campaign financing, the Supreme Court in Buckley v. Valeo upheld the disclosure requirement and the limits on individual contributions. It also upheld the limits on campaign spending when those limits were voluntary and in conjunction with the decision to accept public financing. But the Court struck down compulsory limits on spending both by individual candidates and by PACs and other groups. While the Court recognized that limits on campaign spending were a kind of censorship that limited the rights of people and corporations to speak about the most central political issues of the day, it also acknowledged "large contributions threaten the integrity of our system of representative democracy." Because large contributions, especially to individual candidates, at the very least appear to suggest a kind of quid pro quo corruption, the Court accepted that Congress has the right to censor such expressions of support. More general expenditures not given to or coordinated with a specific candidate were, the Court argued, not examples of the kind of corruption that would allow Congress to override the fundamental free speech interests of individuals and corporations who would want to influence the political debate. Thus, post-Buckley, the rule was: The Constitution limits censorship of political activity, political speech and political spending on campaigns. Any limit is censorship that violates the First Amendment. And yet the Court carved out One Narrow Exception: speech or activity that either is or gives the appearance of quid pro quo corruption could be regulated and banned.
In the aftermath of Buckley v. Valeo, money continued to pour into politics. Candidates and their supporters made use of "soft money," money given to political parties and other groups and thus not subject to the limits imposed on individual contributions to individual candidates. PACS began to bundle large sums of money that, while not individual contributions to candidates, nevertheless carried the tint of influence peddling. In the year 1993-94, the Democratic Party received $45 Million dollars in "soft money" and the Republic Party received $59 Million. By 1999-2000, the numbers were $92 Million and $244 Million respectively. In 2001-2002, the Democratic Party took in $200 Million and the Republicans $421 Million.
7. The failure of FECA to stem the tsunami of money in elections led Congress to try again, and in 2002 it passed the Bi-Partisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act—the seventh and until now final stage of the effort to regulate campaign finance in the United States. The main innovation of BRCA was to prohibit unlimited soft money contributions by corporations and unions. And it was this provision that was held to be unconstitutional by the Supreme Court in the now infamous case of Citizens United v. FEC.
The core of the Citizens United ruling was Justice Anthony Kennedy's argument that "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." For Kennedy, "The censorship we now confront is vast in its reach." What he means is that the law bans all those corporations—including large multinationals and also small mom and pop stores and even non-profit corporations—from expressing their views about political candidates for either 30 or 60 days leading up to 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." Here Kennedy channels Felix Frankfurter, who in the 1941 case of U.S. v.s. Congress of Industrial Organizations, wrote:
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.
U.S. v. C.I.O. dealt with the anti-Union Smith Act, which forbade unions and corporations from using treasury funds to pay for politicking. In this regard, the Smith Act was very much like 2002 Bipartisan Campaign Reform Act. While the majority of the Court refused to consider the Constitutional Question and decided the case on narrow grounds, Frankfurter did. In his telling, the Court must take seriously the evil that Congress sought to address: namely, the corruption of elections and federal officials by the expenditure of large masses of aggregated wealth. And yet, Frankfurter saw that "the claimed evil is not one unmixed with good." The expression of corporate or union speech in elections is, he writes, a good thing! "The expression of bloc sentiment has always been an integral part of our democratic and legislative processes." Replace "Labor unions" with "corporations." That is what Kennedy did.
-RB
Legal Doesn’t Make it Right – Jack Blum
Jack Blum, Chair of Tax Justice Network USA, is a longtime friend of the Hannah Arendt Center. He participated in the Center's 2009 Conference, The Burden of Our Times: The Intellectual Origins of the Financial Crisis. One of the national experts on tax evasion, Jack recently collaborated on the film, "We're Not Broke," in which he helps shed light on the tax system in the United States. We reached out Jack to shed some light on Mitt Romney's tax returns for 2010-2011. We found him at the Sundance Film Festival in Utah where he is promoting "We're Not Broke," and he agreed to share with us his thoughts.
Mitt Romney’s tax returns show us just how rotten the American tax system has become. He is right when he says that his returns are correct and that he followed the law – but what a law! His work allowed him to call his salary a “carried interest.” Under current tax law he can to decide when to take the income, and when he decides to declare it, to pay tax on that income at the capital gains rate of 15%.
Making matters worse, his line of business, venture capital, relies in large part on tax breaks. Venture capitalists more often than not buy their target companies on borrowed money. They convert the capital in the target business from equity to debt and take deductions for interest payments on the debt. Capital is after tax money – debt is before tax and thus tax favored. Call it capitalism without real capital.
All of this is perfectly legal, but that doesn’t make it right. After all, slavery was legal for hundreds of years. So was preventing women from participating in the political process.
Beyond the case of venture capital, the tax code is riddled with privileges for the few, and for the multi-national corporations. Senator Carl Levin D-Mich. Has just introduced legislation that tries to close many of the most egregious loopholes. But, he is not on the tax writing Finance Committee, and that Committee is looking at ways to make the situation worse, not better.
The question every citizen should ask is how the Internal Revenue Code got this way. Certainly a government prepared to cut the budget for education, research, and infrastructure should be looking at the way it is subsidizing “free market” financial engineering business activity – activity that is usually not terribly productive. The answer lies in the campaign finance system. Seats on the tax-writing committees are the most coveted in Congress because the members are showered with contributions from lobbyists, political action committees, and employees of corporations wanting favors.
As a result, it should come as no surprise that many of the largest corporations have a negative tax rate.
The latest insult to the political system is the Citizens United decision that gives corporations the right to contribute to political campaigns. Corporations are not people. They are not citizens. They will invert one of the slogans the country was founded on. The new slogan will be “representation without taxation.”
Mitt Romney thinks that what he has done to take advantage of the loopholes without comment on the inherent injustice is normal and justifiable.
It does not seem to occur to him that the tax code that made him rich has shifted the burden of providing for the funding the common good to average citizens who are being told that they should expect nothing from government.
Finally, the people who are most favored by the tax system are the leaders and funders of the incessant drumbeat that social security and Medicare are bankrupting the country. The Mitt Romney’s of the world who make their money from “carried interest” don’t pay social security and Medicare taxes and won’t need the benefits.
The debate over the economy and the budget must include corporate tax subsidies. America cannot provide for its needs if the likes of Google, Apple, and Pfizer pay no tax. It cannot provide for its needs if the very rich can turn real income into capital gains and time their decision on when to take the income. The silence on this subject is deafening.
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.
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