When Gershom Scholem once wrote to Arendt that her phrase the “banality of evil” was a cliché, her response was swift: As far as she had known, nobody had ever used it before. The banality of evil was no common formulation worn meaningless by overuse. When she coined the phrase, it was a searing and dangerous provocation to thought, a warning to all those who in the face of horrific crimes carried out by bureaucrats would seek to transform those bureaucrats into monsters. To make people like Eichmann into radically evil monsters is, Arendt argued, to mistake an even greater and more insidious fact about evil: that in the modern context of bureaucratic governance, evil depends upon banal people who allow themselves to participate in evil because they are thoughtless and lack the clarity of mind or the courage of conviction to stand up to the mechanized and bureaucratized doing of evil.
One can disagree with Arendt’s thesis, but it was hardly a cliché. Unfortunately, too often today it is used as the cliché Scholem feared it had already become. A case in point is an opinion piece in Wednesday’s Wall Street Journal by James Taranto.
Taranto is discussing a current case in which Dr. Kermit Gosnell is on trial for murdering seven viable fetuses.
Three associates have pled guilty to third-degree murder and five others have pled guilty to other crimes. Gosnell faces the death penalty. According to the New York Times, whose account Taranto refers to,
Reporters heard testimony from the Philadelphia medical examiner about unsanitary, even filthy conditions at Dr. Gosnell’s clinic, from which the remains of 47 fetuses were removed, some in a water jug, a juice carton and a pet-food container.
In earlier testimony, according to several news reports, an unlicensed doctor said that Dr. Gosnell, 72, showed him how to cut the necks of babies born alive to make sure they died, and a young woman who worked at the clinic as a teenager said she assisted in abortions in which she saw at least five babies moving and breathing.
The details are grisly. The main thrust of Taranto’s article is that the liberal media is ignoring the case because it upsets their narrative that abortions are clean and easy. According to experts cited in the Times article, it seems that conservative media outlets have ignored the case as well, and that the Times actually had given it more coverage than more conservative papers, but I will leave that argument to others.
What interests me more is Taranto’s sudden invocation of Hannah Arendt and her thesis of the banality of evil. The context is the guilty pleas of the eight employees of Gosnell’s clinic. They included an unlicensed doctor and untrained aids who worked under difficult and unsanitary conditions where they were trained how to break the neck of living fetuses. An Associated Press wire story described the fate of these workers and concluded: “But for most, it was the best job they could find.” This is what leads Taranto (through the route of a reader’s comment and a 1999 essay in the New York Observer) to compare the AP’s account of eight medical technicians with Hannah Arendt’s account of Adolf Eichmann.
It is not at all clear whether Taranto has ever set eyes upon Arendt’s book, for he cites only an essay on the book. It is, of course, the height of cliché to speak about books and ideas from second or third hand sources. But that is what Taranto does. He repeats the following claims from the 1999 article, all false: first, that Arendt believed that Eichmann wasn’t anti-Semitic (she reports his claim, but dismisses it as unbelievable, a fact all-too-often forgotten); that she offered the banality of evil as an “overarching theory”; that she “took him at his word” that he was just following orders; that she was a philosopher; and that she was the “world’s worst court reporter”—as if that is what she were.
But what is truly mind-boggling is that after dismissing Arendt’s thesis based on second-hand accounts, Taranto then comes to agree with her. He writes:
And while Rosenbaum [the author of the 1999 article] seems correct in rejecting "the banality of evil" as an overarching theory, surely it has some explanatory or descriptive power. "Faceless little men following evil orders" surely is a fitting characterization of the Pennsylvania bureaucrats who, because of a mix of indifference, incompetence and politics, failed in their oversight of Gosnell's clinic and allowed it to keep operating for decades.
It's also true that banality is a tactic of evil, a method it employs to make orders easier to follow. One of Gosnell's employees might have blown the whistle on him had he expressly commanded them to slash babies to death after they were born, rather than to "snip" them after they "precipitated" to "ensure fetal demise."
All too often we see this approach to Arendt’s book and thesis. She is excoriated for getting Eichmann wrong and for having the temerity to suggest he wasn’t a monster. And then we are told that actually, she was largely right, and that there is something fundamentally true about the idea that evil is done and made possible as much by thoughtlessness as by fanaticism. In other words, she was right in general but not about Eichmann.
Such an argument has become popular in the wake of David Cesarani’s book on Eichmann, which simultaneously says that Arendt under emphasized Eichmann's anti-Semitism and then accepted her argument about the banality of evil. There is a legitimate debate about how Arendt perceived Eichmann. It is wrong to say that she accepted his claims of being a friend of Jews and it is simply inaccurate to think she thought he was not an anti-Semite. That said, there is evidence of his later anti-Semitism expressed in Argentina that Arendt had not seen. Does that evidence impact her thesis? I don't believe so, but if she had had access to it and included it, such remarks would have given a fuller appraisal of Eichmann. In any case, few who repeat Cesarani's argument have read him or for that matter Arendt herself.
To reject and embrace the banality of evil in the same essay is too simple. It is easy to repeat Arendt’s insight but then protect oneself from the unsettling implications the weight of her thought must bear. To do so, sadly, is to treat the banality of evil as a cliché. She and her work deserve better.
The Wall St. Journal reports that more high school students are taking college courses for credit.
The number of students under age 18 enrolled in community-college courses rose more than 50% in the past 10 years, to about 855,000 for the 2011-2012 academic year, according to the American Association of Community Colleges. The group says most of them are in dual-enrollment programs.
This is a great boon for the students, who get better teachers, more intensive classes, and the experience of college. Not only that. By getting college credits for free while attending high school, these students cut down on the time they will have to spend in college, and thus the cost of college.
As good a deal as taking college courses in high school is, it also is an indictment of our high schools. Once again, instead of actually spending the money and effort to make high schools worthwhile, we are creaming off the best of the students in high school and sending them to courses in colleges, leaving their lower-performing peers to suffer through poor classes without even the benefit of their more ambitious peers. This is, of course, better than the status quo.
One unintended consequence of the migration of high school students to college courses is waste. Because the state pays for these community college courses and counts the high school students in the formula increasing public support for the colleges, taxpayers are double paying, paying both for the high schools and for the community colleges, which are educating an overlapping population. At a time of high desperation in government funding, providing dual systems for educating the same students is poor planning.
There are two obvious answers. Either re-tool high schools to make them more ambitious and better or allow students to simply skip high school and attend community colleges for free in place of high school. Much of what goes by the name of education in high school is a sad waste. We should either radically improve it or simply eliminate it. One idea between these two is the early college model, pioneered by Bard High School Early College, which gives all students 2 years of college credits during the four years that they are in publicly financed high schools. The early-college model has much to recommend it and it is certainly a better solution than sending high school students to attend classes at community colleges. The fact that high school students are looking to take courses outside of their high schools should spur efforts, in many directions, to change those schools. Or maybe we should follow the kids and gradually replace the last two years of high school with publicly funded college?
I haven't read Mo Yan's books, but congratulations to him for the Nobel Prize.
That said, his supporters have a funny way of explaining why he won. In the WSJ, I read this:
Chad Post, director of University of Rochester's Open Letter Books, a press that specializes in literature in translation, said he saw Mo Yan give a reading several years ago. "What struck me is that he seems to have an almost playful approach to writing," said Mr. Post. "For example, he's written a novel called 'Big Breasts and Wide Hips.' This is a good and interesting person to honor. Mo Yan is engaged with the issues of contemporary China but his books are also full of sex and food."
Not exactly the reasons I would choose for selection.
On the other hand, critics are overly focused on Mo Yan's politics, which lean towards the authoritarian Beijing regime. The great Chinese artist and dissident Ai Weiwei is quoted as saying:
For a contemporary writer to avoid the very clear issues of today's struggle is something that's not negotiable. I cannot separate literature from the people's struggle.
What is most remarkable about the press coverage so far of Mo Yan's prize is the focus on politics, sex, and food, with painfully little attention to writing. I hope that changes soon as some of us have a chance to read his books.
The Wall Street Journal, The New York times, and Guernica—it seems everyone is excoriating John Roberts' opinion upholding the health insurance mandate in the Affordable Care Act. The WSJ calls the precedent Roberts set "grim." The Journal, in another editorial, writes that Roberts' decision is "is far more dangerous, and far more political, even than it first appeared last week." Roberts has, the WSJ argues, substituted "one unconstitutional expansion of government power [the commerce clause] for another [the taxing power]," and, in doing so, rearranged "the constitutional architecture of the U.S. political system."
In Guernica, Ciara Torres-Spelliscy, argues that "Closer inspection of the actual written opinion shows Roberts gave those who want to hem in Congress’s power everything they wanted." Torres-Spelliscy agrees with the WSJ that, in her words, Roberts "provided the blueprint for a radical rebalancing of powers among the three branches." But while the WSJ thinks Roberts is expanding governmental power, Torres-Spelliscy argues he is radically constricting it.
What both sides in this debate get right is that Roberts' opinion is deeply important and that it will likely change the way that the U.S. Federal Government interacts with citizens. That said, for those concerned with freedom within a constitutional government, as was Hannah Arendt, Roberts' opinion offers much to be excited about. It deserves greater and more serious consideration than it has so far been given.
Roberts' opinion begins with an eminently sensible manifesto for judicial restraint. Like his hero Oliver Wendell Holmes Jr., Roberts believes the Court should defer to Congress except in those cases where the legislation cannot be squared with the Constitution. The devil is always in the details of such a squaring, but at a time of ideological posturing, Roberts' opinion is a welcome read:
Our permissive reading of [Congress' enumerated powers] is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgment. those decision are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Whatever one thinks of Roberts' actual legal opinion, the statesmanship he evinces is welcome. In the most politically sensitive case since Bush v. Gore, Roberts defused a potential explosion threatening to undermine the Supreme Court's legitimacy. As the Arendt Center's Bard colleague Walter Russell Mead writes, "in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward." The introductory pages of the Roberts opinion offer a balanced and at times inspired primer in Constitutional interpretation and U.S. Constitutional history.
Beyond the near pitch-perfect tone, Roberts' opinion offers much to be thankful for. It is one of the most legally important opinion the Court has handed down in decades. It seems worth making a few points.
1. Many have derided Roberts for considering the mandate payment a tax when the legislation called it penalty. Let's give him credit for speaking frankly. It really was a tax. The Congress simply didn't want to call it a tax for political reasons. The mandate is a payment required to be made to the Treasury, collected by the IRS, with no Criminal or Social Stigma of wrongdoing attached to it. Roberts did not have to call it a tax, but he did so on the principle of judicial restraint, interpreting the statute in a way most likely to maintain its constitutionality. That is the role of a Supreme Court in a constitutional republic.
The distinction Roberts employs to call the mandate a tax makes total sense. He says that a payment is a penalty when non-payment is considered a wrong. If you speed and pay a ticket, you have committed a misdemeanor. That is a penalty, not a tax. But when the payment is simply made without any claim that the action generating the payment is wrong, that is a tax. So, if you purchase cigarettes or a speed boat, you pay a special tax. It is your choice.
In the case of the mandate, the Affordable Care Act says that if you don't purchase insurance, you pay a certain amount to the treasury. That amount is less than you would normally pay for insurance in many circumstances. Thus the legislation expects and imagines people for whom the payment is lower than purchasing insurance to actually pay the payment rather than purchase insurance. This is evidence for Roberts that there is no stigma associated with the payment and that it really is functioning as a tax rather than as a penalty. There is no sense of a wrong. Despite what Congress said for political purposes, Roberts is on good grounds to call the mandate payment a tax.
2. Roberts blazes a new path on which the federal government can continue to regulate the actions of citizens. The Congress must now increasingly justify its regulatory initiatives by appeal to the power to tax rather than the power to regulate commerce. While this may seem merely a semantic distinction, it is not a meaningless difference. And this is the heart of the real importance of Roberts' opinion.
If the mandate payment had been upheld under the commerce clause (as Justice Ginsburg's dissent advocated), then the government would have been permitted to do anything it wanted or needed to do in order to achieve its ends of creating a health care system. For example, Congress could have simply required people to purchase health care. You may think that is what Congress did. But according to Roberts, such a requirement is no longer constitutional. Instead, what the Congress did was say: "You have a choice. You can buy health insurance or you can forego buying health insurance and pay a tax to support the health insurance market."
What is the difference? Under the commerce clause, the government can tell you what to do (buy insurance) and it can punish you if you do not do so. Under the taxing power, all the government can do is require people to pay money into the treasury. This is not a meaningless difference.
While the power to tax can be terrible and the power to tax is also in certain cases the power to destroy, this is not usually the case. When taxes are reasonable and not destructive, an individual charged with buying insurance or paying a tax can always choose to pay the tax and not buy insurance.
This is the emancipatory thrust of Roberts' opinion. By shifting the Congressional authorization from Commerce to Taxation, he has struck a surprising balance between freedom and the government's power to influence behavior. On the one hand, it is now significantly harder to justify congressional authority over individuals that will compel them to act in a certain way. On the other hand, Congress can pursue its ends by taxation rather than by regulation.
3. To make it clear just what it is that Roberts allowed, he offers an example that I think is helpful.
Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.”
Roberts is right here. The real reason to like his opinion is that by shifting the authorization from commerce to taxation, Roberts affirms the federal government's right to influence behavior but weakens the federal government's authority to compel citizen behavior. His argument is that it is more consistent with federal limits and the protection of freedom to allow the government to tax us then to regulate us.
There are still many unanswered questions here. It is unclear how impactful Roberts opinion will be in the future. But he has offered an alternative to the ever-expanding use of the commerce power to justify intrusive federal regulations, while still asserting that the federal government does have the power to motivate and behavior through its power to tax.
It is rare to read a Supreme Court opinion that is as surprising as it is thoughtful. It is also worth doing so. Robert's opinion is your weekend read.