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References No One Seems to Have Checked

2 Oct

Amos Elon on how Eichmann in Jerusalem was treated after its publication:

Hand-me-downs from one critic to another drew on alleged references in the book which no one seemed to have checked. The argument was by no means restricted to academic circles but exercised young and old, historians, philosophers, journalists, as in the case of [Anthony] Grafton’s father; priests of several faiths; atheists; community functionaries; and professional propagandists.

Did Hannah Arendt Ever See Eichmann Testify? A Second Reply to Richard Wolin

2 Oct

In his critique of Seyla Benhabib’s account of the Arendt/Eichmann controversy, which I wrote about earlier today, Richard Wolin makes an additional claim I’ve been puzzling over:

Second, a perusal of Arendt’s correspondence indicates that so great was her impatience with the proceedings that she never saw Eichmann testify. Arendt endured chief prosecutor Gideon Hausner’s lengthy opening statement and, following an absence of several weeks, returned to Jerusalem to witness the final verdict. But, remarkably, she never saw Eichmann himself take the stand. (Here, one suspects that Arendt’s rather brazen disregard for the value of testimony, not to speak of the norms of journalism, is an instance of Germanic philosophical arrogance. As J. G. Fichte said, if the facts fail to accord with the sublimity of the idea, so much the worse for the facts!)

I’ve spent the better part of this evening re-reading Arendt’s letters to her three main correspondents during the Eichmann trial—the philosopher Karl Jaspers, her husband Heinrich Blücher, and her friend Mary McCarthy—and I cannot find any evidence for Wolin’s claims; in fact, there’s much in the letters indicating that they are incorrect.

It helps first to remember three key dates from the Eichmann trial:

April 11, 1961: first day of the Eichmann trial

June 20, 1961: Eichmann takes the stand

December 11, 1961: the Israeli court issues its verdict

Right off the bat, it’s clear that Wolin’s chronology is off: Arendt could not have been in Jerusalem for the prosecutor’s opening statement only, left for a few weeks, and then returned for the verdict. Roughly eight months separate the first day of the trial from the announcement of the verdict.

And indeed, when the verdict was issued in December, Arendt was either in New York, nursing Blücher back to health (he had suffered from a ruptured aneurism), or in Middletown, Connecticut, where she would have been wrapping up a seminar on Machiavelli she had been teaching at Wesleyan that fall. The one place she would not have been was in Jerusalem, as is clear from a letter she wrote to Jaspers on December 30, 1961, and from Elisabeth Young-Bruehl’s biography.

But once I started poring over the correspondence, it became clear that Wolin got more than the dates of the trial and Arendt’s attendance wrong. He also seriously misstates what Arendt saw and heard at the trial and her attitude to the trial and its testimony. Most important, the centrally damning claim he makes—that Arendt never saw or heard Eichmann testify—is in all likelihood wrong. What’s more, the very evidence for its wrongness comes from the very sources Wolin cites as evidence: namely, Arendt’s correspondence.

Arendt arrived in Tel Aviv on Sunday April 9, 1961, two days before the trial began, and headed straight for Jerusalem. At the trial, she listened intently not only to Hausner’s opening statement, but also to lengthy recordings of Eichmann’s depositions. As she wrote to Blücher on April 20:

Here everything is going as expected…with the ghost in the glass cage listening to his voice sounding from the magnetic tape.

Arendt also heard testimony from a great variety of witnesses for the prosecution, including one of the leaders of the Warsaw Uprising; the father of Herschel Grynszpan, whose assassination of Ernst vom Rath had provided the pretext for Kristallnacht; and Salo Baron, the eminent Jewish historian. In fact, as the days went on, Arendt grew increasingly frustrated by this testimony, as so little of it had to do with Eichmann himself. As she wrote to Blücher on May 6:

The basic mistake—if one can say such a thing—is not only that Eichmann has been completely forgotten, his name often not mentioned for days on end (really typical, e.g.,: After the prosecution put 29 volumes [!] concerning Hans Frank on the table, Servatius [me: Eichmann's attorney] rose and asked: “Does the name Eichmann appear in any of these volumes!” The answer: “No”)…

Far from being uninterested in what Eichmann had to say, Arendt was profoundly interested in him and his testimony. She watched him closely throughout the trial: “Eichmann is no eagle; rather, a ghost who has a cold on top of that,” as she wrote to Jaspers on April 13. And throughout her stay in Jerusalem and in the time after that, she kept recurring to the six volumes of testimony (more than 3000 pages) he had given in his depositions. Not to mention the lengthy trial transcript she pored over for months as she prepared her articles for The New Yorker.

Then, on May 6, she writes to Blücher that she is leaving Jerusalem the next morning for Switzerland, where she will visit Jaspers. As she’s about to leave, she wonders:

The question is: Should I come back here again for the defense? I imagine I should, but I’m not sure….Of course it also depends on my appointments. Zurich on June 24th—etched in stone!

That date, the 24th of June, was a reference to a long-planned reunion between her and Blücher, who would be meeting Jaspers and his wife, both of whom had played such an important role in Arendt’s life, for the very first time.

As the weeks go by, first in Switzerland with Jaspers, and then in Germany, Arendt decides she must return to Jerusalem. The only question is when. “If I only knew when I have to go back to Jerusalem,” she writes McCarthy on May 31.

Why was Arendt so eager to return to Jerusalem? Simply and solely to see and hear Eichmann testify. And what did she mean by “if I only knew when I have to go back to Jerusalem”? The date that Eichmann was to assume the witness stand. Contrary to everything Wolin explicitly states and implicitly suggests in his piece, seeing and hearing Eichmann testify was a top priority for Arendt between the time of her first and second visit to Jerusalem.

On June 4, Arendt tells Blücher that she thinks she’ll be in Jerusalem by the 17th. And adds, “With a bit of luck, it might happen in the week of June 17 that Eichmann will be called to the witness stand.”

On June 14, a Wednesday, she writes Blücher:

So I’m flying to Israel on Saturday, as I already wrote you. The trial will start again on the 20th, and I’m afraid that Hausner will try to delay matters even further. But I have at least to try to see Eichmann <editor’s note: on the witness stand>….I will leave there on Friday the 23rd, either directly for Zurich, or via Athens—it all depends.

So, that’s all. Here’s my address again, just to be sure: Hotel Eden, Jerusalem till Friday the 23rd. After that, with you: Waldhaus Dolderer, Zurich.

On June 16, a Friday, she writes Jaspers: “I’m off tomorrow morning.”

Unfortunately, the three editions of her correspondence do not include any letters from this second visit to Jerusalem. Probably because she knew she was going to be seeing Jaspers and Blücher, the two people she corresponded with most intently during that time, within days.

What we do know, from Lipstadt, is that Eichmann did indeed take the stand on the 20th of June, and unless Arendt canceled her trip to Jerusalem at literally the last minute (“I’m off tomorrow morning”), we also know that she was in the city when he took the stand. It would seem strange if, after all these expressions of desire to see Eichmann in court, she decided not to stop by.

I should say that I’ve only managed to consult the sources I’ve cited here. There may be other sources out there that would confirm Wolin’s claims. If there are, I apologize in advance. But I would also like to claim an exemption on two grounds. First, I didn’t have access to those sources; I did the best that I could with the books that I have and the books I could access on the web. Second, Wolin himself claims that it was “a perusal of Arendt’s correspondence” that led him to the conclusion “that she never saw Eichmann testify.” Limiting myself to that correspondence, which I read carefully rather than perused, should have yielded at least some evidence for his conclusion. It has not, so I believe I am justified in concluding, that at least by Wolin’s own lights, his claim is not correct.

Update (7:30 am)

I’m getting reports this morning that Deborah Lipstadt, whose The Eichmann Trial I link to above, makes a similar claim as Wolin. I don’t have her book and was able to access those pages regarding the chronology of the Eichmann trial that I mention above only through Google. I’ll try to get a copy of the book and report back what I find. Lipstadt is a careful scholar, so I’ll definitely want to see what she says and what sources she cites. Perhaps Wolin got his claim from her, perhaps she has further information. Anyway, will report back once I have more information.

Update (10:30 am)

I’ve now been able, with the help of Amazon and Google Reader, to find out what Lipstadt says in The Eichmann Trial. The crucial passages are on pp. 178-180. Long story short, she confirms what I said in my post.

First, Lipstadt says that after traveling in Switzerland for five weeks (also Germany, actually), Arendt returned to Jerusalem to see Eichmann on the witness stand. There, she saw and heard Servatius, Eichmann’s attorney, ask him questions.

Second, Lipstadt’s criticism of Arendt is that Arendt did not stay to witness Hausner’s cross-examination of Eichmann. Had she stayed, says Lipstadt, Arendt might have seen something about Eichmann, under Hausner’s withering critique, that she could not have gleaned from the transcript.

None of us, of course, knows if that’s true, but I suspect Lipstadt’s wrong. Given that Arendt was so irritated by Hausner’s and the prosecution’s general line of attack—Arendt felt that rather than trying Eichmann for his deeds, the state was more interested in narrating the larger history of the Holocaust—I suspect that seeing the cross-exam for herself would have only further confirmed Arendt’s premonitions. But that’s speculation. And in any event, immaterial to the larger issue of whether Arendt was ever there to see Eichmann testify. She was.

Third, Lipstadt is very careful to point out that simply because Arendt wasn’t there for part of the trial does not invalidate her conclusions; a great many accounts of trials, Lipstadt says, are based entirely on a reading of the transcript.

So, bottom line: Lipstadt does not provide any evidence for Wolin’s claim.

Lipstadt’s footnotes in this section make reference to Arendt’s correspondence with Jaspers and McCarthy, which I examined carefully last night and the results of which I reported in my post. Lipstadt also refers in her footnotes to p. 149 of Raul Hilberg’s memoir. Hilberg was a historian of the Holocaust. Indeed, he wrote the first genuinely comprehensive history of the Holocaust, from which Arendt drew extensively in her book—much to Hilberg’s chagrin; he felt like he never got the proper acknowledgment from her or from subsequent scholars of the controversy.

On p. 149 of his memoir, Hilberg claims that Arendt stayed in Jerusalem for ten weeks and then left three days before Eichmann assumed the stand. He claims that Arendt’s published correspondence with Jaspers shows this. Hilberg might be Wolin’s source, though I took Wolin’s “a perusal of Arendt’s correspondence” to mean that Wolin had done the perusing. In any event, Hilberg is wrong on all accounts: Arendt did not stay in Jerusalem for ten weeks; she did not leave three days before Eichmann assumed the stand; and her correspondence with Jaspers does not show any of this.

Two other sources.

According to a commenter on the blog, David Cesarini, no friend of Arendt’s, claims in his book on Eichmann that she was there for the first days of Eichmann’s testimony. Which fits with my account and Lipstadt’s.

Daniel Maier-Katkin, a professor at Florida State, has reconstructed the timeline of Arendt and the trial in footnote 44 of this post (h/t Patchen Markell). I don’t know what his sources are (I’ve emailed him to ask but have not yet heard back), but his reconstruction of the chronology largely fits with mine, albeit with some additional details:

The trial was in session between April 11 and July 24. Arendt was present in the courtroom from April 11 through May 8. Between May 8 and June 23 the trial was dominated by sessions on the admissibility of more than 1000 documents; Arendt, who was travelling in Europe during those weeks, had full access to all of those documents. Arendt was present between June 20 and 23 to hear the first sessions of Adolf Eichmann’s testimony, but not for the final two weeks of trial when he was cross-examined by Gideon Hausner, whose approach to the trial as a telling of the story of the Holocaust rather than a juridical inquiry into Eichmann’s role Arendt found tiresome and disquieting.

So, again, nothing in the correspondence even remotely suggests that Arendt was not there to witness personally at least some of Eichmann’s testimony. And much in the correspondence—and now secondary accounts—demonstrates precisely the opposite.

 

 

The Arendt Wars Continue: Richard Wolin v. Seyla Benhabib

1 Oct

Richard Wolin has written a response to Seyla Benhabib’s New York Times piece on Arendt and Eichmann.

I hesitate to weigh in on this controversy for two reasons. First, I know both Richard and Seyla, and Richard is a colleague. And even though, when it comes to Arendt, I have consistently found Seyla to have the better of the argument, I have a great deal of respect for both of them and their work. Second, I may be writing about the war over Eichmann in Jerusalem in a lengthier piece in the coming months—More than a half-century after its publication, how is it that this book still manages to get under people’s skin? Is there any other book, not allied to a political or religious movement, that can do that?—so I don’t want to get too caught up in any one bit of the fracas right now.

Still, I wanted to respond to this one paragraph in Wolin’s critique:

Benhabib’s claim that Kant’s moral philosophy plays a systematic role in Eichmann in Jerusalem is similarly unsustainable. Arendt’s reliance on Kant’s theory of judgment—the idea that we broaden our mental horizons by virtue of our ability to reason from the standpoint of other persons—is limited to one meager passage (Eichmann in Jerusalem, p. 48).  Moreover, in the passage in question, Kant’s name is not even mentioned. Casual allusions along these lines hardly qualify as systematic or serious employment. As most Arendt scholars are aware, Arendt only developed these Kantian precepts in earnest circa 1970, in the course of her Lectures on Kant’s Political Philosophy and in the complementary essay “Thinking and Moral Considerations.”

That last claim, which I’ve bolded, is simply not true.

In a brilliant article—”Arendt, Aesthetics, and ‘The Crisis in Culture’“—that totally changed how I see some of Arendt’s work, University of Chicago political theorist Patchen Markell shows that the Kantian presence in Arendt’s thought, particularly regarding these issues of judgment and enlarged mentality, well predate her 1970 writings, extending as far back as the 1950s. And in fact, as Patchen shows, most serious Arendt scholars know that.

If memory serves (I only read this essay in draft more than a year ago), Patchen looks at Arendt’s essay on culture from the 1950s, which finally appears in Between Past and Future in 1961 (the year Eichmann went on trial). He shows, among a great many other things, that Arendt and Jaspers were corresponding about Kant’s Critique of Judgment in the late 1950s (the text was very much on her mind), and that the Critique of Judgment very much informs her essay on culture, and how to think about questions of taste and judgment and their relationship to politics. In other words, whether or not Kant is present in what Arendt wrote in Eichmann in Jerusalem (and again, I think Seyla’s got the better of that argument), he, and his writing about judgment, were clearly present in Arendt’s thinking on the eve of her travels to Jerusalem.

Inspired by Wolin’s piece (and Patchen’s corrective, avant la lettre), I read Arendt’s other essay from that period, “Culture and Politics,” which I don’t think Patchen actually discusses but which is nevertheless instructive.

In that essay, Arendt claims Kant’s Critique of Judgment as an explicit inspiration for her thinking about judgment and politics: it “contains,” she says, “what is in my opinion the greatest and most original aspect of Kant’s political philosophy.” That was in 1959, two years before Arendt would head to Jerusalem to report on the Eichmann trial.

As she goes on to develop the political implications of Kant’s theory of taste and judgment, Arendt writes:

It is as though taste decided not only what the world should look like, but also who belongs together in the world….The belonging-together-of-persons—this is what gets decided in judgments about a common world. And what the individual manifests in its judgments is a singular “being-thus-and-not-otherwise”….

As soon as I read that “who belongs together in the world,” I stopped. The passage has an eerie resonance.

In the epilogue to her report on the Eichmann trial, Arendt delivers what she thinks should have been the Israeli court’s judgment against Eichmann. Her very last two sentences read:

And just as you [Eichmann] supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations…we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.

Though I have no idea if Arendt intended these last sentences of Eichmann in Jerusalem to be read as such, it’s hard for me not to read them as an indication of how, for her, Eichmann’s crimes are a terrible and ironic perversion of the Kantian themes she was developing in her 1959 essay.

Just as a person reveals herself in her tastes (and what she reveals in part is “who belongs together in the world”), so does Eichmann reveal himself in his taste (or lack thereof), and what he reveals is who belongs together in his mind (namely, Aryans as opposed to Jews) and who belongs together in actuality: namely, he and all the other Nazis who refused to share the earth, as opposed to the rest of the peoples of the earth.

It is because of that terrible and ironic perversion of Kant’s theory of taste, which is connected to judgment, that Arendt insists so strongly on the court restoring the proper meaning of Kant’s theory of taste/judgment in its verdict on Eichmann: through its verdict, Arendt claims, through its revealing who or what it is, the court must decide who does indeed belong together in the world—namely, the peoples of the earth, in all their plurality—and who does not: those individuals, like Eichmann, who do not wish to share the earth with others.

Update (12:30 pm)

Patchen Markell has a very useful comment and corrective in the comments section, which I’m reproducing here. But first, here is the published version of that article of his that I discuss. And now here’s Patchen:

Thanks, Corey. I just sent you the the published version of the piece, which is in Nikolas Kompridis, The Aesthetic Turn in Political Thought. Although the Jaspers correspondence does contain a letter from 1957, when she was busy re-reading the Critique of Judgment, that makes it pretty clear how seriously engaged she was with that text, the place to go to really see this is her Denktagebuch or notebooks, published in 2002, which contain 15 pages (in the published version) of handwritten notes from the third Critique, including notes and comments on the idea of an “enlarged mentality,” the importance of the presence of others for the validity of judgments, etc. The editors of the Denktagebuch themselves observed how significant it was that this material came prior to, not after, the Eichmann trial. The Anglophone scholar who reconstructs this stuff best, and really focuses in a way I do not on the continuities between the Kant reading of 1957 and the lectures of 1970, is David Marshall, who published a very detailed piece on this history of Arendt’s readings of Kant in Political Theory (2010): http://ptx.sagepub.com/content/38/3/367.

Also, for the geeky record, “Culture and Politics” is the English translation of a German lecture that Arendt subsequently incorporated into “The Crisis in Culture” (in Between Past and Future).

 Update (2 pm)

I’ve been reading Bettina Stangneth’s Eichmann Before Jerusalem, which is what has kicked off this latest round of the Arendt Wars, and she tells a story there about Eichmann, which I posted about on Facebook over the weekend. It seems pertinent to this discussion re Kant and enlarged mentality. Here’s what I said:

In 1950, Adolph Eichmann, along with 15 others, managed to flee Europe and set sail for Argentina from Genoa on the Giovanna C. Years later, in a text titled “Meine Flucht,” he reminisced about the relief he felt, finally to have escaped his would-be tormentors. Drawing a parallel only he could have drawn, he marveled, “Once it was the Jews, now it was–Eichmann.” This is the sort of thing Hannah Arendt had in mind when she talked about Eichmann’s thoughtlessness.

It should be noted that Stangneth does not read the Eichmann comment in this way, but I found her reading tortured and unpersuasive, and unsupported by the text.

 

 

O, Adam Smith, Wherefore Art Thou?

29 Sep

Smith, The Theory of the Moral Sentiments:

This disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though necessary both to establish and to maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments….We see frequently the vices and follies of the powerful much less despised than the poverty and weakness of the innocent.

Smith/Brecht

29 Sep

Adam Smith, The Theory of the Moral Sentiments:

The poor man, on the contrary, is ashamed of his poverty. He feels that it either places him out of the sight of mankind, or, that if they take any notice of him, they have, however, scarce any fellow-feeling with the misery and distress which he suffers. He is mortified upon both accounts. For though to be overlooked, and to be disapproved of, are things entirely different, yet as obscurity covers us from the daylight of honour and approbation, to feel that we are taken no notice of, necessarily damps the most agreeable hope, and disappoints the most ardent desire, of human nature. The poor man goes out and comes in unheeded, and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel….The man of rank and distinction, on the contrary, is observed by all the world. Every body is eager to look at him, and to conceive, at least by sympathy, that joy and exultation with which his circumstances naturally inspire him. His actions are the objects of the public care. Scarce a word, scarce a gesture, can fall from him that is altogether neglected. In a great assembly he is the person upon whom all direct their eyes; it is upon him that their passions seem all to wait with expectation, in order to receive that movement and direction which he shall impress upon them; and if his behaviour is not altogether absurd, he has, every moment, an opportunity of interesting mankind, and of rendering himself the object of the observation and fellow-feeling of every body about him.

Bertolt Brecht, “Mackie Messer” (“Mack the Knife“), Three Penny Opera:

And some are in the darkness
And the others in the light
But you only see those in the light
Those in the darkness you don’t see

But you only see those in the light
Those in the darkness you don’t see

[Und die einen sind im Dunkeln
Und die anderen sind im Licht
Doch man sieht nur die im Lichte
Die im Dunklen sieht man nicht

Doch man sieht nur die im Lichte
Die im Dunklen sieht man nicht]

 

Copyrights and Property Wrongs

26 Sep

Jeffrey Toobin has an interesting piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.

Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so terrible that the coroner wouldn’t allow Catsouras’s parents to see the body.

Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.

Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or people we care about shared on the internet. Because it provides such a powerful sluice for the spread of that information and those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.

In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:

The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they do deal with them at all, in a piecemeal fashion. Europe’s position, as Toobin explains, comes out of the continent’s long experience with state surveillance, with governments making use of personal data in ways that presumably the American state has not.

And yet…

As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.

Because Google is extremely sensitive to the legal claims of those who own specific words or images, it steadfastly refuses to link to copyrighted materials and images (or allow people to post copyrighted videos on YouTube, which it owns.) So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them. That threat of copyright violation can be very effective.

In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”

I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.

What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.

I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is  a property right.

The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. Even so, the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).

Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.

It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not.

The whole discussion reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause. The majority held that Congress had the power to regulate interstate commerce, that the travel of African Americans to and from the South involved interstate commerce, and that ending segregation in these public accommodations would facilitate such travel.

In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was discomfited by the Court’s resting Title II on that basis. He would have preferred to rest it on Congress’s power under the 14th Amendment.

Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.

But American being America, commerce ruled. And rules. Like property.

What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”

Thinking about Hannah Arendt and Adolph Eichmann on Erev Rosh Hashanah

24 Sep

George Steiner writes somewhere that the deepest source of anti-Semitism may lie in three Jews: Moses, Jesus, and Marx. Three Jews who formulated a great and demanding ethics/politics, an almost unforgiving and humanly unbearable ethics/politics, that the rest of the world has repeatedly bridled at and hated. And never forgiven the Jews for. Setting aside the bit of self-congratulation that lies at the heart of that formulation—ah, we Jews, we’re so ethical and righteous—I wonder if some part of that may not lie at the heart of the rage and reaction that Hannah Arendt’s Eichmann in Jerusalem has elicited over the years. There is something unforgiving at the heart of that book. It is a relentless indictment—not just, pace what Arendt herself said later of the book, of one man, but of many men, and women—an indictment, despite Arendt’s best and professed intentions, in which ordinary readers (ordinary men) can’t help but see themselves. And an indictment in the name of (or at least implicitly and distantly in the name of) a difficult and demanding ethics and politics. An indictment that seems to stir the same kind of reaction to Arendt that historically was stirred up against the Jews. Oh, that Hannah Arendt: she sets herself apart; she thinks she’s smarter than the rest of us; she belongs to no one, not even the Jews. Only this time it’s not the reaction of just non-Jews to Jews, but also of Jews to a Jew. Shana Tova.

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