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.
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.
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]
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.
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.”
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.
Sunday’s the big climate march in New York City, which I’ll be going to with my family and, well, a lot of other people. I had promised my friends Ted Levine and Carolina Bank-Muñoz that I would blog about it. But the last couple of weeks have gotten away from me.
But tonight I read a great post by David Roberts that my wife sent me. It’s about the conservative refusal to deal seriously with climate change. And it tells an unbelievable story.
I give you North Carolina, where a government-sponsored scientific report revealed that, by the end of the century, oceans would rise up to 39 inches and the Outer Banks would be under water — an economic and cultural cataclysm for the state.
Galvanized by the threat, the Republican-controlled legislature … threw out the forecast.
The state’s new Republican governor appointed a new coastal commission chairman, Frank Gorham, an oil and gas man who announced this spring that the new forecast would be limited to 30 years.
These are people who literally close their ears to the news that their own homes will be underwater…
Roberts tells this story as a counter to a friend of his, George Marshall, who thinks conservatives can be reasoned with on the question of climate change.
Marshall’s suggestions are sensible: find spokespeople within the movement to do the talking; frame things in terms of values like conservation, purity, and loss-aversion; avoid divisive, hot-button topics like cap-and-trade. My contention is simply that the [conservative] tribe is too far gone.
Count me on Roberts’s side of this one, but I want to take issue with that last “the tribe is too far gone” remark. Because it implies that once upon a time, they weren’t.
Now I’ve blogged many a time against the notion that once upon a time, conservatives were different, that they were like Edmund Burke and Bill Buckley. In fact, I’ve written a whole book against that notion. So I won’t rehearse those arguments here.
Instead, I want to focus on that North Carolina story and what it tells us about how conservatives think about time. Not necessarily about the environment, about which their views may have changed in response to political contingencies, but time. And the truth is, though conservatives are supposed to care about conserving the past for the sake of the future—hence, Roberts’ friend Marshall urging him to talk about “conservation, purity, and loss-aversion”—they’ve always had a strangely distended notion of time. Even Burke. An almost teenage, James Dean-esque, version of time. In which we’re burning the candle at both ends, so why worry today about what we may not survive to experience tomorrow?
I was going to write more about this and then remembered that I already have in a previous post:
In my junior year of high school, ABC televised a film, The Day After, about what the world would look like after a nuclear war. This was a time, some of you might recall, when talk of “nuclear winter” was all the rage. One of the strongest memories I have of the film was of its depiction of that winter. Dust and debris were everywhere; they looked like snow flakes of death, made to match the color of Jason Robards’ hair.
After the film was aired, Ted Koppel convened a panel of worthies—Henry Kissinger, Robert McNamara, Brent Scowcroft, Elie Wiesel, Carl Sagan, and William F. Buckley—to debate its implications. I can’t remember much of what was said, but one comment from Buckley has stayed with me all these years (see 2:45 in this video link).
In response to a provocation from Wiesel—who asked how it was possible for his co-panelists even to talk about a nuclear war, as if such a war could be fought and won (one wonders where Wiesel had been all those years)—Buckley said:
I think we do have to talk about it. Dr. Kissinger, twenty-five years ago, got hell for consenting to talk about it. So did Herman Kahn. The fact of the matter is here we are talking about all the tensions we’re going to be living on, fifteen years from now, twenty years from now. Well, the implied assumption is we’re going to be alive fifteen years from now, twenty years from now. That’s pretty good news, isn’t it?
Someone else on the panel, perhaps Scowcroft, muttered an encouraging “yep,” and Buckley went on. Until Koppel broke in:
Fifteen years may be pretty good news to men of your generation and mine. I suspect that some of our children might regard that as a rather limited life span.
The conservative imagination is supposed to prize longevity and continuity. It is the wisdom of old men. Yet here we have its most genteel modern tribune sounding like Edna St. Vincent Millay, happily mooting his own extinction and that of his child, declaring the shelf life of civilization to be little more than the life span of a reckless teenager. This is not Rambo conservatism but Rimbaud conservatism, betraying less a disregard for death than an insufficient regard for life.
When conservatives in North Carolina in 2014 hear “by the end of the century” in the context of climate change, they’re responding the way Bill Buckley did in 1984 in the context of the nuclear arms race: You’re saying we’ve got 15 more years? 20 more years? That’s pretty good news, isn’t it?
No, it’s not.
See you on Sunday.
Reading this post by David Cole—on Obama’s unauthorized war on ISIS—my mind drifts to the German political theorist Carl Schmitt.
Schmitt famously defined the sovereign as “he who decides on the exception.”
Long established and stable constitutional regimes presume and rest atop legal routines, social patterns, political order, normalcy: “For a legal order to make sense, a normal situation must exist.” In such situations, political authority is constrained by a set of rules and its exercise of power is almost as predictable as the social order itself.
But there are moments in the life (and death) of a society that exceed the boundaries of these laws and routines, moments, as Schmitt says, when “the power of real life breaks through the crust of a mechanism that has become torpid by repetition.” Such moments are ones of grave existential threat. The decision as to whether we are in such a moment—that is, whether we are confronting “a case of extreme peril, a danger to the existence of the state”—is not self-evident. Such a decision cannot be made in accordance with, cannot be prescribed or contained by, these laws and routines. Such a decision does not emanate from a constitutionally authorized office or conform to a preestablished list of specified conditions. It must instead by made ex nihilo; it necessarily “emanates from nothingness.” It is a decision that, in the very doing, sets out and enacts the grounds and norms of its own justification.
He who makes such a decision is sovereign.
I was reminded of Schmitt’s teaching, as I said, by Cole’s post on Obama’s unauthorized war on ISIS. Here’s Cole:
In his speech, President Obama avoided the word “war,” but that is the more common word for the kind of sustained military campaign he described. And under our constitution, the president cannot go to war without congressional approval except in narrow circumstances not present here.
Obama has given no indication that he intends to seek Congress’s authorization for airstrikes. There has been some talk of obtaining approval to send troops to train Iraqi forces, but Obama apparently thinks he doesn’t need any authorization to drop bombs from the sky with the aim of killing human beings—even in a country, Syria, where he plainly will have no permission from the sovereign to do so….On Meet the Press this Sunday, Obama claimed, “I have the authorization that I need to protect the American people.” The host, Chuck Todd, didn’t press him on where that asserted authority comes from. Congress certainly has not given it.
Under the Constitution, whether to use military force is Congress’s decision, not the president’s. The framers gave Congress the power “to declare war” and even to authorize lesser uses of force, through what were at the time called “letters of marque and reprisal.”…
There is one situation in which the president can use military force without congressional authorization—when responding in self-defense to an attack or an imminent attack. But Obama has not made that argument in announcing the campaign against ISIS. As he said on Meet the Press, “I want everybody to understand that we have not seen any immediate intelligence about threats to the homeland from ISIL. That’s not what this is about.”
I am quite sympathetic to Cole’s argument, but something about its relation to American history gives me pause. Take Latin America. In the last two centuries, the United States has intervened militarily in that continent literally dozens of times. In Mexico, Panama, El Salvador, Nicaragua, Guatemala, Haiti, Dominican Republic, Grenada, Cuba, and more. It has sent troops, occupied cities, killed foreign soldiers, overthrown governments, created new governments, and governed militarily. The history of the United States in Latin America is of one damn war, at least as Cole understands that term, after another. And only two of them declared by Congress. Both in the nineteenth century.
Thinking about Obama’s war on ISIS in the context of that history, it’s hard for me to summon anything but a “shocked shocked” indifference to the president’s disregard for the Constitution. I’m not proud of that, and I’m not trying to proffer a knowing cynicism against Cole’s quite sound legal arguments. It’s just the history that overwhelms me.
Which brings me back to Schmitt.
Against virtually everything Schmitt argued in Political Theology—he does offer this throwaway line as a parenthetical observation: “not every extraordinary measure, not every police emergency or emergency decree, is necessarily an exception”—in the Unites States, the legally and constitutionally prescribed path to war has been the exception, and the unauthorized, extra-legal (if not illegal) military expedition has been the rule. At this point, he who would decide the exception—that is, he who would be sovereign, he who would make a decision that “emanates from nothingness”—would be he who seeks a constitutionally authorized congressional declaration of war.
We thus confront a situation of upside-down Schmittianism, in which war is “the crust of a mechanism that has become torpid by repetition” and law “the power of real life” that might break through. Which could be grounds for hope, were it not for the fact that the law is almost as lifeless as the victims of America’s torpid, repetitive wars.
Aziz Rana, who’s a professor of law at Cornell, is one of my favorite of the younger generation of political theorists who are transforming our understanding of some of the basic paradigms of political science. I discovered his work a few years ago, when I got a copy of his first book The Two Faces of Freedom. That book just came out in paperback. Since then, he’s been kind enough to share with me several chapters from his new project on a different tradition of American constitutionalism, one that we might call anti-constitutionalism or an alternative constitutionalism, that seeks to take down the text from its pedestal and put in its place, and that explores it came to its position atop that pedestal. He’s one of those theorists from whom, whatever he writes, I learn and come away with all sorts of new thoughts in my head.
In August, Jacobin published a really great interview with him, conducted by Nikhil Singh, about The Two Faces of Freedom. Some excerpts here; I urge you to buy the book.
• • • • •
I argue that for all the basic transformations in the US in the twentieth century — from the rise of the administrative state to civil rights successes — the country’s internal institutions and external practices have retained settler structures. A key theme of my historical account involves the rejection of the idea that, even if settlerism oriented early American history, it has little to say about the present.
For many left-liberals, a common move is to recognize the country’s oppressive roots, but then to argue that through a combination of the New Deal in the 1930s and the so-called Second Reconstruction in the 1960s, the nation was in effect fundamentally transformed on free and equal grounds. So they reject a conservative reading of the founding as perfect and unmarred, but nonetheless participate in the overall creedal story of self-fulfillment and redemption.
My view, by contrast, is that creedal arguments gained prominence out of a sense of ideological uncertainty that enveloped the United States in the early twentieth century. In particular, the closing of the frontier and the country’s emergence onto the global stage with the Spanish American War raised basic questions about the future of colonial settlement as well as the meaning of American power in the world.
In this context, many American elites began to rally around a specific reading of American universalism as the defining characteristic of the community. This view separated European imperialism on the one hand from American global influence on the other, with the latter depicted as benign tutelage fundamentally in keeping with the basic interests of nonwhite peoples.
Such civic arguments steadily reimagined the country in more inclusive terms. But, critically, they also provided an ideological framework that allowed classically privileged American insiders to preserve the basic institutional structures of the polity — those of an increasingly completed settler project — while at the same time asserting greater authority internationally.
As a result, although the country’s identity shifted from a settler to a civic nation, the roots persisted — Americans never properly confronted the country’s colonial infrastructure or its imperial legacies.
Furthermore, all of this occurs in the context of an expansive bureaucratic state, a lasting institutional legacy of mid-twentieth century American political development. This administrative state is organized around an increasingly centralized presidential system and is both infused with corporate interests as well as insulated from mobilized popular pressure. I should note that I am avowedly statist in my politics; I believe strongly in the democratic potential of both the state and its bureaucratic infrastructure.
So the problem for me is not state power as such, but the corporatist mode of state power that dominates American politics. The rise of this particular form means that, paradoxically, just as marginalized communities in the past half century have gained formal rights and greater electoral power, the public’s overall capacity to direct large-scale economic and political institutions has seen a sharp decline.
The second type of pushback is that by describing the internal practice of self-rule within settler society as a rich account of freedom, I am, in effect, legitimating settler practices (the concern you highlight). I think this is a fair worry and one that I’ve struggled with.
My basic theoretical position is that freedom and subordination are inextricably connected to one another in any historical context. Moreover, groups understand the meaning of freedom in particular conditions in relation to those modes of oppression that are prevalent on the ground.
For me, the expansive notion of freedom as self-rule — as a condition of popular authority over economic and political life — which emerged in the United States in the nineteenth century, developed precisely out of close proximity to its living negations: slavery and native expropriation. Settler laborers in particular came to see freedom as more than just formal political and legal rights, but actual control over the conditions of production, economic independence, and democratic self-government. This was a robust vision, albeit deeply circumscribed given that the heart of settler ideology was that such freedom at root required native removal and exploited labor.
Thus, to universalize settler liberty — as I argue for in the book — would require a fundamental restructuring of American life. This is something radical critics themselves perceived at various moments in American history. It would mean thinking about how a democratic principle could actually govern all institutional sites and provide all communities with meaningful economic and political power.
Such an effort would transform, root and branch, settler legacies and living practices: from recognizing Indian sovereignty to fundamentally altering the structure of the economy to challenging the border as a closed barrier. The key thing to note is that such freedom, although emerging from a settler past, would no longer perpetuate settlerism.
This speaks to what I see as the dialectical character of freedom, where the conflict between an initial account of liberty and its opposition produces something new. And similarly, I would add that I do not believe that if we ever “universalized” settler freedom this would mean the end of subordination once and for all. Rather, in keeping with the dialectical vision, even successful projects of emancipation generate new legal and political orders that knit together secured liberties with emerging hierarchies.
First, a remarkable feature of US domestic conversations about capitalism and economic inequality is the extent to which they are often separated from conversations about the application of US power abroad. As just one example, take the issue of immigration and immigrant rights, a focal point of new labor organizing on the one hand and conservative reaction on the other.
The overwhelming tendency is to present immigration as an issue that begins at the national border, with virtually no attention paid to the particular histories, international economic pressures, and specific US foreign policy practices that generate migration patterns in the first place. The movement of men and women from their homes does not occur in a vacuum and is deeply tied to patterns of colonization and empire that stitch together the Global North and the Global South, as well as to the recent security politics of the US and Europe across the post-colonial world.