How the Schocken Books collections changed Arendt scholarship

TLDR; Hannah Arendt never wrote a "moral philosophy." It is not hidden away in the archives or any of the recent collections of her work, nor in her unpublished lectures, letters, or journals. She was a political theorist who thought that moral philosophy requires a set of social relations that are inaccessible in the modern world. Yet as she has become more popular and is taught more and more often by moral philosophers, she is developing an unearned reputation as a moralist that perverts both what we should mean by moral philosophy and what she hoped to show us about the world we now inhabit.

Starting in the mid-nineties and then accelerating in mid-2000s, the publishing house Schocken Books has been publishing impressive thematic collections of mostly unpublished or inaccessible papers by Hannah Arendt. Edited by Jerome Kohn, the collections take up themes like Arendt’s approach to her Jewish identity, or the themes of understanding, politics, or judgment. The first “Essays in Understanding” collection was originally published in 1994, but seemed not to find an audience, and so was not completed: after the successful publication of a new version of Origins of Totalitarianism in 2004, the series was rekindled in 2005 by the publication of The Promise of Politics. Promise was a hit, as were the followups, and a new volume of essays on understanding is due at the beginning of next year.

This has been a great service to Arendt scholars, but it has also had a peculiar impact on the uptake of Arendt in the contemporary era. As I will argue here, these four volumes have completely transformed the disciplinary identification of her work and, perhaps, undermined her own account of how she ought to be read and understood.

Some background: I wrote my dissertation on Arendt. Though I attended Bard College where Hannah Arendt is buried, I first encountered her work in graduate school under the tutelage of Holloway Sparks, a political theorist, when I took a seminar on her work. We read Arendt–as I think was then the fashion–in chronological order, after a brief introduction by way of this interview (transcribed in the Penguin Portable Arendt as this was pre-Youtube):

At the very beginning of the interview, Arendt claims that, “I neither feel like a philosopher nor do I believe I’ve been accepted by the circle of philosophers as you so kindly suppose.”

The interviewer, Günter Gaus, protests: “I consider you to be a philosopher.”

Arendt responds: “I can’t help that, but in my opinion, I am not a philosopher. I’ve said good-bye to philosophy once and for all.”

Later, she explains: “I want to look at politics with an eye unclouded by philosophy.”

That was enough to situate Arendt as, in some sense, anti-philosophical, and to highlight the important distinction that motivated much of her work: an antagonism between politics and philosophy. Philosophers, Arendt argued, were too obsessed with objectivity in their assessment of nature and metaphysics to be able to take up the situated thinking of a political theory. Where political theory essays to understand what has happened, which is just what we expect from philosophy of science or metaphysics, when it tries to be political, philosophy retreats to a kind of impotent moralizing. Contrast Marx and Rawls and you’ll see the difference immediately.

It was, at the time, also quite au courant to cite Elizabeth Young-Bruehl’s biography of Arendt on the question of Arendt as an ethical thinker:

The myriad currents of political opinion represented by Arendt’s critics flowed over or around the larger issues Arendt had raised–and not answers. These issues loomed larger in American political life as the war in Vietnam escalated. Rosalie Colie, Arendt’s Wesleyan friend, ended a letter about the war with a plea: “Please write your morals. We need it, I do anyway.” For a “morals” there was–and still is–a great need, but Eichmann in Jerusalem would not satisfy it.

Thus, Young-Bruehl too assumed that Arendt had left philosophy and its effort to separate normative issues from political ones behind.

Now, of course, we have since that time received the Schocken Books collections with great pleasure. Much there is collected around themes, and perhaps because of this great interest in Arendt’s morals the papers I hear most often cited are the papers on personal and collective responsibility. In other words, the desire for Arendt’s “morals” is so great, produced so much secondary scholarship and archival research, that Jerome Kohn decided to publish the primary source material that might best represent this theme.

The impact of this decision has been, I think, far ranging. I wrote my dissertation just as these collections were being published, so I feel that my own experience of Arendt bridges the pre- and post-Schocken worlds. An ethical reading of Arendt that at the time felt fresh and only available to those who had spent time in the archives at the Library of Congress has begun to feel fairly well accepted. Yet I sometimes wonder whether we have lost the political theoretical version of Arendt in the shuffle.

Consider five ways to read Arendt for the first time: (1) the exhaustive chronological reading of a graduate seminar, (2) in order of impact and importance, (3) a thematic tour through works relevant to your interests, (4) an exhaustive reading focusing on lines of argument and thematic connections, and (5) brief dips into relevant essays, ignoring the larger project.

While I still think (1) is the proper way for upper-level students to imbibe Arendt’s oeuvre, I can acknowledge that completeness is not always a friendly initial goal. Most of my colleagues and readers are pursuing some version of (3) or (5), although a few may get seduced by the exhaustive thematic approach. When my friends James Stanescu and Joseph Trullinger asked me to rank Arendt’s works by importance, I discovered that as much as I hate to admit that some of her books and essays are more important than others, I do have strong feelings about how they ought to be read if (2) is at stake. The ideal read order by impact and quality would be:

  1. The Human Condition
  2. Between Past and Future
  3. On Revolution
  4. Origins of Totalitarianism
  5. Eichmann in Jerusalem
  6. Life of the Mind
  7. Love and Saint Augustine
  8. Crises of the Republic
  9. Men in Dark Times

This is in many ways a conventional order: though many students will start with Eichmann, I believe one can’t appreciate it as an Arendtian text without having a grounding in her other work, both on politics in general and on totalitarianism in specific. I also happen to think that two works which are not as often read today deserve to be more carefully studied: her work On Revolution comparing the French revolution to the American one, and her collection of linked essays, Between Past and Future, which is both deeply philosophical and shows–as she protested in the interview–how political theory is truly a different method than political philosophy.

The publication of the four Schocken volumes (with a fifth coming in January) have radically changed this ordering, however. First, it made available her unpublished piece, “Introduction into Politics” which she intended as a followup to Between Past and Future. (Recall my lengthy treatment of one of its themes here.) Second, it made easily available a triptych of pieces: “Personal Responsibility under Dictatorship,” “Some Questions of Moral Philosophy,” and “Thinking and Moral Considerations” which together are often read as supplying the necessary “morals” from Arendt.

Let me say a few things about this triptych: written as lectures and addresses, they are clear and easy to read and teach. They also address some of the questions that most bedeviled critics of her account of Jewish leaders’ collaboration with Nazi authorities, and her strange half-indictment of Adolf Eichmann less for what he did out of hate than for what he did out of stupidity. These essays are certainly in conversation with the startling results coming out of social psychology (Asch, Milgram, Zimbardo) regarding the terrible things people will do out of compliant respect for authority or subsumption into a role or job. How can seemingly ordinary men and women–who love their families, attend church regularly, and might never scruple to steal or cheat–engage in horribly violent acts?

Yet is this, this moral psychology, really all we want from moral philosophy? In some sense, the horrors of the Shoah are plain to all who care to look, and “speechless horror” is a perfectly adequate response. After that, Arendt’s moral philosophy constantly returns to a conception of self-consistency, regular reflection, and seems to conclude that most evil-doing is a kind of superficial self-deception. The totality of her moral philosophy might be boiled down to: a) “No one has the right to obey,” and b) “Morality is being able to live with yourself and what you’ve done.”

Arendt says as much in “Some Questions of Moral Philosophy,” which largely summarizes the argument of Between Past and Future and is primarily about confronting the collapse of morality into manners, the loss of abstract principles or autonomy in the pursuit of social conformity, and the ease with which mores and customs can be turned towards wickedness.

As such, I’ve begun to worry that these new collections may cause us to ignore Arendt’s political theory. It’s as if a new edition of Kant’s Dreams of a Spirit-Seer became all the rage and we began to ignore the Critiques. Reading Arendt through the lens of her disgust with moral philosophy–which, like religion and theology was utterly unable to prevent or even explain the Nazis–means that we ignore what, to my mind, she was able to help us see about the world. It also means that we too readily accept that moral philosophy can never be anything other than a kind of degraded political theory. I think there are many more interesting lines of inquiry to be had from moral philosophers than how to avoid committing genocide!

But I won’t defend moral philosophy from Arendt here. Too many of her critics read her looking for flaws or weaknesses to attack. Instead, here’s an act of appreciative theory:

Joshua Miller’s Top Ten Things that Arendt Got Right About Political Theory

  1. Race-thinking precedes racism. Arendt’s analysis of the rise of totalitarianism is a mammoth book, but the basic argument is simple: you can’t hate Jews for their race until you think of the fundamental flaw with Judaism in racial terms. Thus, race-thinking comes before racism.  Before race-thinking, Europeans hated Jews for completely different reasons: religion! You don’t exterminate other religions, you convert them. But once you have race-thinking, you can create justifications not just for anti-Semitism but for colonialism, imperialism, and chattel slavery of Africans.
  2. The Holocaust happened because Europeans started treating each other the way they treated indigenous peoples in the rest of the world. Europeans learned to think racially in the colonization of Africa, and the European model for dealing with resistance involved murderous concentration camps. Thus, when race-thinking eventually returned as a form of governance in the European continent, so too did the concentration camps.
  3. Totalitarianism is largely caused by the growth of a class of “superfluous” people who no longer have a role in their economy. In an industrializing society, much traditional work can now be done with fewer workers. One possible solution to this oversupply of workers is to put some of that surplus labor force to work monitoring, policing, and murdering the rest.
  4. Ideologues ignore counter-evidence. A very good way to understand ideology is as a logical system for avoiding falsification. There are alternatives theories of ideology that aren’t immune to counter-evidence but instead merely exert constant pressure: for instance, there’s a difference between what Fox News does and what Vox does, and Arendt’s account is more useful for criticizing Fox’s constant spinning than Vox’s technocratic neoliberalism. But Arendt supplied us a useful account of ideology that is closest to our standard use and our current need.
  5. The language of human rights is noble and aspirationally powerful. However, statelessness renders most rights claims worthless in practical terms and in most judicial institutions. Someone who must depend on her rights as a “man” or a human is usually worse off in legal terms than an ordinary criminal.
  6. You don’t discover yourself through introspection. You discover yourself through action. The main set of claims she made in The Human Condition about the role of public and political life strikes me as pretty important, especially insofar as it denigrates economic and racial identity politics. Think of the cocktail party version of this: on meeting a new person, some people will ask, “Where do you work?” in order to get to know them, identifying them through their profession, their economic role. Others will ask: “What are you into?” as if to say that our recreation and consumption is what defines us. But for Arendt, the appropriate question is: “What have you done? What do you stand for?”
  7. If you take that seriously, “identity” politics is frustratingly restrictive. A person is not defined merely by the class or race they come from: they are defined by the principles upon which they act. While it is often necessary to step into the political sphere as a representative of Jews or women–and Arendt acknowledged that this becomes unavoidable when one is attacked as a woman or a Jew–the best kind of politics allows us to enter the political sphere as ourselves, not knowing what we will discover about those selves until we have acted. So the need for identity politics is an indication of larger injustices: we respond as members of our groups when systematic and institutional forces oppress us as members of these groups.
  8. Revolutions that aim for political goals are more likely to succeed than revolutions that aim for economic goals. Misery is infinite and thus insatiable; political equality is comparatively easy to achieve. Thus it’s important to connect economic complaints to a deprivation of political equality: the important problem with white supremacy, for instance, is not that whites “have” more than Blacks, but that we count for more, that it is uncontroversial that “White Lives Matter.” (Though an important indication of that “counting for more” is that white people have more than Blacks because we continually plunder Black people and are able to get away with it systematically.)
  9. Philosophy as a discipline is fundamentally at odds with politics. This is a problem for political philosophy, and it helps to explain why so much of political philosophy is hostile to politics and tries to subsume the agonistic nitty-gritty of the public sphere under rules of coherence and expert knowledge. This is because thinking as an activity is a withdrawal from active life, and especially politics: the fundamental conflict between the eternal and the ephemeral is not one that can be usefully bridged, and most often those encounters are pernicious for both thinkers and doers.
  10. Work and labor are different. Some activities are repetitive and exhausting, and only biological necessity forces us to continue them. Some activities make the world and our lives within it meaningful and fruitful. Many people have economic roles that mix the two activities, but still and all they are distinct. What’s more, there’s not shame in wishing and working for a world without labor, perhaps a world of automation. But a world without work would be fundamentally meaningless.
  11. Evil is not complicated, so don’t overthink it.

One last thing: the Schocken collections are admirable and beautiful texts, but Jerome Kohn sometimes turns to salesmanship in his introductions. Perhaps one reason they play such an outsized role in recent readings of Arendt is that he argues in the introduction (and many readers seem to accept) that “her unwritten volume on Judging… may have crossed some of the t’s and dotted some of the i’s of ‘Some Questions of Moral Philosophy.'” In short, Kohn bills these lectures as filling in the unwritten volume. (While he disavows this interpretation in the next line, he also writes assertively if schematically about what Judging must be given these essays.)

Lectures given in 1965 and 1966–which only set up questions and ostentatiously end in uncertainty rather than answer them!–are supposed prefigural accounts of Arendt’s thoughts a decade later. It’s really a shame: a Heideggerian anxiety over mortality and the unfinished projects it portends that is deeply un-Arendtian. As with Beiner’s transcription and interpolation of the Kant lectures and indeed as with my own dissertation on her work, we are so focused on what we lost with her death that we ignore what she gave us.

Reflections on my Crime and Punishment Seminar

 

Old Ohio Penitentiary by J. Harris Day
Old Ohio Penitentiary by J. Harris Day

This semester I taught a course on crime and punishment, and in part out of competition with my colleague Seth Vannatta, I set out to give a final presentation on the dimensions of the course. This is the presentation I wrote.

Introduction

Our task was to explore the role of ethics in the law, and we began our semester worrying about standard ethical questions of responsibility and who to blame when things go wrong. The standard theories of punishment all revolve around these questions: whether we are utilitarians or contractarians, we are implicitly depending upon an account of what we owe to the criminal and to society. What’s more, the same assumptions underwrite our theories of what it is to deserve a grade (an A, an F), to deserve the love of our partners, or to deserve a particular job or a raise. This question of where to locate merit in our account of responsibility is particularly troubling, however, when someone is harmed, when a law is broken, or a right is infringed.

Simple questions of positive and common law or negligence, willfulness, and standards of care quickly morphed into a thorny metaphysical question: how can we be responsible for our acts if we could not have done otherwise, that is, if the mechanistic picture of the universe and our genetics and our society and our brains is true, and what I ate for breakfast or the crimes I commit before dinner are all predetermined?

Reactive Attitudes

The courts want to avoid such questions, but throughout the semester my contention was that they end up smuggling metaphysical accounts of agency into their descriptions of the non-culpability of children for trespass. Yet what we saw in Peter Stawson’s account of the reactive attitudes was an attempt to save responsibility, praise, and blame while jettisoning the supposedly-unavoidable metaphysical underpinnings. By redescribing blame and responsibility in terms of their own possibly-deterministic framework, Strawson allows us to say something like the following: “Maybe you could not have done other than what you have done, maybe your virtues and your vices are both unavoidable, but my reactions are no more avoidable. If you cannot be expected to have prevented your crimes, then I cannot be expected to prevent your punishment.”

This certainly appears to be a satisfying solution to the problem, because the law cannot requires a victim or a judge to achieve an inhuman level of restraint in the face of a dazzling failure of restraint in the perpetrator. Strawson’s “reactive attitudes” account comforts us by communicating just how unfair this asymmetry actually is. And yet… in beginning to spell out conditions for the defeasibility for responsibility, Strawson reiterates that not all actions and reactions are symmetrical. Under many circumstances, a victim truly does have more restraint than a perpetrator, and ought to exercise  it, too. (Not just to prevent cycles of reprisal, although that certainly counts in its favor; to get beyond a mere modus vivendi to what we might mean by justice.) Even more: a judge’s capacity to see beyond the dyadic relationship of injury and blame means that she can ask questions about the overarching justice and efficacy of a punishment.

Grammatical Theories

Thus we entered what we called the “grammatical” theories of agency and responsibility. We experience our own lives through the first-person lens, as “I.” Meanwhile, we can talk about the other person in two different ways: as a second-person “you” or as a third-person “them.” And underwriting these lenses or grammatical conventions is the fact that we tend to see ourselves as agents and others as passive, to an extent that is so asymmetric and inconsistent that it is hard to believe it can be warranted. For instance, we are much more likely to explain our own failings in terms of circumstances, while we tend to describe the failings of others in terms of character, intention, or predilection. “I” fail because of events and impediments beyond my control, despite my best efforts. “You” fail because you didn’t try hard enough, you just weren’t willing to work at it; “they” fail because that’s just what they’re like, “they” are failures.

So what starts as an attempt to avoid the difficult metaphysical problems gets bogged down in our cognitive heuristics and biases. In gathering the texts we read together, I tried to duck this problem by adopting the third-person perspective, moving the course from the questions of just deserts to systematic accounts of the problem. Of course, all the intutions and issues of first-person and second-person agency and responsibility are still lurking there for you to pick up, if you like, but we’re all fascinated by the political theory and history, so I followed our collective inclinations. “Don’t blame me!” I guess I’m saying. “We are collectively responsible!”

The Republican Theory of Punishment

In order to ground our discussions of justice, we tried to transition from metaphysical and psychological accounts of freedom to the political and legal theory of liberty, that thing of which coercion and the threat of interference and violence deprives us. At about this point it began to be increasingly difficult to ignore issues of race, even in the sense of putting them off until we got to Michele Alexander’s book. So when John Braithwaite and Philip Pettit offered a theory of dominion as the equality of social status and defended it explicitly with reference to the differential “costs of victimization investigation” that African-Americans face, it became increasingly difficult to ignore the discriminatory intents and impacts of things like the death penalty.

Perhaps the most interesting insight that Braithwaite and Pettit offer is the conclusion that much punishment is simply an attempt to preserve hierarchy rather than to right an inequality. This is something we well-recognize in looking around at the race and class of those who get punished in the US, but philosophers too frequently ignore it. What’s more Braithwaite and Pettit offered us an explanation of what makes coercion and domination so difficult: not the harm or loss of utility, nor the shear loss of doing what you want to do, but the way that it harms our social standing, makes some “better than” and others “less than.” Many political philosophers have concluded that a democratic society cannot function if it is not populated by social equals. The only problem is that so many so-called democracies *do* seem to have serious social hierarchies, and as university students and faculty we inhabit an elitist institution that sets out to distinguish erudition from ignorance and good work from bad.

Costs and Benefits

One way to articulate the appeal of the theory of non-domination that Pettit offered is the way in which it gives us a tool to balance the costs of victimization against the costs of investigation and incarceration. But the balancing act favored just one variable, equality, and it seemed that this is not the only way to proceed. Sometimes, as in markets, equality should take a back-seat to other values, like efficiency and optimality.

In his book When Brute Force Fails, Mark Kleiman offered a different account. He suggested that given how much we spend on and lose to crime-avoidance, perhaps some large amount of criminality is simply inefficient, and we’d be better off spending even more of our scarce resources on eliminating it. What is more, he suggested, we not only need to spend more preventing crime, but we need to spend these greater resources more intelligently. (Work harder AND smarter.) Yet the real strength of his argument is not so much the cost-benefit analysis but his prescriptions: that infrequent, uncertain, and severe punishments are simply not much of a deterrent, while swift, certain, and light-but-escalating punishments could be much more effective, saving us costs to the criminal as well as the victim.

Given how much crime costs us as a society (and Kleiman includes the cost to the criminals!) there is much benefit to be had from preventing it. Yet so long as we organize our response to crime around the concept of punishment rather than prevention, we will tend to choose more severe and less effective regimes of investigation, correction, and incarceration.

Surveillance and Punishment

Despite its appeal, Kleiman’s prescriptions fall under the rubric of an increasingly surveyed disciplinary society, one that simply uses new technologies from psychology and economics to do a better job of controlling its citizenry. The justification for this increased control is that citizens desire safety and security more than they wish to be free from such disciplinary technologies, and Kleiman is undoubtedly right that that is our preference. However, we should worry.

The heart of the course was a close reading of Foucault’s book Discipline and Punish, and if his history taught us anything, it is that social knowledge always has two faces: the production of justificatory knowledge and “truths” by experts who stand to gain from their expertise, and the development of practices and techniques for the regulation and management of bodies.

Much of the first half of the semester was devoted to the production of knowledge and the progress we have made in discerning the true and the just ways of investigating and punishing. But what Foucault attempts to lay bare is the way in which our contemporary treatments of prisoners’ bodies are only intensifications of historical brutalities we think of as inhumane. The intensification follows an introverting path: we have certainly lost the stomach for the spectacle of the regicide being drawn and quartered or the criminal hung on the scaffold. But incarceration and rehabilitation, the watch-words of criminal science, take up a set of tasks related to the ordering of unruly and delinquent bodies that is much more effective but no less self-serving. We now have the tools for more power, and if Foucault is right then we will generally put these instruments to use in asserting our own advantage by dominating others.

Both the concerns about social hierarchies and the recognition of the radically racialized form that incarceration and punishment take in the US suggest that “our own advantage” may include my students and I, but it is unlikely to include the majority of black people and it is unlikely to include the majority of people without college degrees. Recognizing the power that our knowledge allows us does not mean that we can necessarily bend that power to our wills; it is much more likely that it will continue to accrue advantages for us even if we try to betray it, just a rich person’s Capital continues to make money even if they purport to be egalitarian communists.

Punitive Isolation and Bare Life

Deepening our understanding of the techniques of imprisonment, we read essays (including a great one by Lisa Guenther) on the horrors of solitary confinement and the sometimes bewildering Homo Sacre by Giorgio Agamben on the forms of exclusion that seem to have a permanent place in our prison system.

If Agamben is right, then these new forms are all a part of an overarching paradigm, that of the reduction of human beings to their mere physicality and biology. This political movement towards reduction transforms flourishing into survival, and it does it in a way that has been continuously experimented with since the first colonists started to round South African natives into “concentration camps” for ease of management. When those colonial overlords returned home to Europe, they brought their techniques of domination with them, and so in that sense the Holocaust was Europe’s chickens coming home to roost, a “boomerang effect” by which European Jews reap what European capitalists sow.

Biopolitics is a form of legal sovereignty in which “modern man” is a depicted as “an animal whose politics calls his existence as a living being into question” but it makes sense only as a development of the totalitarian interpenetration of politics and private life. The modern sovereign no longer decides between ‘letting his subjects live or making them die,’ rather he chooses to ‘make them live or let them die.’ Thus he distinguishes the form of a power that disciplines its subjects and channels their activity from one that simply responds to infractions with infrequent but grotesque punishments.

Trying to spell out exactly how these new techniques and knowledges serve the purpose of domination is something of a challenge precisely because they are still in the experimental stage, still being contested. In the absence of opposition, however, they have been allowed to remain in unquestioned use for far too long. The very nature of bare life and isolation means that the contestation that would normally be working through these techniques and forcing them to receive some form of justification has been slow to form even among those academics who are supposedly most opposed to domination and who purport to ally themselves always and everywhere with the downtrodden and silenced. Let me suggest one reason, at least, why you should think that there is still work to do.

Agamben suggests that we ought to see ourselves in solidarity with the least of us; the immigrants and refugees, those without rights. No doubt he is motivated by the idea that the rightless are marked by the fact that they rise in status when they have committed a crime, because only then are they granted procedural rights (like the right to a trial) and recognized within the legal framework. In practice, however, it may be more effective to view prisoners through the lens of the nomos of the camp.

The New Jim Crow

One concept we did not discuss in our class in much detail is race solidarity and race treason. But when we turned to Michelle Alexander’s book it became obvious just how difficult such a discussion might be. Having made a persuasive case for the differential intention and impact of the current system of mass incarceration, Alexander then asks her readers, who she assumes will be bourgeois African-Americans like my students, to engage in a radical act of political solidarity. Rather than putting our hope in a Black president, Alexander suggests that quietly celebrating civil rights victories from fifty years ago while enjoying the benefits of what she calls the “Racial Bribe” is a kind of racial treason: selling out the majority of African-Americans for the spoils of white supremacy by becoming complicit in it. In contrast, she suggests that true opposition to white supremacy will require a rejection of the racial bribe and a laser-focus on the policies currently at work in the domination of African-Americans.

We started this class asking what sort of punishment we owe to the criminal: at the conclusion, Alexander proposed that what we owe to the criminal is solidarity. I suspect that this is a difficult proposal to accept. I do not know how to make the case any stronger than she made it, so I will simply quote Baldwin, as she does:

these men are your brothers—your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off…. We cannot be free until they are free.

Yet as a white professor of African-American students, I cannot quite countenance her proposals, like when she took to the pages of the New York Times calling for a plea-bargain strike, suggesting that everyone accused of a crime act in solidarity to force the courts to a halt: “Go to Trial: Crash the Justice System.”

“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

I tend to think this kind of collective action is unworkable, in part because it puts the responsibility to act on people who are risking very serious jail time if they proceed.

However, the key focus of this proposal is not only to increase demand for lawyers and judges beyond the point the system can handle, but also to increase the demand for jurors so that we must actually face what we have collectively done. Right now almost no criminal can afford to take advantage of his supposed constitutional right to a jury trial. We do everything in our power to coerce them not to use that right, and the results are spectacularly unjust even if every one of them is guilty. As a result, most citizens don’t have to face up to the decision-making a jury trail entails. That’s part of why mass incarceration is of so little interest to most people: out of sight, out of mind. At least a plea-bargain strike would put citizens back in the drivers’ seat. When we get tired enough of jury duty, perhaps we will vote to decriminalize some of the things that are taking us away from our work and families. But so long as we can leave the job to prosecutors, we’ll likely continue to vote for tougher laws and more “tools in the arsenal of prosecutors,” which is an arms race prosecutors have long since won.

Throughout the course we saw a very diverse set of authors arguing that something akin to an abolution of incarceration was required. I didn’t always realize that a text could be read in that way, but it was a running theme. It’s almost impossible to imagine, now; yet I think that these unimaginable things are often what most needs philosophical work. Why not imagine a world where almost 2% of our fellow citizens are in some way dominated by the criminal justice system? Why not imagine a world where we regularly isolate  prisoners, depriving wrongdoers of the social bonds that would be required to reenter society?

The Progressive Paradox

Bob LaFolletteAt the beginning of the twentieth century, there was a broad consensus among reformers in the United States regarding the perniciousness of economic monopolies and winner-take-all politics. After that period of rampant growth and cronyism known as the Gilded Age, groups who had been disproportionately disadvantaged by political patronage and voter fraud began to organize their activities around the need for policies maximizing the inclusiveness and fairness of democratic procedures. This movement had a name: Progressivism. The goal was to improve the outcomes of democratic elections by creating mechanisms that would effectively hold representatives accountable to the informed interests and preferences of the electorate. This required both an alteration in the parties that supplied the representatives and the people who voted for them. The state-level changes included transparency requirements and anti-corruption oversights for elected representatives, suffrage and poll access reforms, while the political parties became quasi-state entities forced to submit their expenditures to public accountability, in exchange for which they received public funding. The electorate began to create spaces, both publically and privately funded, aimed at fostering broad deliberation prior to elections: Chautauquas, discussion clubs, and settlement houses like Chicago’s Hull House formed for the purposes of adult and immigrant education, issue identification, neighborhood organizing, and debate.

Peter Levine has argued that the accomplishments and pitfalls of the pre-Depression Progressive movement are best epitomized by Wisconsin Senator Robert La Follette’s 1924 presidential campaign as the Progressive Party nominee. As governor and then Senator for Wisconsin, La Follette achieved singular victories in transparency, honesty, and accountability. “Until the last phase of his career, he spoke about little except political reform and generic rights for all consumers and taxpayers.” (Levine 2000, 22) Yet when the procedural reforms were enacted, they naturally created a situation which his successors used to enact substantive policies with regard to the regulation of industry (especially the railroads), funding (a ‘progressive’ state income tax), and to form environmental conservation agencies, complicated schemes for state life insurance, and agricultural subsidies. On the one hand, La Follette’s “political reform produced stronger, more efficient, and more representative government,” on the other hand, the electorate used  their increased involvement and accountability to demand “a massive increase in the powers of government, which (in turn) necessitated the use of expert administrators.” (Levine 2000, 25-6) In short order, the democratic gains were lost to a set of institutions who were no more accessible procedurally than their corrupt and exclusive predecessors, even as they were oriented, at least at first, towards the objectives of justice and the public interest arrived upon democratically.

The greatest irony of the American Progressive era is that the supremely democratic efforts of labor groups, community activists, and the deliberative elements of the public sphere accomplished unprecedented victories, but that these victories led to policy decisions that undermined the very democratic activities that made them possible. The potential for further ‘progress’ was dissipated as state-centric solutions to economic and social problems led to an increasing reliance on the institutions that make up what we now call the ‘administrative state.’ However, this is not simply a matter of kicking aside the ladder once we have ascended. The condition of possibility for future endeavors cannot be sustained without maintenance: public policies must appear, along with the officials who administer them, in public spaces where they can be understood, evaluated, and amended at will. This space must also be open for the appearance of unexpected individuals, encounters, and acts; the only thing that closes that space is violence.

The Progressive paradox was first identified as the ‘the curse of bigness,’ a phrase used by Louis Brandeis to describe the deleterious effects of the expansion and centralization of business and government. As organizations grow, they become increasingly inaccessible and procedurally rational. Their capacity to remain accountable to their constituents is inversely proportionate to their efficiency. Large institutions replace the public sphere, which provides opportunities for individuals to appear through deeds and speech, with a regulatory apparatus ruled by speech codes and language games. Expert bureaucrats rely on complicated schemes like insurance or subtle changes in promulgated regulations, which make it difficult for non-experts to engage as equals in ascertaining the relationship and judging their efficacy between policy measures and policy goals. We live in what Michael Sandel calls a ‘procedural republic,’ where both the forms of administrative power and the plural character of the citizenry prevent meaningful deliberation regarding the public good, which undermines collective action in support of thick cultural values beyond basic fairness.

2012 is NOT the Most Expensive Election in History, in GDP-adjusted Terms

Last year, I suggested that liberal objections to Citizens United were partly justified by predictions about its effects that I didn’t see as probable. As the election draws to a close, we can begin to say whether the consensus view or my own views were accurate.

Here goes: as a percentage of GDP, this is simply a cheaper election than 2008.

When I looked at this question a year ago, I used estimates by this firm that showed that the 2012 elections would cost $7 billion dollars. Now the Center for Responsive Politics says the election will actually cost about $6 billion. (Note that this includes down-ticket races, not just the Presidential eleciton.) Combined with the revised and increased GDP numbers, the “massive increase in spending” hypothesis doesn’t look to have been supported this year, and 2010 looks like more like a blip than the start of a trend. Here’s what the cost-curve looks like:

There’s still plenty of room to discuss the ways that Super PACs affect the elections. Surely the increased attention to primaries (as rent-seeking money has been crowded out of general elections) might account for the ideological stripe and quality of candidates currently running for office. That said: never attribute to corporate malfeasance that which is adequately explained by citizen apathy.

Season of Political Irrelevance Update

Weigel has predicated a lot on the conditional statement: “If you look at it right, then you’ll see serious policy.” But we don’t have any evidence for the antecedent, that the public or the media *will* “look at it right.” More to the point, I don’t agree that the waivers or tax loopholes are among the most important problems facing this or the next president. Effective tax rates are much too low on the rich, but the best solution isn’t better income tax laws, it’s a progressive consumption tax, which is not on the table.

The policy issues under discussion are partly unsubstantive because they’re subject to deep red meat divisions. They won’t be resolved; they’re designed to be perpetual. The stuff I want to talk about is stuff that a whole host of people from both sides could agree on, if they were allowed to spend the election talking about it. Elections are about drawing distinctions and offering a choice, but they’re also about parsing the electorate into roughly equal demographic slices. Policy is about taking the broad overlapping consensus and the best evidence and acting on that.

Over the next two years, there will be very little movement on the things we argue about during this election season. During the same time span, there will be a great deal of movement on the things we ignore this election season. That suggests irrelevance.