Tag Archives: freedom

A tale of two cases: Dumas vs Sipple

Alexandre Dumas pere

I promised in the previous post to follow with two examples of the fascinating differences in American and European law (not to mention culture) when it comes to privacy and its component values, such as liberty, dignity, and honor.

Of the many cases in James Q Whitman’s excellent research into those two traditions, these two caught my attention:

  1. The 1867 case of Alexandre Dumas pere, which expresses perfectly the French (and thus continental European) philosophy on the matter of privacy, and
  2. the case of Oliver Sipple, a gay man who saved President Gerald Ford’s life in an assassination attempt in 1976, which expresses the American philosophy

1) Dumas

Alexandre Dumas père was the author of The Count of Monte Cristo and The Three Musketeers and other books. In his sixties, he had a steamy affair (as one did) with an actress and horsewoman from Texas who was almost half his age and (in)famous for mounting stages scantily clad by the standards of the time.

Dumas and his lover posed for several risqué photos. Nobody on Facebook today would bat an eyelid, but the babe was in her underwear, and even the old man was in states of relative undress. Dumas sold the rights to those photos to the photographer, as he later admitted in court. The photographer then published some of these photos.

Dumas, probably thinking of his musketeers who would have demanded a duel on the spot, sued. And — this is the interesting bit — the French courts sided with him.

In its decision, the court cited Dumas’ “right to privacy” which superseded the photographer’s property rights, even though Dumas had explicitly sold him those rights. Dumas, Whitman quotes the court as opining, had

forgotten to take care for his dignity, and [publication of the photos sufficed to] remind him that private life must be walled off in the interest of individuals, and often in the interest of good morals as well.

So there we have it: The French legal culture, following its ancient traditions, saw:

  • the honor of a high-status individual as the highest value at stake,
  • the “media” as the primary threat,
  • and commercial transactions in the marketplace as a vulgar aspect of liberty inferior to the dignity of the people involved.

2) Sipple

In 1975, President Gerald Ford came out of the St. Francis Hotel in San Francisco. A crowd had formed, and a woman, for whatever reasons, raised a gun to shoot the president. Oliver Sipple, a US Marine and Vietnam veteran, saw this and tackled the woman, so that the shot missed the president.

So he became a “hero“.

America’s press declared him so, and followed up with its usual fare, digging up every morsel of Sipple’s private life for the public. This was unfortunate, because Sipple was gay and, although he was living out of the closet in San Francisco, his family in the Midwest had no idea. Sipple wanted his homosexuality kept out of the papers and sued.

By now it should be clear how a continental European court would have ruled. But the American court gave priority to freedom of the press and of speech. Sipple eventually committed suicide.

So (referring back to the previous post) there again we have it: The American legal culture, following its ancient traditions, regarded:

  • liberty, defined as freedom from state tyranny as opposed to public humiliation, as the highest value,
  • an individual’s home as the only locus legitimately walled off from the public, and
  • public spaces and activities (such as San Francisco’s gay scene, or even the venue of an assassination attempt) as fair game.
Bookmark and Share

Privacy law: US “liberty” vs European “dignity”

These naked Germans are enjoying themselves in the middle of Berlin. I’ve been just as gleefully naked in Munich, Berlin and various other European places. To Germans and other continental Europeans this is a) fun and b) part of freedom. The word for public nudity, in fact, is Freikörperkultur (‘free body culture’), often abbreviated to FKK.

To Americans, of course, this tends to be awkward if not shocking:

“Don’t these Europeans have a sense of privacy?”

Then there is, for example, Monica Lewinsky and that whole thing with the president of the United States. A special prosecutor — nay, all of America — parsed every word of the country’s head of state, demanding to know exactly what these two had been up to in which closet — from “distinguishing characteristics” to stains on dresses and all the rest.

To Americans this was part of freedom — the free press and the right to hold government accountable.

To continental Europeans, by contrast, this was amusing at first, then awkward, then distasteful and finally undignified:

“Don’t these Americans have a sense of privacy?”

The Two Western Cultures of Privacy

So there you have it: two western cultures of privacy, each (being “Western”) deceptively familiar and yet incomprehensible to the other. Here are some questions, which fit perfectly into two of my threads here on The Hannibal Blog: the thread on America and the one on freedom.

  • What is privacy? What is to be kept private from whom, when, where and why?
  • And how does that interrelate with freedom and dignity?

James Q. Whitman

James Q. Whitman, a professor of comparative law at Yale, has written a profound article about exactly this. It is called “The Two Western Cultures of Privacy: Dignity Versus Liberty.” I recommend it. Here is the PDF.

For the rest of this post, I’ll try to describe the Atlantic culture clash and then the possible historical causes as Whitman sees them. In the next post, I’ll talk about two cases that are great examples of the two cultures. But first — and before you jump into the comments with your counterexamples (there are many) — note that Whitman himself admits that this is a matter of nuance:

The issue is not whether there is an absolute difference. Comparative law is the study of relative differences.

I. The clash

The conventional wisdom — with which I mostly but not totally agree — is that continental Europe has much stronger privacy laws than America does. In a long list of areas, Europe circumscribes what information can be circulated about people, whereas America hardly does so at all:

  • consumer data
  • credit reporting
  • workplace privacy
  • “discovery” in civil litigation (ie, rummaging around in the records of your opponents in a lawsuit)
  • the dissemination of nude images on the Internet
  • and so on.

As Whitman says,

I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

By contrast, privacy is explicitly enshrined in European law (both national and EU law). For example, Article 8 of the European Convention on Human Rights protects “the right to respect for private and family life,” and the European Union’s Charter of Fundamental Rights features articles on “Respect for Private and Family Life” and “Protection of Personal Data.”

But Americans can counter with a different list to prove that it is actually Europe which allows the compromising of privacy:

  • those “private parts”! (= nudity)
  • baby names: Several EU governments restrict what parents can name their children!
  • Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.
  • Court-room use of evidence that Americans would consider illegally seized
  • phone tapping, which apparently happens much more often in Europe than in the US

So the question is: What’s going on here? How did these differences come about? As Whitman puts it,

Why is it that French people won’t talk about their salaries, but will take off their bikini tops? Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection, but refuse to carry identity cards? Why is it that Europeans tolerate state meddling in their choice of baby names? Why is it that Americans submit to extensive credit reporting without rebelling?

II. Causes: Liberty versus Dignity

Let’s first try to analyze the two cultures of privacy in terms of what each thinks must be kept private from whom and for what purpose.

a) Europe (= dignity)

European privacy laws aim to protect a person’s dignity. In practice, this means protecting the individual’s control over the use of his

  • image,
  • name,
  • reputation, or
  • information

So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.

And who is the enemy/threat? Who would typically do the humiliating? Well, the press, or its new-media descendants today. Let’s just call them all the paparazzi.

b) America (= liberty)

American privacy laws, by contrast, aim to protect a person’s liberty. The word liberty is here defined in the traditional American (and quite narrow) sense of freedom from government tyranny. (Freedom can have many, many meanings: see here, here and here. ;))

Who is the enemy/threat in this culture?

Well, certainly not the press, whose freedom of speech is one of the things most in need of protection, even when that means that individuals (Lewinsky, Clinton) are being humiliated in public.

Instead, the enemy/threat is the state.

The locus of maximum protection, moreover, is not the public sphere (as in Europe) but the private sanctum of an individual’s home. The government must, to the greatest extent possible, be kept out of it. The police must (in most cases) not break in and search it. (This is true in Europe, too, of course, but the relative emphasis is stronger in America.)

In this culture, the right to privacy decreases as an individual moves further (physically or metaphorically) from his home. Once you’re in the workplace, in the subway, on the street, at the beach or otherwise in public, you’ve “asked for it.” Clinton, Lewinsky: you’re fair game!

Whitman puts the mutual incomprehension this way:

When Americans seem to continental Europeans to violate norms of privacy, it is because they seem to display an embarrassing lack of concern for public dignity—whether the issue is the public indignity inflicted upon Monica Lewinsky by the media, or the self-inflicted indignity of an American who boasts about his salary.

Conversely, when continental Europeans seem to Americans to violate norms of privacy, it is because they seem to show a supine lack of resistance to invasions of the realm of private sovereignty whose main citadel is the home—whether the issue is wiretapping or baby names.

Examples

Let’s take another look at the example of public nudity:

Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image. It’s not even OK for others to stare at you. (I’ve gotten in trouble over that.)

This concept of private public nudity is entirely alien to American law. In fact, it sounds oxymoronic (perhaps even just moronic) to Americans. They assume that once you have left the sanctum of your home and entered a public space, and indeed metaphorically shed the “walls” of your mobile “home” in the form of clothes, you can no longer expect privacy. You have, as it were, asked for it.

Just one illustration: The US Supreme Court’s 1995 decision in Vernonia School District v. Acton.

The question before the court was whether high school athletes could be subjected to mandatory drug testing. Yes, they could, said the court, because — and this is the logic that confounds Europeans to the point of making them guffaw — athletes regularly shower together (naked, we assume), and by voluntarily exposing themselves, these athletes can therefore expect less privacy, which means it is OK to test their piss.

(This might also shed light on the debate we had when I proposed “shaming” people who text and drive by snapping pictures of them and publishing them on the web. It seems that we are “free” to implement my idea in America, but not in Europe, where this might compromise the dignity of the drivers.)

III. History

So where do these fascinating differences come from? The conventional answer is that Europe after the Fascist horror of the 1930s and 40s, and in particular Germany after the Nazis, corrected for the sheer indignity of those crimes against humanity by elevating human dignity to the highest value.

I happen to believe this is largely correct (Whitman does not, and in my opinion this part of his thesis is the weakest). For example, Germany’s constitution, written in 1949, explicitly starts with the phrase

Die Würde des Menschen ist unantastbar (The dignity of each human being is untouchable)

I pointed to this in my post on the different views of healthcare in America and Europe, and alluded to it in my post on the different attitudes toward prisoners. (European law protects the rights of prison inmates “to a degree almost unimaginable for Americans,” as Whitman puts it. The European in me is shocked by the prison conditions in America.)

But Whitman traces the origins of the differences between America and Europe several centuries further back, and this is the most fascinating part of his argument. So here, in brief, are the histories of privacy law in Europe (France and Germany) and America:

1) Europe

In Europe, the concept of dignity “descends” from that of honor and the so-called law of “insult” that accumulated over the centuries around it.

In a nutshell, what we are talking about here are a bunch of toffs dueling, as in the picture above. It was aristocrats and other high-status individuals who protected their honor (ie, their “public image”), both from the prying eyes of the press and from insult by others. Gradually, society lost its taste for cleaning up the gore after duels and encouraged the toffs to meet in court instead.

What Europe’s various revolutions, starting with the French one in 1789, did over time was to elevate more and more low-class individuals to the same “royal treatment.” Eventually, after World War II, all Europeans became entitled to it, just as all adult French and Germans, of whatever status, could now expect to be addressed by other adults as vous or Sie.

France

France and Germany, took subtly different paths to get to the same place: In France, the main body of law was written during the 19th century in response to famous artists and writers doing sexy things of a questionable nature. (I know this comes as a shock.) I’ll highlight one such case, involving the author of The Three Musketeers, in the next post. In most cases, whenever the dignity of a prominent individual was threatened after sexy photos of him or her were published, even when that individual had expressly sold the right to those photos (!), the courts opted to preserve dignity.

Germany

In Germany, also during the 19th century, the individuals whose cases drove the law forward were not so much lascivious artists but brooding philosophers. (Again, I know this comes as a shock.)

Influenced by Hegel, Kant and their ilk, the German lawyers wanted to prove the pre-eminence of free will. They went all the way back to ancient Rome and the law of my hero Scipio to re-interpret the Roman law of “insult” (injuria). From this, they constructed the concept of Persönlichkeit (personality or personhood), which is often used in the same contexts that Americans use liberty but with a twist.

In a nustshell: To be free meant, as Whitman puts it,

to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their full richness…  The purpose of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.

(Sounds a lot like Abe Maslow’s self-actualization, don’t you think?)

In any case, both the French and the German legal traditions put much less emphasis on the sordid American obsessions with consumer sovereignty and commercial freedom (credit reporting, for example) and much more emphasis on creativity and the presentation of self, of Persönlichkeit in all its eccentric splendor.

2) America

America, by contrast, embarked on the journey of privacy law with the Bill of Rights. And it focused on limiting state power. The Fourth Amendment specifically establishes the right against unlawful searches and seizures as the main expression of privacy.

Searching and seizing is usually done in one’s home, so right from the start, the concept of privacy resided there.

Of course, there have been American lawyers over the years who have tried to make American law more “European”. The main attempt was “The Right to Privacy” by Samuel Warren and Louis Brandeis in 1890. But these attempts never went far.

Property rights and/or freedom of speech almost always prevail in American courts over appeals to privacy and dignity. Whitman cites, for example, the Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn and Florida Star v. B.J.F. In these cases, the media published the names of rape victims. In both cases the Supreme Court found that the First Amendment protected media outlets against suit. European courts would have been concerned with protecting the rape victims. Ironically, because those victims might once have been aristocratic toffs.

Bookmark and Share

America’s veil of fear

A reader of The Economist, Tim Rooks, apparently an American now living in Berlin, just sent a letter in response to one of my recent pieces.

(The piece was about California’s prison overcrowding, itself an aspect of America’s incarceration rate, which is the highest in the world, surpassed only by the Soviet Gulag.)

An excerpt from the letter:

… since leaving the United States, I feel as if a veil of fear has been lifted. I am freer and safer than ever…

This caught my interest because the premise of my thread on America is that, like Mr Rooks, I often feel less free and safe in America than in any of the other places I have lived. And this, of course, is ironic, since many Americans claim or like to pretend that they have some special relationship with liberty.

It is also interesting because Rooks and I both seem simultaneously to be insiders and outsiders in America, and that tends to be a good vantage point for seeing that which is, as it were, hiding in plain view. (I, for instance, started my thread with two views from Hong Kong, here and here.)

Compare, for instance, what Jonah Lehrer says about outsiders:

Bookmark and Share

The White Rose: German heroes

In a recent conversation, I brought up the White Rose–die Weiße Rose–and was reminded that most of you (being Anglophone) have probably never heard of them. But you must know them. Now you will.

They were a smallish group of students and one professor at the University of Munich during the Nazi era who defied and spoke out against the Nazi horrors. The middle petals of the Rose were Hans Scholl (above left) and his sister Sophie (middle) and their friend Christoph Probst (right). The group lasted less than a year until, in 1943, they were caught, “tried” and beheaded.

This summary does not do justice to them, however. They are, to me and to all post-war Germans, synonyms for goodness, courage, humanity. They are romantic, having lived Bohemian lives of pipes and poetry. They saw crimes against humanity and resisted, knowing that this would cost them their lives. At a time when conformity turned an entire nation into a murderous mob, they remained individualists, becoming heroes of all mankind.

The Leaflets

Alexander Schmorell

The Geschwister Scholl (siblings Scholl) and their friends watched with increasing horror what the Nazis said and did in the 1930s and early 40s. Then Hans Scholl and his friends Alexander Schmorell und Willi Graf were sent (nobody had a choice) to the eastern front in 1942 where they witnessed German atrocities in Poland and either saw or heard about the Warsaw Ghetto. Many Germans soldiers did, but these three were different: They decided not to stay silent but to fight the evil, which was their own regime.

Hans Scholl

They returned to Munich, where Sophie, Hans’ younger sister had moved to study biology and philosophy. She became friends with Hans’ friends. Never knowing whom they could trust, they formed their group, printing leaflets in secret back rooms and sending them by mail all over Germany.

They managed to print only about 100 copies of the first leaflet. (You can read an English translation of all six leaflets here, but I’ve chosen excerpts from the German and translated them in my words. Pictures courtesy of the Gedenkstätte Deutscher Widerstand):

Willi Graf

… Is it not true that every honest German today is ashamed of his government? And who among us can even guess the extent …?

… If the Germans, without any remaining individuality, have indeed become a heartless and cowardly mob, yes, then they deserve to perish…

Goethe talks about the Germans as a tragic people, like the Jews and Greeks, but today it seems that the Germans are a shallow, mindless herd of followers (Mitläufern) whose marrow has been sucked out and who, bereft of their core, allow themselves to be led into their extinction. It seems so, but it is not so; instead, each individual–after slow, insidious, and systematic rape–has been put into a moral prison, and only once he was captive did he become aware of his dilemma. Few understood the the menace, and their reward was death….

Each individual, as a member of Christian and Western civilization, must therefore rise up in this final hour and resist, as much as he can, against this scourge on humanity, against Fascism and every system like it. Resist passively, resist, resist wherever you are … Never forget that each people gets the government it deserves…

Christoph Probst

They then quoted Friedrich Schiller talking about Lycurgus and Solon (ie, ancient Greece) and Goethe, clearly reminding their readers of the previous heights of their civilization, the starker to contrast it with its present lows.

In the second leaflet, they begin to inform the Germans of what they had seen on the eastern front, so that none might later say (as many would) that they “didn’t know”:

… the fact that, since the conquest of Poland, three-hundred-thousand Jews have been murdered in a bestial way. Here we see the most dreadful crime against the dignity of man, a crime that compares to no other in the entire history of mankind…

… Nobody can pretend he was not guilty. Everyone is guilty, guilty, guilty! But it is not yet too late to wipe this ugliest monstrosity of a government off the face of the earth, in order not to become even more guilty….

.. the only and highest duty, indeed the holiest duty, of each German is to eradicate these [Nazi] beasts….

They then quoted Laozi and closed with an exhortation to copy the flyer as many times as possible and to distribute it (in effect, demanding martyrdom from each reader).

In the third leaflet, they exhort:

… The foremost concern of every German must not be the military victory over Bolshevism but the defeat of the National Socialists ….

before describing how people should resist:

… Sabotage of the military-industrial complex; sabotage in all Nazi gatherings, rallies, festivities, organizations…. Sabotage of all scientific pursuits to further the war, whether in universities, laboratories, research institutes … Sabotage of all Fascist cultural events…. Sabotage of all the arts that serve National Socialism. Sabotage of all writings and newspapers in league with National Socialism….

They ended by quoting Aristotle on the subject of tyranny and again exhorted readers to copy and distribute.

Sophie Scholl

From the fourth leaflet:

… Every word that comes out of Hitler’s mouth is a lie. When he says peace he means war, when he says the name of the almighty he means the power of evil, the fallen angel, Satan. His mouth is the stinking throat of hell…

They also assured readers that they took addresses randomly from phone books and did not write them down anywhere, then ended with:

… We will not be silent, we are your bad conscience; the White Rose will not leave you alone! Please copy and spread.

In the fifth leaflet:

… Are we to be a people forever hated and outcast by the world? No! Therefore resist these Nazi subhumans! Prove with your deeds that you think different!

They end with an amazingly prescient vision of post-war Germany and Europe, predicting a federalist Germany, a unified and peaceful Europe, and freedoms of association, speech and press.

In early 1943, after the German army was wiped out at Stalingrad, they produced their sixth and final leaflet, with their biggest print run yet–about 3,000 copies. They again mailed it all over Germany.

… Freedom and Honor! For ten years, Hitler and his thugs have twisted, raped, perverted these two beautiful German words…. They have shown what freedom and honor mean to them by destroying, throughout the past ten years, all material and spiritual freedom, all morality in the German people….

This time they went further. For three nights, they stealthily went out and painted the walls of the university quarter: “Down with Hitler!” “Freedom!”

Then Hans and Sophie (whom Hans had tried to keep out of the group in order to protect her but who had become passionately involved) decided to carry stacks of leaflets into the university to distribute them while lectures were in progress. This was reckless and the other members did not know about it.

Hans and Sophie stuffed a big suitcase full of leaflets, took it to the university and put stacks on window sills and in front of lecture halls. Just as the bell rang and students were about to spill out, they threw a big pile from the very top of a staircase into the light-filled atrium (where they are immortalized today, see left). A janitor saw them and alerted the Gestapo.

The guillotine

Four days later, Hans, Sophie and Christoph were “tried”. Hans and Sophie asked that Christoph be spared because he was married. The request was denied. On the same day the guillotine fell on their young necks.

Hans was 24 years old; Christoph 23; Sophie 21.

Their houses were searched and letters and addresses discovered. Soon after, Alexander Schmorell and Willi Graf, as well as their professor, Kurt Huber, were also caught and beheaded. Alexander and Willi were 25; Professor Huber almost 50.

Just before Hans was brought to the guillotine, he yelled out of his cell, echoing through the walls of the prison:

Long live freedom!


Bookmark and Share

The veil of ignorance: great thought experiment

John Rawls

John Rawls

What if we could get together to form a new kind of society … and we did not even know who we would be in that society?

This is a famous thought experiment, proposed by the Harvard philosopher John Rawls in his 1971 book, Theory of Justice.

Rawls was trying to justify democracy as fair as opposed to merely utilitarian (ie, “the greatest good of the greatest number”). How would we go about deciding what is fair? By imagining a situation that has never existed, and indeed can never exist.

Rawls called that situation the “original position”:

No one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance.

You have probably already grasped the power of the experiment. Normally, we think of justice with ourselves in mind. A single black mom in a public-housing project will have a very different view than a start-up entrepreneur in Silicon Valley or a trustafarian in prep school or a prisoner or …. you get the point.

But if we don’t know whether we will be tall or short, male or female, smart or dumb, lazy or ambitious and all the rest of it, we have to test every principle against the possibility that we might be the least advantaged member of society with respect to it.

A simple example: Slavery in 19th-century America.

Slave owners considered America free and fair and were prepared to go to war for that “freedom”. That’s because the slave owners assumed that they were, well, slave owners. Using purely utilitarian reasoning, they might have concluded that slavery produced the maximum pleasure of the greatest number of people (ie, the white majority) and was therefore right.

But if they had played Rawls’ thought experiment, they would have had to imagine that they might instead be slaves. Suddenly, slavery no longer looks so good.

Getting liberté, egalité, fraternité onto one flag

756px-eugene_delacroix_-_la_liberte_guidant_le_peuple

Now, some of you might remember that, back in April, I tried to figure out whether freedom and equality could ever coexist, as the naked-boobed Marianne (pictured) was clearly hoping. In that post, I was thinking about biology. But perhaps the answer lies in Rawls’ thought experiment.

As we imagine a society without knowing what role we have in it, we will certainly agree that it should be free, and that we should not sacrifice that freedom by forcing everybody to be equal.

But that leaves us having to imagine inequality, and, thanks to our veil of ignorance, we might be the ones ending up with the least (wealth, opportunity, beauty, power…). So how can we agree to inequality that is fair?

The answer is

  • First, that inequality must benefit even the least advantaged member of society (though obviously not in the same proportion). So we do not mind that the Sergey and Larry at Google get astronomically rich because even a single black mom in a public-housing project can now google where to get her baby a flu shot.
  • Second, that the cushy positions in society must be open to all.

Intelligence and talent, for those playing the thought experiment rigorously, would thus cease being mere boons for the individuals that are lucky to have them and instead become social resources that help even those who don’t have them.

I can immediately think of lots of things that we still would not agree on–inheritance taxes, say. But Rawls’ thought experiment definitely introduces even a certain amount of fraternité into the equation. Marianne would love him. For the power of this experiment, I’m hereby including Rawls in my pantheon of great thinkers.

A Republic, not a Democracy: James Madison

James_Madison

I have been researching James Madison for a little project that I am not yet entirely at liberty to disclose. And my research is reminding me to be extremely impressed–so impressed that he may just be my favorite founding father. He certainly belongs into my pantheon of the world’s greatest thinkers.

Madison, of course, was not only the fourth president but also, and more importantly, the “father” of the US Constitution. He was the one who took the official notes in the sweltering summer heat of Philadelphia in 1787, and the one whose “Virginia Plan” (which was delivered by the other Virginian delegate but conceived by Madison) formed the basis of the subsequent compromises that led to our constitution. He was 36 years old at the time, and as physically short as he was intellectually giant. Wouldst that America had a man of his ilk today.

I am about to sketch out his vision of freedom as succinctly as I can, but let me just say that if you have been reading the Hannibal Blog for a while, you won’t be at all surprised that I admire the man. Madison fits perfectly my tastes for:

Since it is that last point that is most likely to be misunderstood, let me drill into that part of Madison’s thinking. Here is how I understand his views on the matter:

Madison originally preferred to use the word republic to describe the new America they were building, as opposed to the word democracy.

“Republic”

Republic comes from the Latin res publica, which means ‘public thing’–in other words a country ‘owned’ by its people rather than by a monarch. Deriving from Latin, the word reminded educated men such as Madison of republican Rome (ie, Rome before its civil wars), which was so remarkably stable and moderate, and which so impressed Polybius.

Being a public thing, a republic implicitly contains the element that we would call democracy, but it is understood that this is a representative democracy, in which the people choose representatives who in turn decide the issues of the day in competition with other branches of the government. Governance, in other words, has a basis in the people but is removed from the mob.

Most importantly for Madison, minorities in this republic are protected from majorities. He recognized that the tyranny of majorities is perhaps the greatest threat to freedom (which liberal thinking is all about, after all).

Put differently and in modern lingo, Madison was the opposite of a ‘populist‘. If he were around today, certain ‘real-America’ Alaskans would attack him with demagogic effect for being elitist.

“Democracy”

Democracy, by contrast, comes from the Greek and means ‘rule of the people‘. The connotation to educated men such as Madison was therefore ancient Athens, during the Periclean era of the Peloponnesian War, which had a direct democracy as opposed to the balanced representative one.

As part of another project that I’m not totally at liberty to disclose yet, I am also looking into that Athenian democracy right now. And allow me to state clearly that it ended in chaos and failure, in pre-emptive wars (Sicily) that should never have happened and mob-mad injustices such as the trial of Socrates.

Direct democracy is of course alive and well today in western states including California. In a mindlessly populist culture, it is a popular idea. (Stuck in a debate? Just say “let the people decide!”) What that leads to I have described in The Economist.

American attitudes toward prisons

My policy, as most of you know by now, is not to link to my pieces in The Economist week after week, unless there is a special reason, because that would be, well, tedious and annoying.

So why link to my piece in the new issue on California’s prison overcrowding?

To make two separate and unrelated points:

1) the importance of length, once again.

It always amazes me, after all these years, how short most of our pieces in The Economist are. The pieces inside the regular “sections” are called “notes” in our nomenclature. Because we have fixed (paper-issue) layouts that determine article length, most notes are either 500, 600 or 700 words. For this note, I asked for 700 words, was told to make it 600, and the final piece ended up at 520.

That’s in effect a blog entry. Most people don’t realize how much harder it is to write a short article than a large article. The folks at the New Yorker can blather on and on (“On an overcast Monday afternoon, I strode across Fifth Avenue to interview John Smith, ….”). We have to get to the point. There should be some nuance, some color, and we should cover the main bases, but all in … 500 words!

It’s friggin’ difficult. Then the readers show up in the mostly infantile comments section below the articles, invariably accusing us of utter ignorance, if not downright malice, because they know (or imagine) one little detail that was not in the 500 words.

Beyond that, of course, the brevity often hurts me, the writer. Invariably, I do research for every piece until I am satisfied that I know the subject well enough. I could easily then fill a few thousand words. So much therefore gets left on the cutting floor.

Which brings me to my second reason for linking to this week’s piece…

2) The shame, the horror of America’s prisons and Americans’ attitudes toward them

Among the things I left on the cutting floor were some of the numbers that Barry Krisberg at the National Council on Crime and Delinquency bounced around with me (mostly 2005 numbers):

  • Most people know that America has the highest incarceration rate in the world, but did you know just how much higher? America locks up 732 people out of every 100,000. The G7 countries, which should be the appropriate comparison for America, lock up 96 people for 100,000. The country in the world that comes closest to America is Russia, yes Russia, where the number is 607.
  • Was there ever a country for which we have numbers that surpass America’s current incarceration rate? Yes, says Barry, and it was …. the Soviet Union during the years of Stalin’s Gulag!!!
  • America has about 5% of the world’s population but 23% of its prisoners.
  • America also has by far the highest ratio of prisoner to each kind of crime. What that tells you is that there is not more crime in America that would justify more imprisonment.

And on and on. In short, Americans love locking people up. They do not see any irony at all in claiming, often loudly when in the company of Europeans, to be “the freest country in the world” while robbing more individuals than any other country does of their freedom, their dignity, their rights. (This distorted understanding of freedom is what I have been exploring in my thread on America.)

I should add at this point that I have rehearsed the inevitable “debate” that usually ensues enough times that I can confidently predict every objection.

Allow me to give you a sample of the most typical “conservative” opinion on the matter. It is a reasoned, Republican-mainstream opinion taken from one of California’s conservative blogs.

In it, we discover the underlying assumptions that nowadays make America the exception among comparable countries:

The demand by federal judges to provide civilized health care to prisoners is

…forcing us to provide better medical care to prisoners than most law abiding citizens receive…

This is ironic because this particular argument tends to come from people who object to providing health care to those law-abiding citizens as well. And it is telling because its sets the tenor for all subsequent arguments, summarized neatly in this passage:

The only danger [prisoners] face is from each other, really bad people, that is people who have no respect for themselves, their neighbors, or for the rules, can be difficult to live with, without question, but that cannot be avoided.  Prison is for bad people, to keep bad people away from good people so that the bad people cant hurt the good ones.

And here you have it in a nutshell. The conservative and prevailing American attitude toward incarceration is based on:

  • vengeance in the Old-Testament style, not on rehabilitation, which is the assumption that prisoners must at some point be brought back into society. In effect, prisoners become outcasts, with no hope of atoning and changing and playing a productive role in society. Result: the world’s higest recidivism rate, 70% in California.
  • Refusal to see nuance: Nobody, and I mean nobody, is arguing that there are no bad people, no crazy people, no dangerous people that must genuinely be kept out of our neighborhoods. But what about the people who are in there for stealing socks, for smoking dope, for all the many misdemeanors that have increasingly been prosecuted as felonies to please the “tough-on-crime” electorate? There are many non-violent people who have simply made a mistake and end up brutalized in prison.
  • Meanness, lack of compassion. Nuff said.

The reality is that prisons contain:

  • bad people
  • average people who have done bad things but can and want to change their ways
  • and even some good people who have got caught up in a fundamentally unjust system

But in our overcrowded and barbarous prisons, they are all thrown together, so that good people become bad and bad people become worse, and society loses by turning away from justice and civility.

Back to the sample opinion. If you approach the entire topic from the point of view that those in the system are all bad, that they deserve to be brutalized and do not deserve protection in prison, then, and only then, can you conclude, as this commentator does, that

There is nothing wrong with our prisons.


Bookmark and Share

Letting go, in small ways and big

800px-Saimiri_sciureus-1_Luc_Viatour

One way to catch monkeys–or so I once saw in a documentary–is apparently to dig a hole in the ground just big enough for a relaxed monkey hand to go in and just small enough for a monkey fist not to come out.

Then you put some goodies in the hole and wait. The monkey then catches itself. It sticks its hand in, grabs the goodies, makes a fist and refuses to let go, even as it sees the hunters casually sauntering up to take it in.

Primates, in short, have a problem with letting go, and that’s how this relates to The Hannibal Blog‘s current thread on stuff. I rarely, these days, find anyone prepared to argue that clutter/stuff is a good thing. Nor, however, do I know a lot of people who have actually done anything about it. It may be that I hang out primarily with primates.

It’s our (ie, primates’) loss, because this not letting go is what makes us so miserable. That’s true in the context of physical stuff piling up, but also of mental clutter.

The Dalai Lama, at the end of this conversation, says that

True happiness doesn’t mean trying to acquire things, so much as
letting go of things.

Not coincidentally, therefore, a primary meditation technique consists of trying to let thoughts go. You sit still and observe dispassionately what pops into your mind. You don’t try to suppress bad, mean, nasty, stupid thoughts, because that would only make them come more–eg, you would feel guilty and angry about not ceasing to feel guilty and angry.

Instead, you “label” the thoughts (‘Aha, anger again.’) and then let them pass out, replaced by whatever comes next.

It’s quite surprising how much crap shows up this way. Even more surprising is that after a while of doing that, the parade of thoughts slows down. Eventually, it might even come to complete stillness, which is how Patanjali defines yoga (union). At that point, you have indeed let go.

So: stuff, clutter, things, illusions, attachments: it’s all there to be let go. Unfortunately we have evolved to hold on to it. Hence passion, literature, civilization, stories … and misery.

Bookmark and Share

The dignity of prisoners

From this quite fascinating piece about new architecture concepts for prisons (!): Written on a prison wall in this new compound in Austria, a line from the International Covenant on Civil and Political Rights reminds guards and inmates alike that

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Could we please write that on every American prison wall?

Bookmark and Share

California as case study in dysfunction

On principle, I do not use The Hannibal Blog to advertise my articles in The Economist, but my piece in the new issue does fit into one of my running threads: ‘the freedom lover’s critique of America‘.

The piece is about “the ungovernable state”–this being California. Consider it a case study that grew out of my thoughts here.

In it, I have fun chronicling the dysfunction, and in the process touch on several themes that I’ve mentioned on this blog before, such as:

My conclusion: I endorse wholeheartedly the growing movement for a Constitutional Convention, which would throw out that ungainly tome and start from scratch to create something clean, elegant and simple.

Bookmark and Share