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Jurisprudence and the Humanities

Jim Leach, Chairman, National Endowment for the Humanities

American Council of Learned Societies
1417 John F. Kennedy Boulevard
Philadelphia, PA 19102
United States

May 7, 2010

I would like to begin with a set of quotations, not from Shakespeare or Frost, Toynbee or Twain, but from statute:

United States Code Title 20, Chapter 26, Subchapter I, Section 951 (sec. 2) ...

“The Congress finds and declares the following:

(1) The arts and the humanities belong to all the people of the United States ...

(3) An advanced civilization must not limit its efforts to science and technology alone but must give full value and support to the other great branches of scholarly and cultural activity in order to achieve a better understanding of the past, a better analysis of the present, and a better view of the future.

(4) Democracy demands wisdom and vision in its citizens. It must therefore foster and support ... access to the arts and the humanities ... to ... people of all backgrounds ... wherever located ...

(8) The world leadership which has come to the United States cannot rest solely upon superior power, wealth, and technology, but must be solidly founded upon worldwide respect and admiration for the Nation’s high qualities as a leader in the realm of ideas and of the spirit.

Section 952 (sec. 3):

(a) The term ‘humanities’ includes, but is not limited to, the study and interpretation of the following: language, both modern and classical; linguistics; literature; history; jurisprudence; philosophy; archaeology; comparative religion; ethics; the history of criticism, and theory of the arts; those aspects of the social sciences which have humanistic content and employ humanistic methods; and the study and application of the humanities to the human environment with particular attention to reflecting our diverse heritage, traditions, and history and to the relevance of the humanities to the current conditions of national life.”

There have been times that many of us have had doubts about the ability of Congress to rise to national challenges, but this statute strikes me as supremely prescient.

Over my career in public life, I had become increasingly concerned with what this statute describes as “the relevance of the humanities to the current conditions of national life.” Hence I co-founded the Congressional Humanities caucus and in my last year in the House, four years ago this week, spoke here in this room to this ACLS assembly.

At that event I raised several historical and philosophical questions relevant to Executive branch decision-making during the prior administration.

Would it have been helpful for the leader of the free world to have read Greek tragedy—Sophocles, Aeschylus, Euripides? Or perhaps Greek mythology—tales, for instance, of Oedipus?

Would it be helpful for policy makers then and now to study Edward Gibbon’s The Decline and Fall of the Roman Empire and Thucydides’ History of the Peloponnesian War? And would it be helpful for all of us to continually pay heed to Hannah Arendt’s philosophical treatise, The Origins of Totalitarianism?

It took several centuries for “Pax Romana” to unravel; several generations for Athenian culture to fall from its Fifth century BC pinnacle; and only a couple of decades for two of the most advanced cultures in history to become captive to twentieth century “isms” of hate. Are these not forewarnings for all peoples in all countries?

While the questions I posed four years ago reflected personal concern for Executive branch foreign policy, I would like to comment this afternoon on Third Estate issues. In the context of “jurisprudence,” which the statute just cited affirms, is a subject that should be addressed in the humanities. I am convinced that the public should give greater attention to the logic and consequences of the Supreme Court’s ruling in the Citizens United v. Federal Election Commission case. By a 5 to 4 vote, the Court has held that corporations have a Constitutional right embedded in the First Amendment to use their assets to support or oppose political candidates.

At the risk of presumption, but not exaggeration, my take from American history, philosophy and literature is that the conclusion of five distinguished robed males is “horse feathers.”
Having spent the majority of my adult life on Capitol Hill, I would like to ruminate at some length about the Citizens United decision, which is about who we as a people are and how we make public decisions.

Today’s public angst relates in no small measure to a concern of many Americans, from tea party advocates to middle class home owners to Nader-ites, that they are not being listened to, that vested interests hold an improper, behind-the-scenes sway in the political life of our country. There is a growing sense that elected officials and even unelected judges have lost sight of the public interest, of who is accountable to whom in American governance.

The notion that democratic governance is about popular sovereignty rather than interest group politics is perhaps best expressed by two poets, Walt Whitman and Carl Sandburg, and our most poetic President, Abraham Lincoln.

In his preface to Leaves of Grass Whitman wrote that “the genius of the United States is not best or most in its executives or legislatures, nor in its ambassadors or authors or colleges or churches or parlors, nor even in its newspapers or inventors ... but always most in the common people.”

Sandburg, too, harkened to the voice of the people. “I am the people—the mob—the crowd—the mass,” he wrote. “Do you know that all the great work of the world is done through me?”

In America’s most trying moment, our sixteenth president did not go to a Pennsylvania battlefield to extol corporations. Nor at Gettysburg did Lincoln celebrate his own virtues. He didn’t think the world would much note or long remember what he said. Rather, he suggested that the patriots who gave their last full measure of devotion would inspire their countrymen then and after, and that it remained for us the living to ensure that a government of, by and for the people not perish from the earth.

Many are familiar with the saying, sometimes attributed to Bismarck that the public should not look too closely at laws or sausages being made. Law and sausage making are different, but the commonality is public concern that the seen and unseen ingredients of each be integrated in as “clean” a manner as possible.

In America, process is our most important product. Our founders recognized human frailty and thus went to great lengths to constrain the powerful. They erected a system of checks and balances that would be democratic rather than aristocratic or autocratic.

Over our tumultuous history, the Supreme Court has generally been at the forefront of advancing justice and protecting the rule of law. But from time to time our politics and the Court have been out of step with our deepest ideals. It was the Supreme Court, after all, that in the 1857 Dred Scott decision denied human dignity and defined a class of human beings as private property.

Fortunately, the people spoke. Great struggles, including a Civil War, suffrage and civil rights movements, produced progressive change designed at each step to protect and empower the disenfranchised. Today, the country confronts a host of policy challenges, from wars abroad to health care at home, but our capacity to deal with these problems is undermined by the growing loss of public confidence in government itself.

This confidence gap is in no small part related to the deepest blemish in our political system—the legalized conflicts of interest that characterize candidate indebtednesses to interest groups. These conflicts, magnified by the Citizens United ruling, inspire cynicism and evoke a sense that insider elites—rather than the public—control American politics.

The Court hangs its campaign spending ruling on the assumption that corporate spending for or against candidates must be protected as a right of free speech—as if corporate officers can’t speak their minds or give campaign contributions like any other citizens.

To the degree that corporate money can be construed as “speech,” it will for some be coerced rather than free. After all, to tap for political purposes the assets of shareholders or by implication union members, more than a few of whom can be expected to hold different political judgments than management or their union leadership, is a “taking” of their assets and an abuse of their political convictions.

It is inequality that is advanced by the Court’s corporatist ruling. Corporate muggings are frequent in American politics. If political action committees (PACs) are a guide, moneyed interest groups have a tendency to drown citizen speech in the build-up to elections and to cause decision-making tainted by conflicts of interest afterwards.

The electoral process is about more than what happens on election day. It is also about what happens between elections. To paraphrase Clausewitz, law making is the continuation of politics in another forum. Electoral politics never stops. It is just interrupted every year or two to count ballots.

In the hurly-burly of modern politics some citizens compete to be heard with quiet argumentation; others with a megaphone; and now the Court is increasing the access of a moneyed few to the headphones of candidates, especially just before and just after elections.

Vigorous advocacy is, of course, a social good, a prerequisite to blocking tyranny and avoiding dogmatism. But sometimes uncivil speech can be so venomous as to impel polarization and, conceivably, violence.

It is frankly hard not to be concerned with some of today’s discourse in the public square. History-blind words like “fascist” and “communist” are being applied to individuals in high office as if they might favor gulags and concentration camps, and concepts like “secession” and “nullification” are being considered as if the Civil War didn’t resolve issues of the soul of man as well as the primacy of preserving the union and its Constitutional basis.

One might ask what problem is there with a bit of hyperbole. To paraphrase Marshall McLuhan’s observation about the media, the logic is the message.

Certain frameworks of thought define rival ideas. Other frameworks describe enemies.

But it isn’t enough to be polite. Civility and politeness are not synonymous. Indeed, in politics polite words are sometimes more problematic than raucous ones. Polite incivility, for instance, is often the norm on Capitol Hill.

Example: Lobbyist to legislator, “Congressman, as you know, we maxed out for you in the last election and we and our allies sure hope to be able to more than match that support this Fall. But please understand that tomorrow a bill of importance to us is coming to the floor and we would sure appreciate your support.” Politely stated, but coercively implied is a current and on-going quasi-contractual relationship between an interest group and a public official.

These implicit uncivil contracts can be coercive even if never discussed because corporatist power, newly magnified, can so easily reward a candidate or inflict political retribution. On the assumption, for instance, that politicians have an instinct for political survival, a key component of which is a desire to raise campaign revenues and suppress opponent treasuries, why in a corporatist political system would a politician want to stand up to the drug companies or gambling interests or investment banks if corporate monies can quickly be shoveled into the political trenches?

It is no accident that as the economic gap between rich and poor is widening in America, so is the political gap between powerful elites and seemingly powerless citizens. This correlated economic and political phenomenon is exacerbated by the Court’s linguistic gyrations. To invest with Constitutional rights an inanimate entity, the Court conflates two sets of words—“money” with “speech” and “corporation” with “person.” But the democratic basis of our individual rights is the precept that governmental legitimacy springs from the people. There are no words in the Constitution and no commentary in the Federalist Papers that suggest a conflation of “money” with “speech” and “corporation” with “person.”

Linguistically, no thesaurus suggests a commonality of meaning of these sets of words. Biologically, a corporation cannot vote or run for office. Philosophically, it is an artificial creation of the state which in turn is a creation of the people.

Corporatism is not the American creed. The inspiring words of our founders were about free men born with inalienable rights. It is they who speak. It is they who can assemble. It is they who are considered equal amongst each other.

The principal way money is treated as speech in our society relates to the disparaging metaphor: “money talks,” rather than to the First Amendment.

It is understood that there is precedent for analogizing a corporation with an individual in aspects of commercial law, but holding that a corporation is a person with citizenship rights is a linguistic presumption that pushes American politics in an oligarchic direction. It simply doesn’t square with the Declaration of Independence. All men may be created equal in relation to each other, but not necessarily in relation to corporations or, under this ruling, in relation to how corporations may empower some individuals relative to others.

Property-less people as well as women and slaves were initially denied the right to vote and there was an original Constitutional acceptance that slaves could be considered three-fifths of a person for legislative and Electoral College apportionment. But none of our founders ever advanced the notion that one individual could be several persons and have magnified influence based on the control of assets of one or more corporations.

Multiple personality disorder may from time to time seem to describe a candidate in regard to stances taken, but it never was intended to define the political system itself.

The arc of our history that has bent toward equalitarian justice has suddenly with this Court decision twisted back to that early part of our Constitutional heritage that was self-evidently unjust. Property considerations have again become accentuated in a key aspect of democratic citizenship

Theoretically, the consequences of the Court’s recent ruling could partially be obviated by legislative tinkering. But even if Congress can reach consensus on a constraining legislative approach, the Court could strike down anything meaningful based on the logic of the Citizens United decision. Manufactured First Amendment concerns could trump reform approaches designed to more equitably democratize political decision-making and make our political system less vulnerable to interest group manipulation.

For instance, as a House member I used to introduce bills to limit campaign spending to small individual contributions matched, up to a point, by public funds. And, to rectify a prior Court ruling, Buckley v. Valeo, which held, also on shaky First Amendment grounds, that candidates could spend as much of their own money as they wished in their own campaigns, I once introduced a Constitutional amendment to allow the Congress to place constraints on what candidates for national office could contribute to their campaigns, with like powers granted state legislatures to apply to state and local offices.

Now, given the Court’s activist linguistics, American democracy is vulnerable to increased corporate influence peddling as well as zillionaire gamesmanship. The only way to achieve progressive campaign reform is to press Constitutional amendments or wait for a Court that reads history and comes to understand that advancing equal justice under the law applies to the making and administering of laws just as it does to their adjudication in a court room.

It is my experience that many good people of all political persuasions enter politics only to find that the system causes the low road to become the one most travelled. Politicians routinely develop conflicts that do not technically rise to a legal standard of corruption because legislated law and now judicial fiat have weakened that standard.

Speech is thus at issue from two perspectives. At one end, uncivil speech must be protected by the Court but filtered by the public and, at the other; moneyed speech must not be allowed to silence the voices of the people.

How does the break-down in civility and increased polarization in America relate to this distinguished congregation of scholars?

The academy has an obligation to take notice and lead in helping re-instill our political system with greater depth of historical and philosophical perspective. It must respect legitimate conservative as well as liberal concerns, but like referees in sports, be prepared to throw thoughtful flags when speech is beyond the pale of historical reasoning or traditional American values.

Whether decision-making is Executive branch, Legislative or Judicial, the perspective of the humanities has seldom been more important. But the addition to democratic dialogue I am suggesting today is that if a Court has the temerity to rule on issues without or in contradiction to legislated guidance, it has an obligation to be consistent with basic American democratic values. On issues that touch on these values, humanities scholars should not shy away from writing op-eds and presenting amicus briefs. History and philosophy, after all, provide the context in which law is made.
Thank you.