The New Yorker‘s Hendrick Hertzberg has an interesting series of posts on his blog about the respective core values of liberals and conservatives. A dialog began when a conservative accidentally picked up Hertzberg’s book Obamanos and found his straightforward description of his liberal values refreshing. His third post is the richest so far and provides what I see as an opening in the conversation to suggest a system of values that is neither liberal nor conservative.

In this post, Hertzberg responds to a conservative by writing about the instrumental value of voting rights: “Voting is generally a good thing not because elected governments always make wiser policy decisions than absolute monarchs, but because experience shows that countries that elect their governments are more apt to have freedom of thought, conscience, and speech than countries that don’t. I’d rather live under a hereditary monarch who tolerates those freedoms than an elected president who doesn’t.” What Hertzberg seeks to protect is the freedom to speak and think freely, and he does so through a democracy or popularly elected government because that is the regime most likely to guarantee those as rights – as they are theoretically more dependable than the whims of a monarch. But what I want to question is what exactly freedom of thought and speech are good for. In Hertzberg’s set-up, voting is the instrumental right designed to best protect the non-instrumental rights of conscience, but this system breaks down if we can imagine a situation in which these rights are of no use. That is to say, if free speech and thought are not intrinsically valuable, then they make for a shoddy foundation for a system of social organization.

The idea of freedom of thought as separate from speech is a bit of a red herring here. If the Stoics proved anything, it’s that brute external force is incapable of eliminating independent thought. For the Stoics, life was about extending that external control to the whole being, which is how Epictetus could advise the slave to calmly tell his abusive master “If you continue to do that, my arm will break.” But that doesn’t seem to be the kind of thought Hertzberg is thinking about. He considers these individual rights of conscience socially, pointing to them as “civil freedoms.” For the purpose of this argument, I’m going to look at freedom of speech.

So we return to the question of the intrinsic value of free speech. For an example of useless free speech, I turn to that great theorist of rights: Franz Kafka, specifically his novel The Castle. It is the story of the land surveyor K who finds himself in a village attached to a castle. He quickly and surprisingly finds himself employed by some level of the castle bureaucracy to preform a series of tasks it is clear no one understands. K engages himself by trying to understand the strange hierarchies and touch the highest level he can. In this pursuit, the foreigner K is given to rashly disobeying social conventions he doesn’t understand or doesn’t care to understand, breaking all sorts of formal and informal speech codes. No castle official ever condemns him for his impudent speech, but it gets him no closer to the centers of power. The lack of a “say” in one’s own future leads to a learned helplessness: “Of course all that useless standing about and waiting all day, and day after day, and going on and on without any prospect of a change, must break a man down and make him unsure of himself and in the end actually incapable of anything else but this hopeless standing about.” K comes to understand that his place in the village will remain unchanged, regardless of his right to speak. We can see he speaks a different language, for although no external force shuts K’s mouth, he is unable to use his speech to change the world in which he lives or his role in it. I want to call this ability to affect change through struggle “negotiation.”

There is a distinction here between the instrument (speech) and the goal (negotiation). A prisoner can speak freely to the walls, but the bars do not bend. We could call this situation one of helpless speech. A prisoner’s freedom to speak is useful (or not helpless) when it is used as a tool of negotiation – whether through writings that others read or a riot or escape attempt. Hertzberg asks in what kind of twisted values system the right to vote or the right to property is more important than the right to speak, but the question I think begs asking is in what kind of foreclosed system of thought is the right to speak more important than the ability to have a say? Rather than taking the former as a base principal (as the liberal Hertzberg does), I propose the latter. I’ll grant Hertzberg that democracies are relatively good at preserving the popular right to speak, but does electoral representation have a good track record at enabling useful speech? When I search for the best in the American project, what jumps out is not moments of democracy, but negotiation beyond the demos or people. The fights for independence, emancipation, suffrage, and civil rights all came from subjects whose rights of conscience were not protected in legal or real terms. The very use of the phrase “civil rights movement” is an acknowledgement that it was fought by people who lacked these rights. It is not the rights that enable the action, but the action that forces the catachrestic break in the popular subject and expands the application of rights


These acts of militant negotiation happened in spite of the democracy from outside its protections. We can give democracy credit for flexibility insofar as it can change the composition of its demos in reaction to attacks from outside, but it does not get credit for the actions of those it persecuted or whose rights it refused to safeguard. Democracy is not to thank for the courage of Medgar Evers and the impact it had on a society he never lived to see. There’s a rose-colored way of looking at America that sees all its conflicts and antagonisms as internal to the state, even though it was the state’s jails that have housed generations of people deprived of useful speech. The corpses of Sacco and Vanzetti showed up on a public electric bill. The democracy takes sides and does not blush when pulling away those cherished rights from its supposedly internal enemies.

The market is certainly no better. A right to property also invites a right to poverty; one could always own nothing. We are well aware – this being election season and all – how the market constrains useful speech to those who can pay for it.  What the market, democracy, and monarchy all share in common is that they are forms of meta-negotiation. All three are decisions about how social negotiation will take place and who will be entitled to more or less say i.e. useful speech. Any of these forms suffers from outside attacks by those who would live otherwise, against whom the institutions act. Guy Debord’s description of the spectacle as “absolument dogmatique et en même temps ne peut aboutir réellement â aucun dogme solide” (absolutely dogmatic and at the same time unable to come up with any solid dogma) applies to the permissive systems. The proliferation of discourses afforded by these institutional forms is seemingly wide but severely limited: the market gives us Hot Topic anarcho-punk to J. Crew prep, and our civic free speech provides both Rachel Maddow and Bill O’Reilly-flavored commentary. But communism is not for sale any more than anarchy is on the ballot.

I think the practice of social negotiation is one way to phrase that which I value above (below) all else, the ability for people to determine their common existence, as creatures who are irreducibly alone together. Speech and thought are vital parts of this negotiation, but it has historically not been these rights that have been vital for what we think of as the advancement of democracy, but the practice of useful speech beyond the realm of government-given rights. So what system of meta-negotiation could preserve everyone’s right to a full say in their society? One that is open to negotiation, always contingent and variable. Instead of a social contract, a common dance. In the penultimate words of Ferdinando Nicola Sacco “Viva l’anarchia!”