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November 17, 2011


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Eric Muller

Al, the linking of this Warhol art to the emergence of privacy as a fundamental right rests on a highly contestable assertion about what the Warhol art meant either to Warhol himself or to the art world more generally. What if Warhol's works were not about making the familiar into "art" but about contesting the privileged position of "art" or interrogating the distinction between "art" and "non-art?" The jurisprudential analogue would then definitely not be the moment when some previously recognized but ordinary "interest" leapt over into a privileged category of "fundamental right." It would instead be a jurisprudential moment when the "law" was de-centered and other mundane candidates for agents of regulation of human affairs were asserted to share the attributes of "law." Maybe the moments of the emergence of law and economics and/or critical legal studies?


Warhol used the idea of art to improve his finances, taking mundane objects and subjecting them to commercial scrutiny in a format designed to produce profit for himself.

1960's jurisprudence used the idea of law for expansion of governmental power, taking previously private decisions of individuals and subjecting them to judicial scrutiny in a format designed to produce increased subjugation of citizens to the state.

Orin Kerr

I don't think the analogy works, as it seems to require taking two different things and then trying to find a level of abstraction at which you can find a similarity between them. You can do this for any two things, though. Take, for example, a new car and a pencil. You could say they are analogous, as they are both tools for people freeing people to do what they want and going where they would like to go. But then you could take a pencil and handgun, and say that they are analogous because they are two ways of persuading people. Or a pencil and democracy, as they each require cooperation to achieve the greater good. You can generally find something in common between any two things if you're willing to make (sometimes highly contested) abstractions about them and then compare the abstractions.

Alfred Brophy

Eric, Mikee, and Orin -- thanks for taking so seriously what I intended to be a light post.

Mikee -- I don't know much about Warhol and virtually nothing about his motives, but that people responded to his art (they purchased it) tells us something about the consumer as well as the producer. Whatever Warhol's motives -- and let's say that it was purely for profit, I'm not sure why that's bad -- we should ask why did people see the commonplace as art? You've got the 1960s Warren Court decisions largely backwards. For instance, Griswold is the other way around; it's about freeing individuals from state scrutiny. Sounds like what you're concerned with the expansion of federal economic regulation, which was validated by Supreme Court decisions in the 1940s, largely. That's a different period of art as well.

Orin -- let me work through your important critique in a little more detail. And I'm going to go back the pre-Civil War era: the landscape art of the 1830s to 1850s reflected the ideas of economic development that Americans so celebrated. It also reflected their political philosophy -- that human technology, like law, steam, and telegraph, even things as simple as the ax and plow, improved upon nature. By the pre-war period, political theory was no longer that freedom was greatest in a state of nature but in a state ordered through law. And we see that in the landscape art of the era, which celebrates well-ordered farms and cities. I would expect that art would correlate with the larger culture that supports it. To take up your example of technologies like the pencil and the car -- they arose in different eras -- but there were some rather different technologies that emerged about the same time in the pre-Civil War period, such as the telegraph, railroad, and steam-run printing press. While they served different immediate purposes -- transportation, production and communication -- they also worked together to support a robust market and a consumer culture. High level of generality? Maybe, but each worked in conjunction with the other. As to pencils and democracy -- I don't know; but the steam printing press and democracy have a lot in common, as did the hand-driven printing press and the American Revolution, and the first printing presses and the Protestant Reformation.

The question is what, if any, relationship is there between Warhol and 1960s jurisprudence? I don't know enough about Warhol or any American art of the 1960s to have a good sense. Nevertheless, there were certainly a lot of things going on in the 1960s that I think drew on a common reserve of cultural ideas -- the Civil Rights movement; the women's movement; the environmental movement; the war on poverty. These are all related and it wouldn't surprise me if the culture's opposition to long-standing traditions and questioning of traditions of sex roles and racial categorization is reflected in art, too. Was Warhol a part of this? I don't know.

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