Ramapo Journal of Law and Society

Volume I, Number 1

Spring 2014

Ramapo Journal of Law and Society Vol. I

Spring 2014

Number 1

TABLE OF CONTENTS

Letter from the Editors………………………………………………………………..i ARTICLES Undocumented Children: Yearning to Breathe Free in the Land of Opportunity………………………………………………………………………………..1 Lyanne Prieto, Ramapo College of New Jersey Throwing Caution to the Wind: An Examination of the Influence of Legal Culture in the GMO Debate………………………………………………..18 Meredith Price, Ramapo College of New Jersey Peyote and the Ensuing Moral Panic……………………………………………34 Enrique Hernandez, California State University, Long Beach War, Terrorism and the Duality of Citizenship in America…………….43 Gal Cohen, Ramapo College of New Jersey The Effects of Hazing on Student Self-Esteem: Study of Hazing Practices in Greek Organizations in a State College………………………59 Anne Mercuro, Samantha Merritt, Amanda Fiumefreddo, Ramapo College of New Jersey

Mission The Ramapo Journal of Law and Society is an interdisciplinary, online journal devoted to the publication of undergraduate scholarship in Law and Society. The Journal’s mission is to provide a platform to undergraduate students from across disciplines to engage with socio-legal issues in the context of the liberal arts. We understand law and society broadly to include discussions of law in society not just as rigid bodies of rules but as dynamic institutions shaped by historical forces and social imperatives. The journal will include submissions from varied fields of the social sciences and humanities, and hopes to build conversations across disciplines on the topical socio-legal issues of our times.

The journal is published by an editorial board of students and faculty representing the Ramapo College undergraduate program in Law and Society, in collaboration with our colleagues at other colleges and universities nationwide.

Executive Editorial Board

Faculty Advisory Board

Prof. Sanghamitra Padhy Prof. Mihaela Serban Elle Alfaro, 2015

Prof. Mark Howenstein, Ramapo College of NJ Prof. Kristin Kenneavy, Ramapo College of NJ Prof. Francesca LaGuardia, Montclair State University, NJ Prof. Jinee Lokaneeta, Drew University, NJ Prof. Aaron Lorenz, Ramapo College of NJ Prof. Paul Reck, Ramapo College of NJ Prof. Christine Scott-Hayward, California State University at Long Beach, CA Prof. Marta Vides, Ramapo College of NJ Prof. Jillian Weiss, Ramapo College of NJ

Alexandra Cerbone, 2015 Jonathan Mangel, 2016 James Ticchio, 2016 Kristi Wendel, 2014

Acknowledgments The Ramapo Journal of Law and Society would like to thank Dean Samuel Rosenberg for his unwavering support, and to Dominique Johnson, for initiating this project. Thank you to Robert Josic and Steve Schurr for their help with web design and all technical assistance.

The views expressed by the authors are not necessarily those of the Ramapo College of NJ or the Law and Society program at Ramapo. While the Editorial Board has made every effort to ensure the accuracy of information contained in this journal, we cannot accept responsibility for any errors or omissions contained in the articles.

No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission from the authors in writing. The authors who submitted their work to the Ramapo Journal of Law and Society retain all rights to their work.

Letter from the Editors Laws, rules, customs and norms bound us in multiple forms, and hence our experiences with the law are complex and diverse. Our social self influences and defines how we engage with the law as well. This sets the terrain of law to be much broader than just rules, and demands an understanding of law in all its spatial and temporal contexts. RJOLAS hopes to explore this tapestry of law and society through undergraduate research.

Our journal brings to light research on the socio-legal challenges of our times from the standpoint of our undergraduate students. RJOLAS is the product of extensive discussions amongst law and society faculty and students at Ramapo College and colleagues elsewhere. Often times, we find that undergraduate research and writing gets shelved in remote corners, and there are few options for engaging beyond class and advisors. Yet our student writers, especially at the level of senior theses, honor theses, and independent studies, often bring new perspectives and renewed passion to current socio-legal issues. Undergraduate writing is also silhouetted within disciplinary boundaries and there is very little conversation across the various disciplines. RJOLAS is an attempt to build a discourse on law and society through interdisciplinary engagement among the social sciences and humanities.

This first issue of RJOLAS itself explores the tensions in our socio-legal process and its implications for individual rights. Beginning with an essay on immigrants, our student authors explore the rights of individuals to their food choices vis-à -vis corporations’ push for GMOs, types of citizenship in our post 911 state, religious rights, and the continuation of hazing practices on campuses.

All the authors question institutional authority and the reach of the state. The first four essays portend to demonstrate the inextricable link between law and power and draw attention to how law marginalizes those in the fringes of society.

The final essay on hazing adopts a social science perspective to comment on a widely prevalent practice in colleges across the nation, with harmful effects on the individual and very little conversation about its implications.

This journal would not have been possible without the support of Law and Society students and faculty at Ramapo, our colleagues in the School of Social Science and Human Services, and Dean Sam Rosenberg. The first issue itself has involved painstaking work by student editors and faculty in selecting papers, collaborating with the authors, and editing the papers for publication. We are particularly pleased to include in our first issue a paper from the law and society community in California (from California State University, Long Beach).

We proudly present to you the first issue of the Ramapo Journal of Law and Society (RJOLAS). We hope this will build a conversation among undergraduate students nationally on many of our socio-legal themes and set a mark for undergraduate research and publishing.

Yearning to Breathe Free in the Land of Opportunity

Undocumented Children: Yearning to Breathe Free in the Land of Opportunity LYANNE PRIETO * The Statute of Liberty, symbol of acceptance and opportunity in the United States, reads “Give me your tired, your poor, your huddled masses yearning to breathe free.” However, undocumented children in the United States, who, along with their parents, make up a growing number of this country’s tired, poor, and motivated people who wish to start a new life, are not welcomed with open arms. In fact, strict immigration laws and discriminatory policies in many American sectors, such as education, child welfare, and social services effectively keep innocent youth, particularly undocumented children and the American-born children of undocumented families, from surviving and thriving in this country.

This paper will address American immigration laws and society’s reactions to undocumented Hispanic immigrant children, the psychological effects that children face due to their undocumented status, and the failure of the American legal, child welfare, and education systems to care for these alienated youth. In addition, social and legal changes that are in the youths’ best interests will be suggested in order to raise awareness about reforms so that undocumented immigrant children receive the social justice and acceptance that they deserve. Although America is emblematic of hope for many people, it falls short of creating opportunity, equality, and a sense of optimism for undocumented children and the American born children of undocumented parents. The anti-undocumented immigrant sentiment in this country effectively closes the door of opportunity for these children who suffer due to their, or their parents’ lack of documentation. Perhaps the only way to instill hope in this group is by introducing new policies, such as the DREAM act, that will change the lives of these children who “yearn to breathe free” and stop being stigmatized by their undocumented status.

Law and society working against undocumented immigrants History is said to repeat itself; it is not surprising, then, that today Americans sometimes react negatively to immigrants, much like their predecessors have in the past. In the mid-twentieth century as immigrants from countries such as Eastern and Southern Europe entered the country, Americans looked unfavorably upon the new immigrants because they not only spoke different languages but, in many cases, also had different religious beliefs and political preferences than the European immigrants that once came before them (Eyewitness to History). American social and legal systems worked together to make immigrants feel unwelcome; the Immigration Nationality Act of 1952, which was biased and exhibited “qualitative restrictions” toward immigrants, was passed around the same time (Bennett, 1966). The present influx of undocumented immigration has prompted a similar dissatisfaction among American citizens for many of the same reasons – immigrants represent a different culture and way of life and there is a fear that they affect this country economically. *

Lyanne Prieto graduated summa cum laude from Ramapo College in January 2013. She is currently a first year student at Rutgers Law – Newark. Lyanne is interested in immigration and employment law, is a first year representative for the Association of Latino American Law Students and a member of the Immigrant Rights Collective.

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Today, many legal policies attempt to specifically target undocumented immigrants, many of whom have families and children to care for. These include the Immigration Reform and Control Act of 1986, which put sanctions on employers who hired undocumented immigrants, ended welfare benefits previously available for undocumented immigrants and their children, and increased border patrol and enforcement (Donato, 1992). The Illegal Immigration Reform and Immigration Responsibility Act of 1996 worked to end undocumented immigration by severely punishing undocumented immigrants with prison time, large fines, or even worse – deportation (Davis, 2004). Although immigration remains a federal issue, many states in recent years are taking a more aggressive approach toward punishing undocumented immigrants. Arizona’s controversial law, entitled the Support Our Law Enforcement and Safe Neighborhoods Act, for example, required aliens to carry their documentation on them at all times and allowed police officers to subject anyone thought to be an undocumented immigrant to a review of his or her documentation during a routine traffic stop. Although the Supreme Court, in June 2012, struck down various provisions of the law, it allowed the provision in which police officers check for immigrant status to stand (Cole, 2012). Undocumented immigrants now live at great risk and in great fear of deportation, including undocumented immigrant youth.

In many instances, undocumented immigrant children and the American children of undocumented parents lie at the center of the contentious immigration debate. Some Americans, for example, have attempted to preclude the American children of undocumented citizens from being guaranteed citizenship upon birth.

Proponents of this believe that these children, oftentimes called “anchor babies,” are born in this country and are automatically given citizenship, access to welfare services, and a guarantee that the child’s family will not be deported and split apart due to the child’s legal status (Suarez-Orozco,2011). However, “American born children do not provide any real protection from deportation for these parents; in fact, many parents remain at high risk of deportation during the children’s childhood. The best case scenario for these parents is a long wait until the children reach adulthood and, at that point, they are placed at the back of decades long list to start the regularizing process” (Suarez-Orozco, 2011, p. 443).

The American Constitution, however, dictates that under the Citizenship Clause of the Fourteenth Amendment, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Although the citizenship of the American born children of undocumented immigrants is grounded in constitutional law, opponents of birthright citizenship still try to fight it. People who oppose giving the American born children of undocumented immigrants citizenship claim that citizenship, as established by the 14th Amendment, does not extend to these children because they and their parents are not “subject to the jurisdiction” of this country; they, instead, are under the control of the country from which they came (Milliman, n.d). Supporters of citizenship for these children cite, in addition to the Citizenship Clause of the Constitution, an 1898 Supreme Court case entitled U.S. v.

Wong Kim Ark, in which a young Chinese man born in America to Chinese immigrant parents who were not citizens, but permanent residents, was, considered, in fact, an American citizen (Tebo, 2007). Until the issue of birthright citizenship for these children reaches the Supreme Court, it is unlikely that opponents will be able to succeed in their attempts to end birthright citizenship for this group of children.

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Individuals who oppose undocumented immigration believe unauthorized immigrants are burdens to society who do not contribute to the country and, instead, just rob American citizens of available jobs and resources. Although it is true that the American born children of undocumented immigrants are eligible for programs such as food stamps and/or Medicaid, it is important to note that their family members who lack legal documentation are not eligible for these same programs. In fact, undocumented immigrants cannot receive public healthcare, welfare, or retirement benefits due to their lack of legal status. The Immigration Reform and Control Act of 1986 effectively ended welfare benefits for undocumented children and their families, among other things (West, 2011; Donato, 1992). Furthermore, undocumented immigrant parents rarely take advantage of resources that their American born children are entitled to, like food stamps and public preschools, because they fear that authorities will find them and deport them (Suarez-Orozco, 2011). Therefore, they do not drain the American welfare system of its necessary resources.

It is promising to note that not all Americans look down on immigrants: 68% of Americans who responded in a national survey “believe that cultural diversity and new ideas grow due to immigrants” (West, 2011). However, it is clear that this positive outlook may not extend to include undocumented immigrants. The fact that undocumented immigrants lack proper authorization to be in the country does not take away from the cultural enrichment they add to American society. The Supreme Court in Plyler v. Doe (1982), a case regarding education for undocumented students, stated that “there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country or even to become a citizen.” This statement, however, extends to all undocumented children in a broader sense. Although today they lack proper documentation, the enrichment and cultural diversity they add to the United States should not be deemed worthless, because tomorrow they may very well be legal residents or citizens whose culture and traditions become important parts of American culture.

Psychological, emotional and other effects on undocumented youth Although a majority of children with undocumented parents under age five in this country are actually citizens, young children coming from undocumented families still face countless difficulties. When children are young, they may not realize that they are different than many of the children that they go to school with; undocumented children are, thanks to Supreme Court case Plyer v. Doe, still allowed to attend school just like American born children up until 12th grade (Coronado, 2010). Although the law may allow undocumented children to have access to education, it does not deal with the various difficulties they may face when they enter the American school system, such as frustration due to a language barrier.

The Supreme Court sought to remove certain obstacles for undocumented children by guaranteeing them public school education, but other obstacles due to their and/or their family’s unauthorized status still remain. Many parents lack schooling themselves and do not know how to navigate the American educational system. As a result, their children are at an academic disadvantage (Suarez-Orozco, 2011). In addition, the development of children with undocumented parents is harmed by the economic difficulties and emotional distress that they, and their families, oftentimes suffer through (Suarez-Orozco, 2011). These economic difficulties are undoubtedly 3

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fueled by harsh immigration laws that make employment difficult for undocumented immigrants, many of whom have families to care for. Although American born youth are eligible for government health care, unauthorized children are not eligible, and the resulting lack of health care may result in health problems in adulthood (Suarez-Orozco, 2011).

As undocumented children, and the American born children of undocumented parents, reach middle childhood, many of them are aware of their or their family’s, undocumented status. This, as a result, creates fear and concern (Suarez-Orozco, 2011).

Suddenly, many children realize that they and their families are different from other American families, which may create a sense of anxiety and lower self-esteem. Instead of sharing their feelings/problems with others, they are more likely to keep them to themselves (Suarez-Orozco, 2011). Also, due to the difficult economic situations many families suffer through, children may, at this point in their lives, have already switched schools various times, which translates to poor performance in school (Suarez-Orozco, 2011). Children should not be punished for their parents’ undocumented status but, in many ways, they do suffer because of it. Plyler v. Doe makes the following valid point regarding undocumented children: “…those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status” (Plyler, 1982).

As these helpless children transition into adulthood, they have realized the impact that their lack of documentation has on their lives. Due to their lack of proper documentation, they can not obtain a driver’s license, may face difficulty finding employment because they do not have social security numbers, and find out that their dreams of attending college may never be reached (Suarez-Orozco, 2011). As a result many youth feel intense anger towards their parents for putting them in such a situation. Although many parents have high hopes of success for their children, these young people realize that the American dream, without legal documentation, is unattainable. These youth oftentimes feel shocked at the situation they are in and unwanted by the country that many of them call home (Suarez-Orozco, 2011).

When these youth leave high school, their prospects for success in the United States are dim. Dating, for instance, proves difficult because these youth feel great shame when it comes to revealing their undocumented status. Though they may believe that marriage is a gateway to citizenship, the reality is that marriage will not quickly or automatically “correct” their status (Suarez-Orozco, 2011). Lack of federal and state financial aid for undocumented students makes obtaining a college degree difficult. As a result, undocumented students who have graduated from American high schools may be unable to attend college due to the cost of tuition (Suarez-Orozco, 2011), and feel despair over not being able to pay for college tuition (Coronado, 2010). If they are fortunate enough to have excelled in school and raise enough money to pay for college tuition, undocumented youth may attend college in various states. Many college 4

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students become discouraged when they must enroll in remedial courses to cover material before they can start their core courses and those who must work a part time or full time job, in addition to attending classes, also feel disheartened.

If/when they graduate, they realize that job opportunities for them are still very limited. Their desperation may prompt them to seek out fake social security cards or driver’s licenses; this illegal behavior is not only dangerous, but also not a real solution to their problems (Suarez-Orozco, 2011).

Failings of the American legal, welfare, and educational systems for undocumented children American courts face the daunting task of deciding whether or not deported immigrant parents should be reunited with their American born children. Courts do not always make the best decision for the child at hand because they must focus on balancing the rights of the state against the rights of parents to maintain control over their children. As a result, the children, in most cases, suffer immensely regardless of whether the state allows them to be reunited with their parents, or compels them to stay in America.

Parents, in most cases, have the right to care for, raise, and educate their children. It is clear that, most of the time, the best decision for the child is to remain within the care of his/her biological parent who can provide him or her not only with care, but also with love (Zug, 2011). Early twentieth century Supreme Court cases, such as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), established the rights of parents over their children. The Supreme Court of the United States ruled that parents have the right to decide who educates their children in Meyer v. Nebraska (Mnookin, 2009, p. 50). Pierce v. Society of Sisters, which stated that “the child is not a mere creature of the state”, was another case that helped to establish parental rights (Mnookin, 2009). State control did not eliminate the rights of parents, as nurturers and caregivers, to select the appropriate people and places to educate their children. These cases clearly demonstrate that parents have the right and obligation to control, care for, and educate their children, even in ways that the state does not always agree with.

American courts fail immigrant children because, even in cases where they respect parental rights and reunify families, the child does not always benefit. When immigrant families are initially broken apart it can be due to a variety of reasons, including undocumented status or possibly abuse and neglect (Zug, 2011). If a parent who was abusive or neglectful is reunited with a child after deportation, that child, who runs the risk of suffering additional abuse, is no longer guaranteed the oversight that the American legal system offers and, unfortunately, many Latin American countries lack the proper governmental agencies, such as child protective services, to deal with such cases of abuse (Zug, 2011). In cases where parents are only guilty of lacking proper documentation, reunification also has some negative consequences. For instance, when American born children are sent to the parent’s native country, they may become severely disadvantaged by going from a good school system in the United States to one that is not of the same caliber in the parent’s native country; in addition, they will usually face extensive language barriers (Zug 2011, p.40). These children also risk losing access to health care. In their parents’ homeland they may lack proper medical care or insurance, which puts their wellbeing in jeopardy (Zayas, 2010). Clearly the innocent

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child caught in the middle of a legal battle is the one that is, unfortunately, most negatively affected.

The state has the obligation to act as parens patriae and work in favor of children who have citizenship in this country. Prince v. Massachusetts (1944) was a monumental case in which an adult female guardian made a child who she was entrusted with hand out religious pamphlets on the street. She was found, consequently, to be in violation of child labor laws and at fault for putting the child in danger (Zug, 2011). The Supreme Court’s decision in this case was in contrast to cases such as Meyer v. Nebraska and Pierce v. Society of Sisters, in which the role of parents to care for, control, and raise their children was clearly stated. The state does have the right to infringe upon parental rights when parents are guilty of putting their children in danger. When it comes to citizen children, the state feels compelled not only to protect these kids, but, in most cases to keep them in the United States when parents face deportation (Zug, 2011).

Although these children need and deserve protection, particularly in cases of abuse and neglect, American courts need to realize that keeping the American born children of undocumented parents in the United States without parents is not beneficial in most cases.

Regardless of the decision made by the legal system, American born children of undocumented parents who have been deported are not always content. In an ideal world, American courts would allow undocumented parents who face deportation to stay in the country because it is in the best interest of their citizen children. However, due to current immigration law and politics in this country, that is not a viable option (Zug, 2011). As a result, the American legal system, in many cases, fails these American children who are forced to live either with the love of their parents in a country that they do not know, or in America, the land of opportunity, without the support and warmth of their immediate family.

Intersection of the legal and child welfare systems As of 2011, approximately 5,100 children, according to the Applied Research Center’s estimates, have parents who have been subjected to detention or deportation and live in foster care within the United States (Wessler, 2011). When undocumented immigrant parents are detained, a difficult and sometimes lengthy process commences which proves troublesome for the whole family, including children.

American courts could take steps to aid immigrant children who are placed in these difficult situations. In 1997 the Adoption and Safe Families Act began governing child welfare in a way that stressed the protection of the child above all else – even if that meant not unifying a family. As a result of this monumental act, a child who has been in foster care for 15 months will be involved in proceedings to terminate the rights of his/her parents (Xu, 2005). This, without a doubt, poses a huge threat to parental rights, which, in turn, affects the children involved in child welfare proceedings.

Undocumented immigrant parents face a myriad of difficulties that American born parents whose children are in foster care do not face. Social service workers, along with the court system, should be sensitive to such difficulties in order to make the best determinations for the American born children of undocumented parents. These difficulties include lack of understanding of the social services and child welfare systems and severe language barriers that keep parents from comprehending the social services that may be offered to them (Xu, 2005). In addition, parents are oftentimes transferred 6

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to detention centers that are not near their homes and are kept there for extended periods of time while their case is worked on (Wessler, 2011). Although Immigration Customs and Enforcement created a locator system for detainees approximately two years ago, “few child welfare caseworkers or dependency attorneys had ever heard of the locator system” (Wessler, 2011). Courts expect immigrant parents to meet certain criteria in order to consider reunification; however, immigrant parents have a difficult time meeting the criteria in a “timely and appropriate way” due to economic difficulties they face, trouble comprehending the English language, employment and housing problems, and more. In addition, undocumented parents, while attempting to regain their children, may face legal troubles that can worsen their stance in dependency proceedings (Xu, 2005, p. 761-762). Separation due to detention or deportation was taken into consideration by the courts when trying to find the best fit for the child. The unique problems that immigrant parents face make only 15 months of reunification services, as stated in the Adoption and Safe Families Act, far too little to properly meet their needs. Courts should, in order to best help the children of undocumented immigrant parents, continue services past the 15 month mark, while social workers “could communicate with the courts and argue for cases to be reopened to further advocate for the children to stay with their biological parents” (Xu, 2005, p. 766).

The educational system and its disadvantages Plyler v. Doe (1982), a landmark Supreme Court case, allowed undocumented students to attend public school in the United States through the 12th grade. Statistics show that “approximately sixty five thousand undocumented students graduate from U.S. high schools every year…these students receive honors, make it to the dean’s list, and are class valedictorians” (Yocum-Gaffney, 2010, p. 67). Although these children have high hopes of success in the future, their lack of educational opportunities after high school severely limit their future triumphs.

Although America took an enormous step in the right direction in 1982 when the Supreme Court decided the Plyler case, it did not properly address postsecondary education in any way, which clearly puts undocumented children at a great disadvantage. The Illegal Immigration Reform and Immigration Responsibility Act of 1996, along with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 are federal level statutes that deal with postsecondary education. “PRWORA proclaims that an unqualified “alien” is not eligible for any federal public benefit including postsecondary education or any other benefit in which payment or other assistance is provided” (Gildersleeve, 2010, p. 9). Although these statutes limit opportunities available to undocumented students, they do not forbid such students from being admitted to a post secondary educational institute (Gildersleeve, 2010).

However, undocumented students who are able to continue with their education do not qualify for federal financial aid, federal student loans, Pell grants, and more, which can place a huge financial burden upon them. In addition, private scholarships, in some instances, are cut off for these students also, because some of them require students to meet the requirements set forth for federal financial aid (Gildersleeve, 2010).

Furthermore, their undocumented status limits the types of employment they can find, so financing their education becomes very difficult. Even though some undocumented students may overcome the obstacles set in their path for university admission, they may never enroll due to financial burdens.

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Necessary legal changes Undocumented children are, in many ways, treated unjustly in the United States.

Society thinks negatively of undocumented immigrants, which has a direct effect on undocumented children psychologically, emotionally, and in many other ways. This research demonstrates that America, via its legal, welfare, and educational systems fails this group of children. How can life for this group of undocumented children improve?

Improvements can be made through legal and social changes, which will be discussed below, that will transform the lives of these young, innocent children and make their futures more promising.

Increasing work visas for parents Many undocumented parents enter the United States in order to improve their finances for themselves and their families. Yet these individuals have very few legal avenues to seek employment in the United States. As a result, countless immigrants choose to enter the United States without documentation, many with their family in tow.

However, if America increased the number of work visas it gives out, undocumented parents may instead choose to come to this country legally and send money back home for their families. As a result, the immigrant and his family benefits economically, while the United States gains laborers and reduces the influx of undocumented immigrants.

For instance, laborers who work in agriculture are eligible to work in the United States legally through the use of an H-2A visa (Anderson, 2012). However, the visas are “considered burdensome and litigation-prone by growers” and, as result, are not used as much as they could be (Anderson, 2012).

H-2A visas for agricultural workers, and H-2B visas for nonagricultural workers, should be utilized to prevent undocumented immigration. Only a small number, approximately 66,000, are currently given out per year and that number must be augmented in order for the visas to be used successfully (Banks, 2006). Concerns may be raised by Americans who worry about immigrants taking away employment from citizens. However, America has already created a safeguard with the H-2 visas where employers must obtain a labor certification before hiring foreign workers. This certification would make sure that Americans within the country can not fill the position before an individual from another country is hired for the job (Banks, 2006). Although increasing the use of the H-2A visa will help to reduce future undocumented immigration, it will not solve the problems that undocumented children and their parents who are already in the United States face.

Child Citizen Protection Act Innocent American born children are oftentimes victimized when their parents are deported due to lack of documentation. American courts faced with the predicament of figuring out what to do with the children do not always apply the correct standard. In some cases, children are needlessly separated from their parents and even put into foster care (Wessler, 2011). We must pass legislation that takes the child’s best interests into account. If the Child Citizen Protection Act were passed, it would allow judges to hear the voice of the child – something that is not currently done (Zayas, 2010). In addition, it would increase the discretion of immigration judges in cases where the deportation of a parent would act against the best interests of his/her child (Rep. Serrano, 2006). Under current law, immigration judges must order deportation in many 8

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cases involving parents without considering the harm that is being inflicted upon those parents’ children (Rep. Serrano, 2006). If politicians were to pass this act, or a similar form of legislation, it would allow some form of justice to prevail for the children of undocumented parents, many of whom have been wronged by the American legal system. The 5,100 children that linger in foster care while their parents have been detained or deported are, for example, a group that would undoubtedly benefit from the passage of the Child Citizen Protection Act (Wessler, 2011).

Adoption and Safe Families Act The Adoption and Safe Families Act, passed in the late 20th century, is considered a threat to parental rights. More specifically, this act threatens the rights of undocumented parents to care for their children. This act is in contrast to prior legislation, such as Adoption Assistance and Child Welfare Act, which was “firmly rooted in the traditional ideas of family preservation” (Yablon, 2012). The Adoption and Safe Families Act, however, effectively works to break many undocumented families apart by implementing swift deadlines when children enter foster care. If the Adoption and Safe Families Act is amended, however, the best interests of this group of children may be served. The Act already states that exceptions may be made if the deadlines for permanency hearings and termination of parental rights are not in the child’s best interests; it also states that exceptions can be made if the child is in the care of a relative (Adoption and Safe Families Act, 1997). Kinship placement for undocumented children or the American born children of undocumented parents is, in many cases, impossible to arrange because American courts will not grant such placement to undocumented relatives – the only relatives that these children may have (Cardoso, 2009).

When parents are separated from their children in this way, it creates a great sense of social injustice. In order to address the best interests of children, undocumented parents must be given more time in order to meet requirements to regain custody of their children. In addition, courts should arrange that, at a minimum, translators are provided so that the parents understand what is expected of them. If the parents do not understand what is expected of them or how they may work to regain their children, the children will be made to suffer in the long run. How can social justice ideals be met if undocumented parents are placed in a legal system that they understand nothing about without any resources to aid them? Providing translators would create many short term benefits. For instance, the undocumented parent would understand, at the outset, the terms of the permanency plan and the reunification plan and would not lose time in completing the tasks that are expected of him/her. In addition, communication between social workers and the courts would be facilitated. The long term result of this would be reunification, which is undoubtedly best for the child.

Although providing a translator may not guarantee in all cases that undocumented parents will complete the necessary steps to bring together their families, it will definitely make the process slightly easier and create a better sense of equality for nonEnglish speaking parents.

The DREAM Act- a solution for undocumented students The DREAM Act is a proposed piece of legislation that would greatly help undocumented students in the United States. This act, though never passed, was something that countless undocumented students supported. They helped to create a 9

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social movement by participating in protests, hunger strikes, and more (Zimmerman, 2011). Although the country is far from passing the DREAM Act due to partisan issues, hope remains for undocumented students. On the federal level, the Deferred Action for Childhood Arrivals program launched in June 2012, allowing undocumented immigrants who came to the United States as children to defer removal for two years and attain a work visa. Like the DREAM Act, other guidelines must be met: the immigrant must be in school, have a high school diploma, or a GED. The deferral would be subject to renewal after the two year period (Consideration of Deferred Action).

Changes are also being made at the state level. Recently California passed legislation known as the California Dream Act, which allows undocumented students to access state financial aid. Other states, like Florida and Illinois, are following in California’s footsteps by proposing similar bills. On November 19, 2012, Governor Deval Patrick of Massachusetts announced, despite opposition, that undocumented students in his state would be allowed to pay lower in state rates for college tuition (Kaiser, 2012).

Perhaps small victories like these must be obtained before a piece of legislation as monumental as the DREAM Act can be passed.

The undocumented children’s best interests Immigration reform must occur in order to remedy the issue of undocumented immigration. Two options for immigration reform include mass deportation or legalization of undocumented immigrants (Ewing, 2010). In order to best serve the needs of undocumented children and the American born children of undocumented parents, legislators should work towards a system where undocumented immigrants presently residing in the country can apply for documentation and, later, citizenship.

Although deportation is an option that would garner support amongst some Americans, it would undoubtedly be detrimental to the lives of the American born children of undocumented immigrants. If deportation occurs as a form of immigration reform, it will undoubtedly affect countless undocumented children who were brought to this country at a young age and consider America their home. Deportation of undocumented immigrants is an unrealistic option for Americans because of the costs involved. Although supporters of strict immigration policies may not realize it, undocumented immigrants strongly contribute to the U.S. economy. If deportation of the country’s undocumented immigrants occurred, it would cut “$551.6 billion in annual spending, $245 billion in annual economic output,…more than 2.8 million jobs” and revenue from taxes which unauthorized immigrants pay (Ewing, 2010). The country would be losing money and then would have to spend, as the Center for American Progress estimates, anywhere from $206 to $230 billion over approximately 5 years to deport these individuals (Ewing, 2010). Consequently, deportation would not be a feasible option.

Although legalization of undocumented immigrants is unlikely to occur due to anti-immigrant sentiment and political opposition, it remains the best option for American born children and for all who seek social justice for undocumented immigrant children. From an economic standpoint legalization, too, proves to be the best option. If, for instance, the Comprehensive Immigration Reform Act of 2006 had been passed, $66 billion in additional revenue stemming from payroll and income taxes paid by immigrants would have been created. “This revenue would have more than offset the anticipated $54 billion increase in spending for refundable tax credits, Medicaid, 10

Yearning to Breathe Free in the Land of Opportunity

Medicare, Social Security, and food stamps for newly eligible immigrants and their families during the same period” (Ewing, 2010). Under the above mentioned act, undocumented immigrants would have been subjected to fines, in addition to taxes, which also raise money (Comprehensive Immigration Reform Act of 2006). The United States would enjoy additional revenue while formerly undocumented parents and children would no longer be held back by their lack of documentation; instead, undocumented families could, by remaining in the United States with legal status, provide their children with important social services, healthcare, better opportunities for education, and more that they could have never attained before.

Advocating for social changes The media in America is a powerful source of information and if it changed its portrayal of undocumented immigrants, it may, too, change the way many members of society react toward undocumented immigrants. According to the Center for Nonviolence and Social Justice, social justice is “a vision of a society that is equitable and in which all members are physically and psychologically safe. Social justice also demands that all people have a right to basic human dignity and to have their basic economic needs met.” This vision, however, will never be met if the media does not begin to treat undocumented immigrants with the dignity and respect that they, as human beings, deserve. Although they may be guilty of breaking the law by entering the United States without proper documentation or staying longer than their visas allowed, they should not be referred to as illegal. Their actions may be illegal, but they, as people, are not (Rubio, 2011).

Although the phrase “illegal immigrant” is a degrading term, undocumented immigrants are continually referred to as “illegals,” particularly in the media. The media also purports many myths and mistruths about undocumented immigrants that affect the lives of countless unauthorized individuals living in this country. Popular commentators on television, for instance, create misperceptions that Americans, as a result, believe to be true. Media commentators convince Americans that undocumented immigrants are at fault for spikes in crime rates, use up welfare programs without contributing to the country, and more (Fear and Loathing). This causes an environment of anger and hatred that undocumented children, and the American born children of undocumented parents, must constantly deal with.

The First Amendment of the United States’ Constitution guarantees free speech.

This allows media personalities to portray undocumented immigrants in a negative light. However, that does not mean that their negative opinions cannot be opposed by positive opinions also stemming from the media. Activists and grassroots organizations must come together to create awareness about undocumented immigrants, their feelings, and their contributions to this country. For example, Fox News Latino reports that almost 50% of Latino voters who were part of a poll consider the term “illegal immigrant” offensive (O’Reilly, 2012). A powerful public education campaign entitled “Drop the I-word”, started by ColorLines and the Applied Research Center, is fighting to drop the use of the word “illegal” (Drop the I-word). It encourages individuals and student organizations to take a pledge online and reach out to media outlets in an attempt to have them cut off all use of the “I-word” because it is not only racist and dehumanizing, but also “inaccurate legally and confuses the (immigration) debate”

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(Drop the I-word). With campaigns such as this one, undocumented immigrant children may begin to receive humane treatment in this country.

Undocumented students who are able, despite the obstacles, to continue with education are in need of assistance that could help ease their transition into higher education. At the high school level, guidance counselors can and should be trained on how to best advise undocumented students about attending college, possible scholarship opportunities, and more. In addition, counselors can encourage undocumented students who take academics seriously to enroll in dual enrollment programs that will help them gain college credit while still in high school (Coronado, 2010). Upon entering college many undocumented students encounter faculty and student affairs employees who do not know how to deal with undocumented students and appear rude and unhelpful (Coronado, 2010). Post secondary institutions can easily fix this issue by offering workshops and training sessions to college faculty and other employees in order to educate them about undocumented students and the difficulties they face (Coronado, 2010). In addition, “hiring a bilingual and ethnically diverse faculty and staff may promote immigrant student engagement and foster validation” at the university level (Coronado, 2010, p. 13).

Undocumented students who wish to transition into college after high school have already experienced various difficulties: not having a driver’s license, facing economic disadvantages, lacking a social security number, and more. These students oftentimes feel ostracized and misunderstood. Undocumented parents may not understand the difficulties that their children face in the realm of education, while professors and other students may not understand the difficulties that unauthorized peers face in life due to their lack of documentation. As a result, these students are in need of support and a community they can turn to that will help them cope with such difficulties. As a result, college campuses should encourage the formation of student support groups where undocumented students facing the same problems can join, and offer support and encouragement to one another. Such groups are, in fact, already working to provide support and encouragement in states such as California, where a support group called AB 540 students was formed. This group was named after the 2001 California law entitled AB 540 which allowed undocumented students meeting specific requirements to qualify for in state tuition (Coronado, 2010).

Organizations such as AB 540, involving undocumented students in similar situations, are not the only groups that offer support and encouragement. Other campus programs and clubs that offer networking opportunities, scholarships, and “cultural empowerment” are great ways for undocumented students to become involved and improve their future. Opportunities for civic engagement at the university level also aid undocumented students by helping them focus on making a difference in their own lives and in the lives of others. Post-secondary institutions can increase opportunities for civic engagement and community service as a way to help undocumented students (Coronado, 2010).

Conclusion As the undocumented immigration debate continues in America, there is one group of people that stand directly in the crossfire. This group, discussed at length in this work, consists of undocumented children and the American-born children of undocumented parents. Numerous factors have worked against these children, 12

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condemning them to a life of inequality and difficulties in this country. Harsh immigration laws, like the Immigration Reform and Control Act of 1986, have developed over the span of the 20th century with the goal of ending undocumented immigration.

Other factors that aggravate the situation which undocumented children face include society’s view on undocumented immigration. For example, the media consistently casts undocumented people in a negative right by referring to them as “illegals,� blaming them for increases in crime, and more. Many Americans, who oftentimes believe media stereotypes, form the opinion that undocumented immigrants are burdens to American society who live off welfare, do not contribute to this country economically, and more (Fear and Loathing, 2008).

These harsh laws and stereotypes take an immense toll on the lives of undocumented children in a variety of ways. They effectively become disadvantaged when it comes to education, access to social services, and more. These children, who are ineligible for federal financial aid, are oftentimes unable to attend college (Gildersleeve, 2010). Issues in the child welfare system also greatly affect these children and their families. For instance, when undocumented parents are detained or deported, their children may end up in foster care. Although foster care is supposed to be temporary until the family can once again be reunited, children of undocumented parents may linger in foster care or be put up for adoption if their parents do not complete the reunification plan in 15 months (Xu,2005).

Undocumented immigrant children, as they mature, realize that their opportunities to attain the American dream are limited. What hope is there, then, for this unique class of children to achieve success in the United States? Their only hope exists in the enactment of legal and social changes that will transform the way undocumented children are treated within this country. An important social change, for instance, includes changing the way the media perceives undocumented immigrants; perhaps the opinion of anti-immigrant media commentators cannot be changed, but their views can and should be challenged. Legal changes will allow undocumented children and the American born children of undocumented parents to receive necessary services and opportunities to survive and thrive in this country. For example, if the DREAM Act or some similar form of legislation is passed, undocumented children will have the opportunity not only to obtain college degrees, but also to obtain legal residency and citizenship (Dream Act). Other pieces of legislation that warrant attention include the Child Citizen Protection Act, which would allow the children of undocumented parents to speak to immigration judges and would, in turn, give those judges greater discretion to make the best decision for the children (Rep Serrano, 2006).

Although many federal legal changes have not been made to benefit undocumented children, there have been legal changes at the state level that will undoubtedly help this group of children. For instance, California now offers undocumented students access to state financial aid and many other states, like Florida and Illinois, are working to do the same. Other states, like Massachusetts, are allowing students to pay lower in state tuition rates (Kaiser, 2012). The best option for undocumented children as a whole would be if immigration reform took place, allowing them and their parents to pay fines, taxes, and, over time, become legal residents or citizens. This is unlikely to happen due to anti-immigrant sentiments and political views, but smaller legal changes, like those mentioned above, can be enacted that would greatly improve the lives of these children.

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Undocumented children and the American born children of undocumented parents have, in many ways, become disillusioned with visions that their parents may have had for them in this country. They once believed that America held the key to education, good jobs, and a successful life but due to lack of documentation, they only face hardship in reality. Regardless of the difficulties they face due to their lack of documentation, many of them still consider the United States of America their home. It is now time for America to claim this group of undocumented immigrants who have for too long suffered economically, emotionally, and much more, and enact changes that will allow them to feel at ease. Until then, the future of these children, held back from bright futures due to lack of documentation, remains dim and unpromising.

References 14th Amendment. (n.d). Legal Information Institute. Retreived from http://www.law.cornell.edu/constitution/amendmentxiv, 7 Oct. 2012.

Adoption and Safe Families Act of 1997 -Major Provisions of the Act. (n.d). Child Welfare Information Gateway. U.S. Department of Health and Human Services, Web. 20 Nov. 2012.

Anderson, Stuart. (2012). America’s Incoherent Immigration System. Cato Journal, 32 (1). pp. 71-84.

Banks, William J. (2006). The Domestic Debacle: The Need For Domestic Worker Visas In The United States. Florida Bar Journal, 80(4). Pp. 28-34.

Bennett, Marion T. (1966). The Immigration and Nationality (McCarran-Walter) Act of 1952, as Amended to 1965. Annals of the American Academy of Political and Social Science, September.

Cardoso, J., Gomez,R and Padilla, Y. (2009). What Happens When Family Resources Are Across International Boundaries? An Exploratory Study on Kinship Placement in Mexican Immigrant Families. Child Welfare 88 (6). Pp. 67-84.

Cole, David. (2012). United States 1, Arizona 0. Nation 295 (3/4) pp.4-6.

Comprehensive Immigration Reform Act of 2006. (2006, May 25). Council on Foreign Relations.

Consideration of Deferred Action for Childhood Arrivals Process. (n.d) U.S. Citizen and Immigration Services. U.S. Citizen and Immigration Services.

Retrieved from: http://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-process 14

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Coronado, Heidi et al. (2010). 'Cursed And Blessed': Examining The Socio-emotional And Academic Experiences Of Undocumented Latina And Latino College Students. New Directions for Student Services. 131. Pp.35-51.

Davis, Stephen. (2004). Deported From America. (Cover Story). New Statesman 133(4715). Pp.14-16.

Donato, Katharine M., Durand, Jorge and Douglas S. Massey, Douglas S. (1992).

Changing Conditions in the US Labor Market: Effects of the Immigration Reform and Control Act of 1986. Population Research and Policy Review, 11.

DREAM Act. (n.d). Dream Activist. N.p Retrieved from: http://www.dreamactivist.org/text-of-dream-act-legislation/ Drop I-Word Campaign Background. (n.d). ColorLines. Applied Research Center.

Retrieved from http://colorlines.com/droptheiword/resources/en/about.html Ewing, Walter. (2010). The Many Facets of Effective Immigration Reform. Society 47 (2). pp. 110-117.

Fear and Loathing in Prime Time. (2008, May 21). Media Matters Action Network.

Media Matters Action Network.

Gildersleeve, Ryan Evely, Rumann, Corey and Rodolfo Mondrag贸n, Rodolfo. (2010).

Serving Undocumented Students: Current Law and Policy. New Directions for Student Services 131. pp. 5-18.

Immigration. (2012, September 15). Cornell University Law School. Legal Information Institute.

Immigration in the early 1900s, (n.d) Eye Witness to History. Retrieved from http://www.eyewitnesstohistory.com/snpim1.htm Kaiser, Johanna, and Levenson, Michael. (2012, November 19). Patrick Says Tuition Breaks Are Just First Step Toward Wider Immigration Changes. Boston.com. The New York Times.

Milliman, James E. (n.d). Anchor Babies - A Legal Opinion. Kentucky Political Review.

Retrieved from: http://www.kentuckypoliticalreview.com/?p=2168 Mnookin, Robert H., and Weisberg, D. Kelly (2009). Child, Family and State: Problems and Materials on Children and the Law. 6th ed. New York: Aspen, NY. Print.

O'Reilly, Andrew. (2012, 25th September). Undocumented or Illegal: Media Outlets Battle over Immigration Terms. Fox News Latino. Fox News Latino.

15

Ramapo Journal of Law and Society

Plyler v. Doe. No. 80-1538. Supreme Court of the United States. 15 June 1982.

Rep. Serrano Introduces 'Child Citizen Protection Act'. (2006). US Fed News Service, Including US State News: n/a. Mar 29.

Rubio, Angelica. (2011, Nov-December). Undocumented, Not Illegal: Beyond the Rhetoric of Immigration Coverage. NACLA Report on the Americas Nov.-Dec. Suรกrez-Orozco, C., Yoshikawa,H., Teranishi, R. and Suรกrez-Orozco, M. (2011). Growing Up in the Shadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review 81(3). pp. 438-474.

Tebo, Margaret Graham. (2007). Who's A Citizen?. ABA Journal 93.(1), pp.32-33.

U.S. Immigration Legislation: 1965 Immigration and Nationality Act (Hart-Cellar Act). (n.d) U.S. Immigration Legislation Online. N.p..

Wessler, Seth F. (2011, November). Shattered Families - The Perilous Intersection of Immigration Enforcement and the Child Welfare System. Applied Research Center.

Applied Research Center.

West, Darrell M. (2011). The Costs and Benefits Of Immigration. Political Science Quarterly 126(3). pp. 427-443.

What Is Social Justice? (n.d). Center for Nonviolence and Social Justice. Drexel University's School of Public Health.

Retrieved from: http://www.nonviolenceandsocialjustice.org/FAQs/What-is-SocialJustice/43/ Xu, Qingwen. (2005). In the "Best Interest" of Immigrant and Refugee Children: Deliberating on Their Unique Circumstances. Child Welfare 84(5). pp.747-770.

Yablon-Zug, Marcia. (2012). Separation, Deportation, Termination. Boston College Journal of Law & Social Justice 32.(1). pp. 63-117.

Yocum-Gaffney, DeAnn et al. (2010). Sharing Their Secrets: Undocumented Students' Personal Stories of Fear, Drive, and Survival. New Directions for Student Services 131. pp.67-84.

Zayas, L. (2010). Protecting Citizen-Children Safeguards Our Common Future. Journal of Health Care for the Poor and Underserved 21(3). Pp.809-814.

Zimmerman, Arely M. (2011). A Dream Detained: Undocumented Latino Youth and the DREAM Movement. NACLA Report on the Americas 44(6). pp. 14-17.

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Yearning to Breathe Free in the Land of Opportunity

Zug, M. (2011). Should I Stay or Should I Go: Why Immigrant Reunification Decisions Should Be Based on the Best Interest of the Child. Brigham Young University Law Review 2011(4). Pp. 1139-1191.

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Legal Culture in the GMO Debate

Throwing Caution to the Wind: An Examination of the Influence of Legal Culture in the GMO Debate MEREDITH PRICE * Take a look at the food on your plate and picture where it came from. It is more than likely that the image you now have in your head is of a farm—vast and green with grazing cows, or saturated with fruits and vegetables slowly ripening under the sun. The idea of the happy, small family farm is one that most Americans still hold dear, but in most cases it could not be further from the truth of American food production. A more realistic image is that of a “factory farm”—a farm so large, it is tended to by groups of laborers using industrial machines. Scientists in a laboratory have inserted mutated genes into the plants, thereby changing their chemical composition to display specific traits. They have then patented and sold these seeds to the farmers who are now locked into a system that demands ownership and control of “natural” products, but flouts the risk.

Although the prospect of cheap and plentiful food is very appealing to society, its impact on health, the environment, and corporate power is far greater than we believe.

Our food production systems have shifted to food developed in a laboratory. From fresh fruits and vegetables, to corn-derived additives and sweeteners present in almost all packaged goods, genetically modified organisms (GMOs) today are found in every section of the grocery store (Pollack, 2009). In 1992, the Flavr-Savr tomato—designed to prevent rotting without sacrificing taste or texture —was the first genetically modified food product introduced on the commercial market (McCabe, 2012; Pollack, 2009; Pew Initiative, 2001). Since then, the prevalence of genetically modified crops has increased dramatically. It is estimated that in 2009 approximately 93-percent of soy, 93-percent of cotton, and 86-percent of corn grown in the U.S. were genetically modified varieties.

Additionally, 90-percent of canola is GMO and it is estimated that 80-percent of packaged food products in an average U.S. grocery store contains at least some GMO ingredients (Pew Initiative, 2001). It is likely all Americans have been exposed to genetically modified organisms at some point in their lives. For most Americans, that exposure occurs multiple times every day.

In popular discourse, mechanized agricultural production and genetically modified food are seen as symbols of our incredible technological progress, powerful free market, and successes in innovation. GMOs are celebrated in the biotechnology community as the panacea to food insecurity. Proponents of genetic modification note the potential for these foods to benefit both the producers and consumers. Higher yields and drought and pest resistant crops could offer substantial profit increases for farmers as well as enable them to keep up with increased demand. Consumers could benefit from increased nutritional profiles and the farmers’ savings could allow the food to be more financially accessible (Pollack, 2001).

However, these may be short-term gains only, ignoring the potential for longterm costs. Crop resistance to herbicide and pesticides could lead to resistant *

Meredith Price is a 2013 graduate of the Law and Society program at Ramapo College of NJ.

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“superweeds” and “superbugs.” Cross-pollination could contaminate organic and conventional crops and risk permanently altering the genetic makeup of a crop species, thereby wreaking havoc on biodiversity and the ecosystem (McCabe, 2012). In addition to the threat posed by GMOs to human and environmental health, there is also uncertainty about the implications of allowing corporations to effectively own and control a major access point to food security, namely seeds.

The introduction of genetically modified organisms into the commercial food supply has met significant criticism regarding its ethical, environmental, and potential health related implications. Despite claims and promises by the scientific and policy communities, GMOs are a new technology that is not without risk.

It becomes necessary to ask how and why GMOs are supported in our legal culture despite their potential risks. How has the United States Supreme Court shaped the debate about GMOs in the U.S., and has it been protecting citizens’ rights? Through an examination of the U.S. Supreme Court ruling in Monsanto v Geertson Seed Farms (2010), my paper will highlight that, in keeping with a legal culture that values majority interests, the Court’s concern for the protection of economic interests has trumped its responsibility to protect the wellbeing of its citizens. In Monsanto, the Supreme Court allowed Monsanto to introduce genetically modified alfalfa to the commercial market prior to the full completion of an environmental impact assessment. This decision illustrates that the U.S. legal system favors the economic interests of corporations over the liberties of its citizens. In comparison, the European Union requires a very strict and thorough examination of environmental impact prior to its consideration of a GMO for approval and exercises significant precaution in its approval process. Where the decisions of EU lawmakers are shaped heavily by a culture of protecting minority interests and advancing precaution over innovation, the legal culture—and thus the legal system—in the United States is heavily influenced by money, power, and scientific advancement.

This paper is concerned with the influence of legal culture on the design and implementation of the regulatory system for GMOs. I will begin with a brief overview of the historical and scientific background of this technology, its commercial production and how law has attempted to regulate GM foods. Next, an examination of legal culture in America—with a long standing propensity toward furthering economic interest wherever possible—provides valuable insight into the inevitability of and political resistance to change the current regulatory system. Finally, I will contrast these ideas with the European legal approach and examine what the future implications of these ideas hold in store ethically, environmentally, and legally.

Historical context of GMOs Attempts to modify the genetic makeup of plant and animal species have existed since Gregor Mendel’s famous experiments with pea plants in the 19th century. Mendel provided a method to selectively breed species to create hybrids that could produce offspring with desired characteristics. Hybrid plants required farmers to identify dominant and recessive genotypes and crossbreed plants until the offspring expressed the desired gene—whether size, color, or some other quality. This process was expensive and time consuming, as it often took several plant generations to produce the desired outcome (Genetic Roulette, 2012). Genetic modification is a next step in this scientific endeavor. In the quest to make food easier and cheaper to produce, scientists began to 19

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explore other means of interference with plant species. Though both methods of intervention involve the natural process of cross-pollination to reproduce, hybrid plants begin naturally, progress naturally, and result naturally. By contrast, genetically modified species begin by being manually reconfigured in a laboratory, progress naturally through cross-pollination, but result in crops that display the unnaturally derived characteristic.

To better understand this approach, a brief overview of the scientific process is necessary. Biotechnology encompasses the field of using organisms to enhance or make something more useful, and most commonly applies to food and medicine. A specific form of this technology, genetic modification, is the process by which a specific gene is isolated and manipulated and then reinserted into another organism to produce a desired effect.

Currently, the most common commercially available GMOs are crops that are resistant to specific herbicides or to common pests. For example, Monsanto produces a strain of soybeans known as RoundUp Ready Soybeans. This crop is resistant to the chemical glyphosate, which is the primary ingredient in Monsanto’s RoundUp herbicide. A farmer who has planted the GM soybeans can spray his entire field with the herbicide and kill only the weeds—thereby saving time and money (Genetic Roulette, 2012).

Some critics of genetic modification argue that the scientists creating these products are “playing God.” Indeed, the prevalence of GMOs has increased significantly and the natural boundaries of crop production have been pushed with little concern for potential limitations. As the American government continues to support powerful biotech companies and exercise weak oversight, and as these companies continue to express little concern for the potential for harm from their actions, we risk creating a system that disregards consequences until it is too late to rectify any damage done.

The introduction of genetically modified organisms has already altered the nature of food production. Unlike the earlier methods of creating hybrids, GMO production relies on technological intervention and hence, the process has allowed the corporatization of agriculture. Large agribusiness companies fund the multimilliondollar process of research and development of GMOs. Farmers must purchase the seeds from the developer, or their authorized distributor, and are required to sign a contract that allows the corporation to sue them if they save their seeds, rather than continue to purchase from the corporation each season. It is also extremely difficult for farmers to stop planting GMOs and revert back to conventional or organic farming, both due to the contracts and due to the increased potential of cross contamination once GMOs have been planted in their fields (Genetic Roulette, 2012). Nonetheless, these technologies are advancing rapidly and are becoming extremely prevalent in American agricultural practices, and thus the commercial food market (Pollack and Shaffer, 2009).

Biotechnology companies such as Monsanto, DuPont, and Syngenta—who together account for nearly half of the world’s proprietary seed market (ETC Group, 2008)—are using scientific technology to alter the genetic makeup of plants and animals in a process that is much faster and far more profitable than traditional agricultural science (Pollack and Shaffer, 2009). The potential benefits offered by this technology are exciting, yet the intersection of financial power with control over natural resources is of great concern.

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The GMO debates As awareness of GMOs increases, so does the debate about their safety and necessity. For some, the possibility of harm coupled with the mere fact that human life has managed for so long without this technology is enough to call for a ban on the technology. Still, others believe it offers the ability to support the growing population sustainably and effectively.

Proponents of GMOs emphasize their potential ability to address growing food concerns throughout the world. With the global population already estimated at over 7 billion people and expected to continue to increase exponentially (World POPClock), pressure is mounting on scientists and governments to come up with ways to ensure the food supply can keep up (Charles, 2013). They argue that the ability for genetically modified crops to resist pests and herbicides will enable farmers to generate higher yields at lower prices (Pollack and Shaffer, 2009). Additionally, because farmers are often unable or unwilling (when it is not cost-effective) to remove weeds with nonchemical means, herbicide resistant crops can minimize the amount of herbicides farmers must use on their fields (Whitman, 2000).

Late frosts, drought, and disease are also major threats to crops. In addition to protecting crops from loss, this technology could allow crops to be planted in geographic locations where that might not otherwise be suitable (Whitman, 2000). This could increase accessibility to a wider range of food products, especially in poor and developing nations (Charles, 2013). Disease resistance in particular is also being studied in hopes of aiding animal populations (Genetic Roulette, 2012).

Finally, a significant potential benefit of GMOs is increased nutrition. Scientists and GMO advocates argue that we will not only be able to feed the growing population, we will be able to provide them with more adequate nutritional profiles (Whitman, 2000). Foods that are lower in calories and saturated fat content are appealing to western consumers, and foods containing higher vitamin and mineral contents could alleviate malnutrition concerns in third-world countries (Pollack and Shaffer, 2009).

One example of a nutritionally beneficial GMO that has recently been developed is “Golden Rice.” Vitamin A deficiency in several developing nations, particularly in Asia and Africa, is a major concern. Several researchers discovered the answer could lie in rice, a staple food that is both readily available and easily affordable. Using GM technology, a strain of rice has been developed—golden in color because it contains high levels of the Vitamin A precursor beta-carotene. In fact, one serving of this rice can provide 60-percent of a child’s daily Vitamin A intake (Charles, 2013).

Unfortunately, genetic modification, like any science, is not without risk. Critics point out that the process is not as simple as isolating and manipulating only one aspect of the organism (Bessin, 2004; Pollack and Shaffer, 2009). The genetically modified gene must be inserted into the organism along with a genetic sequence that promotes the expression of the modified gene (Bessin, 2004). Therefore, critics argue that the process may have unintended consequences that are not yet fully understood (McCabe, 2012).

The lack of long-term research is also a concern for GMO critics because they worry about potential effects both to the health of humans and animals, and to the environment. Studies on mice raised on genetically modified feed have noted reproductive difficulties, tumor growth, and neurological delays. Some medical professionals also warn that there is not enough conclusive evidence pointing to the 21

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safety of GMOs for human consumption. Additionally, the fact that GMOs are a recent introduction to the food supply means the long term effects cannot yet be studied. These critics also point to a correlated increase in food allergies and diet related disease, (such as diabetes, warning that it is too soon to rule out a possible causation link (Genetic Roulette, 2012). With regard to the environment, critics argue that farmers are actually increasing the chemical load on their fields in response to the development of insects and weeds that are contracting the resistant genes.

Finally, the possibility of cross-pollination threatens conventional crop integrity and could permanently alter the ecosystem by rendering non-GMO plant varieties extinct. Conventional farmers, moreover, have experienced significant profit loss due to cross contamination, particularly if they generally export their crops to countries that banned GMOs (McCabe, 2012). When rice that had been exported to Europe was found to have strains of a genetically modified organism initially developed for corn and approved only for animal feed, Europe halted all rice imports from America. Other countries, including Japan and even Iraq, called for extensive testing on all rice imports.

As a result, rice prices fell dramatically and it was the farmers who bore the financial burden (Gunther, 2007).

The question that many consumers, organic food advocates, scientists, and even medical professionals have begun to ask is why. Why are consumers not being afforded the right to choose whether or not to purchase or consume GMOs due to the lack of mandatory labeling policies (Rich, 2004)? Why is the federal government so confident in the safety of these products despite potential risks (Pollack and Shaffer, 2009)? Why does it seem that the corporate interests of large biotechnology are receiving special protections and approval processes for their products (Mandel, 2004)? And why are conventional and organic farmers not formally protected from obvious negative implications of GMOs, such as cross-contamination (Grossman, 2002)? The biotechnology corporations promise their products are safe. The government seems to agree but chooses not to respond to these concerns outright.

GMOs and the law In the legal domain, the discourse on GMOs is mostly approached from the perspective of ownership and control of the product, and regulation to ensure the safety of the products. The concern regarding ownership and control stems from the fact that large biotech companies patent their new technologies and sell them to farmers in a way that has never been done before. Prior to the advent of genetic modification, most farmers would purchase seeds, plant and harvest their crop, and save the seeds from their crop to plant again for a smaller, less profitable harvest. Additionally, if any crosspollination might occur between farms it was generally not problematic. By patenting their genetically modified seeds, corporations are assuming ownership of what it technically still is a life form, they are selling the seeds to farmers who must sign a contract that requires, among other things, that the farmer not save any seeds (so he must buy more if he wishes to plant a second harvest). Additionally, if and when crosspollination occurs and the genetically modified genes are discovered in a neighboring farm, that farmer can be sued for patent infringement (Genetic Roulette, 2012). What farmers grow and how they grow it has become property of a third, much larger and more powerful, party.

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Safety regulation applies to most new technologies. The primary objective is to ensure that the environment and human health are not negatively impacted. GMOs are regulated collaboratively by the Food and Drug Administration (FDA), the United States Department of Agriculture (USDA), and the Environmental Protection Agency (EPA).

This structure is outlined in the Coordinated Framework for the Regulation of Biotechnology, which was adopted in 1986. This regulatory system relies on the assumption that genetically modified crops do not vary significantly from their conventional counterparts and are therefore generally considered safe. Additionally, it places the burden of proof regarding the safety of the products in the hands of manufacturers (McGarity, 2002; Pew Initiative, 2001; Pollack and Shaffer, 2009).

The three agencies apply over ten statutes and dozens of regulations in their oversight of biotechnology. However, all of these laws were written prior to the advent of GMOs, and struggle to keep up with the rapidly advancing technology (Pew Initiative, 2001). In 1986, it was decided that biotechnology could be adequately regulated using the existing regulatory systems in place for new commercial products. Applications for a product derived from biotechnology are typically reviewed first by the USDA. The USDA division with the principal responsibility for reviewing these articles is the Animal and Plant Health Inspection Service (APHIS). After its review by APHIS, an article is typically reviewed by the EPA and the FDA (Belson, 2000). This three-pronged system is confusing and leaves open several loopholes. It also creates a lack of responsibility and makes it difficult to find and address systemic problems.

In order for an agency to authorize the deregulation of a GMO, it must comply with the National Environmental Policy Act (NEPA), which requires an environmental impact statement when a federal decision or action will affect the quality of the human environment. NEPA was enacted in 1969 but plays a significant role in the GMO approval process as it is written. Though the act requires that assessments of environmental impact be conducted thoroughly and early in the approval process, the walk and talk of law seem to differ. An agency must first conduct an environmental assessment and if it finds potential for significant impact, a more complex environmental impact assessment is completed. Therefore, should an environmental assessment conveniently find no such impact, the more thorough analysis is not completed (Belson, 2000). Following this approach, there have been multiple instances in which the USDA has created “fast-tracks” for approval, leading to deregulation prior to ensuring full compliance with NEPA (McCabe, 2012; McGarity, 2002). In fact, after the Liberty Link rice controversy, the USDA retroactively approved the “contaminated” rice, stating that the “mutant” genes were no different from the ones that had already been approved for canola and corn (Gunther, 2007).

The findings of no significant environmental impact generally echo the idea that GMOs are similar enough to their conventional counterparts that additional scrutiny is unnecessary. That the current laws rely heavily on the principle that GMOs are generally regarded as safe (GRAS) poses problems regarding the legitimacy of regulation.

Consultations regarding the GRAS principle are voluntary, and manufacturers are not required to disclose their test protocols (McGarity, 2002).

Recently, certain cases that did not fall under the regulation of the EPA were evaluated for environmental risk by APHIS. The National Research Council criticized APHIS’s evaluations for lacking scientific rigor, balance, and transparency. They have also been criticized for relying too greatly on existing scientific literature and data, 23

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rather than conducting adequate testing and research regarding the specific new products under review. Additionally, once APHIS approves a plant for deregulation, it no longer has the authority to monitor and review it for unanticipated consequences (Mandel, 2004).

The regulatory problems exist throughout each agency. The EPA, for example, has authority only over the producers of pest resistant plants but not over the growers.

Additionally, once a GM product has been deregulated, manufacturers are not required to notify the FDA prior to commercial introduction of the GMO to their products (Mandel, 2004).

Thus far, the law has approached GMOs with fairly open arms. By considering them “generally safe,” allowing the developing companies to conduct and report on their own tests, and by creating fast tracks to approval, the American legal system expresses little concern over the potential risks involved. A legal system is driven by its legal culture, and a look at the economically based legal culture present throughout American history provides insight into the government’s unsurprising position on GMOs. The American legal culture Legal culture is a dynamic term that must be further clarified to understand its relationship to the GMO debate. One school of thought argues that the law merely serves to codify appropriate behavior based on determinations already made by culture.

Another approach is the concept that culture and the law develop together. Law is so embedded in culture that it has some power to manipulate society, but that same culture ensures that the law is reflective of the needs of the people. Law gives meaning and the ability to associate oneself in the social world with others, and the social world exerts certain influence over the law and the institutions that create it (Mautnet, 2011).

Throughout American history, it is evident that property and financial interests exert a heavy influence on the law and the development of the nation’s legal system.

John Locke’s theory of property is one key ideological influence. In the Second Treatise on Civil Government, he argues that property is essential to survival and individuals enter into society for the purpose of protecting their property rights. A government that fails to uphold these rights is failing in its duty and can be overthrown.

Industrialist Andrew Carnegie published his essay The Gospel of Wealth in 1889.

He argues that property rights are embedded in our capitalist society and are essential for progress. He writes, “One who studies this subject will soon be brought face to face with the conclusion that upon the sacredness of property civilization itself depends.”

The fact that wealth and power accumulate among a few individuals and corporations is the basis of the competition that drives innovation and hard work.

The government begins to involve itself increasingly in financial and labor matters by the late 19th and early 20th century, most (in)famously in the 1905 US Supreme Court case Lochner v. New York. In Lochner, the Court clearly privileged the freedom of contract between employer and employee and economic freedom above all else (in this case, the fundamental rights of employees). Over the years, the law increasingly protected the interests of large, wealthy players—namely corporations. The government has used its power of eminent domain, for example, to further private interests, rather than the public good. Eminent domain allows the government to take private property for the “public good” and with just compensation. However, the public use requirement has been broadly interpreted, most recently in the landmark Supreme 24

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Court decision Kelo v. City of New London (2005), where the Court interpreted private development as permissible public use (under the 5th Amendment). The Court is clearly willing to take on cases of corporate interest versus individual property owner, and favor corporate interests.

In Citizens United v. Federal Election Commission (2010), moreover, the Court went a step further and argued that since the First Amendment protects associations of individuals in addition to the individuals themselves, and a corporation is an association of individuals, its effective personhood is protected by the constitution. This model of corporate personhood is deeply problematic. The recognition of corporations as people is a flawed concept that greatly undermines the role of government. Corporations and people are fundamentally different, in that corporations can be bought, sold, and dissolved, but do not die. Moreover, a corporation has the ability to exercise far more power and influence than any individual because of its visibility, breadth of personnel, and financial resources. Granting corporations similar rights as people prevents the law from properly protecting individual interests.

The government has a unique ability, and responsibility, to interpret law to address the most pressing societal issues. The extreme likelihood of crosscontamination and the severe environmental affects that would stem from that are reality, not speculation. The financial harm that farmers face on the organic or export markets should their consumers become concerned over the possibility of GMO contamination has been documented. While the law as it is written does not fully address these problems, the law as it is interpreted has the potential to distinguish this technology as unique and worthy of special consideration. Instead, in a similar approach to the Citizens United case, the Court has chosen only to consider the matters before them as they appear at first glance. Considering corporations as people or GMOs as conventional crops is flawed reasoning that can be attributed to the legal culture outlined above.

Monsanto v. Geertson Seed Farms In 2005, APHIS decided to deregulate Monsanto’s genetically engineered alfalfa called RoundUp Ready Alfalfa (RRA). Concerns about the possibility of cross contamination with organic and conventional crops and the creation of “super weeds” through transfer of the herbicide resistant gene led to unrest among conventional and organic farmers. In response to this decision, two alfalfa farmers joined by food and environmental safety nonprofit organizations sought an injunction barring APHIS from executing its deregulation decision and thereby Monsanto’s ability to plant the RRA (Gerendasy, 2010).

Monsanto v. Geertson was the first US Supreme Court ruling regarding genetically engineered organisms, basically allowing Monsanto to sell genetically modified alfalfa seeds to farmers prior to the full completion of an environmental impact assessment. The case had significant implications for the way in which GMOs would be regarded by the government in the future. When the decision was announced, both sides claimed victory (Leslie, 2010). However, further examination of this case reveals a missed opportunity for the Court to take a real interest in the potential for harm inherent in GMOs. The judicial passivity shown instead was likely linked at least in part to the economically driven legal culture of this country.

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Monsanto is the nation’s leading agricultural biotechnology company, with annual revenue over $13 billion and a global operation that spans 66 countries, according to its website. It has also grown to be the nation’s top agricultural lobbyist, with annual spending of nearly $6 million dollars (Center for Responsive Politics, 2013).

The company began in 1901 as a chemical company. In 1982, Monsanto scientists were the first to genetically modify a plant cell. Since then the company has invested considerable time and resources on the research and development of genetically engineered plants, including the alfalfa in dispute in this case.

Geertson Seed Farms, the respondent in this case, is a farm that produces and markets conventional crops. Because alfalfa is largely bee pollinated and the bees are capable of travelling long distances, their primary concern was the potential for crosspollination of the genetically modified variety with their conventional variety. Their buyers could refuse to buy their contaminated alfalfa, and the cost of field-testing to ensure their product was free from contamination would force them to raise their prices, significantly reducing their market viability (Leslie, 2010).

When APHIS authorized the deregulation of Monsanto’s Round Up Ready Alfalfa (RRA), Geertson Seed Farms sued, claiming that because the decision was rendered prior to the completion of an environmental impact assessment (EIS), it was in violation of the National Environmental Policy Act. The District Court vacated APHIS’s deregulation decision, ordered them not to review the deregulation petition again, whether full or partial, until the EIS was completed, and enjoined almost all planting of the genetically modified alfalfa until the completion of the EIS. It was the injunctive relief that became the focus of appellate review, and the Court of Appeals affirmed this decision.

The issue before the US Supreme Court was two-fold. First, they looked to determine whether Geertson had standing to seek injunctive relief in the first place.

Case law holds that standing to seek injunctive relief requires the plaintiff to show a “likelihood of irreparable harm” absent the relief. On this matter, the Court determined that there was, in fact, significant enough reason to believe that the potential for conventional crop contamination existed should the GM alfalfa be completely deregulated, and that this could likely lead to further harm by requiring the farmers to conduct testing, obtain certification, and take additional means to minimize contamination that would increase their operating costs substantially.

Next, the Court examined the decisions of the lower courts to prohibit APHIS from enacting a partial deregulation and enjoin future planting of the alfalfa pending the results of the EIS. The Court stated that there is a four-factor test that must be met before an injunction can be issued. The plaintiff must demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available by law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” The Court reasoned that Geertson could not prove that they would suffer irreparable injury should a partial deregulation be allowed. Without reason to block a partial deregulation the Court argued that there is no standing to issue the extraordinary remedy of injunctive relief, so the decision to prohibit future planting of RRA was misguided.

The Court’s interpretation of the applicability of the four-factor test in this case is particularly interesting. The Court determined that because the harm that Geertson was 26

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concerned with was not certain, an injunction would be an overextension of government power. Additionally, the Court stated that Geertson could not prove that they would suffer significant injury if APHIS were to proceed with a partial deregulation. The Court reasoned that injunctive relief was not needed and should not be used “to guard against any present or imminent risk of likely regulation of harm.” Choosing not to accept the potential for risk as a genuine and tangible risk in itself, the Court ignores caution and supports the regulatory assumption that GMOs are inherently safe.

The nature of the outcome reveals support for large business enterprises like Monsanto over small farms like Geertson. Wealthy corporations have the financial power and legal means to fight multiple numerous battles, whereas small farmers are at an obvious disadvantage in this area. Having to initiate new legal action each time APHIS grants partial deregulation of a genetically engineered crop is simply not feasible for those who would be most threatened by this action. This leaves the door open to Monsanto to continue its development and deregulation petitions without regard to any additional legal constraints unless farmers are able to develop and afford a strong legal case each time.

The Court argued that “a partial deregulation need not cause respondents any injury at all, much less irreparable injury; if the scope of the partial deregulation is sufficiently limited.” If APHIS were to allow planting of RRA in only remote areas, with mandatory isolation distances from other plants, and a new environmental assessment (the preliminary assessment, prior to the EIS) finds a limited risk of environmental harm, then it is likely that conventional and/or organic farmers will be unable to demonstrate a reasonable likelihood of irreparable harm. Therefore, the Court found that a complete deregulation in this case does not require the respondents to fully demonstrate the first of the four factors required for injunctive relief.

In this analysis, the Court errs in its requirement that the plaintiff bear such a heavy burden of proof. Once again, this would require means and resources that the farmers are unlikely to acquire on an ongoing basis. Additionally, the Court recognizes that the science is simply not all there; current evidence points to the significant possibility of irreparable harm from genetically modified organisms, but due to the fact that this is a relatively recent scientific process, long term definitive studies are simply unavailable. However, no definitive studies are available to demonstrate the safety of these organisms either. Clearly, the Court favors the interests of biotech companies by failing to consider the unique attributes of biotechnology.

The power of these large agribusinesses is evident in their handling of cases of contamination. In 2006, the USDA announced that traces of Bayer CropScience’s genetically modified “Liberty Link Rice,” which had not been approved for human consumption, had been found in conventional rice. Japan and many European countries banned US rice imports, leading to serious financial losses for farmers. Nearly 11,000 farmers filed more than 400 lawsuits, which were eventually combined in federal court in Missouri (Patrick, 2011).

Ultimately, a settlement was reached in which Bayer CropScience agreed to pay farmers in five states up to $750 million dollars in damages (Patrick, 2011). The settlement included no requirements for change or additional action on the part of Bayer CropScience. With revenue reaching $10.8 billion dollars in 2012 (Ranii, 2013), the settlement caused little concern to the company compared to the potential for increased inquiry that may have arisen from continued judicial review.

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Because companies such as Monsanto and Bayer CropScience have the financial ability to protect themselves from increased scrutiny and to continue litigation for as long as necessary, the current system of judicial review once an injustice has occurred is inadequate. Additionally, requiring farmers to carry the burden of proof that a GMO is dangerous rather than requiring the manufacturer to demonstrate its safety is equally unfair. The research is simply not available to provide a concrete understanding of what these organisms will do to the environment and human health.

GMO takeover Since Monsanto v. Geertson, the prevalence of GMOs in commercial food production has only increased. Without a requirement to distinguish or label their products any differently, and with the ability to produce cheaper crops to be translated into more profitable foodstuffs, corporations such as Coca-cola and Kellogs have joined Monsanto and the other agribusiness corporations to promote the use and development of GMOs despite growing public concern. As discussed above, the power of corporations is often considerably stronger than the power of individuals, and the government thus far continues to listen to the loudest, or richest, voice. The regulatory system remains the same, and the FDA, USDA, and EPA continue to champion the technological advances while mitigating the risks (Genetic Roulette, 2012). Nonetheless, Monsanto v.

Geertson was a heavily publicized case, and was certainly instrumental in mobilizing food advocacy groups and the general public.

Indeed, public awareness of the controversies and concerns surrounding the government’s support of big agribusiness has also expanded. In 2012, advocacy groups and organic companies spent approximately $6.7 million dollars in support of California’s Proposition 37, which would have required food products containing GMOs to be labeled as such. Major US food and biotech companies, by contrast, spent more than $45 million on their campaign to reject this requirement. The measure was defeated by only 6 points, but the overarching debate about GMO labeling did not lose much steam (Finz, 2012).

The debate about whether or not GMOs should be labeled stems primarily from the concepts of civil liberties and market economics. On the one hand, proponents of GMO labeling argue that the protection of consumer choice depends on availability of information. Irrespective of the safe versus not safe debate, advocates of this approach argue that people should be able to make informed decisions about the food that they buy and consume. Those against mandatory GMO labeling, most notably the agribusiness and food production companies, argue that labeling GMOs lends support to the idea that they are fundamentally different from their conventional counterparts which is not in line with precedent and could threaten the marketability of their product if the public equates “different” with “bad” (Harmon, 2012).

Another recent development generating severe public outcry is the passage of the “Consolidated and Further Continuing Appropriations Act, 2013.” The bill contained a section known informally as the “Monsanto Protection Act.” Section 735, as it is officially known, was anonymously slipped into the bill and provides significant legal protection for biotech companies (McLendon, 2013). Specifically, the law states that once a crop has been deregulated, farmers cannot be stopped from planting the crops during disputes such as the Monsanto v. Geertson case. While it does not prevent biotech corporations from being sued, it does allow them to continue to profit from their 28

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genetically modified seeds while legal action is ongoing (AgriView, 2013). Since Monsanto set a precedent for demonstrating harm that is difficult to prove, we now have a legal environment that allows biotech corporations to profit until potential risk turns into actual and potentially irreversible harm.

The current regulatory system does not include clear requirements for procedures and safeguards for GMO testing. This inadequacy coupled with the fact that the developers conduct their own testing leads to insufficient, and often nonexistent, oversight of field trials. Furthermore, this discovery illustrates that unapproved—and potentially dangerous—GMOs cannot be fully or reliably contained before market approval (Hubbard and Hassanein, 2013).

The mysterious reappearance of genetically modified wheat two months after passage of the MPA lends significant credibility to the concern that the implications of GMO technology may be more far-reaching and less controllable than we would like to think. Unfortunately, the ongoing dispute over GMO labeling and the fact that a law was passed protecting biotech interests at the expense of public or environmental health indicates that the GMO debate is far from over. While the U.S. is trying to apply old rules to a new and rapidly advancing technology, the uncertainty surrounding this new technology is precisely why the European Union takes a different approach to the regulation of GMOs in its member countries.

EU regulation Lacking the same financially driven legal culture and embracing a stance that values public opinion, the European Union is more restrictive in its approach to GM crops. In 2009, while the US produced 64 million hectares of GMO crops, the EU produced only 94,750 hectares (GMO Compass). While the EU does permit some GMOs, they are based on stringent environmental harm assessments using the precautionary approach, require labeling, and a significantly more complicated approval process. In addition to approval from the EU, each member state has an opportunity to accept or reject a proposed GMO within its borders.

The EU focuses its regulation on the prevention of potential harm. In the absence of clear and sufficient evidence pointing to the safety of a product, the EU chooses to adopt a “precautionary principle,” whereby it is determined that the risks are too great to be compatible with the high regard for safety that guides its approach to GMO regulation. This principle places the burden of proof of a product’s safety on the developers, and the burden of proof that the crops are planted according to safety standards on the farmers. To gain approval, developers must demonstrate that their product is safe and outline any preventative measures to ensure that safety. Once approval has been granted, farmers are required to do everything in their power to ensure the safety of their crops (European Commission).

This precautionary principle is the guiding force behind the EU regulatory system for GMOs. In 2002, the European Commission established a new EU agency, called the European Food Safety Authority (EFSA), responsible for risk assessment, food safety information, and food safety emergency response (Pollack and Shaffer, 2009). The current regulatory framework in the EU requires strict traceability and labeling requirements for any GMOs released into the commercial market. The objective of these laws is to protect human health and safety, environmental welfare, and consumer choice. In contrast to US policies, the EU approaches GMOs as “novel” foods, rather 29

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than equivalent ones: “Whilst substantial equivalence is a key step in the procedure for assessment of the safety of genetically modified foods, it is not a safety assessment in itself” (Regulation 1829/2003). This concern is also expressed in the handling procedures required by the EU. Strict separation of conventional and genetically modified crops and labeling requirements reflect public preference and consumer interests. To ensure consumers are able to make an informed choice, any product that is genetically modified or contains genetically modified ingredients must be clearly labeled. Throughout this regulatory framework, the interaction of law and society is respected in its implications, and choice and transparency are fundamental considerations.

The EU approval process is designed to ensure an approved GMO does not pose any significant health or environmental risks (Europa). When applying for approval, a biotech company must submit, along with its application, studies showing that the GMO is not dangerous and is substantively equivalent to its conventional counterpart, methods for testing for the GM content, and suggestions for labeling of the product. The information is submitted to the EFSA who are responsible for conducting a risk assessment within 6 months. The EFSA consults the EU reference laboratory to evaluate the submitted detection methods, and a scientific evaluation of the GMO by an expert panel is conducted to confirm its safety. The EFSA issues a decision for approval or rejection, which is accompanied by their suggestion for product labeling, an environmental monitoring plan, and any restrictions or conditions of the GMO authorization such as post-market monitoring. The European Commission makes the final decision and is responsible for risk management. Once a GMO is approved, it is entered into a public database and is valid for ten years (GMO Compass). However, the EU has enacted an additional safeguard, whereby member states can ban a GMO within their boundaries should they find any additional information or studies that generate a legitimate safety concern. For example, while Monsanto’s MON810 maize is approved in the EU, it is banned in Germany, Austria, Bulgaria, France, Greece, Hungary, Luxembourg, and Poland (RT News, 2013).

Once a GMO is approved for commercial release within the EU, it is farmers who receive the next round of responsibility. Farmers are required to maintain minimum distances between their GM plants and conventional plants, even if the conventional plants are grown on a neighboring farm (GMO Compass). While the EU legal framework realistically recognizes the potential for accidental contamination, it is the farmers’ responsibility to protect against this possibility. Should cross-contamination occur, the farmer must prove that it was accidental and that all precautionary measures were followed (EU Regulation 1829/2003).

In May 2013, Monsanto announced its decision to cease lobbying for GMO approval in the EU, citing public opposition of the crops and low farmer demand (RT News). The very different approach to GMO regulation taken by the EU has clearly had very different results.

Conclusion In contrast to the EU’s precautionary approach, America’s attitude towards GMO regulation has undoubtedly been influenced by a legal culture that favors large economic interests. The favoritism towards corporate interests has been key to genetically modified crops becoming so prevalent in the United States. Evident in developments 30

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after Monsanto v. Geertson and in stark contrast to Monsanto’s recent action in Europe, America’s legal culture has created an environment in which GMOs are seemingly here to stay.

The current regulatory system is lagging behind the rapidly expanding and globally reaching GMO technology. Moreover, Monsanto v. Geertson set a precedent that allows the research and development of agricultural biotechnology to continue despite potential risk. Unless harm is clear and will certainly follow, corporations are free to continue the research and development of GMOs. As a result, neither the law as it is written nor the law as it is interpreted by the Court leaves much room to accommodate the concerns of conventional and organic farmers, food and environmental safety organizations, or the concerned public.

Whether the US should change its policies is a matter of public interest that is gaining traction as awareness of the current situation increases. A thorough appreciation for property rights and the government’s role in the preservation of economic interests suggests that it is individual rights that should be protected, and a sustainable food policy that should be championed. How the government proceeds in that regard is yet to be seen, but the legal culture outlined in this paper will certainly continue to exert its heavy influence on attitudes, policies, and court decisions.

References Belson, Neil A. (2000). US Regulation Of Agricultural Biotechnology: An Overview. AgBioForum: The Journal of Agrobiotechnology Management and Economics, 3 (4), 268-80. 2000.

Bessin, Ric. (2013). Bt-Corn: What It Is and How It Works. University of Kentucky College of Agriculture (accessed May 23, 2013).

Briffault, Richard. (2011). Symposium: Citizens United v. Federal Election Commission: Implications for the American Electoral Process: Corporations, Corruption, and Complexity: Campaign Finance After Citizens United. Cornell Journal of Law and Public Policy 20.

Carnegie, Andrew. (1889). The Gospel of Wealth.

Charles, Dan. (2013, March 7). In A Grain of Golden Rice, a World of Controversy over GMO Foods. NPR. European Union. European Commission. Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on Genetically Modified Food and Feed. (2003). EUR-Lex. European Commission.

European Commission. Evaluation of GMO Policy in the EU. EUROPA. (accessed June 19, 2013).

Agri-View (2013, May 22). Farmer Assurance Provision Prevents Anti-Biotech Lawsuits.

Agri-View (accessed June 20, 2013).

GMO Compass (2010). Field Area for Bt Maize Decreases (accessed June 19, 2013).

Finz, S. (2012, November 7). Prop. 37: Genetic Food Labels Defeated. SFGate.

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Food & Water Watch (2010). Food and Agriculture Biotechnology Industry Spends More than Half a Billion Dollars to Influence Congress. http://documents.foodandwaterwatch.org/doc/BiotechLobbying-web.pdf (accessed March 20, 2013).

Genetic Roulette (2012). Dir. Jeffrey Smith. The Institute for Responsible Technology.

Gerendasy, R. (2010, June 28). Monsanto v. Geertson Seed Farms: The Supreme Court Alfalfa Decision. Huffington Post.

Grossman, M.R. (2002). Biotechnology, Property Rights and the Environment.

American Journal of Comparative Law 50, 215-48.

Pew Initiative on Food and Biotechnology (2001). Guide to U.S. Regulation of Genetically Modified Food and Agricultural Biotechnology Products. http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Food_and_Biote chnology/hhs_biotech_0901.pdf (accessed March 30, 2013).

Gunther, M. (July 2, 2007). Attack of the Mutant Rice. CNNMoney.

Harmon, A. and Pollack, A. (2012, May 24). Battle Brewing Over Labeling of Genetically Modified Food. The New York Times.

Hill, E. G. (2012). Comment: Nature’s Harvest or Man’s Profit: Environmental Shortcuts in the Deregulation of Genetically Modified Crops. Texas Tech Law Review 44, 353-90.

Hubbard, K. and Hassanein, N. (2013, June 15). Discovery of Genetically Modified Wheat in Oregon Highlights Regulatory Failures: Guest Opinion. Oregon Live. The Oregonian.

Monsanto. Issues and Answers. www.monsanto.com (accessed June 17, 2013).

Jones, S.J. (2000). Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment. Syracuse Law Review 50, 285.

Leslie, L. (2010, June 23). Supreme Court Rules In Monsanto Alfalfa Case, Both Sides Claim Victory. Earth Eats. Indiana Public Media.

Center for Responsive Politics. (2013, April 29). Lobbying: Agricultural Services/ Products. Opensecrets.

Locke, J. (1986). The Second Treatise on Civil Government. Amherst, NY: Prometheus.

GMO Compass. (2006, January 10). The Long Road to Authorisation.

Mandel, G.N. (2004). Gaps, Inexperience, Inconsistencies, and Overlaps: Crisis in the Regulation of Genetically Modified Plants and Animals. William & Mary Law Review 45, 2167.

Mautnet, M. (2011). Three Approaches to Law and Culture. Cornell Law Review 96, 839.

McCabe, M.S. (2012). Superweeds and Suspect Seeds: Does the Genetically-Engineered Crop Deregulation Process Put American Agriculture At Risk? University of Baltimore Journal of Land & Development 1, 109.

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McLendon, R. (2013, April 4). What Is the 'Monsanto Protection Act'? Mother Nature Network.

McGarity, T.O. (2002). Seeds of Distrust: Federal Regulation of Genetically Modified Foods." University of Michigan Journal of Law Reform 35, 403.

RT News. (June 1, 2013). Monsanto Set to Halt GMO Push in Europe - RT News. Rt.com.

Patrick, R. (2011, July 2). Genetic Rice Lawsuit in St. Louis Settled for $750 Million. STLtoday.com.

Pollack, M.A. and Shaffer, G.C. (2009). When Cooperation Fails: The International Law and Politics of Genetically Modified Foods. Oxford: Oxford University Press.

Ranii, D. (2013, May 29). Bayer CropScience Eyes More Expansion. News Observer.

Rich, M. (2004). Note: The Debate Over Genetically Modified Crops in the United States: Reassessment of Notions of Harm, Difference, and Choice. Case Western Reserve Law Review 54, 889.

Whitman, D. (2000). Genetically Modified Foods: Harmful or Helpful? CSA Illumina.

ETC Group. (2008). Who Owns Nature? ETC Group.

United States Census Bureau. World POPClock Projection. US & World Population Clock: Notes (accessed May 28, 2013).

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Peyote and the Ensuing Moral Panic

Peyote and the Ensuing Moral Panic ENRIQUE HERNANDEZ * The use of psychoactive drugs has been an integral part of human civilization.

Humans appear to have an inherent need to change their awareness and alter their state of mind (Weil & Rosen, 2004). For thousands of years, peyote has been used by the Native Americans (Mosher & Akins, 2014). Peyote was first demonized by Spanish settlers and the Roman Catholic Church who saw the drug as evil and immensely harmful (Weil & Rosen, 2004). The spread of peyote to the United States produced opposition by the public and government agencies (Weil & Rosen, 2004). The intense opposition prompted the Native Americans to create a formal church in which their ritualistic use of peyote would not be persecuted (Mosher & Akins, 2014). As peyote and other hallucinogenic drugs grew in popularity, government agencies became concerned and started making outrageous claims about the dangers of the drug (Weil & Rosen, 2004).

In an effort to protect their religious practices and use of peyote, the Native Americans created the Native American Church (Mosher & Akins, 2014). As a formal and organized religion, the Native Americans’ First Amendment rights and the use of peyote for religious ceremonies would be protected (Mosher & Akins, 2014). Since 1965, U.S. federal law has protected the Native Americans’ use of peyote for religious purposes (Mosher & Akins, 2014). The increasing fear and hostility that resulted from the media weighed heavily on policy, and in 1970, the Federal Government enacted the Controlled Substances Act and labeled peyote as a Schedule I drug (Drug Enforcement Administration, 2013). As of today, the use of peyote remains illegal and only the Native Americans are allowed to use it under the American Religious Freedom Act of 1994 (Mosher & Akins, 2014).

The claims and exaggerated beliefs about peyote gave way to yet another moral panic. A moral panic occurs when specific group practices or behaviors receive negative attention (Coomber, McElrath, Measham, & Moore, 2013). The media portrays these behaviors as problematic and as an increasing problem that must be addressed (Coomber et al., 2013). Moral panics have been a part of the United States, beginning with opium in the early 1900s and most recently with methamphetamine in the 1990s (Mosher & Akins, 2014). One of the least known panics, but most controversial, is peyote. This paper will analyze media sources from before peyote was criminalized and media from the last 10 years to show how the outrageous claims created a moral panic that allowed the government to take action against so called “deviant” behaviors. The paper will examine academic research that will show how the moral panic around peyote and the Native Americans was socially constructed. This social construction consisted of labeling their behavior as deviant, establishing it as a social problem, and Enrique Hernandez is an intern at the Drug Policy Alliance and an undergraduate student at Cal State University, Long Beach, where he will be receiving his Bachelor of Science in Criminology & Criminal Justice in May 2014. He seeks to pursue his Master’s degree in Criminology & Criminal Justice with the goal of earning a Ph.D. and an academic position. He has researched and written reports and book entries on drugs, harm reduction, drug policy, drug enforcement, and the war on drugs. Enrique received the Department of Criminal Justice’s Promising Scholar Award in 2013 to honor his work. *

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deeming it necessary to take action against the Native Americans and their use of peyote. Lastly, the paper will address how this panic stirred the criminalization of peyote and led to a series of U.S. Supreme Court cases (e.g., Employment Division v. Smith, 1990; City of Boerne v. Flores, 1997), in which Native Americans were fighting for their freedom of religion and their liberty to use drugs.

Creating a moral panic Fears of the detrimental effects peyote would have on American society were first portrayed in newspaper reports in the early 1900s. A series of newspaper articles in the late 1910s and early 1920s, warned that peyote was an evil addicting substance that caused irrational and violent behaviors, endangered White settlements, destroyed marriages, and threatened morality. Herbert Welsh’s (1918) Peyote-An Insidious Evil and the articles “Peyote Bean Causes Frenzy” (Los Angeles Times, 1919) and “Peyote Used as Drug in Indians’ “Cult of Death”” (The New York Times, 1923) claimed peyote was evil and the most powerful drug known to man. Welsh (1918) claimed that peyote caused more harm than whiskey, gambling, and all other substances. The newspapers described peyote as producing a state of drunkenness and inebriation that could not be compared with any other drug. The state of drunkenness produced only required a small dose and often lasted for days. The NY Times article claimed that some of the Native American users were forced to rest in bed for days in order to recover from the inebriation.

Peyote was believed to be so powerful and addicting that it was referred to as a vice, menace, and curse that plagued the Native Americans (Times, 1923; Welsh, 1918).

Peyote addiction was described as so severe that it required the Native Americans to take “at least twice the ordinary dose of stimulants” (The New York Times, 1923, para.

9). The same articles mentioned that when users were hospitalized, the stimulants used by the hospital had no effect.

The effects described were greatly exaggerated. According to Mosher and Akins (2014) “there is little or no evidence” linking peyote to severe reactions and dependence such as the ones described in the media (p. 144). In small doses, peyote produces feelings of euphoria and can produce longer lasting effects in higher doses (Ray & Ksir, 2004). Despite claims that peyote has no medical value, research has shown that peyote has been used to treat alcoholism, and it might even be useful in treating the mentally ill (Albough & Anderson, 1974; Mosher & Akins, 2014).

In addition to the strength of the drug, these early media reports claimed that peyote use had many harmful, physical effects (The New York Times, 1923; Welsh, 1918). Among them were tremors, convulsions, paralysis, rapid breathing, visual disturbances, hallucinations, and even death (The New York Times, 1923; Welsh, 1918).

A string of 25 deaths in 2 years among the Utes were attributed to the use of peyote (Welsh, 1918). Although there is no conclusive evidence of peyote-related deaths, research seems to indicate that it is unlikely given that peyote use has no serious effects or reactions (Mosher & Akins, 2014). Carstairs and Cantrell’s (2010) study on the effects of peyote reviewed a California Poison Control System database from 1997-2008 and concluded that no deaths had been attributed to the use of peyote (Carstairs & Cantrell, 2010).

Welsh (1918) claimed that the physical effects caused by peyote were not only severe but were more apparent and detrimental to those who were depressed or weak.

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He argued that peyote caused immediate muscle paralysis and made it impossible for women to give birth to a child. While those effects are not supported by research, a few other claims made concerning the physical effects of peyote were accurate, such as rapid breathing, hallucinations, nausea, and vomiting (Mosher & Akins, 2014). Other effects, such as “pupil dilation and increased body temperature, pulse rate, and blood pressure,” will only occur when high doses are consumed (Mosher & Akins, 2014, p. 143-144). But, “there is little or no evidence of physical problems, dependence, or series adverse reactions to peyote” (Mosher & Akins, 2014, p. 144).

The negative effects of peyote –including nausea and vomiting –tend to be specific to the set and setting of the peyote using experience. The Native Americans who use peyote claim “that with repeated use, especially in religious ceremonies, nausea and vomiting do not occur” (Weil & Rosen, 2004, p. 125). Dr. Zinberg’s (1984) Drug, Set, and Setting: The Basis for Controlled Intoxicant Use supports the Native Americans’ claims. Dr. Zinberg (1984) argues that the effects of a drug depends on the set (how the person is feeling) and setting (where the drug is used). The ceremonial setting limits the effects of peyote to a degree that suits the religious ritual.

The early media claimed that the psychological effects of peyote included irrationality and mind-control. Peyote also made concentration impossible, destroyed judgment, destroyed aspirations, and interrupted intellectual development (The New York Times, 1923). News reports claimed that the drug made the Native Americans so irrational that they refused any medical treatment (Welsh, 1918). After consuming peyote, the Native Americans would believe that they had superhuman knowledge and that peyote was the only remedy that could cure every illness (The New York Times, 1923; Welsh, 1918). According to Welsh (1918), the use of peyote also created “false notions in the minds of the users, preventing sound logic and rational thought with which to meet the problems of their daily lives” (p. 4). The claim was that peyote had a mind controlling effect over its users.

Peyote-using parents, the reports claimed, spread these ideas to their children (The New York Times, 1923). Thus, the youth also believed that they did not need treatment from doctors because peyote was the cure for every illness (The New York Times, 1923). Furthermore, children of peyote-using parents were described as undeveloped, dull, irresponsible, and unreliable (The New York Times, 1923). However, research has not shown a direct link between peyote and cognitive problems (Halpern et al., 2005).

Perhaps the most outrageous claim was that peyote was “responsible for 100% of the insanity cases at that time” (The New York Times, 1923, para. 9). Recent research showed that there is no direct link between hallucinogenic drugs and mental health problems (Krebs & Johansen, 2013). The study actually showed that in some cases, those who had previously used peyote and/or psychedelic drugs showed lower rates of mental health deficiencies (Krebs & Johansen, 2013). Halpern, Sherwood, Hudson, Yurgelun-Todd, and Pope (2005) also provided support against the exaggerated claims made about the psychological effects caused by peyote. Their study revealed that no evidence shows that peyote causes psychological or cognitive problems in users.

The most feared effect of peyote was that the high of peyote made Native Americans violent persons who would come after Whites and their settlements. The article “Peyote Bean Causes Frenzy” (1919) claimed the Native Americans would go on violent sprees after using peyote and target residents and White establishments. In a 36

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wild state of intoxication, a Native American reportedly went on a rampage in which he grabbed a weapon and went around town shooting everyone in sight. Many of the wars and acts of violence in which the Native Americans were involved were attributed to their use of peyote (Los Angeles Times, 1919). Research does not support any of these claims. Richard Schultes’ (1938) study concluded that when using peyote, “there is no tendency to commit acts of violence� (p. 702).

The effects of peyote were also seen as a threat against the traditional values and morals of the White man. Peyote was seen as having a negative effect on morality. The use of peyote would make the women promiscuous and destroy marriages (Welsh, 1918). The media described peyote as a threat to the Christian Church, and accused the Native Americans of replacing the significance of the Bible with peyote (The New York Times, 1923). The Native Americans were accused of using religion as an excuse to get high. By claiming that peyote was a part of a religion, it could be used as often as desired. The reports warned that this would eventually result in a church revolving around cocaine and other drugs (The New York Times, 1923). Despite these claims, Mosher and Akins (2014) describe how peyote is used in controlled formal religious ceremonies.

The moral panic subsides In comparison to 100 years ago, the media representation of peyote in the 2000s has shifted. The language and overall tone of the articles that discuss the drug is much more affirmative, highlighting its successful medical uses and portraying the peyoteinduced experience as fun.

Peyote has received a lot of attention from physicians who seek to study its medical benefits (Flam, 2003; Krans, 2013). Doctors and researchers agree that it is important to study the efficacy and safety of hallucinogenic drugs to understand their effects and expand the tools in the medicine arsenal (Flam, 2003; Kerns, 2013). While the media clearly indicated 100 years ago that many harms resulted from peyote use, studies demonstrated little or no long-term effects on the brain from using peyote and other hallucinogenic drugs. Rather, peyote can be an effective treatment for alcoholism (Halpern et al., 2005), and peyote users actually show a lower rate of mental health problems than nonusers (Krans, 2013; Krebs & Johansen, 2013). Use actually lowers the risks of mental illness (Flam, 2003; Kerns, 2013). Furthermore, news reports indicate that over the past 100 years, peyote has had no history of abuse, trafficking or addiction, contradicting many of the early portrayals (Flam, 2003).

Views on peyote have also shifted when it comes to music and television. An episode of The Sopranos (2007) showed the main character Tony and his mistress Sonya consuming peyote in a casino hotel room. The way peyote use is portrayed in the episode is consistent with the most common effects of the drug (Weiner & Chase, 2007).

The characters are seen eating a small dose of peyote, which makes Tony nauseous and makes him vomit (Weiner & Chase, 2007). After vomiting, Tony experiences euphoria and is able to continue with his regular activities. Tony and Sonya actually go to a casino and manage to win money gambling without any problems other than the fact that they are constantly laughing (Weiner & Chase, 2007). Contrary to the exaggerated views of the early media, the characters do not experience paralysis or any adverse effect. Rather, peyote use is portrayed in The Sopranos (2007) in a light and comical way. None of the initial effects (nausea, vomiting) persisted.

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The positive outlook on peyote has allowed music festivals and social events such as Coachella and Burning Man to also be portrayed in a positive way. Despite the known use of psychedelic drugs, like peyote, these musical events are not advertised negatively (Krans, 2013). The Multidisciplinary Association for Psychedelic Studies (MAPS), which was created to promote harm reduction among users of psychedelic and hallucinogenic drugs (Doblin, 1999), was present at Burning Man to provide assistance to users. While the early media would represent these volunteers as promoters of drug use, current media stress that although MAPS was available to provide services, no one required medical assistance during the festival (Kerns, 2013).

Elements of the peyote moral panic The United States has experienced many moral panics over the years, as was the case with opium, cocaine, and crack cocaine. The moral panics have had severe consequences mostly on racial relations and policy. The moral panics have resulted in racist and prejudicial policies that lead to the marginalization of minorities (Cohen, 1972; Mosher & Akins, 2014). Despite the number of moral panics experienced, many have been narrowly avoided. According to Goode and Ben-Yahuda (1994), if the discussion around an activity does not fit five different criteria—concern, hostility, consensus, disproportionality, and volatility—then it does not amount to a moral panic.

Given the representation of the portrayal of peyote in the early 20th century, a moral panic was afoot. However, neither moral panic nor a drug scare around peyote exists currently.

The first element of a moral panic is concern. This element is characterized by an increasing concern among the public about a behavior exhibited by a group of people (Goode & Ben-Yahuda, 1994). In the case of peyote, a heightened concern emerged when non-Indians began to notice that the Native Americans regularly used peyote. The issues quickly spread to the media, which began to publish exaggerated claims about its effects. These outrageous claims created a great amount of concern, which resulted in fear and eventually led to the second element of a moral panic.

Hostility, the second element of a moral panic is described as “an increased level of hostility toward the category of people seen as engaging in the threatening behavior” (Goode & Ben-Yahuda, 1994, p. 157). The emerging hostility resulted from fear of Native Americans. The early media portrayed the Native Americans as drug users who would become violent, go on maniacal killing sprees, and try to take over the White man’s land after consuming peyote (Los Angeles Times, 1919). Morality was also at risk because the use of peyote was reported to make women promiscuous and cause marriages to end. In fear of the Native Americans and their use of peyote, the public met them with hostility and sought to separate from them.

The increasing hostility and fear towards the Native Americans and their use of peyote created a general consensus (third element) among the public. The majority of the public believed that peyote was an extremely harmful drug that caused Native Americans to become maniacs who were capable of anything (Welsh, 1918). It became clear that actions needed to be taken in order to prohibit the use of peyote and to prevent the Native Americans from destroying society. The increasing hostility also led the Native Americans to take action on their behalf. The Native Americans created the Native American Church (NAC) in order to protect the religion and their use of peyote

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(Mosher & Akins, 2014). This aggravated the public’s fear because it was seen as an excuse to use drugs and a threat to Christianity.

The alarming negative consensus against peyote and the Native Americans quickly sparked the interest of physicians and researchers. Researchers began to study the effects of peyote and began to notice how disproportionate the fear against peyote and Native Americans was compared to the effects of the drug on the Native Americans.

This is precisely the fourth element of a moral panic. Disproportionality is characterized by the realization that the problem was “grossly exaggerated” and the fear and hostility was disproportionate to the nature of the problem (Goode & Ben-Yahuda, 1994, p. 158).

The fifth element is volatility. Moral panics are described as volatile events, which suddenly emerge, quickly disappear and suddenly re-emerge. As it relates to peyote, the moral panic appears to be more localized than other moral panics. The fear surrounding peyote quickly spread and gave way to a moral panic, but it has yet to re-emerge.

Nonetheless, this moral panic around peyote and the Native Americans did its damage. The extreme negative attention was the perfect way to generate fear among the public. The media portrayed the Native Americans as drug users who used religion as a scapegoat to continue their drug use (The New York Times, 1923). Native Americans were labeled as maniacs who preyed on innocent people as a result of their drug use (Los Angeles Times, 1919; The New York Times, 1923). Hostility was imminent. In the end, the moral panic achieved its goal: the criminalization of peyote and control over the drug and the Native Americans.

Policy implications The Native Americans had been consuming peyote in religious ceremonies for thousands of years. It was not until peyote began to receive negative attention that their traditions were jeopardized. In order to secure their religious practices, the Native Americans decided to create a formal church which would be protected under the First Amendment of the U.S. Constitution (Mosher & Akins, 2014). The Native Americans created the Native American Church (NAC), a formal organization in which peyote could still be used (Weil & Rosen, 2004). The federal government acknowledged the Native Americans efforts and “since 1965, the religious use of Peyote by Native Americans has been protected by the U.S. federal law” (Mosher & Akins, 2014, p. 143). Since the use of peyote was only protected by federal law, many Native Americans had to continue their efforts to extend their rights to the state level (Mosher & Akins, 2014).

Weil and Rosen (2004) claimed that “the explosion of the psychedelic movement among Indians generated intense opposition by non-Indians” (p. 124). The emerging moral panic made it easy for the federal government to enact a law against the use of peyote. The early media had an enormous impact on the public by effectively instilling fear and promoting hostility towards the Native Americans. As a consensus began to form, the federal government enacted the Comprehensive Drug Abuse Prevention and Control Act (Controlled Substances Act) in 1970 (Mosher & Akins, 2014). Under this Act, the Drug Enforcement Administration created the Federal Drug Schedules, in which peyote was classified as a Schedule I drug (Mosher & Akins, 2014). Schedule I drugs are thought to have no medical value and have the highest potential for abuse (Mosher & Akins, 2014). No evidence exists to support the placement of peyote as a level one drug. As research has shown, there is no evidence of dependence when referring to peyote (Mosher & Akins, 2014). As early as 1938, research showed that there is no link 39

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between violence and the use of peyote (Schultes, 1938). The scheduling of drugs was clearly based on the public’s consensus about peyote and not on scientific evidence.

The American Indian Freedom Religious Act of 1978 further protected the use of peyote and the free exercise of religion of Native Americans (Mosher & Akins, 2014).

The American Indian Freedom Religious Act (1978) protected and preserved the Native American’s First Amendment right to exercise their religion, possess sacred artifacts, have access to sacred sites, and worship through ceremonies. In 1990, the Native Americans challenged their right to use peyote at the state level (Oregon) in the case, Employment Division of Oregon vs. Smith (Mosher & Akins, 2014). The case centered on two persons (NAC followers) who were fired from their jobs because of their use of peyote. The court case began because the two NAC followers wanted to receive unemployment benefits. In its second decision in the case, the Oregon Supreme Court held that sacramental peyote use violated the state law prohibition, but also that the prohibition itself violated the Free Exercise Clause of the Constitution. The United States Supreme Court subsequently held that the Free Exercise Clause permits the state to prohibit sacramental peyote use and deny unemployment benefits to the two NAC followers. The fall-out from the decision was the 1994 amendments of the 1978 American Indian Religious Freedom Act. The 1994 amendments extended the Native Americans’ rights to the state level. The use, possession, and the transportation of peyote were now protected by federal and state law.

Despite the numerous laws and amendments protecting the Native American’s right to use peyote, it remains a Schedule I drug. The government does not recognize all of the possible medical benefits. Although research has showed that there is no evidence of dependence, peyote is still regarded as having a high potential for abuse.

Conclusion While a vast amount of research has shed light on the possible medical uses and benefits of peyote, there is still no clear consensus on the drug. Peyote has remained obscured from the public in recent years. One can infer that this is directly related to the fifth and final element of a moral panic. Volatility, the fifth element, defines a moral panic as a sudden eruption, which can emerge and disappear at any time (Goode & BenYahuda, 1994). The moral panic around peyote was not as volatile as those with other drugs such as marijuana and crack cocaine. The moral panic around peyote emerged slower than most other moral panics and disintegrated slowly after peyote was prohibited but had the same effects. Recent support of peyote by physicians and research indicating the possible medical benefits have prompted what many call the ‘New Era’ on peyote (Flam, 2003). Despite these finding, peyote remains a controlled substance and subject to the punitive laws of the United States.

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References American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 (1978).

Carstairs, S. D., & Cantrell, F. L. (2010). Peyote and Mescaline Exposures: A 12 Year Review of a Statewide Poison Center Database. Clinical Toxicology, 48, 350-353.

Center for Disease Control. (2013, August 1). Smoking and Tobacco Use. Retrieved from http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_relate d_mortality/.

Cohen, S. (1972). Folk Devils and Moral Panics: The Creation of the Mods and the Rockers. London: MacGibbon and Key. Coomber, R., McElrath, K., Measham, F., & Moore, K. (2013). Key Concepts in Drugs and Society. Los Angeles, CA: Sage Publications Inc. Doblin, R. (1999). Letters from Rick Doblin, MAPS President. Multidisciplinary Association Psychedelic Student Bulletin, 9(1), 3.

Flam, F. (2003, December 7). Researchers See ‘New Era’ on Peyote. Philadelphia Inquirer. Retrieved from http://articles.orlandosentinel.com/2003-1207/news/0312060045_1_peyote-hallucinogenic-huichol.

Goode, E., & Ben-Yahuda, N. (1994). Moral Panics: Culture, Politics, and Social Construction. Annual Review of Sociology, 20, 149-171.

Halpern, J. H., Sherwood, A. R., Hudson, J. I., Yurgelun-Todd, D., & Pope, H. G. (2005).

Psychological and Cognitive Effects of Long-Term Peyote Use among Native Americans.

Biological Psychiatry, 58(8), 624-631.

Krans, B. (2013, August 22). Psychedelic Drugs Linked to Lower Risk of Mental Illness.

Healthline News. Retrieved from http://www.healthline.com/health-news/mentalpsychedelics-not-linked-to-mental-health-problems-082213.

Krebs, T. S., & Johansen, P. (2013). Psychedelics and Mental Health: A Population Study. PLoS ONE, 8(8), 1-9. doi:10.1371/journal.pone.0063972.

Mosher, C.J., & Akins, S.M. (2014). Drugs and Drug Policy (2nd ed.). Los Angeles, CA: Sage Publications Inc. Peyote Bean Causes Frenzy. (1919, June 22). Los Angeles Times (1886-1922). Retrieved from http://search.proquest.com/docview/160601632?accountid=10351.

Peyote Used as Drug in Indians’ “Cult of Death.” (1923, January 14). New York Times (1923-Current File). Retrieved from http://search.proquest.com/docview/103095276?accountid=10351.

Ray, O.S., & Ksir, C. (2004). Drugs, Society, and Human Behavior (10th ed.). New York, NY: McGraw Hill.

Schultes, R. E. (1938). The Appeal of Peyote (Lophophora williamsii) as a Medicine.

American Anthropologist, 40(4), 498-715. Retrieved from http://www.jstor.org/stable/661621.

Weil, A., & Rosen, W. (2004). From Chocolate to Morphine. New York, NY: Houghton Mifflin Company.

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Weiner, M. (Writer), Chase, D. (Writer), & Taylor, A. (Director). (2007). Kennedy and Heidi [Television series episode]. In D. Chase (Producer), The Sopranos, New York, NY: Home Box Office Inc. Welsh, H. (1918). Peyote-An Insidious Evil. Philadelphia, PA: Indian Rights Reservation.

Zinberg, N. E. (1984). Drugs, Set, and Setting: The Basis for Controlled Intoxicant Use. New Haven, CT: Yale University Press.

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War, Terrorism and the Duality of Citizenship in America GAL COHEN * It is 3:54 AM on a random Thursday as you are jarred awake by violent knocking on your door. Worried, you quickly lift yourself from your bed, not having time to allow your sleeping legs to fully adjust to the new weight. You can hear muffled commands as you walk to your front door. You start to unlock the door and reach for the handle, but you hesitate as you begin to understand the commotion outside. There is a squad of heavily armed officers outside. “What is … Can I help you guys with some …?” You get cut off before you finish your thought.

“Sir, keep your hands where I can see them. Are you J. Doe?” The commanding officer immediately accuses you, rather than asks. You nod quickly, failing to hide your dread. Your fearful mind races to escape options. Suddenly you hear a helicopter’s blades rip through the air overhead. “There has been another terrorist attack. Orders have been signed. National security requires questioning and relocating of some citizens. Go pack up what you need, I will not ask again,” he commands as he shoves you away from the door.

There are many different laws and policies that affect the way we live our lives.

Some of these rules have been reviewed objectively and rationally in order to balance the need for security and minimal infringement of rights. When a historic event occurs, such as the September 11th, 2001 terrorist attacks, the government must react to the situation and attempt to protect its citizens, as well as take measures to prevent this type of event from reoccurring. How did these events change the meaning of citizenship in the United States? Due to the fact that we are still living with its effects over a decade later, we must establish a broader understanding of citizenship. In order to answer this question, we must look into this country’s history and recognize what it meant to be a citizen during different time periods, and how truly influential wars are to the definition of citizenship.

Analyzing historic events will allow us to comprehend our present war time situation and more importantly allow us to prepare for the future. The struggle between our liberty and safety is constant and has deep historical roots. As citizens of the United States it is our responsibility to challenge our government to allow us to prosper in safety and freedom. This paper reviews the concept of citizenship and argues that terrorism has caused the original American social contract to be rewritten such that a duality of citizenship has formed that unequally rewards liberties and demands duties from its citizens.

A citizen should be understood as an individual who ‘belongs’ to a country in more than just a legal sense. To adequately understand it, one must summon the concept of citizenship originally developed by the ancient Greeks. Although much differs in modern times, the biggest role in the ancient individual’s life was their connection to the city. Today, globalization connects all parts of the world, yet individuals remain strongly connected to the state through the notion of citizenship. *

Gal Cohen graduated Magna Cum Laude from Ramapo College with a B.A. in Law and Society in 2013.

He has a passion for the law and hopes to go to graduate school in 2015. Currently, he is a Document Supervisor in the Superior Court of New Jersey.

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In this paper, the term ‘war’ is understood as a formal engagement between two or more established political entities, while terrorism shall be understood as an attack on the people of a country driven by a political motive, which is intended to strike fear into the hearts and minds of individuals. I believe that these two concepts differ greatly and impact citizenship in a drastically different way. Wartime wreaks havoc in both combat and civilian lives. Terrorism has made the two indistinguishable in certain aspects. Standards of behavior for citizens morph during wars. Laws tighten as rights and liberties are dismissed.

This paper is based on historical research on citizenship, liberties, and responsibilities during wars in America. I have also undertaken extensive analysis of statutes, court cases, peer-reviewed articles, as well as law review articles. This paper is divided into three major sections. First section discusses civil rights and liberties and examines the historical roots of American liberties. Second, reviews the concept of citizenship before and after the American Revolution. Third, analyzes how war influences notions of citizenship, especially comparing how World War II and the Attacks on 9/11 shaped the concept of citizenship. Here, I will review the case of Korematsu v. United States (323 U.S. 214, 1944) and Japanese interment, with a strong emphasis on the different players involved in the issue. Throughout this paper, I will highlight the concepts connecting World War II and the attacks of September 11th, and in particular emerging similarities between Korematsu and the USA Patriot Act, the legislative reaction to the September 11th attacks that significantly increased governmental power.

This study emphasizes the extent to which the United States government is a past-oriented, precedent-bound entity. Once an alteration has been made, for whatever reason and regardless of its effectiveness or consequences, it will be very difficult to change, unless it is challenged. Hence, if we understand better how citizenship is changed by wars, there is a greater chance for reclaiming rights diminished by the need of national security. As citizens we must be educated about the reasoning behind our rights and responsibilities. These rights, which have been claimed by our ancestors, admired by immigrating populations, and engrained within the foundations of this country, could easily be revoked for the sake of safety. Once rights are given up, they become harder to reclaim as time goes by. Whenever we exchange our established rights for a promise of security, we must analyze the effectiveness of the transaction and understand that once the threat of security is diminished, we must re-secure our liberties. Moreover, as a nation we must realize the danger within terrorism. Other than the obvious danger to life and property, we must understand the implications of changes to the definition of citizenship. If the current duality of citizenship continues as the accepted norm due to the constant threat of terrorism, the original social contract, and the foundation of the United States will be dismantled.

The roots of American civil rights and liberties America is known as the land of the free, home of the brave. The United States started global conflicts under the pretense of establishing democracies and securing freedoms for foreign nations. Since the Cold War years, the United States has been engaged in conflicts around the world under the pretense of establishing democracies and securing freedoms for people. Most notably, Operation Iraqi Freedom is described as a mission to rebuild a nation chained down by dictatorship into a more democratic, 44

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liberal, less violent order- which should lead to more lasting peace. Whether the task is feasible (defensible) or not, it must be noted that there is intrinsic value to the notion of bringing liberty to people of other nations fighting against dictatorial regimes.

Empowering humankind across governmental borders seems like a heroic task, if one overlooks the underlying motivations of the liberators. Freedom is an essential ideological character of the American state. One must look back to the fundamental roots of American freedom, which predate America’s existence. The Magna Carta is the earliest catalyst of the American government model and its attitudes towards rights and liberties. More recently, one must examine our nation’s founding documents, such as the Declaration of Independence and the Constitution in order to understand the origin of our citizenship, rights and liberties.

The Magna Carta is the basis of the modern ‘Rule of Law’ concept, created when the King of England was forced to admit a limit to his powers, under the threat of the barons. This novel idea emphasized that rulers must also be controlled by the law, which establishes consistency within the law and prevents injustice. Additionally, the Magna Carta instituted a right that has become one of the most important cornerstones of modern legal thought, the right of due process. The right of due process ensures equal rights of all citizens and is recognized to be central to American notion of citizenship.

However, this is challenged by the emergence of duality of citizenship that separates some citizens based on their backgrounds. It breaks the tradition set by the Magna Carta, as it destroys consistency within the law, as some groups of citizens are unequally impacted by law, while others are not. Due process is eliminated if you appear to be in a suspect category.

Yet this duality of citizenship is also apparent during the colonization of America.

Since colonization was meant to increase profits for the kingdom, there was no actual concern for the settlers, or the new land (Elliott, 2007). Due to oppressive and biased agendas, the interest of the mother country would routinely trump that of the colony.

There was routinely tension between the settlers and the crown. A stark disconnect became apparent when the settlers attempted to deal with their rulers, as royal subjects.

The settlers believed that they should be able to enjoy the same rights as their European brethren, but the crown would rather take advantage of them. Oppressive levies were instilled on trade, both among the colonies as well as with foreign entities.

The notion of ‘popular rights’ grew through interactions between the colonists and British officials. The political culture of early America was crafted by leaders who wanted more power when dealing with the royal crown. Opposition to unwarranted oppressive rule was growing in the colonies, which only affected royal subjects who moved abroad. This created a need for a sense of personal connection to one’s government. Americans wanted some control over the policies which affected their everyday lives. Although on paper the settlers were considered English citizens, they were subject to more oppressive laws than their English brethren living in England. This is an illustration of the concept of duality of citizenship: although the two groups of people should be equal under the law, a single group suffers for the greatest good of the government. This is also a violation of the spirit of due process.

After the Revolutionary War, the Declaration of Independence, ratified on July 4th, 1776, set the tone for the legal culture of the new country. The Declaration of Independence begins, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that 45

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among these are Life, Liberty and the pursuit of Happiness.” This beginning starkly announces the ideological basis of the new country, acting as a guiding ideal for where the laws should stand. The Declaration continues, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” This statement clearly makes a very important distinction from the previous understanding of the government: the power of the government originates in the collective consent of the people. Power comes from the bottom up, giving the common people the ultimate control, in stark contrast to the God-chosen royal crown.

Justice plays a huge role in the Declaration, which in turn produces fundamental rights that the citizens may not yield to the government. This document establishes the obligations of the common citizen, by announcing that not only do the people fuel the power into the governmental machine allowing it to rule, but that it is also the ability and responsibility of the people to monitor and assess their government. Equality and liberty are consistent themes and important cornerstones of this soon to be established government, and there are multiple mentions of the fact that the power is held by the people. The Declaration of Independence completely nullifies the pre-revolutionary split in citizenship. The document states that all men are equal under the law; there is no mention of a less equal class. Additionally, power flows from the people, and we hold an obligation to reclaim it if we are mistreated.

Finally, the Constitution lays out the blueprint for the creation of the government and the contours of the modern concept of citizenship. It reaffirms that the people are the fountain of state power: “We the people of the United States in order to form a more perfect Union …” (Constitution of United States). Volumes have been written on the opening three words. All of the power lies in the people, for without them there is nothing.

Although the preamble had championed citizens’ liberties, the main function of the Constitution was to outline the powers of the federal government. Because of this omission, some states would not join the union. In order to further distance the notion of a federal government from the feudal model, a more specific outline of citizen’s rights had to be established. The Bill of Rights was ratified on December 15, 1791, and while originally it was a set of guarantees applying only against the federal government, in time it has become a bulwark of rights against all government conduct (Amar, 1998).

The Bill of Rights outlined many personal freedoms from government prosecution, such as freedom of religion, speech, press, assembly, petition, and the ability to keep weapons. Aside from personal freedoms, the Bill of Rights also outlined the rights of an accused citizen, such as protection from unreasonable search and seizure, due process, rights of accused, trial by jury, no cruel and unusual punishment, which aids in protecting citizens from direct governmental attacks.

Rights and civil liberties in America have been evolving for centuries before the creation of the state. The Magna Carta established the ‘rule of law’ concept at the core of the modern understanding of the relationship between the individual and the government. The American foundational documents directly dictate citizens’ complex relationship to the government. The Declaration of Independence captured the metamorphosis of the North American colony of the British Empire through the desires of the settlers to the new state. The Constitution further expanded the framework of the government, specifically the structure that would justly produce and maintain the liberties of citizens. The Bill of Rights further expanded and outlined the specific rights 46

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to be enjoyed by the citizens. These documents built the defining attributes of American citizenship. Although these foundational documents hold tremendous authority within the American governmental system, during critical times their core meanings are unfortunately in flux. The most notable situation, with the most devastating effect on rights and liberties is war time. Citizenship, ironically, seems to become a completely new entity for a select group, when the threat of maintaining the standard of liberty for all citizens comes into question.

The concept of citizenship The concept of citizenship has been developing and changing for centuries. Early discussions on citizenship have been traced to Ancient Greek times, most notably to Socrates. Crito, for example, presents an interesting idealistic view of personal responsibility as it relates to citizenship and laws. The day before Socrates was to be executed his friend Crito attempts to help him break out of jail and escape punishment.

Crito tries to persuade Socrates to leave, but Socrates ultimately determines that it would be unjust to escape since this would be against his notion of citizenship and responsibility to the state. Socrates believes that the most important thing is not life, but the good life (Plato). Socrates’ definition of the good life stemmed from just, moral action. His understanding of the world included an absolute morality, which governed all of his understanding. Socrates was willing to be put to death rather than commit an injustice against the state.

The ancient Greek philosopher had lived his entire life within his state and held the belief that the laws of citizenship had nurtured him and he could never abandon them. Crito outlines that laws are absolute, that the state itself is a system of laws that must be accepted in its entirety, or else everything breaks down. Socrates believed that we are subjects to the laws as slaves are to masters. He was willing to die, because he believed so strongly against harming the state. Today we understand that human beings are prone to error, and acknowledge that the laws are a reflection of us, rather than anything divine as the philosopher would claim. Nonetheless, Socrates created the foundational theory of citizenship.

On the most fundamental level, citizenship is a social contract between the state and the individual. Rights are awarded to and responsibilities outlined for every citizen.

The American understanding of citizenship has developed primarily through our different military engagements.

Pre-revolutionary citizenship Before breaking off from European control, there was little connecting one colonist to another: “In spite of some of the sources of unity among the residents of the colonies- a common language, a shared legal- constitutional tradition and perhaps… a common identity as subjects to the king of England- the American colonies were in fact extraordinarily disconnected from one another, displaying among themselves and within themselves significant varieties of political behavior” (Beeman, 2004, p. 3). By identifying with the motherland there was some aspect of true citizenship, but it was a weak link. Americans had considered themselves English citizens, but having the Atlantic Ocean separating the rulers and subjects prevented the equal enforcement of common policies. The political environment presented an opportunity for the creation of an American union.

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Restrictive taxes and policies that greatly favored the mother country increased the disconnect between the two countries. “The revolution was in the minds and hearts of the people. A change in their religious sentiments…of duties and obligations…this radical change in the principals, opinions, sentiments, and affections of the people was the real American Revolution” (Beeman, 2004, p. 3). Americans were angry that they were being taken advantage of and the English were angry that their subordinates were not following orders.

The English government had clearly favored one citizen group over another. A type of duality of citizenship was created, which had broken Americans’ bond with the mother country. Citizenship is a reciprocal obligation, both the government must accept its citizens, and the citizens must accept their government.

The development of American citizenship After the revolution, America was slowly being built up. Citizenship reflects the values of the people, and what they want from their country. Although Americans were more connected than during the colonial period, there were many different value systems in the early days of the stand-alone country, which eventually created a unique citizen identity. As Beeman (2004) notes, one value system that informed this new identity was found in New York and the southern colonies, which continued to uphold traditional English values while also perpetuating an inequitable division of wealth and political power between rich and poor. Even though a war separated the two countries, a strong source of British tradition lives on well into the modern day. A country that greatly values self-reliance sees the significance in creating a culture of great freedom of expression.

Another value system which shaped the concept of citizenship in America is the importance of asserting strength. North Carolina, South Carolina and Pennsylvania retained elements of modern and tribal aggressiveness, as well as a strong distrust of the other (Beeman, 2004). Our current culture strongly responds to the notion that ‘the other’ is dangerous and we must mobilize against him. Moreover, American culture favors aggressive tendencies rather than passivity. When one examines how this understanding is reflected in citizenship, it is possible to see a connection between losing rights and liberties in favor of protection and safety. The fact that America was formed out of a war with its mother country emphasizes that American citizenship does not exist in a vacuum. Rather than embracing and learning from ‘the other’, the foundational culture of some states conceptualized citizenship as the elimination of threats and being wary of things that seem different.

Throughout the United States, many different value systems have fused into the concept of modern citizenship. Each state and county had its own ideology. Some are clearly linked to modern day American ideals, and others are subtly injected into some parts of our understanding of American culture and citizenship, yet they all define the meaning of what it is to be American (Beeman, 2004). After the American Revolution, there was a gap in the notion of citizen. Americans were no longer subjects of the crown, but rather viewed the old rulers with angst and distrust. The states during that time were critical to the current notion of citizenship.

World War I and citizenship

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During the First World War, American citizens had to adapt to a changing global environment. The American Revolution centralized American citizenship and the two world wars gave it a firm identity. During war time, the opposition and everything they stand for have to be demonized in order to have the public’s full support for the preservation of the nation and the destruction of the enemy. The responsibilities of the citizens are pushed to the limit and cultural ideals are strengthened.

The commitment of the average citizen was necessary to win the First World War. The citizens’ belief system during the war was greatly influenced by propaganda. It was an incredible tool used to manipulate the public into supporting World War I efforts, and in turn it helped define citizenship. The most famous image is still that of Uncle Sam demanding recruitments, and the poster captioned ‘I want you’ has been the most enduring symbol of World War I propaganda. Capozzola (2008) believes that the poster is one of the most iconic images in American Politics, a visual metaphor for America itself because it describes America: Uncle Sam was not a war general, but rather a commoner who may have been a farmer, but was needed to step up in order to help his country during the war. He rolled up his sleeves and called out to the American people to do their part in the war effort.

Uncle Sam was describing the common American’s civic responsibility. “[Uncle Sam had] helped them out by turning the vast machinery of war mobilization into family relation, he gave political power a personal face and made sense of the government presence in everyday life” (Capozzola, 2008, p. 4). This war was not some distant issue which was easily forgotten, but rather this was their entire life at that point. “The poster reassures viewers that war is not the American life blood; like its uncle would rather be doing something else- the poster helped America understand its relationship to the wartime government” (Capozzola, 2008, p. 5). Unfortunately it did not matter what the individual wanted at this point in American history, the country had to come first. The citizens had to make sacrifices for the wellbeing and ultimate survival of the country.

The increased involvement of the average citizen during World War I defined citizenship. “The word obligation was very much on their minds…during World War I, when Americans discussed their relationship to the state, they used terms such as duty, sacrifice and obligation … political obligation energized, mobilized and divided America during World War I” (Capozzola, 2008, p. 6). The relationship between the citizen and the country was that of give and take: in order for the citizens to enjoy all of the benefits provided within the country, at times they must fight to protect their value system.

To be American meant that one had to stand up with other Americans and fight for the country. The prevailing notion was that ‘if you enjoy all of our American freedoms and you would not fight for them you are not American!’ Many citizens viewed limited involvement as turning your back on the country, and opposition was almost nonexistent. “Obligations were not just rhetorical flourishes on propaganda posters or phrases in philosopher’s tomes; they were also social practices that made it possible for America to go to war. When Uncle Sam jabbed his finger at the American public, he pointed out their rights, he also pointed out who was or wasn’t American” (Capozzola, 2008, p. 7). There was a strong sense of collective identity. The power of declaring justice was in the hands of the citizens. The concept of citizen was that of someone who would stand and fight alongside their government.

Citizenship is defined by the American public and the government. American citizenship was created during the Revolutionary War. Victory and a cocktail of respect 49

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coupled with distaste of the fallen regime colored the new government in no single distinct style. Different states held on to specific ideologies, which in turn reflected American citizenship. Some would argue that the Revolutionary War was fought from state to state, not completely unifying the country. One dimension that was added to citizenship in the early wars is that of sacrificing personal freedom for the betterment of the government. World War I in particular unified the country in a way that was missing before. Citizenship was clearly defined and applied to every inhabitant. Citizenship meant serving one’s country. Propaganda displayed the ideal citizen as one who can give back to one’s country.

In the next section, I will examine the two sides of World War II. From one perspective, the Second World War enhanced the notion of strength in citizens.

Resilience became the defining characteristic of American citizenship. Citizens were willing to fight in all avenues of life to protect their country. However, rights were also revoked for some. Certain citizens were prosecuted in ways, which if examined through the foundational documents, are clearly un-American.

The impact of World War II America’s founding documents describe a very specific blueprint for the country, but when war breaks out, many declared liberties are retracted. When a country is at war it is expected that things change temporarily for the sake of survival. During historic engagements, whenever needed, the role of the citizens changes to best suit the country.

Terrorism completely changes the entire dynamic between war time and peace.

While the Second World War raged on in Europe, the American public expressed a strong preference to remaining neutral. A 1942 report of the presidential commission on Pearl Harbor describes the surprise attack: About 7:25 a. m. Honolulu time (1: 25 p. m. Eastern standard time) on Sunday, December 7, 1941, Japanese forces attacked Army and Navy installations and ships of the Pacific Fleet in Oahu, T. H . Although the United States and Japan were at peace on that morning, Japan planned to announce to the Secretary of State of the United States at 1 p. m. of that day, eastern standard time (7:30 a. m.

Honolulu time) the severance of diplomatic relations and simultaneously to attack the island of Oahu and Pearl Harbor.

The ‘courtesy call’ to the executive branch less than a half hour before the infamous attack was not a declaration of war, but rather a withdrawal from peace talks.

Therefore, one may categorize the strike as a terroristic assault, attempting to harm the United States Pacific armada, whilst inspiring fear into the general population. The initial shock and following anger on American territory resulted in overwhelming public support for retaliation. The nature of the attack also introduced an irrational fear of espionage, which engulfed the country. A selective citizenship era begun in which liberties, rights, and most importantly obligations to the country varied among different classes of Americans.

World War II and citizenship identity Similarly to the First World War, during World War II the average citizen was greatly affected by the war effort. Cutting down everyday consumption became a big 50

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duty of all citizens during World War II. “The war changed everything except human needs and desires. Many once ordinary tasks became fiendishly difficult to perform” (O’Neill, 1995, p. 247). There was an enormous need for raw material and prepackaged goods, and the only avenue these could be relocated from was the civilian marketplace.

The citizens of America during World War II had to be resilient. Hard work had become a trait ingrained within the concept of American citizenship. There was an understanding that America as a whole was at war, and help came from the population.

Citizenship came to mean a new type of strength, finding pleasure in lowering one’s standard of living for the country. Americans became tougher, worked harder, and the mobilization greatly helped the World War II effort. This translated into a complete acceptance of political action for the war. On the governmental level, extremely oppressive legislation was put in place to attempt to eliminate the perceived threat on American soil against any and all Japanese.

The Japanese American citizen Even before America entered World War II, Japanese Americans were treated poorly in this country. Although there was open trade established with Japan, there were multiple governmental acts, which negatively affected the Japanese living here, and there were laws in place preventing immigration. The Immigration Act of 1924 limited the number of immigrants coming from countries that were considered undesirable (Tritter, 2005). The federal government viewed the Japanese as a lower racial class, and thought the overall quality of the country would dip with uncontrolled mass immigration.

In addition to the government’s legislation, the actions of private parties also reflected the negative feelings towards the Japanese. They were harassed when it came to where they could live, shop, work and they received bad treatment in other social interactions (Tritter, 2005). This created a type of isolation in which the Japanese had no choice but to keep to themselves, which may have been perceived as breeding ground for a counter culture. The open rejection of Japanese Americans had made it seem as though the Japanese did not want to assimilate. The negative reception from the American public and governmental restrictions inadvertently created a duality of citizenship; although some Japanese were citizens, they were not treated in the same way as other citizens.

After the tragic bombing of Pearl Harbor, open racism was even more common and this duality of citizenship was even more visible: “the popular image among some Caucasians along the Pacific littoral of their Japanese neighbors as ‘the enemy within.’

Such citizens…openly and easily agitated against their Japanese-descended neighbors under the respectable umbrella of patriotism” (Tritter, 2005, p. 259). The strategic aerial attack was perceived as an extremely underhanded and evil move, especially due to the fact that it was launched prior to a formal declaration of war. The Japanese Americans were grouped together, and rather than assess individuals on their personal involvements, mob mentality took over, which created an ‘us vs. them’ thinking.

Rumors of espionage were circulating, and the American public wanted to know on which sides individuals belonged. A witch hunt began, “there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to 51

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renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan”(Korematsu v. United States). Although that seems like a high number, one must remember the tense political climate in which this was occurring.

Japanese Americans were not assimilated into the American public, and due to this exclusion, had felt closer to their roots. Many Americans believed that Pearl Harbor was the start of a full scale war on United States soil, which led to a reclassification of Japanese American citizens.

Liberties lifted The fear that an invasion was imminent caused the government to mobilize.

President Franklin D. Roosevelt’s Executive Order 9066 ordered the establishment of “military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion” (Executive Order 9066).

This order delegated much of the power of the executive branch to lower-rank military officials. This was done in order to empower lowly army officials in possible war zones.

This executive order is a serious restriction on all Americans. Although the exact wording does not single out Japanese Americans, it provides a very broad power to military officials.

General DeWitt was a military official who utilized the full extent of his new abilities, hoping to make America safe from the ‘Japanese threat.’ Using his new powers, General DeWitt proclaimed specific states in America as military areas hosting governmental camps where all the people of Japanese ancestry were relocated, “systematically removing all Japanese, alien and citizen alike, from their homes and employment within all of California, Western Oregon, Western Washington, and Southern Arizona” (Tritter, 2005, p. 261). The rights of Japanese Americans, regardless of legal status, were tremendously restricted. This was an attempt to prevent any possibility of further damage and casualties within the United States. For American citizens of Japanese ancestry, the scale of citizenship shifted greatly towards obligations and duties, with almost vanishing rights and liberties.

The enactment and administration of the executive order was in direct conflict with every single one of the United States’ founding documents reviewed in the earlier section. Due process was completely overlooked, as was the entire legal cultural environment. The Declaration of Independence, central to the creation of the American government system, was abandoned; liberty and the pursuit of happiness of citizens were greatly infringed upon. Furthermore, the Constitution was also disregarded.

Although power flows from the people, Japanese Americans seemed to have lost any power they once held as citizens. The Bill of Rights was completely overlooked, and due process, trial by jury, cruel and unusual punishment, and a state’s own right to police were trampled upon. Liberties and rights clearly outlined in the guiding documents were eliminated in the havoc of war. Up until this point, citizenship for every American was equal and defined by the above mentioned documents, but the terroristic nature of the

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attack on Pearl Harbor caused a catastrophic split between citizens of Japanese decent and everyone else.

The fight for rights: Korematsu v. United States Korematsu was an American citizen of Japanese descent who was born in the United States, had never traveled to Japan and did not speak Japanese. Before the attack on Pearl Harbor, Korematsu had attempted to join and defend America.

Unfortunately, his application was rejected due to a medical condition. He was determined to aid the United States, and he changed career paths and began welding in order to help the war effort. After the attack, Korematsu was fired due to the fact that he was Japanese. He understood what was happening in the country and attempted to mask his identity by having plastic surgery and reporting a different name and social security number to a new job. When the executive orders were issued, Korematsu did not report to the relocation centers, with the intent of moving from the racially charged climate (Tritter, 2005, pp. 267-8). He was spotted while still in California and charged with a felony for not following orders.

While Korematsu was in federal custody, he “made a statement to the FBI that included his declaration of unqualified loyalty to the United States of America and his willingness to fight all foreign enemies, including the Empire of Japan” (Tritter, 2005, p.

268). This act displays Korematsu’s unchanging commitment to America, but it was in vain, he was sent to the relocation center. Believing his rights had been violated, Korematsu attempted to fight the battle in the courtroom.

The Supreme Court was presented with the question of whether or not the President and Congress had reached beyond their war powers by stripping the rights of the Japanese Americans. The court explained, “Hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier.” The Court decided in favor of the government, claiming that even when the court examined the facts of the case with strict scrutiny, the responsibility of the government to provide for the safety of its citizens outweighed Korematsu’s rights.

The Supreme Court majority opinion explains: “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger”. The possibility of war on American soil was a realistic risk, which scared the government into temporarily eliminating certain rights.

On both sides of the spectrum, during the Second World War everyone lost liberties. Non-Japanese Americans buckled down and endured a period of great stress and reduced freedom, which was welcomed and internally driven. The American strength seemed to be a uniting factor, people gladly lost rights in order to help the war effort, especially after the bombing of Pearl Harbor. Japanese American citizens and Japanese of other statuses, on the other hand, fell victim to extremely oppressive legislation and judicial action. Although a review of the American foundational documents proved the unconstitutional and un-American nature of the legislation, the champion of the constitution, the Supreme Court had decided that the acts were 53

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necessary and proper due to the fact that it was war time. The argument was that during war there is a greater need for protection from increased threats, therefore citizens must put up with a loss of rights. One must note that the distinct dip in standard of living and rights displayed during the World War II for some citizens and the unparalleled violation of rights for other citizens had formed a type of selective citizenship, rewriting the social contract for different groups based on distinct understandings of their rights and responsibilities.

The duality of citizenship Terrorism in the United States destroys the social contract between citizens and the state by dividing the population. A dual citizenship is created, in which some citizens may retain their original liberties, while others are stripped of rights. I believe that this selective citizenship is unconstitutional and must never occur within the confines of the United States. The second section of this paper examined citizenship as an overarching identity binding individuals on the basis of the social contract. Throughout the development of this concept, the traditional notion was that of a shared prosperity and struggle between citizens. Our understanding of citizenship dictates that the government provides many rights and liberties which individuals can enjoy through the safety created by the government’s presence.

During times of peace all citizens have the incredible protections of the legal culture surrounding the founding documents as described in the first section. Rights which are believed to be inalienable and true to every person are declared and protected.

As described in the second section, under certain instances, such as during wartime, all citizens must become subject to obligations and duties which restrict freedoms tremendously. Finally, as outlined in the third section, due to terrorism, the individual citizen could be either empowered or restricted by the government. The United States government was created with the intention of championing freedoms, but terrorism creates a state in which some citizens retain rights and others are exploited.

Wartime and terrorism One of the strongest shapers of American citizenship is war time. During wars the government is tasked with upholding their most important part of the social contract, enabling the safety of citizens. As outlined in section two, throughout America’s early history, war time allowed the government and the people to learn the limits of freedoms and the bounds of government interference.

Traditionally during a war a citizen’s life becomes more reflective of obligations and control, rather than freedoms. The government’s metaphorical shield, which protects citizens also blocks established freedoms and encages citizens into aiding the war effort. This process has an impact on the overall definition of citizenship, at least temporarily until the threat is neutralized. After the war, citizenship reverts back to its original shape. For better or worse, this trajectory leaves the concept of citizenship slightly changed, its contours more clearly defined.

Wartime defines important traits within citizens, which become engrained within the definition of American citizenship. Responsibilities and duties which greatly aid survival during war time become synonymous with the American culture. The terrorist attack on Pearl Harbor during World War II seemed to completely break this pattern.

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drastically and permanently, unlike other wars in America’s history. Terrorism has created a type of selective citizenship that unequally demands duties and rewards liberties among citizens. Furthermore, due to the informal nature of terrorism, at any point it is theoretically possible for a class of law abiding citizens to become subjects of unequal citizenship.

September 11th and Pearl Harbor This concept of dual citizenship is extremely important to understand moving forward into the future. Due to the growing interdependence of the global society, cultures will more often meet and inevitably collide. The terrorist attacks of September 11th, 2001 and the legislation which followed directly coincide with the idea that terrorism creates a division within citizenship, wherein only select citizens lose rights and are extremely marginalized, while others enjoy liberties as during peace time.

In the same way that the attack on Pearl Harbor shocked America during World War II, the unpredictable September 11th attacks on the country terrified and shocked the nation seven decades later. Two planes hit the World Trade Center in New York City, making both towers collapse onto the city below. Another plane hit the Pentagon. Due to the fact that there was no declared war at the time of the attacks, and the way that civilians were targeted, the attacks of 9/11 are considered terroristic attacks on America.

The legal ramifications of the attack do not adhere to the civil rights as outlined by the foundational documents, and do not resemble the shared American identity created through the Revolutionary War and World War I, but rather it seems to mirror the oppressive rewriting of the social contract during World War II, which divided American citizens and unequally distributed the burdens of war on select citizen groups purely based on identity.

During a state of national threat, the political culture becomes more authoritarian and the society overall less accepting (Perrin, 2005). Political actions during hectic times tend to focus on draconian legal restrictions. The environment after both Pearl Harbor and the September 11th attacks was perfectly set for the suppression of liberties. The people were distracted and the government took a more aggressive stance. During such a threat, the legal environment mimics that of a combat military engagement.

Consequently, political discourse “became significantly more aggressive in punishing perceived enemies and more concerned with power and toughness� (Perrin, 2005, p. 189). In the same way that the attacks of Pearl Harbor caused the government to mobilize, enter into World War II with a hunger for revenge, and restrict the rights of Asian Americans, the attacks of September 11 prompted a need for retaliation. As described in the third section, during World War II, the liberties of Japanese Americans within the United States were restricted through the Executive Order 9066 and the infamous Supreme Court decision Korematsu v. United States. These events were unambiguously recreated in the wake of the September 11th attack.

The Patriot Act In order to better protect the country against similar attacks, Congress passed the Patriot Act in October 2001. Attorney General John Aschcroft described in a 2001 speech the pillars of the Act in the following manner: the first principle is airtight surveillance of terrorists; the second principle is speed in tracking down and 55

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intercepting terrorists, and to that end law enforcement began to employ new tools that eased administrative burdens and delays in apprehending terrorists. The rationale was thus quite simple: in order to retaliate and to prevent future occurrences, the government needed to be able to gather more intelligence. Unfortunately, airtight surveillance means an infringement of Americans’ right to privacy. Speedy legislation infringes due process and administrative delays are enacted for specific reasons.

The Patriot Act made the following legal changes: standards for wiretapping were lowered, the need for a court order was lifted. Rather than having an unbiased court determine whether or not there is a substantial risk to warrant the invasion of citizens’ privacy, this is left to be determined by any law enforcement agency. Another change concerns the sharing of information between agencies without judicial review. A natural part of checks and balances and of the separation of law enforcement agencies has become null and void. Each agency was created with a specific task, which yielded a certain amount of power. Yet this provision directly violates any type of established limit.

Additionally, the Patriot Act greatly infringes on personal privacy as law enforcement may access individuals’ internet communications. Traditionally, there is a need to determine probable cause to acquire a search warrant. Moreover, another provision makes large financial organizations liable to government control: financial institutions must closely monitor transactions and agencies may access an individual’s credit report secretly, and without review. The Patriot Act enables the enforcers of policy to have absolute discretion as it relates to what they want to accomplish, without regard to privacy concerns.

One of the most potentially dangerous additions to American law through the Patriot Act comes from simply defining the problem. Domestic terrorism is defined as “acts dangerous to human life.” This increases the government’s power exponentially. It determines that any instance which “involves acts dangerous to human life” amounts to terrorism, in which case the government possesses extreme discretion.

Lastly, the Patriot Act reinforces the concept of duality of citizenship. Noncitizens facing deportations may be held indefinitely, yet this is the only part of the act which explicitly states the entities which are targeted are non-citizens. All of the aforementioned parts of the law apply to all citizens and noncitizens alike. Moreover, the fact that any person may be held indefinitely, without any mention of due process or any type of review, infringes on basic human rights. I believe that this is a natural extension of the Executive Order passed during World War II. In the same way that the laws which relate to Korematsu v. United States never explicitly mentioned the suspect class of citizens, it is understood now that only some Americans’ rights are forcefully taken away.

Conclusion: rights and safety Chief Justice William Rehnquist suggested in his book, “All the Laws but One: Civil Liberties in Wartime” (1998), that during times of war, the balance of freedom and order shifts toward order, so the government can deal with conditions that threaten the national wellbeing. The assumption is that when people feel that their life is on the line, they are willing to give up rights which they hold dear during times of safety. Citizens attempt to make a rational cost benefits analysis when it comes to safety and liberties, but as soon as it becomes personal, the scales sway towards the former. In particular, 56

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safety is favored when people consider how the issues under discussion might or might not affect themselves (Chong, 1993). This makes it easier for one select group of citizens to be easily targeted and have their rights and liberties restricted.

The concept of citizenship has changed drastically due to terrorism. There are less rights and liberties during wartime, but it is a shared struggle between citizens, which is explicit in enforcement and reenactment, through declarations of war and peace treaties. Terrorism, on the other hand can never truly be stopped, and rights may never be reclaimed. Wars have had strong public support in our past, and whenever the United States is attacked, the ease with which we give away rights is incredible. In both cases of Korematsu and the Patriot Act, the Supreme Court upheld the extreme withdrawal of rights, and they have not been declared unconstitutional- although they both clearly infringe on many aspects of our founding documents. Our world is a globalized one, in which interaction between nations is nonstop. The future seems bleak, as a single terrorist attack has the ability to change the American government in relation to citizens and rights forever.

I believe that a separate review process should be created to evaluate war time laws and policies and ensure that our foundational documents are followed.

Unfortunately, the Supreme Court does not seem to realistically review governmental war time acts. Citizens may lose some rights to privacy during actual war time, especially when it is on our land- but this should not include times of instability or slight risk. This raises another question: what actual permanent inalienable rights do the citizens of the United States retain, in a constantly fluctuating world? As a society, we must understand how far the citizens’ liberties can be stretched. Can and should we allow the government to redefine the powers of a citizen, on an ongoing basis? Is the concept of citizenship changing so rapidly that it is losing all of its significance, and should we care? Or can we stop it?

The importance of these research questions explicitly enters our collective consciousness whenever terrorism occurs. On April 15th, 2013 during the Boston Marathon two individuals triggered multiple bombs in a terroristic attack which injured hundreds and killed three, including an eight year old child. Boston and surrounding cities were shut down for the investigation and public safety. One of the terrorists was a citizen of the United States and the other was not. The Patriot Act was in full effect during this tragic event, and although the rights of some are still greatly reduced, lives were lost. Although there is an unrelenting urge from the government and the public alike to forcefully and swiftly bring the individuals to justice, we must understand that there are important liberties citizens and noncitizens have fundamentally. Whenever an event such as this occurs, however tragic, we must not allow all liberties to become null and void. After all, it is when they are most forcefully challenged, that their importance shines above all.

References Amar, A. R. (1998). The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press.

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Ashcroft, J. (2001, October 25). Prepared Remarks for the US Mayors Conference.

Retrieved from http://www.justice.gov/archive/ag/speeches/2001/agcrisisremarks10_25.htm.

Commission Appointed by the President. (1942, January 23). Attack upon Pearl Harbor

by Japanese Armed Forces. Report of the S. Doc. No. 159, 77th Cong., 2d Sess.

Beeman, R. R. (2004). The Varieties of Political Experience in Eighteenth-Century America. Philadelphia: University of Pennsylvania.

Capozzola, C. J. N. (2008). Uncle Sam Wants You: World War I and theMaking of the Modern American Citizen. Oxford: Oxford University Press.

Chong, D. (1993). How People Think, Reason, and Feel about Rights and Liberties.

American Journal of Political Science, 37, 867-99.

Dunn, D. H. (2005). Bush, 11 September and the Conflicting Strategies of the ‘War onTerrorism’. Irish Studies in International Affairs, 16, 11-33.

Elliott, J. H. (2007). Empires of the Atlantic World: Britain and Spain in America, 1492-1830. New Haven: Yale University Press.

Eligon, J. (2013, April 16). Blasts at Boston Marathon Kill 3 and Injure 100. The New York Times.

O'Neill, W. L. (1995). A Democracy at War: America's Fight at Home and Abroad in World War II. Cambridge, MA: Harvard University Press.

Painter, S. (1947). Magna Carta. The American Historical Review, 53 (1), 42-29.

Perrin, A.J. (2005). National Threat and Political Culture: Authoritarianism, Antiauthoritarianism, and the September 11 Attacks. Political Psychology 26(2), 167194.

Rehnquist, W. H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: Knopf.

Sadler, P. and Oats, L. (2008). Accounting for the Stamp Act Crisis. Accounting Historians Journal, 35(2), 101-143.

Tritter, D. F. (2005). In the Defense of Fred Korematsu: Vox Clamantis in Deserto Curiarum. Thomas Jefferson Law Review, 27, 255-316 .

Turner, R. V. (2003). The Meaning of Magna Carta since 1215. History Today, 53(9).

Retrieved from http://www.historytoday.com/ralph-v-turner/meaning-magna-carta1215.

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The Effects of Hazing on Student Self-Esteem: Study of Hazing Practices in Greek Organizations in a State College ANNE MERCURO, SAMANTHA MERRITT, AMANDA FIUMEFREDDO * College is a unique socialization experience. It’s the time when an individual is able to figure out who he or she is, as well as the type of friends he or she wants in his or her life. While Intramurals, clubs, athletics, and dorm-life are common ways of socializing, joining Greek-life --Fraternity or Sorority-- is also popular among college students. Fraternities and sororities provide many benefits to students such as leadership opportunities, participation in college activities, friendships and extended connections with other chapters around the nation. Although popular, induction into Greek organizations has become a problem because of the practice of hazing. Hazing is defined as “...any activity, required implicitly or explicitly as a condition of initiation or continued membership in an organization, that may negatively impact the physical or psychological well-being of the individual or may cause damage to others, or to public or private property (Campo et. al., 2005, p. 137). According to Hoover and Milner (1998), “The attraction of hazing probably extends beyond the dictates of tradition, forging bonds through shared, secretive experiences. (The) rituals are thought to strengthen the group by proving the devotion of newcomers but also by helping to create a sense of loyalty” (p. 140). The effort to instill loyalty and devotion to the organization is pushed too hard sometimes. In essence, while fraternities and sororities offer a large social network for students and are beneficial to individuals’ growth, skills, and characteristics, hazing is a problem as it has negative consequences on an individual that simply strives to belong.

This paper studies hazing among Greek-organizations at a public liberal arts college in the Northeastern U.S. and its impact on individuals’ self-esteem. The paper proposes two hypotheses: first, individuals who experienced hazing will have lower selfesteem than those who have not experienced hazing; and second, fraternities haze more than sororities, based on personal observations in a small state college.

Perspectives on hazing While membership in a Greek organization is typically seen in a positive light, some may wonder if the good outweighs the bad with respect to the potential risk of being hazed. Hazing is universally known as an initiation process that includes aggressive and harmful actions upon new members within Greek organizations, athletic teams and other types of clubs and activities. While hazing practices vary within organizations, there are some common hazing activities such as sleep deprivation, Anne Mercuro is a senior majoring in Psychology and minoring in Sociology. She will graduate in May 204 and intends to pursue a graduate degree in school counseling. Samantha Merritt graduated from Ramapo College of New Jersey. Amanda Fiumefreddo is a Psychology major with a double minor in Sociology and Substance Abuse. She is currently an honors student, the Treasurer of Psi Chi Honor Society, a member of the Psychology Coalition, and a member of the Golden Key International Honor Society. She is looking forward to graduating in May 2014 and working towards a career as a Certified Alcohol Counselor. *

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engaging in embarrassing behavior, drinking excessive amounts of alcohol, verbal and physical abuse, and much more (Cokley et al., 2001). These can impact a student negatively and hence it is important to be aware of potential negative implications.

Student attitudes about pledging Social science research shows that hazing significantly influences people’s perspectives on Greek organizations, and has also affected new members both physically and cognitively. A number of researchers such as Cokley et al. studied the cognitive impact of hazing on students by surveying members and non members of organizations.

For instance, Cokley et al. (2001) developed a Survey of Attitudes about Fraternities and Sororities (SAAP) to measure student perception about the role of pledging in Greek organizations. The survey focused on six factors that described attitudes towards Greek organizations: the purpose of pledging, the impact of pledging, conformity to pledging, rules, perceptions of Greek organizations, moral concerns, and beliefs about pledging difficulty.

The results of the survey showed that more females than males believed that pledging should be a positive experience. However, the results also showed that members of Greek organizations had a more positive view of Greek life and the pledging process in comparison to non-Greek students. The researchers concluded that “it is obvious that there are students who do value Greek letter organizations…likewise, it is apparent that when student’s perceptions of Greek letter organizations are uncritically positive, they become susceptible to hazing activities” (Cokley et al., 2001, par. 16).

Hence, they argued that education about both the positive and negative aspects of Greek organizations should be given to all students, so that they can make a “fully informed decision about participation” (par. 16).

Similarly, Campo, Poulos, and Sipple (2005) studied how college students’ behaviors and beliefs correlated to hazing. They conducted a 20-minute web-based survey via e-mail using a random sample of 2,000 undergraduates. They used “specific questions on team-building and initiation activities (TBIs) and were derived from a national survey of college sports teams and university judicial board records” (p. 139).

They found that drinking games and contests, as well as sleep deprivation, were the most commonly reported forms of hazing. Their results showed that students thought that hazing was in fact harmful, but they were neutral to their susceptibility to harm (p.

146). Campo et al.’s study concluded that “hazing is occurring on campus, although not always recognized as such by students” (p. 137).

Further, it has been observed that attitudes about hazing practices, especially alcohol overdose, may vary between fraternities and sororities. Drout and Corsono (2003) conducted an experimental study of student perceptions on alcohol overdose by placing them in hazing scenarios in a fraternity and sorority setting. The scenarios involved fraternities giving the students controlled and uncontrolled overdoses of alcohol consumption. Out of the 231 students, the 78 fraternity members within the study tended to view their fraternity president’s authority as not responsible for the outcome of involuntary alcohol consumption and viewed their brothers the same way.

However, the 34 sorority members of the sample population took the scenarios more seriously. They felt more responsible for the overdose of alcohol consumption when the president was not involved. The researchers found that there were differences (not noted in the study) in beliefs on why overdoses occur among Greek and non-Greek 60

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individuals. Sororities and non-Greeks believe that it occurs because of a person’s need to be accepted into Greek-life, whereas fraternities believe that it occurs from a pledge’s over-willingness to please brothers. Overall, the researchers found that fraternities were more willing and accepting of alcohol overdose amongst the students than sororities or non-Greek students.

Another reason for hazing in organizations is group solidarity. Cimino (2011) studied hazing by surveying participants in strongly cooperative groups and weakly cooperative groups. He asked participants to picture themselves in high effort and low effort group activity and see if they were high or low contributors. The results were that participants desired more severe hazing in strong groups than in weak groups. In the second experiment he used the same model but improved the stimuli and removed threats to internal validity. In this experiment, participants were asked to focus on the benefits of “mutual group aid” (Cimino, 2011, p. 258). This group was found to desire more severe hazing in strong groups than in weak groups. Overall, these studies show that hazing is prevalent in Greek organizations and is practiced to maintain group solidarity. The practice can be harmful to its participants, though perceptions vary.

Impact of hazing on student self-esteem Many cognitive processes could be negatively impacted due to hazing, such as self-esteem, moral and identity development. Though many students who decide to go through with the recruitment process perceive Greek organizations as beneficial, rarely do they consider the negative implications of hazing. Keating et al. (2005) state "striving to belong to a particular group, especially during ritualized initiations, may result in the justification of that effort, thereby inoculating individuals against any dissonant cognition they may harbor concerning the consequences of group membership” (p. 104).

Especially when one is moving away from home for the first time, the idea of belonging and feeling accepted amongst one’s peers may triumph over any fears new pledges may initially face. While some may see the initiation process as harmful and overall negative, others may push aside this fear in order to actually raise their self-esteem and confidence amongst their peers. Through their study, however, Keating et al. (2005) found that both men and women who experienced “severe” induction activities were more likely to have an increased dependency on their fellow peers, feeling uncomfortable when left alone (p. 107).

Further, affiliation in Greek societies has no positive effects on individual identity. Kilgannon and Erwin’s (1992) study on the difference between non-Greek men and women’s moral and identity development vs. Greek men and women’s development showed that non-Greek men and women had higher self confidence. For instance, this study proved that non-Greek women had higher moral reasoning averages than Greek women. Also, Greek men scored lower confidence levels of identity development than non-Greek men. Grossbard et al. (2009) examined gender as a moderator of the association between contingent self-esteem and body image concerns, including weight and muscularity. Results of the study found that females reported higher levels of contingent self-esteem and greater concerns about their weight, although males reported a greater drive for muscularity.

Membership in Greek society undermines students’ self-esteem and this has other negative implications. For instance, it was seen that these students were pressured to live up to certain standards set by others to feel good about themselves. Liuna and

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Tao (2013) argue that acceptance in groups affects students’ self-esteem. The researchers believed that in the domain of academic competence and competition, contingencies of self-worth moderated the relationship between self-esteem and selfcompetence, and in the domains of appearance, family, virtue, and others’ approval, contingencies of self-worth moderated the relationship between self-esteem and selfliking. They defined contingencies of self-worth as “domains in which a person has based his or her self-esteem, such that perceived successes or failures in those domains greatly determine the person’s self-esteem state” (Liuna & Tao, 2013, p. 97). They concluded that individual importance is not the only means by which people satisfy their self-esteem needs.

The level of self-esteem impacted student misuse of alcohol, prejudices etc.

Zeiger-Hill, Stubbs, and Madson (2013) claim that individuals who possess high levels of self-esteem consume less alcohol and experience fewer negative consequences than those with fragile self-esteem who relied on living up to certain standards in order to feel good about themselves. Crocker et al. (1987) stated that individuals who have lower self-esteem tend to be more prejudiced, for example in terms of failure feedback and derogation of members of out-groups. As a result, they concluded that individuals who had higher self-esteem would respond to threats to the self-concept by detracting from out-groups when group boundaries have evaluative implications.

These studies suggest that hazing affects student self-esteem and there are considerable differences between members of Greek societies. Based on the prior studies, we conducted research in a public liberal arts college to see who is most susceptible to hazing on campus and how hazing affects their self-esteem.

Method This study was conducted in order to investigate if members of fraternities are more likely to experience hazing than members of sororities and assess whether hazing has an effect on students’ self-esteem levels. The participants in this research completed an electronic survey. The survey was designed to assess students’ self-esteem levels and their perceptions of hazing.

Participants in the sample were undergraduate students from a public liberal arts college in the Northern U.S. The survey was constructed using Qualtrics Research Suite, an online survey software that allows students to collect and analyze the data they receive. The survey link was distributed through college e-mail and on a social media website group page. Seventy-eight surveys were collected and recorded.

The researchers used a non-probability sampling technique called convenience sampling because of accessibility and time factors. Convenience sampling allows for a quick and inexpensive recruitment of respondents, allowing the researchers to collect as much data as necessary for the study in a short amount of time. Due to this limitation, the respondents may not represent all subgroups within the college’s student population.

Measures At the beginning of the survey, participants were given an informed consent form. Participants were made aware that the primary aim of the project was to explore predictors of self-esteem. Given the sensitive nature of this subject, it is important for participants to know that their responses remain anonymous. Before beginning the 62

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survey, they were informed that their participation in this research project was voluntary, that they were allowed to withdraw at any time. The informed consent form also provided a quick overview of what the survey questions entailed. Participants were asked to complete several demographic questions and were then asked to complete the Rosenberg Self-Esteem Scale [RSES], in which they indicated their agreement or disagreement with each item (Sociology Department of University of Maryland, n.d).

The paragraph also informed the participants that while there was no risk associated with their participation, if they had any questions or wished to receive the findings of the study, they would be able to contact the researchers. After submitting their responses, participants were then provided with a debriefing statement that informed them of the purpose of the study. Caution was also exercised with regards to ensuring that participants did not feel hurt or embarrassed, such cases were referred to the college’s counseling center.

After electronically signing the informed consent form, we asked demographic questions that assessed the participants’ gender, race, residential status, and involvement with Greek organizations. Following the demographic questions, RSES was implemented to evaluate students’ self-esteem. Participants were asked to rate their agreement with each question, varying from strongly agree to strongly disagree, without a neutral category. Regarding self-esteem, statements such as “I take a positive attitude toward myself” and “I feel that I am a person of worth, at least on equal plane with others” (isn’t this “an equal plane”) were included (Sociology Department of University of Maryland, n.d.). After the participants completed the RSES, they were presented with a scale that assessed their perceptions on harassment in general, with a few questions addressing hazing in particular. An example of a statement that addressed hazing was, “Even though hazing is a form of harassment, unless there is physical abuse, I would not consider it hazing” (Appendix A). For the final question of the survey, participants were given a list of different forms of harassment/abuse and were asked to check off the ones that they had experienced, with hazing being one of the choices.

Demographic profile The research examined four characteristics: sex, race, residential status, and Greek affiliation. The sample consisted of 15 males (19%) and 63 females (81%) (Table 1). In regards to race, the sample consisted of 63 Caucasian participants (81%), 6 Latino or Hispanic participants (8%), 6 Asian or Pacific Islander participants (8%), 1 African American participant (1%), and 2 that classified themselves as “other” (3%) (Table 1). 53 participants live on campus (68%), and 25 participants are commuters (32%) (Table 1).

As for Greek affiliation, 33 respondents are part of the college’s Greek Life, with 6 respondents belonging to a fraternity (8%) and 27 respondents belonging to a sorority (27%) (Table 2). 45 participants stated that they were not involved in any of the Greek organizations on campus (58%) (Table 2).

Results The objective was to examine if members of fraternities are more likely to experience hazing when compared to members of sororities. Also of interest was whether hazing has an effect on students’ self-esteem levels. The researchers expected that the data would reveal that fraternities were more likely to haze their members than sororities, and that those affiliated with Greek organizations would have lower self-

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esteem due to hazing. The participants responded to statements that assessed selfesteem and experiences with multiple forms of harassment, including hazing.

Respondents were presented with the RSES to assess their self-esteem (Appendix A). The ten questions consisted of five positive and five negative expressions of selfesteem. Respondents were asked to rate their responses from 1 to 4, with 1 being strongly agree and 4 being strongly disagree. For this research, the researchers decided to recode the positive expressions so that responses would be 1 to 4, but 1 would be strongly disagree and 4 would be strongly agree. Overall, the 33 participants that were affiliated with Greek organizations had a higher self-esteem (33.42), and the 45 participants who weren’t had lower self-esteem (31.55) (Table 5). However, those who belonged to fraternities had a self-esteem average of 30.83, which was the lowest average compared to those who belonged in sororities (34.0) and those who were not affiliated with Greek organizations (31.56) (Table 6).

In addition, respondents were also presented with a checklist where they were given eight possible forms of abuse and were asked to select all that applied to their personal experiences. The eight possible choices that the participants could have selected were hazing, physical abuse, verbal abuse, involuntary behavior, forced alcohol consumption, humiliation, intimidation, and/or feeling degraded (Appendix A). 65 of the respondents stated that they had not experienced hazing while 13 of the respondents stated that they had. Those who stated that they had not experienced hazing had a selfesteem average of 32.876, while those who said that they had experienced hazing had a self-esteem average of 29.692, signifying that those who had said that they had experienced hazing had a lower self-esteem. The data revealed a significant relationship among the variables (p = .039, p < .05) (Table 4).

Next, the researchers decided to do a cross tabulation between Greek Affiliation and the checklist that signified their experiences with various forms of abuse. When asked if they had experienced hazing, 83.3% of the participants selected that they had not experienced hazing, which included 83% of those who belonged to a fraternity, 63% of those who belonged to a sorority, and 65.6% of those who were not affiliated at all.

Only 1 fraternity member (16.7%), 10 sorority members (37.0%), and 2 non-Greek members (4.4%) selected that they had experienced hazing, making up 16.7% of the participants (Table 7). When asked if the participants had experienced physical abuse, 85.5% of the sample stated that they had not, with 100% of fraternity respondents, 92.6% of sorority respondents, and 84.4% of non-Greek affiliated respondents all falling under this statistic. Only 11.5% of the sample stated that they had experienced physical abuse, with 7.4% of those respondents belonging to a sorority, and 15.6% respondents not belonging to a Greek organization (Table 9). However, one possible limitation was the chance that these experiences had not happened within their Greek activities.

Moreover, the numbers of respondents that experienced verbal abuse were much higher than those who had experienced physical abuse. Among those who selected that they had experienced verbal abuse, the majority was not affiliated with Greek organizations (66.7%). Sorority members had the second highest percentage of the sample that had experienced verbal abuse (40.7%), and fraternity members had the lowest percentage that had experienced verbal abuse (16.7%) (Table 8). Over 96% (consistency) of the sample stated that they had never experienced forced alcohol consumption, with 100% of both sorority and fraternity members stating that they had not experienced forced alcohol consumption, and only 6.7% of those that did not 64

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affiliate with Greek organizations stating that they had (Table 10). Also, only 11.5% of the sample stated that they had experienced involuntary behavior, with 16.7% of fraternity members, 14.8% of sorority members, and 8.9% of non-Greek members making up this statistic (Table 11).

However, those who had experienced both humiliation and intimidation were much more prevalent, with 32.1% of the sample experiencing humiliation and 44.9% of the population experiencing intimidation. Fraternity members and sorority members reported feelings of humiliation equally, both equaling 33.3% of their respective populations (Table 12). Nevertheless, more sorority members admitted to feelings of intimidation (48.1%) over those who belonged to a fraternity that had experienced intimidation (16.7%) (Table 13). There were more non-Greek affiliated respondents who had not experienced both humiliation (68.9%) and intimidation (53.3%) over those who did experience humiliation (31.1%) and intimidation (46.7%) (Tables 12 and 13).

Respondents that were not involved in any Greek organization had the highest percentage among those who felt degraded (28.9%), as opposed to those who belonged to a fraternity (16.7%) and those who belonged to a sorority (25.9%). Fraternity members had the highest amount of respondents that stated that they did not feel degraded by others (83.3%), compared to those that belonged in a sorority (74.1%) and those that were not Greek affiliates (71.1%) (Table 14).

The results show that the overall self-esteem of those who belong to Greek organizations was higher on average (33.42) than those who were not affiliated (31.55) (Table 5). However, fraternity members had the lowest overall self-esteem score (30.88), compared to sorority members’ overall self-esteem (34.0) and non-Greek affiliates self-esteem (31.556) (Table 6). The survey also showed that those who had not been hazed had a higher self-esteem with a self-esteem average of 32.876 and those who had been hazed had a self-esteem average of 29.692 (Table 4). Only one fraternity member, ten sorority members, and 2 non-Greek members admitted to being hazed (Table 7).

In studies that had more male participants, such as Drout and Corsono’s (2003) research, many researchers find that fraternities are more accepting of alcohol overdose amongst the students than sororities or non-Greek students. This is due to fraternities’ beliefs that indulgence in alcohol will eventually lead to acceptance and approval from their Greek brothers. Due to the present study’s lack of male participants, the current results found that only 6.7% of the respondents admitted to being pressured into drinking alcohol, none of whom belonged to a Greek organization. These findings also differ from Glindemann et al.’s (1999) study. Glindemann et al. (1999) found that there was a distinct correlation between college students’ levels of self-esteem and their consumption of alcohol; this has relied on self-reported measures of alcohol use.

The current study’s results also differ from Keating et al.’s (2005) research.

Keating et al. (2005) found that both men and women who experienced severe induction activities were more likely to have an increased dependency on their fellow peers, feeling uncomfortable being left alone. The present research results found that fraternity members had the lowest overall self-esteem score and that if one had not been hazed then he or she typically had a higher self-esteem average. These findings correlate with the researchers’ original hypothesis that fraternities are more likely to haze than sororities and that hazing would have a negative impact on self-esteem. However, the

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findings did not reveal that hazing was the leading cause of low levels of self-esteem, with only 16.7% of the sample admitting to experiencing hazing.

While fraternities seemed to be having the lowest levels of self-esteem, the findings show that Greek members collectively had higher levels of self-esteem. As Keating et al. (2005) stated "striving to belong to a particular group, especially during ritualized initiations, may result in the justification of that effort, thereby inoculating individuals against any dissonant cognition they may harbor concerning the consequences of group membership” (p. 104). Especially when one is moving away from home for the first time, the idea of belonging and feeling accepted amongst one’s peers may triumph over any fears new pledges may initially face. So while some may see the initiation process as harmful and negative, others may be pushing aside this fear in order to actually raise their self-esteem and confidence amongst their peers.

Similar to the current study, Campo, Poulos, and Sipple (2005) conducted a webbased survey using a random selection of 2000 undergraduates. Their goal was to see college students’ attitudes, behaviors, and beliefs on hazing. Their survey results showed that students thought that hazing was in fact harmful, but they were impartial to their vulnerability to harm. They concluded, “hazing is occurring on campus, although not always recognized as such by students” (Campo et. al, 2005, p. 137).

Social science research on hazing is limited to a few campuses. It will be interesting to broaden this by surveying students across North America and see how results differ from college to university as well as state to state. While it is apparent that hazing is an issue within every college, assessing more schools in various states would help determine if hazing is prevalent among specific universities and/or states. Future research on the prevalence of hazing among Greek organizations and its influence on self-esteem should further inquire about hazing processes and aim to collect more specific information about the participants’ experiences during the hazing processes.

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Table 1: Demographic profile of sample Gender

Race

Residential Status

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Table 2: Greek organization membership Greek Affiliations

Greek

Membership

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Table 3: Self-esteem scale results

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Table 4: Hazing effects on self-esteem Group Statistics Have you ever experienced N Mean Std. Std. Error any of the following (Check all Deviation Mean that apply):-Hazing No 65 32.8769 5.66653 .70285 SelfEsteemScale2 Yes 13 29.6923 6.84817 1.89934

Equal variances assumed SelfEsteemScale2 Equal variances not assumed

Independent Samples Test Levene's t-test for Equality of Means Test for Equality of Variances F Sig. t df Sig. Mean Std. Error 95% Confidence (1- Difference Difference Interval of the tailed) Difference Lower Upper .493 .485 1.786 76 .039 3.18462 1.78311 -.36676 6.73599 1.572 15.457

70

.136

3.18462

2.02521

- 7.49016 1.12093

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Table 5: Self-esteem effects on Greek affiliation Group Statistics Are you involved/have you N Mean Std. been involved with GreekDeviation organizations?

Yes 33 33.4242 5.37953 SelfEsteemScale2 No 45 31.5556 6.27968

Equal variances assumed SelfEsteemScale2 Equal variances not assumed

Std. Error Mean .93646 .93612

Independent Samples Test Levene's t-test for Equality of Means Test for Equality of Variances F Sig. t df Sig. Mean Std. Error 95% Confidence (2- Difference Difference Interval of the tailed) Difference Lower Upper .989 .323 1.378 76 .172 1.86869 1.35617 - 4.56973 .83236 1.411 74.097

71

.162

1.86869

1.32411

- 4.50698 .76960

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Table 6: Self-esteem effects on fraternity, sorority, and non-Greek members

SelfEsteemScale2 N Mean

Fraternit y Sorority Does not apply to me Total

6 30.8333 27 4 5

34.000 0 31.5556

7 32.3462 8

Descriptives Std. Deviatio n 6.52431

Std. Error

95% Confidence Interval for Mean Lower Upper Bound Bound 23.9865 37.680 2 32.000 35.9991 9 29.6689 33.4422

5.05356

2.6635 4 .97256

6.27968

.93612

5.95181

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Minimu m

Maximu m

22.00

40.00

23.00

40.00

15.00

40.00

15.00

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Table 7: Cross-tabulation between self-esteem and hazing Have you ever experienced any of the following (Check all that apply):Hazing * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the previous Total question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 5 17 43 65 % within If you 83.3% 63.0% 95.6% 83.3% selected yes to the No previous question, identify your involvement (Must Have you ever select one of the experienced any foll... of the following Count 1 10 2 13 (Check all that % within If you 16.7% 37.0% 4.4% 16.7% apply):-Hazing selected yes to the Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 8: Cross-tabulation between self-esteem and verbal abuse Have you ever experienced any of the following (Check all that apply):-Verbal Abuse * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the previous Total question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Have you ever No Count 5 16 15 36 experienced any of % within If you 83.3% 59.3% 33.3% 46.2% the following selected yes to the (Check all that previous question, apply):-Verbal identify your Abuse involvement (Must select one of the foll...

Yes Count 1 11 30 42 % within If you 16.7% 40.7% 66.7% 53.8% selected yes to the previous question, identify your involvement (Must select one of the foll...

Total Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, identify your involvement (Must select one of the foll...

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Table 9: Cross-tabulation between self-esteem and physical abuse Have you ever experienced any of the following (Check all that apply):Physical Abuse * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the previous Total question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 6 25 38 69 % within If you 100.0% 92.6% 84.4% 88.5% selected yes to the No previous question, identify your involvement (Must Have you ever select one of the experienced any foll... of the following (Check all that Count 0 2 7 9 apply):-Physical % within If you 0.0% 7.4% 15.6% 11.5% Abuse selected yes to the Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 10: Cross-tabulation between self-esteem and forced alcohol consumption Have you ever experienced any of the following (Check all that apply):Forced Alcohol Consumption * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the Total previous question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 6 27 42 75 % within If you 100.0% 100.0% 93.3% 96.2% selected yes to the No previous question, identify your Have you ever involvement experienced any of (Must select one the following of the foll...

(Check all that Count 0 0 3 3 apply):-Forced % within If you 0.0% 0.0% 6.7% 3.8% Alcohol selected yes to the Consumption Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 11: Cross-tabulation between self-esteem and involuntary behavior Have you ever experienced any of the following (Check all that apply):Involuntary Behavior * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the Total previous question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 5 23 41 69 % within If you 83.3% 85.2% 91.1% 88.5% selected yes to the No previous question, identify your Have you ever involvement (Must experienced any select one of the of the following foll...

(Check all that Count 1 4 4 9 apply):% within If you 16.7% 14.8% 8.9% 11.5% Involuntary selected yes to the Behavior Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 12: Cross-tabulation between self-esteem and humiliation because of others Have you ever experienced any of the following (Check all that apply):Humiliation because of others * If you selected yes to the previous question, identify your involvement (Must select one of the foll...

Crosstabulation If you selected yes to the Total previous question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 4 18 31 53 % within If you 66.7% 66.7% 68.9% 67.9% selected yes to the No previous question, identify your Have you ever involvement (Must experienced any select one of the of the following foll...

(Check all that Count 2 9 14 25 apply):% within If you 33.3% 33.3% 31.1% 32.1% Humiliation selected yes to the because of others Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 13: Cross-tabulation between self-esteem and intimidation because of others Have you ever experienced any of the following (Check all that apply):Intimidation because of others * If you selected yes to the previous question, identify your involvement (Must select one of the foll...

Crosstabulation If you selected yes to the Total previous question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 5 14 24 43 % within If you 83.3% 51.9% 53.3% 55.1% selected yes to the No previous question, identify your Have you ever involvement experienced any (Must select one of the following of the foll...

(Check all that Count 1 13 21 35 apply):% within If you 16.7% 48.1% 46.7% 44.9% Intimidation selected yes to the because of others Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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Table 14: Cross-tabulation between self-esteem and degraded by others Have you ever experienced any of the following (Check all that apply):Degraded by others * If you selected yes to the previous question, identify your involvement (Must select one of the foll... Crosstabulation If you selected yes to the previous Total question, identify your involvement (Must select one of the foll...

Fraternity Sorority Does not apply to me Count 5 20 32 57 % within If you 83.3% 74.1% 71.1% 73.1% selected yes to the No previous question, identify your involvement (Must Have you ever select one of the experienced any foll... of the following (Check all that Count 1 7 13 21 apply):-Degraded % within If you 16.7% 25.9% 28.9% 26.9% by others selected yes to the Yes previous question, identify your involvement (Must select one of the foll...

Count 6 27 45 78 % within If you 100.0% 100.0% 100.0% 100.0% selected yes to the previous question, Total identify your involvement (Must select one of the foll...

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References Brand, Jeffery A., & Dodd, David K. (1998). Self-esteem among college men as a function of greek affiliation and year in college. Journal of College Student Development, 39(6), 611-611.

Campo, S., Poulos, G., & Sipple, J. W. (2005). Prevalence and profiling: Hazing among college students and points of intervention. American Journal of Health Behavior, 29(2), 137-49.

Cimino, A. (2011). The evolution of hazing: Motivational mechanisms and the abuse of newcomers, Journal of Cognition & Culture; Vol. 11 Issue 他, p-241-267.

Cokley, K., Miller, K., Cunningham, D., Motoike, J., King, A., & Awad, G. (2001).

Developing an instrument to assess college students' attitudes toward pledging and hazing in Greek letter organizations. College Student Journal, 35(3), 451-456.

Crocker, J., Thompson, L. L., McGraw, K. M., & Ingerman, C. (1987). Downward comparison, prejudice, and evaluations of others: Effects of self-esteem and threat.

Journal Of Personality And Social Psychology, 52(5), 907-916. doi:10.1037/00223514.52.5.907 Drout, C. E., & Corsoro, C. L. (2003). Attitudes toward fraternity hazing among fraternity members, sorority members, and non-Greek students. Social Behavior And Personality, 31(6), 535-544.

Glindemann, K. E., Geller, E., & Fortney, J. N. (1999). Self-esteem and alcohol consumption: A study of college drinking behavior in a naturalistic setting. Journal Of Alcohol & Drug Education, 45(1), 60.

Grossbard, J. R., Lee, C. M., Neighbors, C., & Larimer, M. E. (2009). Body image concerns and contingent self-esteem in male and female college students. Sex Roles, 60(3-4), 198-207. doi:http://dx.doi.org/10.1007/s11199-008-9535-y Hoover, J., & Milner, C. (1998). Are hazing and bullying related to love and belongingness? Reclaiming Children and Youth, 7(3), 138-138. Retrieved from http://search.proquest.com/docview/214196415?accountid=13420 Keating, C. F., Pomerantz, J., Pommer, S. D., Ritt, S. H., Miller, L. M., & McCormick, J. (2005). Going to college and unpacking hazing: A functional approach to decrypting initiation practices among undergraduates. Group Dynamics: Theory, Research, And Practice, 9(2), 104-126. doi:10.1037/1089-2699.9.2.104 Kilgannon, S. M., & Erwin, T. (1992). A longitudinal study about the identity and moral development of Greek students. Journal Of College Student Development, 33(3), 253259.

Liuna, G., & Tao, J. (2013). Contingencies of self-worth moderate the effect of specific self-esteem on self-liking or self-competence. Social Behavior & Personality: An International Journal, 41(1), 95-107.

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Saville, B. K., & Johnson, K. B. (2007). Year in college and sorority membership in predicting self-esteem of a sample of college women. Psychological Reports, 101(3), 907-912. doi:10.2466/PR0.101.7.907-912 Sociology Department of University of Maryland. (n.d.). The Rosenberg Self-Esteem Scale. Retrieved from http://www.bsos.umd.edu/socy/research/rosenberg.htm Zeigler-Hill, V., Stubbs, W. J., & Madson, M. B. (2013). Fragile self-esteem and alcoholrelated negative consequences among college student drinkers. Journal Of Social & Clinical Psychology, 32(5), 546-567. doi:10.1521/jscp.2013.32.5.546

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Appendix A: Survey Q1 Consent Form The primary aim of the project is to explore predictors of self-esteem.

Participation in this research project is completely voluntary and anonymous. Those willing to volunteer in this study will be asked to complete several questions, each of which is designed to measure specific variables. In most cases, participants are asked to read a set of statements and to indicate their agreement or disagreement with each using a Likert-scale. Completion of survey materials will take no more than 20 minutes.

Some demographic information will be collected as part of this study, but your responses will remain anonymous, as you will not be asked to provide your name on any survey materials.

There is no risk associated with participation in this study. However, some of the questions you will be asked are of a sensitive nature. The researchers will not be focusing on your individual responses. Rather, your responses will be combined with those of other participants and researchers will be focusing on the averages.

Participation in this study is completely voluntary, and you may withdraw at anytime, and without any negative consequences. Upon completion of your participation, you may ask to receive information about the findings of this study. This information would be sent to you after all the data are collected and would NOT include any of your personal responses. Instead, the information would be a summary of the responses of all participants taken together.

Your participation is greatly appreciated!

I have read and understand the information provided above and I voluntarily agree to participate in this study. I understand that I may withdraw from the study at any time and without any consequences.  I accept these conditions (1) Q2 Select one of the following:  Male (1)  Female (2)  Other (3)  Prefer not to answer (4)

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Q3 Select one of the following:  Caucasian/White (1)  Latino/a or Hispanic (2)  Asian or Pacific Islander (3)  African American/Black (4)  Native American (5)  Other (6)  Prefer not to answer (7) Q4 Do you live on Ramapo College's campus?  Yes (1)  No (2) Q5 Are you involved/have you been involved with Greek-organizations?  Yes (1)  No (2) Q6 If you selected yes to the previous question, identify your involvement (Must select one of the following):  Fraternity (1)  Sorority (2)  Does not apply to me (3)

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Q7 Select the response to the following statements that best applies to you: Strongly Agree Agree (2) Disagree (3) Strongly (1) Disagree (4) I feel that I am a person of worth, at least     on equal plane with others. (1) I feel that I have a number     of good qualities. (2) All in all, I am inclined to feel     that I am a failure. (3) I am able to do things as well     as most other people. (4) I feel I do not have much to     be proud of. (5) I take a positive attitude toward     myself. (6) On the whole, I am satisfied     with myself. (7) I wish I could have more     respect for myself. (8) I certainly feel useless at     times. (9) At times I think I am no good at     all. (10)

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Q8 Select a response to the following statements that best describes your opinion: Strongly Agree (2) Neutral (3) Disagree (4) Strongly Agree (1) Disagree (5) Any form of physical/verbal harassment      should be illegal. (1) Any form of harassment can result in      physical and/or mental harm. (2) I would report any form of      harassment if I witnessed it (3) Even though hazing is a form of harassment, unless there is      physical abuse, I would not consider it hazing. (4) Q9 Have you ever experienced any of the following (Check all that apply):  Physical Abuse (1)  Verbal Abuse (2)  Forced Alcohol Consumption (3)  Involuntary Behavior (4)  Humiliation because of others (5)  Intimidation because of others (6)  Hazing (7)  Degraded by others (8)

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