Seriatim volume1 issue1 fall2013 by Ian Robertson

Seriatim

Journal of American Politics

ISSUE 1 / VOLUME I fall 2013

DEMOCRACY * * * * * * * * * * * * in AMERICA * * * * * * * * * * * *

Seriatim

Journal of American Politics

ISSUE 1 / VOLUME I fall 2013

DEMOCRACY * * * * * * * * * * * * in AMERICA * * * * * * * * * * * *

* *•ri*•a•* tim * * * * * * * * * * * * * * * * * * * * * * * * se * * * * * * * * * * * * * * * * * * * * * * * * * * * * adv. * *| discussing * * * * a* * * * * * * * * * * * * * * * * * * * * subject * * * logically * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * and * * * * * * * * * * * * * * * * * * * * * freely, * * * one * *point * *after * *another * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

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Seriatim Mission

Our mission is to serve the University of Virginia community and support an engaged citizenry by fostering an open marketplace of ideas and encouraging the productive exchange of political speech.

Executive Editors Ian T. Robertson Russell C. Bogue William J. Cadigan

Publisher

Evan L. Pivonka

Content

We are dedicated to publishing the highest quality undergraduate work on American politics. Work is selected for its depth of scholarship, originality, and ability to advance our understanding of the American political tradition. We select pieces with the aim to enrich and diversify the political marketplace of ideas.

Statement of Ownership Seriatim and its print and online publications are independent, privately-funded entities. All content decisions rest at the sole discretion of the Executive Editorial Board.

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Visit seriatimjournal.com for the latest undergraduate work on American politics and to sign-up for the weekly e-newsletter.

Journal of American Politics

“THE ULTIMATE GOOD DESIRED IS BETTER REACHED BY FREE TRADE IN IDEAS...”

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11 15 18

LETTER FROM THE EDITORS FOREWORD ACADEMIC ESSAYS

federalism 20 Restoring 25 The- contemporary arc 31 To- form a more perfect Union and the liberty paradox 39 Liberalism in the public sphere 47 Religion the principles of the 53 Questioning Declaration Kurt Lockhart

Caroline Casavant Russell C. Bogue Ian T. Robertson

Alex Lichtenstein

Kasey Sease

ARTICLES, ET AL.

60 Taking on America’s war on drugs the merits of affirmative 67 Exploring action to care about immigration 71 Why reform v. Sebelius and the policy impli74 NFIB cations of judicial review -Ben Rudgley and Patrick Kyle

-Nick Favaloro and Drew Ricciardone

78 86

-Rachel Murphy

-Nora Neus

PUBLIUS

SPEAKER’S CORNER

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* * LETTER FROM THE EDITORS * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

elcome to the inaugural print issue of seriatim,

the Journal of American Politics founded and led by undergraduate students at The University of Virginia. At Seriatim, we are inspired and guided by our founding principle, one rooted in the self-governing vision of the father of our University and enshrined as the birthright of this nation – that everyone has a voice. Taking inspiration from the rich political tradition of the United States and dedicated to its future prosperity, Seriatim is our effort to tangibly create what Justice Oliver Wendell Holmes, Jr. called the “marketplace of ideas,” where different voices may freely compete for the validation of the many. We seek to empower genuine and honest speech with the firm belief that the future citizen-leaders for whom Jefferson built this university may profit and learn from the free discourse of divergent political ideas.

Seriatim | Journal of American Politics

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The University is a special place, one where an open mind and diversity of thought are not only accepted but expected. Driven by a thirst for knowledge and guided by the ideals of personal integrity and responsibility, our academic world fosters and encourages an environment uniquely attuned to the vibrant exchange and respectful competition of ideas – where the creative pursuit of the truth is more sacred than its triumphant discovery. Today, such vitality and honesty is scarcely found in the political marketplace of ideas. Our words carry not the weight of powerful ideas or the tenacity of beliefs, but the bitterness of partisanship and dogmatism. Speech that once bore the mark of a proud American political tradition has been diluted to cheap and sullied taglines. Long lost are the voices of our nation’s forefathers, whose words reflected the power of their ideals, the depth of their beliefs, and the promise of the future: words like all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. We want to revive such ideals. Thus, Seriatim was born. Taking our name from the early juridical practice of the nation’s highest court, we hope to provide an avenue through which the thoughtful written and spoken word of a diverse student body – of whom the academic world requires and expects much – may be better heard by all. Let the reasoned work

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Letter from the Editors

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of this University’s nascent scholars be shared, and we will inspire anew the tenor of political speech that marked our nation’s bright past. The theme of this issue of Seriatim is “Democracy in America.” In the spirit of Alexis de Tocqueville’s epochal work, the pieces collected herein reflect the great issues and ideals underlying the United States’ democratic political tradition that are necessary to comprehending its past and directing its future. We hope that the work compiled here may advance our understanding of American democracy and spur productive discourse emblematic of the highly thoughtful and spirited contributions of these authors. Going forward, we invite your thoughts and feedback. We encourage you to read, write, think, and share in the spirit of Seriatim — an arena where we invite citizens to explore the “illimitable freedom of the human mind.” Wishing you the merriest of holiday seasons and the happiest of new years,

Ian T. Robertson * Russell C. Bogue * William J. Cadigan

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Article title

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* * FOREWORD * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

t a time when the most pressing questions

among college students around the country are often “How will this class help me get into Law School?” or “Do I need to know this for the final exam?”, it is reassuring to know that students here at The University of Virginia continue to go beyond what is required of them, always eager to look for ways to translate their work in the classroom into meaningful, practical application. This Journal serves as a pleasant reminder of just how exceptional our University is. The fact that, from conception to final publication, the Journal has been entirely student run only serves to magnify its accomplishment.

Seriatim | Journal of American Politics

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A central tenet of a liberal arts education — and of this University — is that the classroom only serves as the beginning of the educational experience. As Alan Bloom rightly explains in The Closing of the American Mind, “Education in our times must try to find whatever there is in students that might yearn for completion, and to reconstruct the learning that would enable them autonomously to seek that completion.” As a professor, it is hardly my job to provide the totality of students’ learning; rather, my goal is to introduce students to exciting and thought-provoking material in the hopes that they will take it upon themselves to further the process and see it through on their own. With this in mind, I could not be more proud and honored to see three excellent former students do just that in founding and editing this fantastic Journal. I have no doubt that the efforts of

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Foreword

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the Editors, as well as the hard work of those whose scholarship is featured here, will make a lasting impact on this great University of ours, and serve as an example to future students of just the sort of accomplishment that befits a “citizen scholar” of Mr. Jefferson’s University.

Evan L. Pivonka Publisher, Seriatim Lecturer and Fellow, Program on Constitutionalism and Democracy The University of Virginia

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academic essays

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he following pieces consist of academic work by undergraduates at The University of Virginia. From political theory to public policy, these essays represent a variety of scholarly fields and a diversity of thought on the American political tradition. A true reflection of the theme â&#x20AC;&#x153;Democracy in America,â&#x20AC;? the ensuing scholarship provides a broad and multidimensional examination of the American democratic experiment.

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Restoring federalism An argument for repealing the Seventeenth Amendment

by Kurt Lockhart

Batten School of Leadership and Public Policy (2015)

n this paper, I will argue that the Seventeenth Amendment weakens the connection between state and national government by severing the link between state legislators and national senators. Instead of a detached, “longrun” group of deliberate thinkers, the national senate has become a political arena motivated not by the public good but the opinion of the majority. Repealing the Seventeenth Amendment will restore the voice of states as distinct entities in federal decision-making, reduce the influence of money and interest groups in politics, and check the expansion of an increasingly dominant national government. After learning firsthand about the pitfalls of a weak national government under the Articles of Confederation and the dangers of a strong national government under British rule, the

Framers established a federal system, where the national and state government share power that is derived from the authority of the people.1 James Madison summed up this perspective by arguing “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”2 While recognizing that factions would inevitably form, Madison argued that this organization would minimize their deleterious effects and ensure that the government would be responsive to local needs. As a result, the bicameral Congress was designed so that the will of the people would be directly reflected in the House and the will of the states would be represented in the Senate. This is why the House was to be chosen by popular vote while the Senate

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“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures...” – Amendment XVII

would be chosen by state legislatures. In the years leading up to the Civil War, dissatisfaction with this system was caused by sharp disagreement in state legislatures over the selection of senators. These controversies continued into the late nineteenth century and left many states without representation for years at a time. Furthermore, reports of corruption within state legislatures frustrated populist reformers who complained about intimidation and bribery in government. In 1913, popular opinion had progressed enough to allow the ratification of the Seventeenth Amendment, establishing direct election of senators by popular vote.3 However, this amendment to the Constitution affected the balance of power between state and national governments and continues to have negative ramifications today. The Seventeenth Amendment has increased the power of interest groups and undermined the principles of federalism by allotting too much power to unchecked democracy. While there are strong counterarguments that favor direct election of senators, repealing the Seventeenth Amendment is the best option because it restores the legacy of federalism supported by the Founders. The first problem the Seventeenth Amend-

ment has caused is the failure of communication between Washington and state legislatures. Without a voice in Congress, the demands of state legislatures have little or no bearing on legislation produced on Capitol Hill. The interests of states as separate units have fallen to the interests of party and national leaders. For example, federal unfunded mandates, such as the No Child Left Behind Act, did not take into account the will of state governments. This resulted in a one-size-fits-all policy of mandatory student testing being imposed on individual states. Before the Seventeenth Amendment, senators would regularly meet with state legislators in order to discuss the state’s position on issues, brief the legislators on what was happening in Washington, and be accountable for his votes as a representative of the state. Now, senators are removed from the processes of state government and focused on the politics of Washington until the next election season comes around. These costly elections are a second major problem that the Seventeenth Amendment has caused. Senators must now raise millions of dollars and spend countless hours becoming and staying popular with the people of their state. Dur-

* * * ing the 2004 election cycle, over $542 million was spent on Senate races. Of that $542 million, incumbents (who win reelection nine out of ten times) spend eight times as much as their challengers.4 This goes to show that wealthy individuals or interest groups with particular agendas have an inordinate amount of power in determining senators and keeping their candidates in power. Political Action Committees (PACs), legally registered interest groups allowed to donate unrestricted amounts of money to candidates for national office, contribute far more than the average citizen could ever give. Currently, the candidate that spends the most money wins nine out of ten congressional seats. Additionally, less than .1 percent of the U.S. population gave 83 percent of that money in the most recent congressional election.5 This unfortunate reality disadvantages citizens that have the potential to be great senators but might not have the time, money, or statewide name recognition to be a successful candidate. Repealing the Seventeenth Amendment would broaden the pool of potential senators and help take the influence of money and interest groups out of politics. The third problem the Seventeenth Amendment has caused is the decline of federalism. In addition to separating powers “horizontally” through the three branches of American government, the Founders separated powers “vertically” through allotting some powers to the national government and some to the state governments.6 As more and more power is given to the federal government and taken away from the states, a majoritarian push for direct democracy has overshadowed the republican intention of the Founders. The passage of the Seventeenth Amendment in 1913 laid the groundwork for an increased emphasis on the will of the people being supreme, a sentiment that has led to more 22

Seriatim | Journal of American Politics proposed reforms, such as doing away with the Electoral College. While these “pure democracy” reforms sound patriotic and pro-American when pushed by a politician during election season, they undermine the federal system, endanger the rights of the minority, and give too much power to the passions of the public. The Seventeenth Amendment, as mentioned earlier, tips the balance of the “vertical” separation of powers in favor of the national government by taking power away from the state legislatures. Second, this decline of federalism enabled a majority faction to “sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”7 Without the checks of indirect democracy, those in the minority have no say or protection from the tyranny of the majority. In the same Federalist Paper, Madison argued that a republic is superior to a democracy because representation would “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”8 While the direct election of senators still maintains a representative system, it causes the senators to be enslaved to the will of the people instead of representing the best interests of the state as determined by a small group of legislators. Despite these compelling arguments, supporters of the Seventeenth Amendment point to the reasons why it was adopted in the first place as evidence that direct election is the preferable route. The first reason was deadlock in choosing senators. State legislatures were stuck for up to years at a time in choosing senators due to partisan conflicts and procedural inefficiencies.9 This frustrated citizens in deadlocked

Restoring federalism

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states because they were left with no representation in the Senate for long periods of time. However, there is no reason why this concern should determine once and for all that the original design of the Framers will never work; in repealing the Seventeenth Amendment, I propose we also pass language that requires state governors to appoint senators if there has been a vacancy for over 30 days. This provision forces legislatures to end deadlock in order to appoint a senator of their own choosing. The second reason the Seventeenth Amendment was proposed was corruption, specifically, charges of votes being bought in the process of state legislatures choosing senators. Some might say that repealing the Seventeenth Amendment would give more power to corrupt politicians who would be unresponsive to the concerns of the average citizen. Bribery and intimidation within state government could result in puppet senators chosen by the most powerful or the wealthiest members of legislatures. While this is a valid concern, it is important to look at how the election of senators today is controlled by money nonetheless. Currently, the multi-million dollar price tag of becoming a senator allows special interests to control and lobby senators directly. While there might have been some corruption in selection of senators prior to the Seventeenth Amendment, the current situation is far worse. Additionally, our modern media culture and highly visible public information would help ensure a more accountable and transparent process of choosing senators. A third counterargument posits that repeal-

ing the Seventeenth Amendment would limit the scope of democracy by reducing the average citizen’s involvement in politics. While my amendment would take the election of senators out of the hands of the people, it would incentivize more active participation in local elections. If state legislatures had the power to choose national senators, citizens would want to choose quality local politicians who would then choose the federal officials. Additionally, the Founders established a bicameral system, where the legislature is divided into two houses elected by different constituencies, for the express purpose of limiting democracy. The Senate was designed to be a more stabilizing, deliberate force apart from the passions of the people. A limit on the scope of democracy is a good thing; my amendment will encourage rather than detract from citizens’ involvement in politics. In conclusion, my proposed amendment should be adopted because it restores the link between state and national government intended by the Founders, limits the power of interest groups, and tempers the populism of the House by creating a more deliberate, detached body that will protect state sovereignty and the welfare of all citizens. By giving the power to choose senators back to state legislators, the “vertical” separation of power will be restored. Instead of being bound to the popular agenda in an attempt for reelection or tied to the interests of the highest bidder, repealing the Seventeenth Amendment will restore the role of senators as ambassadors of state sovereignty by diverting power away from the national government.

* * * Kurt Lockhart is a first year graduate student in the Frank Batten School of Leadership and Public Policy.

The contemporary arc

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Divine determination of American independence

by Caroline Casavant

College of Arts and Sciences (2014)

n Common Sense, American political activist and revolutionary Thomas Paine compares the potential of pre-revolutionary America to the world after the biblical flood. To comprehend the meaning of this statement, one must answer three questions: how does the American Revolution amount to a new beginning, why is America unique, and what is the connection between religion and revolution for Paine? The aim of this paper is to discuss each of these questions. It will present three arguments. First, the American Revolution is a new beginning because society has the opportunity to develop a bill of rights prior to forming a government. Second, America is unique because of its physical resources, diverse demographic composi-

tion, and economic position. Third, religion is critical for Paine because he believes God positioned America for a new beginning just as He created a new beginning for Noah during the biblical flood; in the same way that God provided Noah with a new world to populate, so God gave Americans unadulterated land to populate with liberty. American political development is notable because the American founding was the first time in history during which society had the opportunity to formulate “laws” or “rights” prior to formulation of a government. The notion of “rights” is derived originally from both religious writings and the works of Locke and Hobbes; “rights” thus factor strongly into Paine’s understand-

* * * ing of government. He writes of the social contract, “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one.”1 Paine uses the “state of nature” to argue that the fundamental end of government is security. According to the “state of nature” theory, the people know what they want from government before they elect leadership. However, Paine believes that history has progressed in such a way that monarchs take the throne before the rights of the people or limitations of the government are clearly outlined. Paine writes, “Most nations have let slip the opportunity, and by that means have been compelled to receive laws from their conquerors, instead of making laws for themselves. First, they had a kind, and then a form of government; whereas, the articles of charter or government, should be formed first.”2 Paine believes it is the right of the people to establish the ends and limitations of government before selecting leaders. The obvious downfall of the opposite system is that it empowers monarchs to determine the rights of the populous, which Paine be26

As a new nation, America would have no other history but a history of liberty. lieves are God-given and above human restriction. According to Paine, history has prevented this sequence of events in Europe, but America is not subject to European history. Instead, he argues, Americans have the right to correct this series of events and free themselves of tyranny — a “new beginning” for those fleeing the oppressive institutions

Seriatim | Journal of American Politics of the Old World. Paine believes that America is uniquely situated to develop a new government for geographical, socio-political, and historical reasons. He attributes all of these developments to the will of God. The first factor that contributes to America’s potential is the diverse origins of the American population. Paine writes, “The cause of America is in a great measure the cause of all mankind. Many circumstances hath, and will arise, which are not local, but universal, and through which are the principles of all Lovers of Mankind affected.”3 American immigrants are not exclusively British; they come from all over Europe. As such, all people, not just the British, are interested in the outcome of the American Revolution. Never before in history has there existed a new space occupied by people from such diverse backgrounds. Paine believes this development is significant because, in his view, the actions of the Americans are consequently more representative of “mankind” than the actions of any culturally unified nation. Paine views the diversity of America to be a conscious decision on the part of the Lord to speak for the rights of all mankind. In addition to being diverse, the American population is young and its history unwritten; for this reason an ideological shift in America has the potential for a lasting impact. Paine compares the American Revolution to a dent in a small tree, writing, “Now is the seed time of the continental union, faith and honor. The least fracture now will be like a name engraved with the point of a pin on the tender rind of young oak; the wound will enlarge with the tree, and posterity read it in full grown characters.”4 Paine recognizes

The contemporary arc that American land and resources will inevitably result in the growth and expansion of the nation. For that reason, advances toward liberty at the founding have the potential to affect a much larger population in later generations. Likewise, as a new nation, America would have no other history but a history of liberty. This opens the opportunity for growth of good ideals without hindrance by negative ones. American ideological differentiation is possible because of the Reformation, which, according to Paine, has bred a culture of toleration in America. Paine writes, “This new world hath been an asylum for the persecuted lovers of civil and religious liberty from every part of Europe. The reformation was preceded by the discovery of America, as if the Almighty graciously meant to open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety.”5 Paine clearly believes not only that liberty and reformation are desirable to God, but also that a nation founded by those who fought for liberty will grow in liberty. American settlers are unique because they have no common culture, religion, or values; they merely share a commitment to liberty in spite of their diversity. Never before has such a nation existed, and only in this state can a people truly dedicated to the rights of others emerge. The final differentiating factor of America is its geography, which makes it economically independent, capable of expansion, and able to develop a sizable fleet. Paine pays particular attention to American capacity to develop a navy, writing, “No country on the globe is so happily situated, so internally capable of raising a fleet as America. Tar, timber, iron and cordage are her natural pro-

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duce.”6 While American timber is a decisive factor in empowering the nation to revolt, it carries less ideological weight than the potential of an entire unexplored continent. Paine interprets the vast landmass to mean that God supports the expansion of liberal values. Equally importantly, the land means that the United States will be able to support herself independently of European econo-

According to Paine, a democratic government as may be developed in America is preferable in the eyes of God to a monarchy. mies. Paine writes, “Another reason why the present time is preferable to all others, is, that the fewer our numbers are, the more land there is yet unoccupied, which instead of being lavished by the k— on his worthless dependants, may be hereafter applied, not only to the discharge of the present debt, but to the constant support of government.”7 It is obvious to Paine that the geographic state of America is a gift from God to allow Americans to achieve his end: promotion of liberty. Just as Paine believes American demography to be divinely chosen, he attributes no American ideological uniqueness to chance; instead, Paine believes God has chosen America for his new ideological beginning. The tale of Noah to which Paine alludes involves the arrival of an honorable man and his family to a completely barren land. Paine believes God has chosen Americans, who honorably left their homes in the name of liberty, to represent Noah. He compares

* * * the American continent to the new world in which Noah lands. Although Paine disregards Native American civilization, he is right to observe the relative virginity of the American continent. Paine suggests that just as God chose honorable Noah to begin His world anew, so God has equipped honorable European exiles with prosperous land for a new beginning. According to Paine, a democratic government as may be developed in America is preferable in the eyes of God to a monarchy for three reasons: kings are the product of the devil, kings cause wars, and heredity of the throne is irrational. Paine alludes to the Bible multiple times in Common Sense, including as a means of delegitimizing the monarchy. He writes, “Government by kings was first introduced into the world by Heathens, from whom the children of Israel copied their custom. It was the most prosperous invention of the Devil ever set on foot for the promotion of idolatry.”8 The meaning of this text, as well as his decision to include Gideon’s story, is clear: kings are the work of the devil. Paine does not stop at the claim that monarchy is unnecessary; he actually claims that kingship is sinful because it is a form of idolatry. In a more practiced passage, Paine argues against monarchy on the grounds that it leads to sin in the form of murder. He writes, “In

Seriatim | Journal of American Politics

the early ages of the world, according to the scripture chronology, there were no kinds; the consequence of which was there were no wars.”9 According to this quote, war is not the product of governments but instead the product of individuals. Paine believes that the greed of kings leads to war and unnecessary death. Given that this is the case, it is certainly the will of God to eliminate bloodshed by destroying the monarchy. Finally, Paine appeals to rationality to undermine the monarchy by arguing that heredity of the throne makes no sense. Paine provides two reasons for rejecting heredity. First, history shows us that the son of a noble king is not always a noble king. Second, no parent has the right to choose for his child who will rule over the child. Since heredity has no foundation in religion or rationality, it cannot be the will of God that it continue. Paine argues in Common Sense that just as God sent Noah to repopulate the world with goodness, so he gave Americans an unadulterated continent on which to spread liberty. According to Paine, God willed for America useful demography and a diverse population of men who love liberty. Americans are thus empowered to achieve God’s end: creation of a government by the people for security rather than tyrannical oppression by a false idol.

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Caroline Casavant is a fourth year Politics Honors major interested in security studies, yellow labs and cooking.

To form a more perfect Union

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The utility of flexible Executive prerogative

by Russell C. Bogue

College of Arts and Sciences (2016)

n November 19, 1863, U.S. President Abraham Lincoln stood on a great battlefield of the American Civil War and solemnly declared the stakes of the conflict: a test of whether any nation conceived on the “proposition that all men are created equal…can long endure.” Lincoln’s now-famous “Gettysburg Address” has long been considered one of the greatest speeches in American history, a model of presidential humility in the face of immense sacrifice. However, what is most noble is the steely resolve in Lincoln’s message — that the United States must endure to prove that its idealistic foundation is firm enough to withstand the passions of men and the ravages of war. To this end, Lincoln enacted a series of extra-constitutional measures, including the

suspension of habeas corpus and the Emancipation Proclamation, in order to preserve the Union. In so doing, he instigated a debate on the limit of Executive Power during wartime, one pertinent even into the 21st century. Despite both contemporary and modern critics of Lincoln’s interpretation of his actions, it is clear that his conception of extra-constitutional action by the Executive is correct: namely, that to protect the US from enemies operating outside the Constitution, extra-constitutional actions should be understood as both implicitly sanctioned by the Constitution and absolutely necessary to ensure its survival. A document constructed to enshrine the rights of a people and delineate the duties of their government undermines its own pur-

* * * pose if it hamstrings attempts to save it from destruction. The Constitution’s very promise to its people is that it will preserve for future generations a system of government that does away with tyranny and arbitrary rule. Its purpose is to make the natural rights of man become the written edict of the country. Yet, for all their idealism, the Founders did not devise a national government built merely on mutually understood ideals; they understood that the best guarantee of rights was to make them immutable law, combining principle with pragmatism. Laws without rights to limit them are dangerous regulations; rights without the force of law are ephemeral ideals. It follows, then, that the best manner in which to enshrine, protect, and preserve the ideals of our nation and the rights of our citizens is through enforceable law. Insofar as a nation is necessary in order to implement law, the implicit constitutionality of “extra-constitutional” actions becomes clear: to protect the rights of American citizens, we must first protect the nation. The Constitution, therefore, in promising to preserve for the future the rights of the people, demands that all avenues of action be exhausted to protect the nation—even if they may contradict peacetime law. Lincoln understood this logic very well. In his letter to his friend Albert Hodges in 1864, Lincoln wrote, “By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.”1 In his metaphor, Lincoln lays out the stark pragmatism that underlies any document, such as our U.S. Constitution, whose purpose is to defend the rights of the people: any single right guaranteed in the Constitution is not worth the entire document altogether, and 32

Seriatim | Journal of American Politics must be sacrificed if necessary to preserve the nation. Indeed, as Lincoln points out, the greater crime would be to stubbornly refuse the violation of any of our laws, and thereby allow the dissolution of them all: “I could not feel that, to the best of my ability, I had even tried to preserve the Constitu-

To protect the rights of American citizens, we must first protect the nation. tion, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together.”2 Or, as he states more succinctly in his “Habeas Corpus Speech” of July 4, 1861, “are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?”3 Certainly not. The Constitution’s promise to preserve all the rights it declares essential for the functioning of government precludes actions that would put the nation in grave danger in order to protect just one. The question necessarily arises, then: why the executive? Why give emergency, extraconstitutional power to a single man? Here, the issue of executive prerogative must be considered. Defined by Locke, executive prerogative is “this power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.”4 The executive office is uniquely suited for swift, decisive action, most especially because it avoids the bitter divisions and delaying tactics inherent in a legislature brimming with dissenting voices. The “unity” of the executive, outlined in Federalist No. 70, allows the president to make decisions in

To form a more perfect Union the moment of crisis. Moreover, responsibility for actions can be more clearly assigned when one person — the president — has made the final call than when an assembly of electors has finally reached the necessary majority to pass through an edict. The Framers designed an executive on the idea of action and necessity, leaving the arduous process of crafting daily laws and thinking through the consequences of every decree to the slow-moving legislature. Significantly constrained in peacetime, the Executive expanded the scope of its powers considerably when dealing with crises and war. Although our nation had rejected a monarchy, we still recognized the strengths of vesting considerable power in a single individual, as Harvey Mansfield illustrates: “the advantages of size, power, flexibility, foresight, and prudence. In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. The Framers… took note of emergency occasions when more power gives more security.”5 Extra-constitutional actions should only be taken when absolutely necessary to preserve the constitution, and therefore this problem arises only in

The president can draw from the very parameters of his office the necessary justification for taking extra-ordinary measures. moments of crisis. At such times, the executive is best positioned to take the necessary action. Moreover, the executive is constitutionally bound to “preserve, protect, and defend the Constitution of the United States,”6 and therefore the president can draw from

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the very parameters of his office the necessary justification for taking extra-ordinary measures. Additionally, it is sometimes necessary to look outside the Constitution in order to address enemies that either seek to destroy it or don’t adhere to its precepts. Lincoln was fighting a war against an entire section of the country that refused to recognize the authority of the Constitution. In such instances, the laws that govern the nation may not be adequate to protect its people. Mansfield succinctly lays out the difference between those who perpetrate violence inside and those who do so outside the laws of the nation: “Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law… Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals… who have nothing against the law when applied to others beside themselves. But enemies, being extra-legal, need to be faced with extra-legal force.”7 When faced with creative and powerful enemies that seek to undermine the Constitution itself, existing laws may not be enough to ensure the survival of the nation. Fortunately, as explained above, the Constitution, by the very nature of its promise and by its explicit construction of a strong executive, allows for instances in which its own laws must be temporarily suspended in order to adequately defend the nation. As Mansfield states, “Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists.”8 Lincoln, in suspending

* * * the writ of habeas corpus and in issuing the Emancipation Proclamation, acted outside traditionally delineated constitutional powers in order to preserve the document whose precepts he was violating. He recognized that the extreme circumstances the nation faced had changed the constitutionality of his actions. Here the largest flaw in this argument begins to become apparent: in declaring that presidents may act outside the Constitution when necessary to protect the country from imminent harm or dissolution, we thereby allow the executive to decide itself when it 34

Meeting the many varied and dangerous threats to our nation in a constantly evolving world means being willing to consider and defend against contingencies our Constitution never predicted. needs to expand its own discretionary powers. Lincoln recognized this flaw, and he attempted to mitigate the potential for abuse of the powers of the executive by emphasizing that extra-constitutional actions should only be taken when absolutely necessary to preserve the nation and the Constitution. That is, the president should be able to point to conditions that any reasonable man would deem necessary for operating outside the Constitution. As Kleinerman explains, “For Lincoln, the Constitution only countenances actions taken outside its bounds

Seriatim | Journal of American Politics when those actions can be justified by the strictest understanding of necessity, namely the preservation of the document itself.”9 Therefore, the president cannot justify extraconstitutional prerogative on the grounds of moral predilection or even to introduce ostensibly beneficial changes to the country— or, as is most tempting, to fulfill the wishes of the people, who often find prerogative attractive because of “its ability to effect justice immediately and uncompromisingly.”10 Yet what is the distinction between absolute constitutional necessity and simply engaging in war? Can a president not justify any extraconstitutional action in wartime by claiming that the country is in peril? The answer is somewhat unsatisfying. Simply stated, necessity will be apparent— the old adage “you’ll know it when you see it” can apply here—and in such times the Constitution will need to bend its rules to meet the crisis. Lincoln states in his letter to Hodges, “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution through preservation of the nation.”11 In sum, the Constitution changes when faced with crisis. When such crises occur, the higher duty of the Constitution and the oath of the president—to preserve the rights of the people for the future and to protect and defend the Constitution, respectively—become paramount, overriding any individual laws contained within the document itself. The problem, of course, is that the very office that will wield the expanded power is the office that defines the conditions necessary for such expansion. By limiting the conditions to strict and absolute necessity, however, we can avoid the danger of a president expanding his powers based

To form a more perfect Union on moral judgments, his own lust for power, or the approval of the people. The saving grace of justifying extra-constitutional action by absolute necessity, even though it doesn’t fully avoid the danger of an overreaching executive, is that there will come a time when such actions are clearly no longer necessary and therefore must end, even if popular with the people. If the only justification a president can offer is protection from imminent dissolution of the Union, the duration of his expanded powers will be limited to the duration of the crisis. The potential for abuse, although not eliminated, is lessened considerably by this understanding of prerogative. Some contend that no exigency exists in which extra-constitutional measures would be necessary for the survival of the nation. Such proponents believe that all the powers necessary to deal with national emergencies and constitutional crises are expressly stated in the Constitution. Working outside the Constitution, they argue, unjustly abridges the rights of American citizens when fully constitutional measures would have sufficed. In the specific case of Lincoln’s actions during the Civil War, they would argue that the war could have been won without the executive action suspending the writ of habeas corpus or the Emancipation Proclamation. However, this viewpoint fails on the basis of its hypothetical nature and lack of preparation for future contingencies. It is easy to say what “would have” happened in the absence of extra-constitutional actions; the fact remains, however, that part of the US strategy for winning the Civil War included Lincoln’s strong executive leadership that pushed and often exceeded the normal limitations of his office. It is impossible to prove that the North

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won specifically because of such actions, but it is likewise impossible to prove that the Union would have succeeded regardless of such actions. In fact, that the US has seen such success with extra-constitutional executive prerogative lends more credence to its validity as an interpretation than the competing notion that we could have done without it. Moreover, limiting executive action to only that which is permissible in peace makes the fatal assumption that the US has seen and predicted every possible threat to its national security. Serious scholars should reject such a claim and leave room for the possibility that enemies may yet exist who can pose a unique challenge to our security. In such instances, we need an executive poised to take immediate action without unnecessary constitutional limitations. It is tempting to see this discussion as anachronistic, yet such a view would seriously underestimate the strength of the enemies currently facing the U.S. It does not take a crisis as severe as the Civil War to warrant extra-constitutional actions. The Second World War, many claimed, constituted a serious enough crisis; so does the global war on terror. Whether or not you agree with either of these assertions, the fact remains that U.S. security is far from certain. Enemies that reject the American way of life and seek to rain terror down on our citizens can potentially deprive every person within our borders the right to life. Meeting the many varied and dangerous threats to our nation in a constantly evolving world means being willing to consider and defend against contingencies our Constitution never predicted. This, in turn, means being willing to put national defense above certain liberties if the situation arises in which we must do so. The

* * * challenge for the past few centuries and for the coming centuries is to know when a situation requires emergency action and when a president is simply using his office to enact his overly ambitious agenda. Fortunately, the demands of an electorate and a vigorously competitive democracy help to protect the American people against this type of abuse. Lincoln’s example remains just as pertinent today as it was over 150 years ago. Extra-constitutional actions taken by the executive in times of crisis are both necessary and implicitly sanctioned by the Constitution. Moments of profound national peril change the nature of our founding document, drawing forth its greater promise to preserve and

Seriatim | Journal of American Politics

defend all the rights of the American people. The construction of a strong executive provides a powerful argument for the president’s right to use such prerogative. Finally, when such power is used only when absolutely necessary to preserve the nation, and therefore the Constitution, the potential for abuse of executive prerogative is limited. If we refuse to recognize the president’s right to exercise such power, and instead constrain him to the same laws as apply in peacetime, we risk, to paraphrase Lincoln, losing a life to save a limb. However, if we accept the necessity of prerogative in constitutional crises, we can be assured of both life and limb—a very agreeable outcome.

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Russell Bogue is a second year planning to double major in Politics and Mandarin Chinese with interests in Sino-Taiwanese relations and American constitutional law. He is a Founder and Executive Editor of Seriatim.

Article title

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Liberalism and the liberty paradox

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In defense of American conservatism

by Ian T. Robertson

College of Arts and Sciences (2016)

n the decade that followed the sharpest economic collapse in the history of the United States, President Franklin Delano Roosevelt launched a novel experiment in governance. Roosevelt contended that the present condition of the country, marked by the setting of a Great Depression, justified and merited a new, proper role for government in American society. To the President, government had both the ability and obligation to facilitate and procure for its citizens the declaration of an Economic Bill of Rights. Indeed, it was the duty of government to secure a newfound self-evident truth, one that held “individual freedom cannot exist without economic security and independence.”1 Americans possessed rights above and beyond life, liberty, and the pur-

suit of happiness: rights to protection against the economic uncertainties of living in a free society. Offering a critique of past governing ideologies and recognizing the failures of the existing economic order, Roosevelt provided a compelling justification for the liberal American political tradition. According to Roosevelt, the spirit of the American founding, which had long accrued the greatest rewards of equality and democracy, was now feeding a system that threatened the very principles it established. The Constitution’s Bill of Rights, hitherto the safeguard of American civil liberties, was no longer sufficient to match the needs of a people who had much evolved since their nation’s founding. Individual liberties and limited government, Roosevelt as-

* * * serted, had potentially reached the limits of their efficacy in American society; the costs of such unbridled freedom now outweighed the benefits. From his perspective, ordinary Americans were at the mercy of a “highly centralized economic system,” one in which “greed, if it were not controlled, would reduce them to starvation and penury.”2 Roosevelt posited that the American economy was rigged against the common man by an “economic oligarchy” of despotic corporations, under which “the situation today only too clearly indicates that equality of opportunity as we have known it no longer exists.”3 That, coupled with the disappearance of the economic “safety valve”4 of the West, admittedly troubled Roosevelt and provided the President with ample reason to contemplate a new political course for the United States. The President, though, did not ignore that Jeffersonian democracy, which established the “day of the individual against the system, the day in which individualism was made the great watchword of American life,” had indeed been successful: “The happiest 40

According to Roosevelt, political rights of the sort derived from the first ten amendments were incapable of assuring ‘equality in the pursuit of happiness.’ of economic conditions made that day long and splendid.”5 However, the full effects of the individualism that had driven American industrialization and spurred vast economic growth were not without consequence.

Seriatim | Journal of American Politics Americans, Roosevelt believed, “thought that no price was too high to pay for the advantages which we could draw from a finished industrial system.”6 But perhaps the high of the 1920s and the crash of the 1930s was evidence enough that the United States had actually hit an irresponsible extreme in practice of laissez-faire doctrine, both economically and politically. The pendulum had completed its swing from one absolute to another – from overbearing despotism under the British, to inadequate governance under democracy. Perhaps the price was finally too high to pay; current conditions and the prospect of future financial calamity warranted insurance against economic insecurity. Roosevelt’s justification for the declaration of an Economic Bill of Rights, though, was not solely born out of pure economic necessity. As the President noted in his 1944 State of the Union Address to Congress in which the Economic Bill of Rights was declared, “Necessitous men are not free men.”7 The need for greater economic equality of opportunity, insofar as economic rights were concerned, was as much an issue of securing man’s political freedom. Just as the Constitution’s Bill of Rights laid the foundations for reckless business practices and negligent governance, so too was it ill-suited to protect ing the individual’s natural rights. According to Roosevelt, political rights of the sort derived from the first ten amendments were incapable of assuring “equality in the pursuit of happiness.”8 After all, it is not difficult to see how an individual’s ability to pursue fulfillment in life is inextricably linked to one’s economic wellbeing. Indeed, can we assert in good faith that the man enchained by the shackles of poverty is truly politically and naturally free? If not, as Roosevelt main-

Liberalism and the liberty paradox tained was the case, surely society has an obligation to find alternative means to secure that omnipresent, self-evident truth – that all men are created equal, and that they are endowed by their Creator with certain unalienable Rights. Liberalism, which accepts an Economic Bill of Rights as just one such alternative, supplements Roosevelt’s justifications with broader and equally attractive precepts. As a philosophical and political recognition that the liberty of all men is inseparably allied with the liberty of fellow men, liberalism contends that the individual is a product of his environment; he cannot exist without society, let alone secure the pursuit of happiness without an appreciation for his connection to greater mankind. The right to liberty, as a corollary of this belief, must be pursued in unison with society as a whole. As a candidate for president in 2008, Senator Barack Obama explained that he chose to run for office precisely because of such liberal beliefs, ones that hold “we cannot solve the challenges of our time unless we solve them together – unless we perfect our union by understanding that we may have different stories, but we hold common hopes.”9 A similar justification was offered by Roosevelt when he introduced his Economic Bill of Rights: “We cannot be content, no matter how high [the] general standard of living may be, if some fraction of our people – whether it be one-third or one-fifth or onetenth – is ill-fed, ill-clothed, ill-housed, and insecure.”10 Indeed, an assault on one man’s liberty, as Obama and Roosevelt would insist economic insecurity is, is an assault on the liberty of all men. Such a perception of liberty, both for the

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practical purposes of governing and for a philosophical understanding of the nature of man, is arguably as valid as it is attractive. It appeals to both man’s sense of reason and compassion: “It was expressed in the feeling that man is his brother’s keeper

Liberalism represents a fundamental misunderstanding of the rights of man and the self-evident truth on which the United States was founded. and that the world is full of suffering and evil that are caused by failure to recognize this fact.”11 Of course, why shouldn’t we help those less fortunate than ourselves? Indeed, man’s outward existence is as much defined by his relationships with those around him as it is by his own actions: “[L]iberalism knows that an individual is nothing fixed, given ready-made. It is something achieved, and achieved not in isolation, but with the aid and support of conditions, cultural and physical, including…economic, legal, and political institutions as well as science and art.”12 The implications of this perspective are profound, that in order to fully secure liberty we must recognize that it is multifaceted – guaranteed by a variety of equally justified political and economic rights, and protected by a common pursuit of shared goals. Government, instituted among men to secure these rights, therefore must be active in pursuit of these ends. Such is the governing

* * * philosophy that has provided Roosevelt and liberals thereafter with the ultimate justification for a greater and more expansive role of government in American society. While both justifiable and compelling, liberalism does not exist without its 42

What is more important is promoting equality of opportunity, achieved only by the fullest practical recognition of freedom. own flaws. Liberalism and its perception of government in American society, from the conservative’s perspective, represent a fundamental political and economic misunderstanding of the rights of man and the self-evident truth on which the United States was founded. Conservatives assert that the liberal’s justification for an Economic Bill of Rights, that the individual is entitled to certain economic rights as a corollary of natural right, is founded on a simple, misguided premise: political rights are an unsatisfactory protector of the individual’s ability to secure the pursuit of happiness. But, why must an individual’s path to personal fulfillment in life be wed to economic wellbeing? Were the Founding Fathers wrong when they declared that there exist certain unconditional, self-evident truths, regardless of economic station? Roosevelt’s declaration of a new self-evident truth that “true individual freedom cannot exist without economic security and independence” fails to recognize both the validity and profound power of political rights. As put by University of Virginia Professor James Ceaser: “An idea of right derived from reason would apply in prin-

Seriatim | Journal of American Politics ciple to all, or would be universally valid, no matter to what extent distinct cultural influences might impede its recognition or make impracticable its acceptance.”13 Does the man living in destitute poverty not posses the same rights to life, liberty, and the pursuit of happiness as the man with identical political freedom but the privilege of wealth? Is he any less equal before the law because of his economic inequality? Conservatism recognizes the harsh but true reality that economic equality in the aggregate will likely never be achieved. What is more important – what may mitigate the negative consequences of this reality – is promoting equality of opportunity, achieved only by the fullest practical recognition of freedom. Perhaps the liberal’s belief that the man living in poverty is politically, economically, and naturally deprived of his rights – that he is enslaved by the shackles of poverty – is actually an affront to the very concept of individual freedom of which an Economic Bill of Rights is determined to protect. Perhaps it is due to the fact that the poor man’s economic inequality is more obvious in appearance than the content of his character, which, if it were visible, would prove just as free, equal, and unbounded as that of fellow man. The conservative, like the liberal, would not assert that politics and economics are unrelated in respect to individual freedom. Conservatism, however, believes in an undeniable connection between political freedoms and economic freedoms, not rights, insofar as they are the ultimate manifestation of genuine human liberty. Milton Friedman explained that, “freedom in economic arrangements is itself a component of freedom broadly understood” – “an indispensable means toward the achievement of political

Liberalism and the liberty paradox freedom.”14 The rights that liberals see as integral to human liberty, to protection against the economic uncertainties of life in free societies, are, according to conservatism, best achieved when assured in the form of uninhibited freedom. Indeed, the liberal philosophy that government is instituted among men to guarantee these particular rights is an artificial construct that actually serves to undermine and inhibit liberty. For instance, securing an individual’s right to “adequate medical care”15 by federally mandated health insurance would deprive him “of a corresponding part of his personal freedom.”16 If the end goal of all political philosophies is indeed the procurement of liberty, as recognized by the model liberal John Dewey, then should not the individual be free to secure his rights in a manner he sees most fit? Is that not freedom in its purest form? Not only does liberalism’s political justification for economic rights represent a misunderstanding of natural law, but it also directly threatens the conservative’s conception of the individual’s political rights. Roosevelt contently admitted that the necessity of an Economic Bill of Rights paved the way for bigger government in American society: “The day of enlightened administration has come,” in which the task of statesmen is “adapting existing economic organizations to the service of the people.”17 Enlightened administration of the sort that Roosevelt spoke and liberals have henceforth striven to secure naturally manifests itself in a centralized federal government. But as Milton Friedman accurately observed, “Our minds tell us, and history confirms, that the great threat to freedom is the concentration of power.” Indeed, the American founding was the world’s first prominent example of

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a people’s direct expression against the concentration of political power. Roosevelt, in his Economic Bill of Rights, stated that economic insecurity and privation “are the stuff of which dictatorships are made.” But the concentration of power in an overly powerful federal government, in which ubiquitous entitlement to economic rights supplants economic, political, and natural freedoms, poses a far greater threat to liberty and individual rights than material inequality. As put by Milton Friedman, the free man should ask, “‘What can I and my compatriots do through government’ to help us discharge our individual responsibilities, to achieve our several goals and purposes, and above all, to protect our freedom?”18 With all its proven potential for the dangerous usurpation of political freedom, why empower government when we can empower the individual himself? It is in this vein that conservatism rejects liberalism’s supposed faith in the perfectibility of man; it might, somewhat paradoxically, be claimed that liberalism in fact sees man as innately imperfect. The liberal’s belief

Nothing poses greater a risk to the wellbeing of man than the deprivation, or perhaps gradual infringement, of his right to be free. that government should play an expansive role in society, that it must assume responsibility for providing economic rights, places greater faith in the hands of politicians than it does in the abilities of its people to achieve

* * * “economic security and independence.”19 President John Fitzgerald Kennedy, a liberal himself, even reminded his fellow citizens to “Ask not what your country can do for you – ask what you can do for your country.”20 If man were indeed perfectible, then why not let him strive for personal fulfillment free from the restraints imposed by welfare-minded governments – i.e., empower the individual, not government, to secure the pursuit of happiness? Is it not ironic that liberalism, with human liberty as its ultimate aim, would limit individual freedom in the hopes of lifting society to greater enlightenment and material satisfaction? Liberal governance, by effect, exudes an inherent distrust in the capabilities of mankind, indeed, in the very power of liberty, freedom, and political rights. If this is in fact true, “then who,” asked President Ronald Reagan in his first Inaugural address, “has the capacity to govern someone else?” Why should a government of the people, by the people, and for the people guarantee its citizens every need if man himself is insufficient to do it alone? The belief, quoted earlier, that “man is his brother’s keeper” nevertheless remains an attractive precept of liberalism and one not inconsistent with conservative ideology. Conservatives, though, would assert that man’s true perfectibility insinuates that “voluntary community,”21 not government, is the most effective means of recognizing and upholding our responsibilities to fellow citizens: “Whatever is beneficent and prudent in modern democracy is made possible through cooperative volition. If, then, in the name of an abstract Democracy, the functions of community are transferred to distant political direction – why, real government by the consent of the governed 44

Seriatim | Journal of American Politics gives way to a standardizing process hostile to freedom and human dignity.”22Such was precisely the rationale by which the American colonists justified independence from tyranny, and such remains the justification for liberty by peoples starved of freedom everywhere. Further still, liberal governance actually obstructs the ability of the individual to achieve personal fulfillment and material betterment. The conservative rightly contends that the individual is impeded from attaining economic security – and by consequence, the pursuit of happiness – by the dependency bred under liberalism. Indeed, true perfectibility of man would mean believing in the ever-expanding possibility of greater economic security and wealth for society as a whole. Promising the people the satisfaction of their economic rights by liberal government welfare will stifle the individual’s drive to secure a better future for himself; it encourages complacency at the expense of rugged individualism, once the leading characteristic of American individuality. Sure, as Milton Friedman explained, “[C]entral government could undoubtedly improve the level of performance in many local areas…But in the process, government would replace progress by stagnation, it would substitute uniform mediocrity for the variety essential for that experimentation which can bring tomorrow’s laggards above today’s mean.”23 In this light, liberalism is very much static, if not regressive, in its outlook on the progress of mankind. As much as it contends to be the progressive political ideology, liberalism substitutes true improvement and growth with an acceptable tolerance of the status quo. None of this is to say, though,

Liberalism and the liberty paradox

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that conservatism rejects the potential for man’s abuse of freedom. The conservative appreciates no less than the liberal the ills of unchecked free will. As the classic example goes, a belief in freedom does not mean that one is free to yell ‘fire’ in a crowded theater. Similarly, few conservatives would contend that unfettered capitalism and total market deregulation would be either practical or wise in today’s complex world of economic systems. Conservatism, after all, is not a political ideology of extremes, but one “guided by [its] principle of prudence.”24 There are and should be appropriate limits to what liberty may permit in actual practice. As put by the conservative theorist Russell Kirk, “Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restrains upon will and appetite – these the conservative approves as instruments of freedom and order.”25 The conservative, as Kirk illustrates, seeks a healthy balance between the fullest appreciation of man’s right to liberty and the productive regulation of practices that flagrantly violate its reasonable limitations. Where the liberal and conservative’s paths to liberty diverge rests largely in how the two political ideologies strike this balance. Lib-

erals, conservatives insist, will tend to take a path that forfeits individual liberties for the sake of expedient and supposedly fair relief from economic burden. But for all the reasons above, such a path appears to threaten the very foundations of the American political experiment – “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”26 Indeed, nothing poses greater a risk to the wellbeing of man than the deprivation, or perhaps gradual infringement, of his right to be free. It is for these very reasons that conservatism appeals to me in the most profound of ways. It is idealistic, but pragmatic, confident, but humble. It trusts in the ability of the individual, and not government, to secure for himself and fellow man a better future. Roosevelt made his declaration of an Economic Bill of Rights as endowed by a new self-evident truth. But these are not rights in and of themselves, and instead ends that all men have an inherent right to pursue freely. Conservatism believes in that freedom, and that true progress will only ever be achieved if we recognize the people’s unabridged right to it. Indeed, just as Alexis de Tocqueville concluded about democracy in America, “Providence has, in truth, drawn a predestined circle around each man beyond which he cannot pass; but within those vast limits man is strong and free, and so are peoples.”27

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Ian Robertson is a second year planning an interdisciplinary study of Politics, Middle Eastern studies, and Islamic studies with an interest in the intersection of American constitutional law, domestic security policy, and foreign affairs. He is a Founder and Executive Editor of Seriatim.

Religion in the public sphere

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Balancing religious and non-religious claims of conscience

by Alex Lichtenstein

College of Arts and Sciences (2015)

emocracy is predicated on the idea that the majority can force its collective will upon the minority. In most situations, this functions effectively, and the minority simply comes to terms with the situation. Nevertheless, the tyranny of the majority is a constant threat; they may at any time step over the line from democratic governance to despotic oppression. The American founders, appreciative of this danger, created a Bill of Rights to ensure that there would be basic human liberties that could never be taken away. Chief among these, the first clause in the very first amendment, is freedom of religion. However, as Brian Leiter points out in Why Tolerate Religion?, this freedom is far too limited in scope: there is no reason to treat a religious claim of conscience any differently than

a non-religious claim of conscience. Where his argument falls short, though, is in claiming that there should be no exceptions for either from generally applicable laws. To do so may make our society fairer, but it only does so by equally imposing a burden on minority claims of conscience. Rather, we should allow religious and non-religious claims of conscience to have equal weight, protecting the rights of the religious in American society but not placing them in a higher position than any other vulnerable minority. In the first half of his book, Leiter makes a convincing argument that there is no need to tolerate religion simply by virtue of its own nature, but only as a subset of the larger category of matters of conscience. Leiterâ&#x20AC;&#x2122;s definition of toleration, and the definition used in

* * * this paper, requires only that “one group as a matter of fact puts up with the existence of the other, differing group.”1 Viewing toleration as a general practice, he highlights several compelling points in its favor, both moral and epistemic. Within a moral framework, arguments for principled toleration can be further 48

In singling our religious claims as worthy of special protection, our society implies something is different about them. divided into Kantian and utilitarian. The Kantian position claims “a right to the liberty to hold the beliefs and engage in the practices of which toleration is required,” valuing freedom of conviction as an end unto itself.2 The utilitarian position, on the other hand, favors toleration as “essential to the realization of morally important goods,” as being able to choose beliefs and practices freely leads to a better life overall.3 The epistemic framework serves to “emphasize the contribution that tolerance makes to knowledge,” rather than making a normative statement about its value.4 Tolerating a variety of beliefs, even false beliefs, allows us to discover what is true and believe it in the right way and for the right reasons. Of course, this toleration is not without limits; there are what Leiter terms “side-constraints” on how much leniency the state is required to show in order to ensure that the liberty and well-being of all can be maintained.5 Nevertheless, in our free, democratic melting pot of a society, there are a multitude of reasons to prefer tolerance, rather than intolerance, toward belief and practice. That is not to say, though, that there is any

Seriatim | Journal of American Politics reason to privilege certain types of beliefs and practices over others, which is exactly what our Bill of Rights does. In singling out religious claims as worthy of special protection, our society implies that there is something different about them—something inherently more vulnerable, or more important, or more valuable—as compared to other claims of conscience. As Leiter points out, however, “no one has been able to articulate a credible principled argument for tolerating religion qua religion.”6 As defined by Leiter, religious beliefs are special only in that they issue categorical demands on action, are insulated from evidence, and deal with existential consolation.7 However, given their first two characteristics, it is reasonable to wonder not whether religious beliefs are better than other types of beliefs, but whether they are actually more “likely to cause harms and infringe on liberty.”8 While the ability of religious beliefs to provide man with existential consolation may provide them with some value, it becomes a matter of scale between potential gains and losses. This creates Leiter’s “speculative bullet”: only if we are willing to speculate that the existential consolation function of religious beliefs has more positive potential than their categoricity and insulation has negative potential, and only if we are then willing to speculate that the preceding value is more positive than any other way of producing existential consolation, should we have special concern for religious claims. It is clear, then, that while there are “compelling principled reasons for the state to respect liberty of conscience,” there is no reason to place religious beliefs in a superior position.9 While the state can and should tolerate religious beliefs, it should treat them no differently than any other claim of conscience, no matter its source.

Religion in the public sphere While Leiter takes this to mean that no claim of conscience should be granted a special exception by the state, in doing so he proposes eliminating the protections for minority beliefs that form the foundation of our democracy. Leiter presents three main objections to the idea of extending exemptions to all claims of conscience, not just religious claims. Extending exemptions, Leiter first argues, would codify a right to civil disobedience, creating chaos. However, it is not at all evident that allowing for more general claims of conscience would lead to anarchy, as Leiter claims. He himself acknowledges that religious claims make up the vast majority of conscience claims, so the increase in exemptions should be relatively minor. Moreover, any claim of conscience would have to hold up to some evidentiary standard in order to be recognized as valid. This leads to Leiter’s second objection to extending exemptions: doing so would create an unmanageable evidential issue for courts, and it would eventually end up unfairly privileging more easily-proven group identities over individual identities. This argument, though, he himself admits is not “necessarily fatal to a scheme of universal exemptions,” as it is similar to the issues of verification faced every day in the criminal justice system.10 Though a system designed with a high degree of difficulty of proof may be unjustifiably unfair, suitable evidential standards may serve to eliminate this concern. Most important to Leiter’s argument is the objection of burden-shifting, the idea that exemptions from generally applicable laws would impose unfair burdens on those without any claim to an exemption. In Leiter’s eyes, selective exemptions from laws designed to promote the common good can only be “a morally objectionable injury to the general

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welfare.”11 However, he completely ignores the fact that as a society, we place a positive moral value on allowing for legitimate exemptions from general laws, including for claims of conscience, that may in many cases outweigh the negative moral value of burden-shifting. Creating a special privilege for one individual often imposes a burden on others, but there seems to be a general consensus that allowing those exemptions is worth the price we must pay. Pregnant women, for example, may have lighter workloads, more frequent breaks, or more time off, which may force their co-workers to carry more of the burden. However, there are not many people who would argue in favor of taking away these special protections. This can be understood by harkening back to Rawls’s idea of the “original position.” From behind a veil of ignorance, we cannot know whether we might be the ones in need of an exemption; thus, we have an interest in ensuring that they will be available should we one day be the ones in need of them. If, as Leiter concedes, it is possible to design a system of proof that can identify legitimate claims without causing egregious inequality, then society

From behind a veil of ignorance, we cannot know whether we might be the ones in need of an exemption. has demonstrated a vested interest in allowing exemptions from generally applicable laws for claims of conscience. Not only does Leiter oppose expanding exemptions to all claims of conscience, but he actively champions a “No Exemptions” approach under which we would “abandon the

* * * idea that there should be exemptions from generally applicable laws.”12 However, this approach challenges the very heart of toleration by creating an opportunity for state oppression conducted under the guise of neutral objectives. Though Leiter focuses specifically on the potential persecution of religious beliefs, there is no reason why the same strategy could not be turned on any belief or practice with which the state disagreed. While acknowledging the possibility of this occurring, Leiter seems to simply wave it away. He does set forth the rule that “the state may not pass laws whose aim is to suppress claims of conscience—that would be inconsistent with principled toleration— but the state may, of course, pursue neutral objectives like the safety, health, and well-being of the populace.”13 However, he offers no means by which such a rule could plausibly be enforced. Leiter admits that if we have reason to believe that it will be “impossibly difficult to discriminate between the façade of neutral purpose and actual neutral purpose in legislation” that places burdens on minority beliefs, then we may prefer to offer exemptions for claims of conscience.14 However, he fails to explain why we should not believe that such inscrutable state reasoning will not always be the case, and it is reasonable to think that it will. Indeed, his only objection to this line of argument is that it “could equally propel us back to general exemptions for claims of conscience.”15 As we have already addressed and dismissed his concerns with such general exemptions, the No Exemptions approach seems unbearably intolerant and vulnerable to abuse by the state. Given the value in tolerating claims of conscience, and the pronounced danger in prohibiting any exemptions from generally applicable laws, it seems that the best course of action is to allow exemptions 50

Seriatim | Journal of American Politics equally for all claims of conscience, without specifically privileging religious claims. While Leiter focuses on toleration of religion by the state, specifically in legal treatment, his ideas can be extended to apply to individual toleration of religion throughout American public life. Much of the same reasoning that Leiter brings to bear on determining the value of toleration is also applicable to determining the value of any religious involvement in the public sphere. The epistemic argument specifically helps defend the idea of allowing religious actors to bring their religious beliefs to the public conversation. It seems right that we should seek to discover the truth, and the best way of believing in the truth, by allowing a multitude of beliefs to flourish and be shared freely. Even if we may believe that religious beliefs are false, engaging them in the dialogue may “spur [us] to better reasons for believing what we ought to believe.”16 As Rorty acknowledges, “religious beliefs, or the lack of them, will influence political convictions” in unavoidable ways.17 Public life is not divorceable from morality, from our basic ideas about what we think is right and what direction we think the country should take, whether this morality has its roots in religious or secular belief. Trying to prevent individuals from bringing their deepest commitments to bear on their public conversation seems not only impossible, but also undesirable. What I believe is a more realistic and useful goal is ensuring that, as Leiter establishes, religious beliefs, values, and arguments are given the same weight as any other conscientious belief, value, or argument. Rorty is right to argue that “moral decisions that are to be enforced by a pluralist and democratic state’s monopoly of violence are best made by public discussion in which voices claiming to be

Religion in the public sphere

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God’s, or reason’s, or science’s, are put on a par with everybody else’s.”18 However, I do not believe that doing so requires removing religion from the conversation entirely. We can and should allow those who hold religious beliefs to engage fully in public life, but we should not give them special status or protection above other beliefs of conscience. This requires acknowledging that you do not have to be religious to have a conscience, that you can “honor right and justice” without believing in God or fearing divine punishments.19 It requires treating each viewpoint (within reasonable limits) with respect and consideration. I do not have the right to judge the quality of the religious values that underlie someone else’s beliefs any more than he has the right to judge the secular values that underlie mine. We may each try to persuade each other of our viewpoint and reasoning, but it would be equally impermissible for either of us to attempt to coerce the other. As Leiter argues, there is no unique reason to tolerate religion except as a matter of conscience; therefore, there is no reason to elevate it above any other type of conscientious claim. Of course, it is important to not approach this naively, ignoring the inherently more powerful, and perhaps more coercive, nature of religious arguments. Religious rhetoric carries the weight of ultimate truth and authority, an advantage that has no real analogue in secular belief. Though Wolterstorff and others stress the importance of allowing different views to have equal voice, they discount the fact that these views do not all speak with

equally effective voices. Under their logic, it would be fair to say that Cassandra had a voice equal to that of the other Trojans, regardless of the fact that hers would never be believed. I am not sure I see any realistic solution to this problem. Perhaps, in the end, religious belief is inherently more coercive, and that is a price that we as a society are willing to pay for allowing the free exercise of all types of conscience. It is also worth noting that empirically, religious arguments do not seem to have universal supremacy in our public discourse. The United States has made policy based on secular rationale; indeed, it has made policy that is in direct opposition to religious claims. It seems possible, then, for religious claims to exist, if not on equal footing, then at least on the same plane of consideration as other claims of conscience. We as a nation have compelling reasons to not only tolerate religion, but to allow it exemptions from generally applicable laws and a place in the public discourse. What we should not do, however, is to continue to allow religion to occupy an elevated status above other, equally valid claims of conscience. The threat of oppression does not discriminate between religious and non-religious views, and neither should we. Treating all claims of conscience equally may not be a perfect solution to the complex web of difficulties presented by the issue of religion in the public sphere. However, I believe that it is the fairest, most inclusive, and most democratically ideal of the available alternatives.

* * * Alex Lichtenstein is a third year double major in Politics Honors and Religious Studies, with a particular interest in the intersection of those two fields.

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Questioning the principles of the Declaration Assessing interpretations of America’s self-evident truths

by Kasey Sease

College of Arts and Sciences (2014)

n June 27, 1848, John C. Calhoun, a South Carolina statesman and spokesman for the antebellum south, delivered a speech that ultimately argued against the principles of the Declaration of Independence. By analyzing the statement “All men are created equal,” Calhoun asserted that this phrase was inherently false, and he subsequently propagated a new southern racism that sought to morally justify the institution of slavery. However, Calhoun’s idea was met by opposition, in some cases from the very works that he utilized to craft his argument in the 1848 speech. A response to Calhoun’s critique can be derived from the works of John Locke, Thomas Jefferson, and Abraham Lincoln – one that is ultimately more persuasive than Calhoun’s assertions.

In his critique of the Declaration’s principles, he misunderstands the Lockean concept of nature and denies the traditionally understood right of self-government.1 Calhoun begins his critique by analyzing the proposition in question word for word, ultimately leading him to reevaluate and misunderstand the Lockean state of nature. He argues that the phrasing of the proposition is flawed as men are not created, but born. He proclaims that “only two, a man and a woman, ever were [created], and of these one was pronounced subordinate to the other.”2 Because of this biblical observation, Calhoun further asserts that infants are “incapable of freedom” because of their state of dependency and are not all equal in their capacities as Eve was inferior to Adam.3 This

* * * reasoning leads Calhoun to reject the possibility of a Lockean state of nature for if men were born free and equal, man could only exist as an independent being which is contrary to his natural tendency to form social and political groups. Calhoun misunderstands both the religious grounds of Locke’s free and equal clause as well as his construction of the state of nature—which still accounts for, and indeed fosters, the creation of social and political groups. In The Second Treatise of Government, Locke explicitly states that after the initial creation, God gave the world to Adam and his kind, creating a state of equal freedom that exists regardless of whether man is created or born. In regards to Calhoun’s observation that men are born as dependent infants, Locke argues that this fact in no way implies that a father holds political authority over his child. He admits that the free and equal state of nature does not encompass “all sorts of equality”; regardless of whether “age or virtue…give[s] men a just precedency,” no man, by nature, can be subject to “the authority of any other man”. Thus all humans are equal in the respect that none have a natural political right to govern another.4 Locke’s logic also does not lead to Calhoun’s conclusion that the state of nature depends on a state of independence. If anything, the free and equal state of nature creates a common spirit that sways the interests of man in favor of the collective good. Because all men are created by God, Locke argues that all are governed by a natural disposition to preserve mankind “as much as possible.” From this reasoning spawns the natural rights of life, liberty, and property whose protection places a limitation on the “state of perfect freedom” that he describes. 54

Seriatim | Journal of American Politics This collective goal establishes the spirit necessary for social and political institutions to be formed and sustained. The state of nature is not devoid of families or clans, and if this common reasoning did not exist, the ends of legitimate political institutions could not be collective preservation since no natural inclination for preservation would ever have existed. Thus the absence of a divinely established free and equal state of nature leads to the exact conditions which would prevent the social and political groupings that Calhoun deems natural.5 As Calhoun develops his argument from this flawed basis, he denies the right of selfgovernment as it was understood and ingrained in the American political system. He describes liberty as “a prize to be won” by those who are of the highest level of “mental and moral development.” Calhoun equates the capacity of self-government with the right to govern one’s self, ultimately denying this ability to those who do not deserve it. He states that as people “rise in the scale of intelligence, virtue, and patriotism,” the likelihood of instability or anarchy decreases, further leading to a decrease in the exercise and scope of necessary government power and an increase in individual liberty. From this reasoning he asserts that government can exercise its “quantum of power” unequally depending on the conditions of the governed. However, Calhoun defines selfgovernment in a way that is contrary to the traditional understanding that not only propelled the American Revolution, but continued to resonate throughout the development of the American union as exemplified by Lincoln’s speech at Chicago in 1858.6 The previously discussed denial of the existence of a natural political authority is

Questioning the principles of the Declaration reiterated by Thomas Jefferson in both the Declaration of Independence and numerous letters of correspondence. In a letter to John Holmes, Jefferson explicitly states that the acquisition of “self-government and happiness” were the ultimate goals of the revolution as outlined by the Declaration. This claim is legitimated by the dilemma that the founders faced when determining what form the American government would take after the revolution. An aversion to the establishment of a monarchy developed as the legitimacy of such a system was tainted by the colonists’ perception that the absolute English monarchy ruled arbitrarily. The colonists argued that consent of the governed, the Lockean basis of governmental legitimacy, was ultimately absent from the decisions that the king, and parliament, made concerning the colonies. “The long train of abuses” against the colonists’ natural rights without their consent was exemplified through policies such as taxation without literal representation in parliament; the colonists felt stripped of their right to self government that was grounded in Locke’s treatise and ensured by the nonexistent English Bill of Rights. Consent, an integral device of self-government, was thus advanced as the only means that could lead to the legitimate rise of a political authorit; it was a device that was ultimately the bulwark of the decentralized Articles of Confederation. Calhoun’s critique, by implying that an inequality of right is due to the inequality of capacity, moves against this reasoning, which was ultimately responsible for the American political system of government.7 Jefferson’s logic resonates in a speech delivered by Abraham Lincoln in 1858 in which slavery is equated with despotism. He

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cites the very tyranny imposed upon the colonists before the Revolution as an example of the illegitimate kingcraft that proponents of the new southern racism mirrored: “the inferior race are to be treated with as much allowance as they are capable of enjoying.” Lincoln asserts that this racism declares war upon American principles thus threatening its union. He warns that if an exception can be made to the principle of self-government in the case of “the negro,” there is no force existent that could prevent a likewise denial to immigrants. In addition to this persuasive slippery-slope allegation, Lincoln proclaims that the equality of self-government in which all share as prescribed by the Declaration unifies the citizenry by binding together the natural ancestors of the founders and the newly naturalized immigrants. Thus Lincoln expands upon the historical reality that Jefferson explained to Holmes in 1820 while crafting a strong connection between the traditionally understood definition of self-government and the preservation of the American union itself.8 Though Calhoun would reject the consensus drawn between the works of Jefferson and Lincoln on the basis that the Declaration’s infamous phrase played no role in the revolution or the founding, this assertion can only be made if American history and principle are ignored. Calhoun defeats himself by admitting that the “real cause” of the revolution was the “lawless encroachment on our acknowledged and well-established rights by the parent country.” These “wellestablished rights” were in truth grounded in the logic of Lockean consent and political legitimacy which hinged upon the free and equal nature of all men. Founders such as Jefferson were not wrong to include such a

* * * phrase in the Declaration as it provided the very basis which legitimated the colonists’ claim to independence. To further deny that this maxim played no part in the drafting of the blue print of American government is historically false and immerses Calhoun’s critique in the likelihood of dissolution that Lincoln established on the cusp of the Civil War.9 By analyzing the works of Locke, Jefferson, and Lincoln, Calhoun’s critique has no validity as it relies upon a flawed misunderstanding of the Lockean state of nature and denies the traditionally understood right of self-government. In so doing, Calhoun destructs his own critique on both logical and historical grounds. His biblical argument against the creation of man falls short of the logic that supports the spirit of preservation necessary in Locke’s Second Treatise. The natural social and political structures that

Seriatim | Journal of American Politics

he uses to attack Locke’s state of nature are in fact dependent upon the free and equal reasoning he attempts to discard. By proclaiming that the right of self-government is dependent upon capability, Calhoun rejects the definition of self-government that played an integral role in the founding and continuation of the United States government. Thus by Lincoln’s reasoning, Calhoun creates a political atmosphere susceptible to the dissolution and anarchy that he strove to prevent by limiting liberty with natural capacity. Ultimately the response to Calhoun’s critique is more persuasive than his own argument against the principles of the Declaration of Independence. As Lincoln concluded his speech in Chicago, “Let us discard all [this quibbling], and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal.”10

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Kasey Sease is a fourth year double major in History and Government in the College of Arts and Sciences whose principle interests lie in early American intellectual history as well as nineteenth century political thought, the inspiration for her upcoming politics distinguished major thesis on John C. Calhoun.

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articles, et al.

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omprised of editorials and other original works, the following pieces were written by undergraduates at The University of Virginia exclusively for publication in Seriatimâ&#x20AC;&#x2122;s online forum and print journal. To view the full collection of this semesterâ&#x20AC;&#x2122;s submissions and to submit your own work,visit seriatimjournal.com. Student work is published on a rolling basis and featured in our weekly e-newsletter.

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Taking on America’s war on drugs An argument for the decriminalization of illicit drugs

by Ben Rudgley and Patrick Kyle College of Arts and Sciences (2016)

Part I. Introduction A look at the American war on drugs and the path to their decriminalization in the United States:

he illicit drug trade is a $320

billion industry, according to a 2003 U.N. estimate. That figure (which is likely far less than it would be now, ten years later) was almost 1 percent of the world’s GDP in 2003 and exceeded the GDP of 88 percent of the world’s countries. The victims of the illicit drug trade are not merely the 1.6 million who have died on the frontline of the drug war south of Texas, according to Mexican business paper El Economista, but anyone affected at any level — by inner-city

crime, collapse of the social fabric in druginfested communities, or urban and rural poverty from drug addiction. We are all victims of the drug trade. More people, old and young, black and white, from Connecticut to California, begin taking illicit substances daily. The costly and dangerous “War on Drugs,” a term first used by the Nixon Administration, is spiraling out of control; it demands immediate action and strategic change. The enormity of the drug trade and its manifold problems cannot be understated. How many more Americans have to die from drug-related violence and organized crime, while federal deficits climb ever higher, for us to re-evaluate our drug policy? Action on one of the least talked-about but largest contemporary global problems sim-

* * * ply cannot wait. If we can overcome apathy and the temptation of tacitly accepting the status quo, the nation must choose between two strategic options: first, the federal government could ramp up the War on Drugs; or second, it could take steps towards decriminalization and even full legalization. If Einstein was right when he claimed that insanity was “doing the same thing over and over again and expecting different results,” then it seems that throwing more money at the problem by stepping up the War on Drugs to another level would be no more effective, and even more costly, than what the federal government is doing right now. Locking up more people guilty of drug possession will only continue to drive up America’s astronomic incarceration rates and put even more pressure on the country’s overcrowded prison system. A King’s College London study estimated that 2.5 million Americans are currently behind bars, meaning that the United States has 25% of the world’s prison population and the world’s highest incarceration rate at 743 inmates per 100,000 citizens. Tackling the supply side of the illicit drug trade by escalating the violence in Mexico will inadvertently increase the drug cartels’ profit margins, as suppliers will pass on distribution-related risks by hiking up costs; in turn, such actions will do nothing to help addicted users and victims of organized crime at home. Drug magnate Jorge Roman, along with many others like him, would like nothing more than the United States government to step up its misguided War on Drugs, which he labeled in an interview with The Independent “a sham put on the American taxpayer” that was “good for business”. The second option, legalization, even

when cautiously mentioned by public figures, causes alarm and instinctual panic. A complete U-turn from our domestic drug policy to the idea that people should be permitted to buy and consume marijuana, let alone heroin or methamphetamine (and, consequently, to do whatever they want with their bodies) is an anathema to many Americans. However, the writers of this series are not drug users who seek change out of selfinterest, but rather concerned citizens who advocate for drug policy reform because we believe that the reasons for change are compelling and that the benefits of legalization are many. This five-part article will explore arguments both theoretical and pragmatic. The next piece will illustrate how prohibition restricts personal liberty and how eventual legalization is a better fulfillment of American political ideals. The third will underscore its economic benefits and explain specifically how the privatization of the illicit drug industry and the end of the War on Drugs can only be net positives for private enterprise, American workers, the economy at large, and the federal government’s bottom line. The fourth segment will cover the intangible benefits to public health and safety that decriminalization will bring. The closing piece will propose how policies with the shared aim of eventual legalization can be realistically implemented and what an America free of an illicit drug trade might look like. The debate is not over whether drugs are bad. We all can agree that eliminating illicit substances and their harmful effects would be optimal; the difference in opinion comes in how we can best limit the social, economic and human costs of drug use. >>

* * * Part II. Theoretical Arguments Why legalization, rather than prohibition, is the best solution to the problem of drugs according to the American political tradition: 62

n unerring commitment to

personal liberty is the bedrock of the American political creed. The idea that we should be able to do whatever we want provided it does not directly inhibit others’ ability to do the same—to paraphrase John Stuart Mill’s “Harm Principle”—is fundamental to the American experiment and, indeed, the Western conception of negative liberties and personal freedoms. Criminalizing consumption of certain substances prevents individuals from exercising autonomy over their own behavior and personal habits. Why, when we commonly accept that we should be able to do with our bodies as we will without the state intervening to act on our behalf, do we, for the most part, reject this principle of personal autonomy when it comes to drug use? Democrats and Republicans, liberals and conservatives, all, for the most part, support drug prohibition, yet they also assert that personal liberty is a constitutional value of paramount importance. So how do they justify this apparent paradox? We are told that we must ground ourselves from high-minded idealism and accept that governments, for our own good, must sometimes “protect us from ourselves.” Yet, even if we glibly accept the necessity of a paternalistic state—and it is a world away from what Jefferson, Madison, and the other Framers envisioned—then surely the state must also criminalize overeating, suicide attempts and other self-destructive

Seriatim | Journal of American Politics practices? After all, alcoholism, chain-smoking and overeating-induced heart disease, and not heroin overdoses, are America’s biggest killers. Furthermore, it seems odd that prohibitive legislation, allegedly made for our own good, is targeted at drugs largely according to social bias rather than scientific and medical criteria. If a drug is defined as a substance with psychological or physiological effects, then aspirin, tobacco, alcohol and caffeine are all drugs. The nomenclature of the “War on Drugs” seems faulty; it should be “The War on Certain Arbitrarily-Chosen Drugs.” Alcohol and tobacco (which kill 2.5 and 6 million people a year respectively according to the World Health Organization) are far more harmful than, for example, marijuana (which has never conclusively killed anyone); but because of alcohol and tobacco’s prevalence and cultural popularity they are legal. So even if we buy into the idea of a paternalistic, Uncle-Sam-knows-best government, there are many pieces to the puzzle that do not quite fit. But paternalism is not something we should accept merely because it is a reality of contemporary liberalism. The more we embrace paternalism the more we disregard the very American ideal of self-governance. If the United States trusts people to govern themselves indirectly through electing representatives to draft and pass laws on their behalf, then surely this democracy can trust people with their own personal behavior. However harmful and detrimental drug use can be for our health, the ultimate choice over whether to consume such substances should be left to the individual and not deferred to the federal government. More specifically, the American tradition largely rejects paternalism and the notion

Taking on America’s war on drugs that government is the best operator of not only markets and individual enterprise but also personal action (including substance intake). Any restriction of personal behavior exercised by the well-intentioned paternalistic government sets the precedent of an expansive state that stunts individual growth by fruitlessly condemning victimless behavior. The Anglo-American individualist tradition demands that, in the case of exclusively self-destructive behaviors, people should be free to make their own mistakes. Once again, Mill’s philosophy proves its quality: the dangers and headaches of a government seeking to determine and enforce a moral stance on every issue are made clear in even the most cursory analysis. The Harm Principle provides for a range of individuality that our Framers would envy. Continued drug prohibition undermines and violates the twin ideals of personal liberty and self-governance that are so inextricably intertwined with the American political creed. By extension, the “War on Drugs” is an attack on the most integral of constitutional values that this nation was founded upon. Any concerted and serious effort towards drug legalization would be a significant step closer to an America that is truly governed by the Founders’ ideals of individual freedom and self-governance. >>

* * * 63 Part III. Economic arguments Why decriminalization of the illicit drug trade would offer substantial economic benefits:

o fully evaluate the argument for

the legalization of drugs in the United States, it is important to consider the economic ramifications that would likely result. The sheer enormity of the issue, as delineated in Part I of this article, begs the question: as the situation currently stands, who is profiting from the illicit drug trade? The resounding answer is that drug cartels, traffickers, and dealers are profiting; the government and tax-paying citizens are not. The legalization of drugs would remove this money from the hands of criminals and put it back where it belongs: in the pockets of law-abiding Americans and in government coffers. No matter how one slices it, both the private and public sectors would benefit greatly from legalization. Were drugs legalized, private enterprises would quickly assume the role currently filled by criminals—that of the “dealer.” Why? Governments, in attempting to crack down on drug trafficking, inadvertently cause the market prices of drugs to skyrocket (as criminalization increases the risk associated with the trafficking). Thus, the profit margin for dealers is oftentimes inordinately high—which explains why the occupation is so lucrative. Post-decriminalization, licensed enterprises would be able to sell presently illegal drugs at prices that are much lower than current black market prices, yet still remain profitable, partly due to minimal risk and partly due to market competition. For such companies, however, there would be no competition with dealers: drug us-

* * * ers will naturally gravitate to purchase the cheaper, safer drugs. The emergence of such enterprises would create new jobs, and not to mention spur growth in related industries. (Hemp, for example, has myriad applications, from food products, to cloth, to fuel). Just as is the case with private tobacco and alcohol companies now, such enterprises would be subject to government regulation and tax. In a 2010 study by Jeffrey A. Miron of Harvard University and Katherine Waldlock of New York University , it was estimated that drug legalization would yield up to $46.7 billion annually in tax revenues if the newly legalized drugs were taxed at rates similar to those on alcohol and tobacco. At time of writing, our federal government has literally screeched to a halt for failure to reach an agreement on policy to address our national debt. Even given this context, $46.7 billion is not merely pocket change—it’s over half the budget of the Department of Transportation. While this tax revenue alone would be a boon for the Treasury’s bottom line, the same study also revealed that there is some $41.3 billion that the U.S. spends on the War on Drugs domestically (in law enforcement and incarceration costs) to be saved. With an eye specifically to incarceration, it is worth noting the relationships between incarceration rates and drug control policy. Since 1980, the US federal prison population has grown nearly eightfold. However, overall crime rates have also declined since 1980. This incongruence is due largely to mandatory drug sentencing policies, many of which were first implemented in the 1980s. Fewer people in prisons means lower costs and a lighter burden on taxpayers. Moreover, one cannot overlook the hundreds of mil64

Seriatim | Journal of American Politics lions of dollars in aid that the US sends to countries around the world to combat the drug trade, particularly to Mexico ($1.4 billion between 2008-2010 through the Merida Initiative) and Colombia ($5 billion between 2000-2010). Add cost-saving into the equation, and the financial gains the U.S. could accrue from legalizing drugs are significant. It is difficult to conceptualize how pervasive the problem of the Drug War really is. It is so deeply rooted and so widespread that, even when provided a few stone-cold statistics, its true scope is hard to grasp. Despite this, a closer look at the current state of the issue and at some of the relevant research reveals that in drug legalization there are not only billions of dollars to be saved, but also billions to be made. If the situation is left untouched, the United States will continue to fritter away mountains of taxpayer dollars every year to keep people from purchasing what could otherwise be safe and taxed for the benefit of society at large. >> Part IV. Health and Public Safety The health and public safety benefits accrued by the legalization of illicit drugs:

ne of the foundational aims of

this article is to alter the traditional paradigms that people use to assess the War on Drugs and the issue of drug legalization. We hope at least to offer a tenable and compelling argument for the legalization of drugs in the spirit of inspiring a more informed debate on the issue. To this end, one point that we hope to advance is that this issue really is not about the drugs—it is about crime, violence, and the common

Taking on America’s war on drugs good. In this our fourth — and penultimate — part in the article, we argue that drugs should be legalized not merely for ideological or economic reasons, but also because of the cost in human life that criminalization entails. Were drugs legalized, the benefits with regards to public health and safety would be both tangible and widespread. Turning first to crime: it is not an understatement to offer that drug legalization would effectively pull the rug out from organized crime. The black market for drugs is the lifeblood of organized crime, whether in the U.S. or abroad. The ongoing collateral damage resulting from conflicts related to massive organized crime syndicates is impossible to ignore: consider the 60,000100,000 people that have died since 2006 as a result of the U.S.-backed Drug War in Mexico (not only U.S.-backed, but also caused by the market demand for drugs in the U.S. in the first place). In the interest of keeping this argument’s domestic focus, however, it is helpful to consider the example that the Eighteenth Amendment and Prohibition offers. When alcohol was illegalized in 1920, it didn’t take long for crime rates to skyrocket. The national homicide rate, for example, rose 78 percent over pre-Prohibition rates before the end of Prohibition. It is widely acknowledged that Prohibition, while perhaps not giving birth to American organized crime, unequivocally fueled it to reach new heights. Criminal groups like the Mafia truly flourished for the first time when the Eighteenth Amendment was passed. Then, in 1933, following the end of Prohibition, crime rates quickly dropped, as organized crime groups failed to compete with liquor stores and thus lost black market profits. Legalizing drugs offers perhaps greater relief: one should also

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consider the crimes that would cease as addicts would no longer need to turn to criminal activity in order to finance addictions to overpriced drugs (see Part III for economic reasoning). On the public health side, legalization would serve to benefit our communities in a myriad of ways. This point is best made within the context of a relatively specific example. Legalization would permit hospitals to give out free, clean needles to injectiondrug users. Criminalization is responsible for the growing numbers of injection-drug users who contract HIV and other viruses that are transmissible by shared needle use. An Australian study, conducted in 2002, shows the effectiveness of needle exchange programs from 1991 (when needle exchange programs were fully established in Australia in all states except for Tasmania) to 2000: that by the end of 2000 the “government had achieved net savings of $391 million (Australian Dollars) (after deducting the value of their investment).” The study estimated that 25,000 Australians would have contracted HIV were it not for the needle exchange program, and the figure for Hepatitis C would have been 21,000. The money the government would have had to spend on treating those 46,000 people exceeded the cost of the needle exchange programs by $391 million. Needle exchange programs, therefore, reduce government expenditure in the long run by lowering the number of people who suffer from viruses like HIV and Hepatitis C as well as greatly reducing the incalculable costs to human life as a result of drug use. As this example shows, drug legalization creates a safer environment for all, not just for drug users. It stands to reason then, that the benefits

* * * resulting from drug legalization would affect not just those who are directly involved in the current conflict: reduced crime and disease rates benefit everyone, everywhere. Again, this is a key point in the legalization argument: the issue is not just one of the illegal drugs, but of society at large. Insofar as morality should seek to serve the common good, we see a disconnect between reality and ideology in the War on Drugs.

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Part V. The Path to Legalization Final conclusions about the war on drugs and the route to their decriminalization:

ven if we found consensus that drugs ought to be legalized from both the supply and demand sides, the question of how to implement policies aimed at the general objective of decriminalization, legalization and privatization of the industry is far murkier. Any pupil of American politics will know that a one-size-fits-all constitutional amendment or federal decree is not a realistic or desirable strategy for proponents of legalization. The current political climate of polarization and gridlock in Washington means that any comprehensive bill, let alone one in an area as controversial as drug legality, is unlikely to even reach a vote on the floor. Even a piecemeal approach would be difficult with public opinion, at this moment, as adverse as it is to the idea of governments restoring autonomy in personal behavior back to the individual. Any legislative push towards decriminalization, let alone legalization, would only be feasible years from now as public opinion evolves on the issue. With states experiment-

ing with marijuana legalization and society, at large, becoming progressively more liberal and permissive on social issues, it is possible to see how full drug legalization could one day enter the arena of public discourse as a viable and hot-topic issue (instead of remaining a libertarian fantasy). Once the issue finds its place in mainstream political debate, then legislative proposals may bear fruit. A pragmatic solution would combine federal efforts with state initiatives towards decriminalization and eventual full legalization. It is not the purpose of this piece to outline a specific step-bystep federal- and state-level legislative strategy but rather to highlight an often-overlooked issue of public importance. One of the wonders of American government is the possibility for fifty states, fifty laboratories of innovation to propose and experiment with groundbreaking policies, and it is not unthinkable that the solution to the problem of drugs in the United States could be found in the work of a state legislature. The details of the realization of drug legalization will be debated in the public sphere by academics, policy-makers and citizens; however, before that, deliberation over the necessity of paternalistic drug laws must occur. A United States of America liberated from the constraints of the War on Drugs is a United States that is safer and more economically stable. A United States with legislation that allows for the regulated usage of drugs is one that implements policy better aligned with the revolutionary ideals upon which it was founded. We have history to instruct us on the ills of prohibitionâ&#x20AC;&#x201D;the economic, human, and administrative harm that follows our paternalistic obsession with policing our citizensâ&#x20AC;&#x2122; private lives. The United States, at the end of the day, must legalize drug use. Itâ&#x20AC;&#x2122;s a long road ahead, but one well worth traveling.

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Exploring the merits of affirmative action

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A point-counterpoint

by Nick Favaloro and Drew Ricciardone College of Arts and Sciences (2017)

[MERITOCRACY]

the American ethos: hard work will pay off with upward social mobility. No institution is more influential in providing this social mobility than education. It follows, therefore, that enabling minority students to access quality education will help close the gap in achievement and prosperity that currently defines race relations in the United States. Affirmative action is a valuable tool that counteracts the discriminatory structure of American society and allows the American Dream to live on.

Nick Favaloro: Americaâ&#x20AC;&#x2122;s education system is woefully inequitable. Minority students all too often fail to access high quality secondary education, which in turn translates to difficulty in college placement. This failure undermines a fundamental tenet of

Drew Ricciardone: America is unequal. But, the question that we should be asking ourselves is whether or not that inequality constitutes such an extreme threat to our society that it justifies government action. In the status quo, the answer to that question

sk most students at the University, and they will give you their own heated opinion on affirmative action, a policy that allows college admissions offices to use race as part of their criteria for admissions. This article is part one of a two-part exploration of the issue. Part One will attempt to flesh out the arguments for and against affirmative action as it is currently applied to the college admissions process.

* * * appears to be yes in the form of progressive tax brackets and affirmative action. But wait: think about that last sentence again. I understand how progressive taxes alter the trajectory of inequality, but what does affirmative action have to do with inequality? As far as I can tell, not much. At best, affirmative action accidentally makes our society more equal because of the correlation between race and poverty; at worst, it provides an unfair advantage for well-off minority students over other, non-minority students from the same social class. 68

NF: I should be clear—what I’m advocating for is not equality of results, but rather equality of opportunity. I agree with the fact that some people “work harder” than others, and thereby should enjoy a relatively unequal share of this nation’s wealth. However, it’s important to remember that “hard work” cannot solely be measured by naked results (especially if the metric system is as flawed and narrow as standardized tests and GPAs). But rather, “hard work” must take context into account. Affirmative action provides this context. DR: Some steps should be taken to level the playing field, but affirmative action seems like one of the worst ways of doing it. If anything, the help should come at the middle and high school levels so that underachieving secondary schools can compete with their wealthier counterparts in the suburbs. If all high school programs are relatively equal, the need for affirmative action should go away. NF: Agreed. If all high school programs were relatively equal, then certainly the need

Seriatim | Journal of American Politics for affirmative action would vanish. However, let’s stop dreaming about what should be, and start dealing with what is. Here’s what is: the ugly but undeniable reality that poverty and race overlap in this country. Poverty impacts minority students from the moment they enter pre-school, if they can even afford preschool. For a whole host of reasons that include a student’s personal and school life, it has been empirically proven that poverty has an adverse impact on educational success. This all means that from a purely ‘work-exerted’ standpoint, there’s quite a high likelihood that the disadvantaged, minority student has worked every bit as hard – and possibly quite a bit harder – than the advantaged student whose SAT scores may be a 100 points higher. DR: But once again, this analysis uses race as a proxy for being disadvantaged. The SAT has its problems, but there isn’t a good way to measure the achievements of students from diverse backgrounds against each other except through some kind of standardized testing. White people don’t get advantages like committed teachers and fancy private schools—rich people do. The idea of different people overcoming different obstacles is interesting, but obstacles manifest themselves in ways that aren’t always obvious. Maybe the rich white kid from the suburbs struggles with drug addiction because his parents weren’t around as a kid. Just because those are the problems of the wealthy doesn’t mean they should be immediately dismissed as somehow less than those of the poor. In my experience, unstable family situations transcend race and class. The point is that it’s difficult to get the full picture of someone from a few short answer questions on

Exploring the merits of affirmative action the Common Application, but that doesn’t mean we should use race to fill in the blanks. NF: It’s also important to clarify that college admissions offices do, in fact, do their due diligence on the students they admit. Students are accepted based upon holistic admissions strategies, not the need to fulfill quotas. It’s an important point, and one that is often misconceived. Universities—especially top-tier ones—give their applicants a chance to tell their story. There’s no simple formula to receiving admission to a selective university. Instead, it takes a mix of measurable achievement, and subjective qualities (like character, determination, temperament, integrity, etc.) to woo a college admissions board. Overcoming racial barriers is oftentimes an integral and important aspect to an applicant’s story, and, as a country, we should be ok with that. [RACISM]

DR: But why race? Overcoming anything is an important part of person, and it only promotes racism to focus unnecessarily on race. And while race is an important part of identity, I think affirmative action provides a perverse incentive for people to utilize race as part of a narrative of victimization. Race should be celebrated, not used as a playing card to get into a good college. I’m not saying that people necessarily view their race that way, but the current system incentivizes presenting the situation as one where race might be a bigger factor than it actually is, and that’s a problem. Moreover, as Chief Justice John Roberts said in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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NF: Race is still a major issue in this country, any assertion to the contrary is naive and utopian. One of the most powerful defenses for affirmative action comes from Malcolm Gladwell’s research using IATs (implicit attitude tests). Essentially, Gladwell shows that the vast majority of Americans harbor negative stereotypes toward black people. He demonstrates that this is not a conscious attitude, but an implicit, subconscious one. What’s the best way to alter performance on this IAT? Is it to remind people that they consciously believe in racial equality? Nope. In fact, the best antidote is to prime people before they take the test by showing them pictures of high-achieving black people (like Colin Powell, or Oprah Winfrey). This shows that perhaps the best way to break cyclical, subconscious racism is to place minorities in positions of power. We can get them into these positions through policies like affirmative action, which places minorities in settings where they are primed to succeed. [DIVERSITY]

NF: Diversity is an inherently good thing. College admissions officers aren’t charged solely with selecting the most qualified students from their applicant pool, but rather they are entrusted with building a dynamic university community. It should be obvious that a dynamic community is not defined by a collection of privileged white students. However, without affirmative action policies, top-tier schools would increasingly admit students from privileged white communities. For example, the percentage of minority students at University of Michigan declined sharply after they banned affirmative action.

* * * DR: Two points: First, diversity is a good thing, but diversity in this context seems to be about different perspectives. There are many different perspectives within racial groups, and similar perspectives across different races too. Race doesn’t tell us what perspectives each applicant holds; if colleges really want to know what a student thinks, they should ask, not just assume based on race. Second, while diversity is an important consideration for college admissions officers, it should not supersede decisions based on an applicant’s merit. This goes back to the root of the argument, which is that it’s unfair for college admissions to be decided in any part by race, or gender, or legacy, or religion, or almost anything, besides the accomplishments of the applicant in question. Affirmative action proponents cannot claim on one hand that they are supporting a meritocracy and then denigrate such a stance by champi-

Seriatim | Journal of American Politics

oning the idea of using race as a qualification in admissions. NF: Call me a romantic, but I think there is something uplifting and inspiring about an academic setting that strives to banish narrow-mindedness, ignite creativity, and foster respect. In my mind, diversity—and, therefore, affirmative action by extension— is an integral and necessary piece in this academic puzzle. Does affirmative action have its flaws? Undoubtedly. But then again, what public policy doesn’t? However, on the whole, affirmative action is both a crucial antidote to systemic racism and prejudice, and an important mechanism to ensure that colleges admit the most qualified candidates, and most dynamic classes. For the good of American education, affirmative action should not be abolished.

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Why to care about immigration reform

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An assessment of congressional efforts to reform the United States’ immigration policy

by Rachel Murphy

College of Arts and Sciences (2016)

et’s get one thing straight: immigration reform, and the legislative and political debate that surrounds it, is not a “Latino” issue. Sure, a large majority of undocumented workers are from Central and South America, but they certainly aren’t the only group of people who should care about immigration reform. You don’t need to be one of the estimated 2.1 million undocumented children and young adults living in the U.S. who could be eligible for legal status under the DREAM Act to have a “stake” in immigration reform. Believe it or not, white people should care about the actions our Congress takes regarding immigration. With civil rights and a significant portion of our economy on the line, the non-Hispanic population needs to get its head out of the sand and pay attention.

Before I get wrapped up in why people should care about the 11 million undocumented persons living in the United States, I should probably slow down and give a brief outline of what our current system looks like and what proposed legislation would do to remedy it. As a disclaimer, I will focus mainly on the bill that passed in the Senate (S744) because I am more familiar with it than the piecemeal bills that have been sporadically proposed in the House. This past summer I worked as a legislative policy intern focusing on immigration, so I had to read all 1,200 pages of S744; let me tell you, it was pretty darn good. The bipartisan Gang of Eight, composed of Sen. Bennet (D-CO), Sen. Durbin (D-IL), Sen. Flake (R-AZ), Sen. Graham (R-SC), Sen. McCain (R-AZ), Sen. Menendez (D-NJ), Sen. Rubio

* * * (R-FL) and Sen. Schumer (D-NY), co-sponsored Comprehensive Immigration Reform (CIR), which passed in the Senate on June 23, 2013, with a vote of 68-32. This bill would provide the opportunity for a path to citizenship for the nearly 11 million undocumented immigrants living in the United States. The Hoeven-Corker amendment stipulates that a number of “triggers” must be met prior to aliens registering for the new Registered Provisional Immigrant (RPI) program. These requirements include the deployment and operation of the Comprehensive Southern Border Strategy, stationing an additional 20,000 Border Patrol agents with the 18,400 already there, erecting 700 more miles of fencing along the U.S.-Mexico border, and implementing the E-verify system and an entry-exit system at all international air and sea ports within the United States. The mandatory E-verify system would ensure that employers do not hire immigrants who are in the United States illegally and potentially close up job positions for legal immigrants and U.S. citizens. I mention these triggers to dispel the notion that the passage of this legislation would immediately grant green card status to anyone who wanted it. These triggers ensure that serious faults in our current immigration system are corrected before we move on to the legalization process. The most pervasive myth circulating the airwaves is that the Senate CIR bill is an “Amnesty Bill.” All I can tell those people is to first look up the definition of amnesty and then take the time to read the legislation and the steps undocumented workers must take to be on a path to citizenship. Amnesty implies a free ride, one-way ticket to citizenship with no questions asked. A lot of commen72

Seriatim | Journal of American Politics tators on conservative talk shows say that the path toward legalization proposed by the Senate CIR bill would allow hardened criminals to stay in the United States and become citizens. Not only is this idea misguided and racist — it’s entirely false. Opponents to immigration reform need to understand two things: (1) Most undocumented immigrants are hard-working, lawabiding people who want a better life for their children and (2) S744 renders any person convicted of a felony, three or more misdemeanors, unlawful voting or gang activity (among other offenses) ineligible for RPI status and deportable. The path to legalization is not an easy one, but any person who qualifies under these conditions, pays a fine, and pays back taxes would be (and should be) eligible to participate as citizens of the country they call home. The path to legalization begins with a person being granted RPI status, where they stay for ten years. During this time if they violate any of the above conditions their status will be revoked and they will be ineligible for the path to citizenship. After ten years they will adjust to a Lawful Permanent Resident or “green card” status where they will wait another three years. At the end of this 13 year process an undocumented worker will be eligible to apply for citizenship. See why 13 years of jumping through bureaucratic hoops isn’t a free ride or “amnesty”? The path to citizenship outlined by the Senate is not only practical, but it’s also the ethical choice. Let’s allow our brothers and sisters to step out of the shadows and fully participate in the U.S. economy and society. CIR also would reform our incredibly mismanaged and outdated visa program, allowing immigrants with high-demand job skills

Why to care about immigration reform

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to come to America, create jobs and benefit our economy with their entrepreneurial talent. The legislation from the Senate also would allow children and young adults who came to the United States when they were underage to legally live and participate in the only country they’ve ever known. So why won’t Speaker Boehner take up the Senate’s landmark legislation? After the Fourth of July recess this summer he said, “It’s real clear… that the American people expect that we’ll have stronger border security in place before we begin the process of legalizing and fixing our legal immigration system.” If you followed anything that I just wrote, you’d be confused by this statement because we know that the Senate bill prohibits legalization before certain border security and employment verification standards have been met. One apparent obstacle in the House passing CIR is confusion over the qualification for health care and other public services for undocumented workers. Be-

lieve it or not, S744 addressed this problem: undocumented immigrants, even those in the process of legalization, will be ineligible for federally means-tested public benefits, including nonemergency Medicaid, SNAP (food stamps) or TANF (Temporary Assistance for Needy Families). With those two issues cleared up, the only reason I can think of for the House to not act on CIR is that the issue is unpopular with a small conservative minority who happen to be very vocal. By giving you a sense of the wide variety of problems S744 seeks to address, I hope you can see the improbability of a piecemeal solution for such a complex issue. If Speaker Boehner knew what was right for this country and his own party, he’d take up the bill the Senate overwhelmingly passed this June and bring it to the floor for a vote. Until then, the best we can do is to get the American people and members of Congress to realize that immigration reform is no longer just an issue for Latinos.

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NFIB v. Sebelius and the policy implications of judicial review

The effects of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act

by Nora Neus

College of Arts and Sciences (2016)

he Framers of the Constitution placed freedom above all else—freedom from tyranny and oppression, but most of all freedom from the abuse of power within the very government they were creating. With this goal in mind, the fathers of our constitution crafted a system of government that divided power between three equal branches, equipped with checks and balances to hold each accountable. While this system has protected American citizens from outrageous abuses of power for over two hundred years, it can also give rise to policy disconnects and uneven policy implementation that can be both inefficient and detrimental to Americans. Precisely this harmful policy disconnect occurred in the Medicaid expansion within the Affordable Care Act, a policy created by Congress but

irrevocably modified by the Supreme Court. A quick crash course: Medicaid is government-funded health insurance for impoverished Americans well below the Federal Poverty Line (not to be confused with Medicare, which is a similar program targeted at the elderly). State governments administer Medicaid, and thus the eligibility level is different in each state but normally ranges between 30 percent and 35 percent of the poverty line. Part of the Affordable Care Act passed in 2010 raised the Medicaid eligibility level to 138 percent of the poverty line, essentially giving free health insurance to a much greater number of Americans. Another part of the Affordable Care Act is the individual mandate, the cornerstone of President Obama’s health care plan, which requires all individuals to have health insurance. To help

NFIB v. Sebelius and the policy implications of judicial review lower-income Americans pay for this health insurance, the federal government will give tax subsidies based on income. The lowest qualifying income for these subsidies to purchase health insurance through the marketplaces is 100 percent of the poverty line. This makes sense, because any individual making under the poverty line qualifies for Medicaid under the expansion as part of the ACA. The carefully constructed policy fell apart when the Supreme Court ruled that the enforcement of the Medicaid expansion in each state was unconstitutional, essentially because States administer Medicaid so it was a breach of the concept of federalism to allow Congress, as a federal entity, to force states to expand Medicaid coverage (keep in mind this is an oversimplification of the ruling). Each state is now able to decide whether or not to accept the Medicaid expansion, and almost every Republican controlled state has decided not to. The conventional wisdom, erroneous as conventional wisdom often is, holds that impoverished residents of states that are not expanding Medicaid will not be too harmed because they can just go through the public marketplaces like the rest of individuals. Herein lies the “donut hole” that politicians love to refer to but don’t seem to understand. Individuals making between 30-35 percent and 100 percent of the FPL in states that have opted not to expand Medicaid now are neither covered by Medicaid nor eligible for subsidies to pay for health insurance through the marketplaces. Healthcare. gov itself says it best: “Their incomes are too high to get Medicaid under their state’s current rules. But their incomes are too low to qualify for help buying coverage in the Marketplace.” If you are making an income

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within this gap, for example $8,000 annually, in a state that is not expanding Medicaid, you are both not eligible for Medicaid and not eligible for subsidies to purchase health insurance. Yet if you are making double that amount at $16,000, which is 139 percent of the FPL, you are eligible for a $282 tax credit on a $327 monthly premium, so you are only playing $45 a month for your coverage. According to an analysis done by The New York Times, this coverage gap will leave 8 million Americans without any assistance to purchase health insurance. There is very little relief for these Americans who are left with no recourse. Even the assessment on healthcare.gov is bleak: “If you live in one of these states, you may not have as many options for health coverage. It will depend on where your income falls.” It is clear that this coverage gap has disastrous, unintended effects that Congress was not intending when passing the Affordable Care Act. The gap was created by the exercise of judicial review established in the landmark case Marbury v. Madison in 1803, which held that the Supreme Court has the jurisdiction to declare an act of Congress unconstitutional. The 2011 ruling on the constitutionality of the Affordable Care Act asserted that it was unconstitutional for the federal government to require states to expand Medicaid. This created the disconnect between the two branches of government — Congress and the Supreme Court — both trying to do their best to protect the American people. Instead, the division of power and checks and balances left a gap in coverage for some of the most impoverished Americans. An integral piece of the puzzle was removed by the Supreme Court (albeit for a valid reason — its unconstitutionality),

* * * yet the gaping hole has been left achingly wide, yet to be filled back in by Congress. Thomas Jefferson once explained his views in a letter to Abigail Adams in 1804: “Nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.” While the independence of each branch of government was the paramount concern of the Framers of the Constitution, this separation has caused many policy issues itself by not requiring—or even promoting— coordination between the branches. Do disjointed and interrupted policies affecting the

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quality of life for many Americans outweigh a 200 year old system designed by the founders of this nation to prevent abuses of power? There is no clear answer. The precedent of judicial review is not going anywhere, but could there be a mechanism for greater cooperation between the branches of government? Should there even be? The Medicaid coverage gap raises many of these questions for us to answer. At the most fundamental level, the scale of democracy is hovering above the balance between checking abuses of power on one hand and endangering policies carefully created by Congress on the other; indeed, it is only in that tenuous space of balance that our great Republic exists.

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Publius. W

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ritten under pseudonyms harking to the revolutionary tradition of the American founding, Publius provides three different columns on contemporary constitutional issues. Each column, which represents the political ideology of the Founding Father under whose name it is written, offers a unique viewpoint on the given constitutional question. See Speakerâ&#x20AC;&#x2122;s Corner (p. 86) for further discussion.

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Issue I Exploring the constitutionality of the NSA’s surveillance programs

Introduction hen former Central Intelligence Agency (CIA) and National Security Agency (NSA) employee Edward Snowden revealed top-secret military documents to the British newspaper The Guardian while employed for a contractor under the NSA, he sparked an international debate on privacy and national security that rages to this day. As an American citizen and a self-professed patriot, Snowden claims his actions were taken deliberately and soberly, aimed at revealing to an ignorant world the immorality of America’s government agencies. However, in large part this debate is nothing new: President George W. Bush sparked debate on the line between citizens’ private lives and national security during his presidency by passing The Patriot Act (2001), which allowed law enforcement agencies to wiretap private communication

without a warrant. And what American citizen hasn’t heard the name of Julian Assange, the famous director of Wikileaks, and his international crusade to reveal the dirty secrets of the world’s countries? Though the debate may be familiar, it remains unresolved. Americans are divided over how to view people like Snowden. Is he a hero for revealing the questionable lengths our government goes to in order to protect its citizens? Is he a villain for compromising national security? Perhaps most importantly, how do we feel about our privacy being compromised in order to augment our national security? This question lies at the heart of our unease with such incidents. Explore the following three perspectives – written under the pseudonyms of Mr. Jefferson, Mr. Madison, and Mr. Hamilton – on the constitutionality of the NSA’s domestic surveillance program. >>

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“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” – Amendment IV

Mr. Jefferson uch of recent discourse regarding the constitutionality of the National Security Agency’s controversial domestic surveillance program has turned on a simple dichotomy between the merits of privacy rights and the interests of national security. Most read the Fourth Amendment, the foundation of the people’s constitutional right to privacy, and then attempt its interpretation by weighing the personal value of their own privacy against the broad interests of the state’s law enforcement needs. Adopting this formula of constitutional analysis, a majority of people typically arrive at one of the following conclusions: the NSA’s actions are either inherently unconstitutional, or they are a realistic necessity – though perhaps an extra-constitutional one. I would argue, though, that construing the Fourth Amendment as a simple balancing act between the right to privacy and the needs of national security is an oversimplifi-

cation of the legality of searches and seizures and an incorrect reading of constitutional law. Proper examination of both the text and historical context of the Fourth Amendment reveals a more nuanced and multifaceted understanding of Americans’ right to privacy – one that is less black and white than the typical dichotomy often cited between constitutional privacy and national security, and that also questions the degree to which we may evaluate the legality of searches and seizures from any one ideological interpretation of the Constitution. Despite contemporary judicial and public opinion, which has typically regarded any search or seizure absent a court-issued warrant as an unconstitutional violation of one’s person or property, the framers of the Fourth Amendment intended the rights prescribed therein as two separate and independent clauses – a fact that is supported by both the historical record and a careful reading of the text itself. First, the individual

* * * is protected against unreasonable searches and seizures by the state and, second, warrants may only be issued pursuant to certain preconditions and limitations. Agents of the government were therefore permitted to conduct reasonable searches and seizures without a warrant, so long as they were willing to defend the reasonability of their conduct before a jury in a court of law. An aggrieved subject was thus free to seek amends for an unreasonable – and thereby unconstitutional – search or seizure by suing the appropriate agency of government and, in all likelihood, receiving a favorable verdict from his peers. Evaluating the constitutionality of the NSA’s domestic surveillance program, which almost unquestionably constitutes a search or seizure, should thus depend not on the fact that such action occurred without a precise warrant and its necessary preconditions of probable cause, but instead on its reasonability – the framers’ clearly intended point of reference for the constitutionality of searches and seizures. That no legal definition of reasonability exists, and that it is instead sub82

Any constitutional argument founded on the premise that, from time to time, we need accept the undermining of the people’s rights is no constitutional argument at all.

ject to a variety of currents of public opinion, points precisely to the fact that searches and seizures and the Fourth Amendment as a whole were largely intended to be judged

Seriatim | Journal of American Politics retroactively in a democratic medium: either through the citizens jury or with the consent of the people’s elected representatives, who until recently have been the sole arbiter of the program’s constitutional legitimacy. In adhering to the Framers’ wise intentions for the protection of our persons and property, those initially inclined to find the NSA’s surveillance activities a flagrant violation of their constitutional rights are best reminded that warrantless invasions of privacy are not in and of themselves inherently unconstitutional. While we may nonetheless find such a program abhorrent and unreasonable, it is on these grounds that the public should challenge the constitutionality of the NSA’s activities – and not on an ill-advised understanding of constitutional construction that the Fourth Amendment is automatically violated anytime law enforcement conducts a warrantless search or seizure. Those prone to side with the NSA on the basis of national security needs are best warned too. Any constitutional argument founded on the premise that, from time to time, we need accept the undermining of the people’s rights is no constitutional argument at all, and instead a dangerous invitation to the kind of tyranny that our Constitution was explicitly established to prevent. This should not be taken to mean, though, that any hope of protecting National Security be hopelessly diluted by a quixotic adherence to our right to privacy founded in the Fourth Amendment. If one thinks the NSA’s domestic surveillance program is reasonable, then such need be the only argument made to defend its constitutionality. As a result, no single reading of the Fourth Amendment, be it a strict and rigid construction or a loose and flexible interpre-

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tation of the text, may definitively determine the legality of particular invasions of privacy. Indeed, the Fourth Amendment alone does not provide the key to understanding the legitimacy of particular governmental conduct, and instead provides a democratic framework through which we may seek the answers to our questions of constitutionality. The people, as a democratic majority in a court of law or through their elected officials in the Legislature, must decide for themselves where to draw the line between reasonable and unreasonable searches and seizures. That said, for Americans to debate the merits of privacy rights and the necessities of national security is not altogether out of scope in this debate. We need only remember that such discourse will not lead us to a constitutionally or legally legitimate answer within the text of the Fourth Amendment – for indeed, the answer does not explicitly lie in the text or any interpretation thereof. But now that Americans are aware of the searches and seizures underway by the NSA, we must freely debate its conduct in courts of law, assess for ourselves its reasonability and only then reach a conclusion about its constitutionality and subsequent legitimacy in our democracy. * * *

Mr. Madison rivacy is itself a tricky constitutional topic. Nothing in the constitution explicitly enumerates a right to privacy; instead, various sitting justices have interpreted different stated rights as indicating a general attitude that supports the idea that we have constitutional guarantees to a certain level of privacy. Justice William O. Douglas stated in Griswold v. Connecticut (1965) that this right to privacy existed in the “penumbra” of rights in the constitution, such as the Fourteenth Amendment’s guarantee of due process. There is great merit to this thought process. It is clear that the Framers envisioned a government that would avoid intruding unnecessarily into the lives of its citizens. While proving this constitutionally has proven to be difficult, it is a concept that we can all accept and digest. But there is a difference between recognizing a theoretical right to privacy and putting this right to the test, especially when it comes to the lives of American citizens. Our fancy constitutional justifications for protecting the right to privacy seem pointless when we are faced with a situation in which privacy must be breached in order to secure our nation from legitimate existential threats. How many of us, given the hypothetical situation in which an average citizen’s phone lines must be tapped in order to gain vital information on terrorist activity, would object to such behavior? Few of us are willing to trade American lives for hypothetical rights to privacy. Do we really believe our conversation with Auntie May is so sacred that protection of its privacy ranks higher than thwarting terrorist attacks? Discussing this question raises another issue: average citizens are not qualified for

* * * the task of analyzing the necessity and constitutionality of actions taken in defense of national security. As difficult as it may sound, we may accept the reality that those who work in Homeland Security and the Defense Department will have a far greater appreciation of the threats we face, and the actions necessary to mitigate those threats, than we will ever have. How, then, can we be in the position of properly analyzing their actions? Trust is a scary word these days, but it is a simple reality that to a certain extent the American people must simply trust those they elect and appoint to these positions to act in the best interests of the country. Conversely, this trust should not extend too far. A balancing act is required. While national security should be a paramount concern for policy leaders, blatant disregard for all rights altogether is a cause for concern. If we are protecting a country that doesn’t recognize the sanctity of human life or the primacy of individual freedom, what 84

If we are protecting a country that doesn’t recognize the sanctity of human life or the primacy of individual freedom, what we protect isn’t worth our efforts. we protect isn’t worth our efforts. Safeguards are a necessary aspect of our national security apparatus. Asking for the populace to trust their government is not equivalent to giving a carte blanche to the government to act how is pleases. Indeed, this trust goes hand-in-hand with setting up powerful in-

Seriatim | Journal of American Politics stitutions to monitor actions that tread the line of constitutionality. At the end of the day, the protection of rights should be built inherently into our system: the courts should ceaselessly review actions the other branches take, ever vigilant against too great a breach of constitutional liberties. In fact, this is what happens every day. The protection of these rights should not be left to whistleblowers like Snowden. While his actions were beneficial in that they sparked a useful debate, the sensationalism that accompanied them was detrimental to the sober business of protecting our country from our enemies—and we do have enemies, however archaic the concept may sound. We should not celebrate grand exposés on the actions of our Defense Department. Rather, we should insist on checks built into the system to limit the excesses of our security hawks, and then we should trust that we haven’t elected tyrants to protect our nation. * * *

Publius Mr. Hamilton merica’s entire political system stems from both trust being placed in the hands of the people and, in turn, the people having faith in its representative democracy. America will never become George Orwell’s 1984 because of its tradition of self-correction. Abraham Lincoln famously said, “Government of the people, by the people, for the people, shall not perish from the earth.” And that holds true. The NSA’s PRISM program is designed to detect information about foreign terror plots that are routed through American data servers. The Director of the NSA stated that the program “cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States.” The program instead trolls U.S.-based servers (which serve most of the world) for terror related Internet activity. Then, with the cooperation of many tech and communications giants, the NSA browses online information in its attempt to find patterns of suspicious activity. The NSA’s actions, in addition to being limited and safe, are entirely legal. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) of 2008 and the Protect America Act of 2007, the program can be used to gather data so long as American citizens are not intentionally targeted. In fact, Congress renewed FISA last year. Many people, however, have expressed outrage at the fact that this was not made public knowledge. But this is the point of our representative democracy – members of congress were aware of the program’s existence and authorization, so they could have voted against the reauthorization or brought a suit to court. In addition to this, we as a nation are constantly posting content online and inviting people to read it. There is hardly a tangible expectation of privacy for online content, which is an important condition of the Fourth Amendment:

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the inherent expectation of privacy. Without it, there can be no violation of rights. In effect, the Internet is a public place. Sure, there are types of communication that are more private than others, such as email, but those are no more than a whispered conversation in a public place. Thus,

There is hardly a tangible expectation of privacy for content online, which is an important condition of the Fourth Amendment. the interception of these conversations is akin to surveillance out on the streets. Finally, this technique works. It has given the NSA nearly immeasurable bastions of data to work with in the fight against terrorism. Even more so than that, we can see how successful data mining is after the capture of the Boston Marathon Bombers. By analyzing the immense amount of picture, text and video data they had, law enforcement officials were able to bring the suspects to justice. The information the average American puts online is also nothing more than an invite to a birthday party on Facebook, a cat meme emailed to your friend or the occasional viewing of an “nsfw” video. I have news for the American public: the NSA is not reading your emails, unless you meet a very narrow set of criteria. If you have concerns about something, don’t put it online. But given the breadth of things people post for the world to see online, one more viewer who is actively improving the security of the nation shouldn’t bother them. * * *

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osted by Seriatim’s Executive Editors, Speaker’s Corner brings together different members of the University community to engage in substantive and productive debate and discussion on different topics of interest in American politics. Explore the online forum at seriatimjournal.com for full audio recordings of the talks and information about upcoming events.

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Thank you for spying: Has the U.S. security establishment gone too far? [excerpts from our discussion with Dean Philip Zelikow and Professor Frederick Hitz] November 12, 2013 – Jefferson Hall

Introduction ost 9/11, we’ve seen the federal government grow increasingly vigilant against perceived threats to national security. The sprawling bureaucracy that is the “security establishment” of the United States seems to have reached into every corner of the globe, vacuuming up metadata on millions of people. In 2001, President George W. Bush pushed The Patriot Act through Congress, which gave extensive surveillance powers to the federal government, including warrantless wiretapping and information gathering on American citizens and businesses. This past May, Edward Snowden leaked classified papers while working as a contractor for the National Security Agency (NSA) that revealed mass surveillance programs by the United States, often working

in concert with other nations. And, most recently, it was revealed in October of this year that the U.S. had been tapping the personal phone of Chancellor Angela Merkel of Germany. The sheer scope of this activity should make us ask some important questions. Has the U.S. stepped over its constitutional limitations in its zeal for national security? In an age of ubiquitous monitoring, it is crucial that we jealously protect what little privacy remains. It may be, though, that all of these programs remain within the realm of legal government action. We must then ask whether it is wise for the U.S. to be expending such effort and so many resources on such comprehensive programs. Need we tap the phone of one of our staunchest allies? The answer is not at all clear. To help us

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“Any investigative or law enforcement officer, or attorney for the Government, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence...” – USA PATRIOT Act (2001)

sort through these difficult issues, Seriatim invited two experts on U.S. security policy to a frank discussion as part of our Speaker’s Corner series. Philip Zelikow is the White Burkett Miller Professor of History and the Dean of the Graduate School of Arts and Sciences. He received his PhD from the Fletcher School of Foreign Service at Tufts University and has worked as both a lawyer and a diplomat during his lifetime. Prof. Zelikow has worked for President Bush as director of the 9/11 Commission, for the Department of State under Secretary Rice, and for President Obama on the Intelligence Advisory Board. He is also an adviser on global development to the Bill and Melinda Gates Foundation, and he was director of the Miller Center of Public Affairs from 1998—2005. Frederick Hitz is a Senior Fellow at the University’s Center for National Security

Law, and adjunct professor at the School of Law, and has lectured in both the Politics Department and in the Frank Batten School of Leadership and Public Policy. He received his JD from Harvard Law School. From 1967-1998, he served extensively in the CIA, including in the clandestine service, as legislative counsel to the director of central intelligence, and as deputy director for Europe in the Directorate of Operations. From 1990-1998, he served as the first statutory inspector general of CIA. Prof. Hitz received the Distinguished Intelligence Medal from CIA and Resolution of Commendation by the U.S. Senate. Read excerpts from the discussion below, or visit seriatimjournal.com for the full audio recording of the event. >>

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ZELIKOW his is just a very difficult enterprise to manage. I’m not a career intelligence officer. I was a career Foreign Service officer, but I’ve been working in and around the Intelligence Community off and on for twenty five years, including in some positions where I had access to whatever I needed to know – and I could get almost any question I had answered… And to this day, I always struggle and am humbled by how little I fully understand what’s going on. And that’s not because there’s all these dark mysterious corners – it’s just fantastically complex. It’s more complex than you can probably even imagine, and the number of things that are being done are almost all legal, at least legal under U.S. law. The NSA scandal? Almost none of that is about the NSA having done anything illegal under U.S. law – possibly none of it. And in a way, you could say, what’s the problem? Well, you’d say, that’s a management failure at NSA – but not in this particular case. There are management failures in this sprawling enterprise. It is an extremely difficult enterprise to manage. It is operating at the borderline of all kinds of sensitive things and there have been great failures. The NSA case is, in my view, actually not a grave management failure by NSA, in that it is not a rogue agency. The NSA story is above all the story of the void of policymaking. In effect, you tell these people, go get me everything that could be interesting that you are permitted to collect – and they go, and they get everything they possibly can that you might find interesting and that is lawful for them to get. So they go get it and occasionally they get neat tidbits and the cat drops the mouse on the doorstep. That’s good – hey,

Seriatim | Journal of American Politics we like that! And people don’t usually take a lot of time to question the, ‘what are the environmental risks involved in exactly how stuff gets from farm to table?’ And so, there’s a policy void. If you didn’t want them to collect certain things and you did not give them guidance to not do that – don’t collect this kind of thing – it’s not like they would have disobeyed you and run off. You have an extremely difficult enterprise to manage, under the best of circumstances, and then you actually have a managerial environment that is almost designed to be dysfunctional – with everybody in different compartments with only so many people allowed to know what’s going on. There is very little clear transparency. It’s not like everybody’s out there working in the bullpen so everybody can see what everybody’s doing. So in this environment, the rules and regulations compound the managerial challenge, compound the oversight challenge for congress – which is relatively limited in what it can do. And in my view, the White House doesn’t fully understand or utilize its own instruments for providing policy management of the intelligence community. HITZ echnologically, we were able to do more and more as each year passed and cover more territory without fully thinking through, ‘is this wise, what will happen if this comes out, will we have complications with our allies, will we be asked the question – is this necessary at a period of time in which the ire of the world has gone more horizontal and the big power rivalries of earlier times aren’t as much the issue?’ I think we found that…these barriers diminished as technology became superior.

Speaker’s Corner We could do it. We could get that information, we could supply this to the National Security Council, and nobody was telling us not to do it. And it went on with a certain intensity during the Cold War and it continued thereafter. I tend to want to ask the big question here: is the great American mirage that began after the Second World War, is it really coming to an end? Do we still have to play the role of the absolute, indispensable power, as our politicians have said? Or do we have to pull back a bit and ask the question, ‘haven’t we got a better use for this enormous amount of money that we’re putting into it?’ The Clandestine Service that I remember was less than a billion dollars, and now it’s many, many more times than that and obviously with capabilities that far exceed that which I remember. I’ve always described the CIA that I grew up in for the most part as a mom and pop store where Directors of Central Intelligence knew the people whom they were sending overseas in key positions. And we’ve gone far beyond that. And the question is, how much is enough? That’s the inquiry. ZELIKOW ou can see the kinds of tensions and pressures that people even acting under good faith are under. But then the system grows, you do more of these things, lots of people are involved in them that you don’t know anymore, it gets deeply bureaucratized and managing that just to make sure they don’t break the law is hard; imagine you’re looking after an organization of 150,000 people, and you can see the managerial challenges.

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HITZ he modern means of communication are presenting even more of the kinds of information that’s out there that might be of use…The question is, do we really need to listen in on the conversations of heads of state of countries of whom we are closely allied?

ZELIKOW e have crossed the line. When I was in government, I discovered or learned of, and then strenuously opposed, the detention and interrogation practices the CIA was then practicing when I first learned of them in 2005…that was wrong, I think. There’s a social contract that you have with people when you give them immense power…You better have real bright lines… When you make those lines blurry and you’re not sure what people are going to be doing in your name, trust breaks down. If I don’t know what you’re going to do, I’m [more] reluctant to trust you with extreme powers. And so, because of things like the interrogation programs, the social contract was falling apart. The Congress had lost trust in the Intelligence establishment, and when they lose trust they do all sorts of things to intervene and meddle. Courts have lost trust – they do all sorts of things to intervene and meddle, and everybody loses. But to restore trust, you have to get a set of lines in place that are crystal clear that ordinary people understand and that they can follow under conditions of great pressure and stress.

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HITZ think the NSA is going to make some changes; but the most important thing is to have some pressure put by the chain of command in government – by the president and others. But secondly, and no less importantly in actually getting it done, are the oversight committees and getting them involved in some degree, because they’re the ones that are starting the process that gets [the Intelligence Community] this phenomenal amount of money each year to go on

with what they’re doing, and that’s an enormous lever to use. What I get out of these statements by this remarkable man – and I don’t know him at all – who’s headed NSA for all these years is, we built something here that has produced information that is positively phenomenal in its degree. You have to tell me that you want to step back from this before I am going to move…The assumption is, more is better, and with this kind of effort, we’ll get more.

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endnotes

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Endnotes

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Restoring federalism, by Kurt Lockhart 1 O’Connor, Karen, and Larry Sabato. American Government: Roots and Reform. 2012 edition. Pearson, 85. Print. 2 Federalist #10 3 O’Connor, Karen, and Larry Sabato. American Government: Roots and Reform. 2012 edition. Pearson, 75-76. Print. 4 “Campaign Finance.” ThisNation. Web. 12 Apr 2013. * * * * * * * *<http://www.thisnation.com/textbook/processes-finance.html>. * * * * * * * * * * * * * * * * * * * 5 * * O’Neill, * * *Jerry. * “Why * * Repeal * * the* Seventeenth * * * Amendment?” * * * * Speech * * to* Montana State Judiciary Committee. 11 Apr 2013. 6 O’Connor, Karen, and Larry Sabato. American Government: Roots and Reform. 2012 edition. Pearson, 54. Print. 7 Federalist #10 8 Federalist #10 9 O’Neill, Jerry. “Why Repeal the Seventeenth Amendment?” Speech to Montana State Judiciary Committee. 11 Apr 2013. 1 2 3 4 5 6 7 8

The contemporary arc, by Caroline Casavant Paine, Thomas. “Common Sense.” 65 Ibid. 108 Ibid. 63 Ibid. 82 Ibid. 84 Ibid. 103 Ibid. 107 Ibid. 72

To form a more perfect Union, by Russell C. Bogue 1 Lincoln, Abraham. “Letter by Abraham Lincoln to Albert Hodges.” 4 Apr. 1864. Abraham Lincoln Online. Web. 2 Ibid. 3 Lincoln, Abraham. “Habeas Corpus Speech.” United States Congress, Washington, D.C. 4 Jul. 1861. Speech. 4 Locke, John. “Of Prerogative.” Of Civil Government: Second Treatise. Chicago: Henry Regnery, 1955. Print. 5 Mansfield, Harvey. “The Law and the President.” The Weekly Standard. 16 Jan. 2006. Web. 6 Lincoln, Abraham. “Letter by Abraham Lincoln to Albert Hodges.” 4 Apr. 1864. Abraham Lincoln Online. Web. 7 Mansfield, Harvey. “The Law and the President.” The Weekly Standard. 16 Jan. 2006. Web.

Seriatim | Journal of American Politics * * * 8 Ibid. 9 Benjamin A. Kleinerman. “Lincoln’s Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics. 2005. 10 Ibid. 11 Lincoln, Abraham. “Letter by Abraham Lincoln to Albert Hodges.” 4 Apr. 1864. Abraham Lincoln Online. Web.

Liberalism and the liberty paradox, by Ian T. Robertson 1 Roosevelt, Franklin D. “State of the Union Address.” United States Congress, Washington, D.C. 11 Jan. 1944. The Heritage Foundation. Web. 2 Roosevelt, Franklin D. “Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California.” Commonwealth Club, San Francisco. 23 Sept. 1932. The Heritage Foundation. Web. 3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. 7 Roosevelt, Franklin D. “State of the Union Address.” United States Congress, Washington D.C. 11 Jan. 1944. The Heritage Foundation. Web. 8 Ibid. 9 Obama, Barack H. “A More Perfect Union.” National Constitution Center, Philadelphia. 18 Mar. 2008. National Constitution Center. Web. 10 Roosevelt, Franklin D. “State of the Union Address.” United States Congress, Washington D.C. 11 Jan. 1944. The Heritage Foundation. Web. 11 Dewey, John. Philosophy of Education (Problems of Men). Ames, IA: Littlefield, Adams, 1956. Web. 12 Ibid. 13 Ceaser, James W. “Four Heads and One Heart: The Modern Conservative Movement.” APSA 2010 Annual Meeting Paper. 2010. 14 Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago, 1962. 15 Roosevelt, Franklin D. “State of the Union Address.” United States Congress, Washington, D.C. 11 Jan. 1944. The Heritage Foundation. Web. 16 Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago, 1962. 17 Roosevelt, Franklin D. “Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California.” Commonwealth Club, San Francisco. 23 Sept. 1932. The Heritage Foundation. Web. 18 Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago, 1962. 19 Roosevelt, Franklin D. “State of the Union Address.” United States Congress, Washington D.C. 11 Jan. 1944. The Heritage Foundation. Web.

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20 Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago, 1962. 21 Kirk, Russell. “Ten Conservative Principles.” The Russell Kirk Center. Web. 22 Kirk, Russell. “Ten Conservative Principles.” The Russell Kirk Center. Web. 23 Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago, 1962. 24 Kirk, Russell. “Ten Conservative Principles.” The Russell Kirk Center. Web. 25 Ibid. 26 Lincoln, Abraham. “Gettysburg Address.” Gettysburg. 19 Nov. 1863. 27 Tocqueville, Alexis De, and J. P. Mayer. Democracy in America. Garden City, NY: Doubleday, 1969. 705. Print. Religion in the public sphere, by Alex Lichtenstein 1 Leiter, Brian. Why Tolerate Religion? Princeton: Princeton University Press, 2013. 5. Print. 2 Ibid. 15 3 Ibid. 4 Ibid. 19 5 Ibid. 21 6 Ibid. 7 7 Ibid. 34, 52 8 Ibid. 59 9 Ibid. 63 10 Ibid. 69 11 Ibid. 99 12 Ibid. 101 13 Ibid. 101 14 Ibid. 107 15 Ibid. 16 Ibid. 56 17 Rorty, Richard. Philosophy and Social Hope. London: Penguin Books, 1999. 172. Print. 18 Ibid. 19 Rawls, John. “On My Religion.” A Brief Inquiry Into the Meaning of Sin and Faith. Cambridge: Harvard University Press, 2009. 267. Print. Questioning the principles of the declaration, by Kasey Sease 1 John C. Calhoun, “Speech on the Oregon Bill,” Teaching American History.org, accessed November 13, 2013. 2 John C. Calhoun, “Speech on the Oregon Bill,” Teaching American History.org, accessed November 13, 2013. 3 John C. Calhoun, “Speech on the Oregon Bill,” Teaching American History.org, accessed November 13, 2013, 4 Ibid.; John Locke, “Book I. Of Government, Chapter IV. Of Adam’s Title to Sov

Seriatim | Journal of American Politics * * * ereignty by Donation, Gen. i. 28,” Bartleby.com, accessed November 13, 2013; John Locke, “Chap. VI., Of Paternal Power,” Oregon State.edu, ac cessed November 13, 2013. 5 John Locke, “Chap. III, Of the State of War,” Constitution.org, accessed Novem ber 13, 2013; John Locke, “Chap. II, Of the State of Nature,” Constitution. org, accessed November 13, 2013. 6 Calhoun, “Speech on the Oregon Bill.” The Works of Thomas Jefferson, ed. 7 Thomas Jefferson, “Thomas Jefferson to John Holmes,” Paul Leicester Ford, (New York: G.P. Putnam’s Sons, 1904-1905), pg. 291; Thomas Jefferson, “Declaration of Independence,” Archives.gov, accessed November 13, 2013; Paul S. Boyer, et al, The Enduring Vision: A History of the American People, (Boston: Wadsworth, Cengage Learning, 2011), pg. 172. 8 Abraham Lincoln, “Speech at Chicago, Illinois,” Teaching American History.org, accessed November 13, 2013, 9 Calhoun, “Speech on the Oregon Bill.” 10 Lincoln, “Speech at Chicago, Illinois.” 98

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2012 and founded on a simple premise: everyone has a voice. We hope to provide an avenue through which the genuine political speech of undergraduate students may better be heard and shared with the community at large. Seriatim uses a three-pronged approach: an online forum where student contributors can lend their voice, a semi-annual print journal consisting of the best work from the semester, and a regular speakers series on Grounds where members of the community can interact with each other in person to discuss and debate political issues. By using academic papers as well as original work, we hope to bring greater meaning to students’ work inside the classroom by making it accessible to a wider audience. We encourage you to contribute to U.Va’s marketplace of ideas, either by submitting a paper you wrote for your politics class or by writing an original article on an issue of your choosing. Visit seriatimjournal.com to contribute your work throughout the spring semester. Jefferson once said of the University, “For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” At Seriatim, we seek to embody this ideal, and we invite you to join us along the way. eriatim was conceived in the winter of

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Design Ian Robertson (CLAS ‘16) Lauren Jackson (CLAS ‘17) Photography Nic Hogan (SEAS ‘16) Allison Xu (CLAS ‘16), (pp. 93, 97, 100) Printing Charlottesville Press

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