Seriatim volume2 issue1 fall2014 by Ian Robertson

Seriatim

Journal of American Politics

VOLUME II / ISSUE 1 fall 2014

THE CITIZEN * and THE STATE

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Seriatim

Journal of American Politics

VOLUME II / ISSUE 1 fall 2014

THE CITIZEN * and THE STATE

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

Seriatim Mission

To serve the University of Virginia community by supporting an engaged citizenry, fostering an open marketplace of ideas, and encouraging the productive exchange of political speech.

Editors-in-Chief Ian T. Robertson Russell C. Bogue

Managing Editor Julia Horowitz

Events

Andy Boyer

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 Editorial Board.

Marketing-Outreach Austin Owen

Design-Online Sarah Neel

Staff

Jack Brake Alex Dunkenberger Jack Hall Conor Kelly Ellen McAlexander Sofie Niziak Zoe Pettler Lucas Pulliza Gaven Wessel Eli Wiener

Publisher

Evan L. Pivonka

Online Readership

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

Journal of American Politics

...IF WE CANNOT END NOW OUR DIFFERENCES, AT LEAST WE CAN HELP MAKE THE WORLD SAFE FOR DIVERSITY. JJ 10,F. K1963 ohn une

ennedy

11 14

LETTER FROM THE EDITORS ACADEMIC ESSAYS

17 Old- ties, new divides 23 The- danger of Dale of speech as theft from 39 Suppression mankind less original 49 Becoming 57 The- Catholic question ‘Making Democracy 65 Re-examining Work’ and Rousseau on envy 77 Rand and U.S. strategy85 Post-heroism making Nate Wolf

Eric Leimkuhler

Avery Rasmussen

Carly Spraggins Daniel Judge

Jack Brake

Lital Firestone

Tamar Ziff

ARTICLES, ET AL.

attraction 95 Nuclear – parity laws and LGBT 101 French activism constitutional basis for 105 Themarriage equality Zeke Reed

-Alex Dunkenberger

108 120

-Zoe Pettler

PUBLIUS

SPEAKER’S CORNER

123 Sexual misconduct, policy and the law: 128 For reference: a panel discussion

Public summary of proposed revisions to U.Va.’s sexual misconduct policy

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

Dear Readers,

ith our third active semester as an academic journal

under our belt, Seriatim: Journal of American Politics is proud to present our Fall 2014 issue. Collected herein you will find a range of essays and articles that touch on the fundamental relationship between the citizen and his state: a relationship initiated and nurtured by the free exchange of ideas. As always, we have selected the highest quality work we received this past semester to put in our print journal. If these academic papers and original opinion pieces spark your interest, we encourage you to visit our website—www.seriatimjournal.com—to read our full offering. This past fall we welcomed the first Editorial Board and team of staff writers and designers to Seriatim. Much of the work you see highlighted in this issue is the result of their efforts: reviewing submissions, suggesting editorial revisions, reaching out to students and professors, and putting on our Speaker’s Corner event were all made possible through their enthusiasm and commitment to

Seriatim | Journal of American Politics

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our mission statement: supporting constructive political dialogue on Grounds. Check out our masthead page to see the new names added to the Seriatim team. Despite these positive developments to the journal, this year has been the hardest in recent memory for the University. The tragic deaths of several of our students challenged each of us to approach our relationships with renewed care and grace. Additionally, our community came under international scrutiny in November because of the account of a brutal sexual assault published in Rolling Stone. The details of the account notwithstanding, it is now clear to all of us—faculty, administrators, students, and staff—that the specter of violence against women casts deep shadows on the Grounds of our university. The experience of being a student here as we began to grapple with the urgent issues facing our student body has been trying for all of us. At Seriatim, we harbor a deep respect for seeking truth and justice above all. But the truth can hurt. This lesson we have learned firsthand over the past several months. On December 2, we collaborated with the Frank Batten School of Leadership and Public Policy to host a panel discussion entitled “Sexual misconduct, policy, and the law” (a summary of the discussion can be found on page 123). We were encouraged by the range of viewpoints presented by the diverse panel of experts we assembled, spanning the fields of law, advocacy, and public policy. The changes we seek to implement are—and will always be—primarily cultural in nature: at the root of all action is the behavior of individual citizens. However, at Seriatim we recognize the unique power of the policies and laws we implement to shape individual action. To this end, we sought to provide a discussion on how governmental

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Letter from the Editors

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policy can complement and strengthen advocacy work in ending sexual violence. It is our hope, as always, that respectful but provocative discourse will not remain an interesting thought exercise, but rather will lead to action—action that is urgently needed and rightfully demanded by victims of sexual assault. To this end and the furtherance of open discourse on law and policy, we have also included the public summary of revisions to the University’s Sexual Misconduct Policy, which will be ratified sometime in the new year. As our University community and nation continue to face innumerable challenges, the value of substantive political discourse will be underscored. If the past two hundred years of history are any guide, significant social and political changes are both necessary and possible—but also difficult. At Seriatim, we encourage you, our readers, to engage in these vital conversations. Challenge stereotypes. Seek out answers to controversial policy issues. Figure out where you stand. And, if you feel moved, write to us with your thoughts. We will be honored to share them with others. We hope you had a restful break from your studies, and we wish you a productive beginning of the new semester. Sincerely,

Ian T. Robertson

Russell C. Bogue

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academic essays

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he following pieces consist of academic work completed 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. Works for publication are accepted on a rolling basis and may be submitted via our online forum at seriatimjournal.com.

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Old ties, new divides

Religion and the American state

by Nate Wolf

College of Arts and Sciences (2018)

rench writer and aristocrat Alexis de Tocqueville was a product of the French Revolution, an era of vicious revolution, repression, and terror, during which the French populous guillotined a king said to have been divinely appointed by God. And so it is perhaps surprising that on his travels to the United States in the 1830s, Tocqueville was first struck by the level of religious piety amongst the people.1 Religion, he argued, provided the backbone of American civic culture, stabilizing an otherwise volatile democratic society. Far prior to Tocqueville’s journey across the Atlantic, the role of religion was not such a simple issue. Rather, it was a major point of contention for the Founders of the nation. Some believed religion should be a powerful element in houses of law as much as houses of worship. Others thought that the legal imposition of religious virtues was an infringement upon the natural right to free religious practice endowed to every man. To create a free and virtuous society—the latter school contended—religion should be part of government only inasmuch as being part of those creating and comprising the government. In a time when domestic solidity was a necessary counterbalance to immense institutional changes in the world, this view rightfully won out. Whether religion is such a positive influence today, however, is ambiguous, especially as religion becomes more

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Seriatim | Journal of American Politics

controversial, and the question of God’s role in politics resurfaces. God was never a question to some of the earliest colonists in North America. For example, the Pilgrims’ voyage was in part “undertaken for the Glory of God.”2 John Winthrop, another Puritan and the first governor of the Massachusetts Bay Colony, argued for a society not only connected with religion, but wholly immersed in it. His model was the biblical “city upon a hill.”3, 4 While this specific ideal is somewhat vague, Winthrop’s writings and speeches suggest he was in favor of a church-state synthesis, as he believed piety would best lead the colony to prosperity, salvation, and survival itself.5 Indeed, in his famed “little speech,” Winthrop claimed that the “lawful liberties” of Massachusetts were analogous to those that “Christ allows.”6 While not the only thinker or magistrate of his time to advocate a fusion of religion and governance, Winthrop gave many stock arguments for this type of format: religious values are necessary in society, salvation should be the goal of each citizen, and socalled “natural liberty”—the ability to act without constraints—must be subdued.7 Such views have far outlived Winthrop, with many Revolutionary and even modern statesmen seeking a direct church-state relationship. In fact, even such mild acts of religious establishment as funding Christian teachers in Virginia were argued for on the premise of Christian prudence and morality.8 Unarguably, though formed by the separation from a King who was also the head of a Church, America has still been a nation of faith. In spite of the vigor with which some argued for the establishment of Christianity, the federal and state constitutions of the country laid the groundwork for secularity. And in its 225 years of existence, the U.S. Constitution’s First Amendment, protecting free religious practice and prohibiting the government from promoting a religion, has never changed.9 The reason for America’s secularity is not that the Founders of the nation were not religious; Thomas Jefferson once noted that “we are answerable for [our rights of conscience] to our God.”10 Simply, Jefferson and others thought that the powers of governments do not extend to the natural right of belief, and thus state-promoted religion violates the Framers’ beloved Lockean social contract. Moreover, Jefferson rejected the idea that coercing people into beliefs is desirable. Perhaps his two most prominent objections were that allowing diverse beliefs allows the benefits of “free enquiry” to take shape, and that every inquisition, murder, and act of tyranny in the name of religious uniformity had been unsuccessful.11 James Madison, like Jefferson, actually thought that both religious piety and government stability were better served when independent of one another. In a scathing response to the aforementioned Christian school funding bill proposed in Virginia, Madison gave no less than 15 reasons for separation of church and state. In addition to Jefferson’s objections, Madison found that for a government to func-

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tion most stably and best protect the rights of its citizens, it must not be subject to a “spiritual tyranny” of ecclesiastical involvement. Such separation, he said, would give each sect trust in one other and in the state, and would uphold the “purity and efficacy of Religion.”12 Furthermore, Madison said that the politicization of belief not only tends to turn sects against one another, but also destroys the very values it seeks to uphold. Instead of spreading love and virtue, religious differences are made into de facto projections of enmity.13 Tellingly, Jefferson and Madison drew upon historical examples of church-state relations failing when making their arguments; America was to be an experiment of unseen institutions and liberty. The United States turned out to be uniquely free with regard to religion because Madison, Jefferson, and the like eventually won out. For decades, their format of church-state interaction was successful, a success confirmed unequivocally by Alexis de Tocqueville. Like the Founders, Tocqueville supported unwavering faith not just when it was removed from the state, but because it was removed from the state. In the 1830s, and many decades immediately preceding and following them, church and government independently juxtaposed one another so as to successfully uphold America’s egalitarian ideals.14 This notion was true both personally and societally. On a personal level, the ideal Christian household calmed and regulated the man returning “from the turmoil of politics.”15 And just as Madison predicted, on a societal level, the love and virtue of Abrahamic beliefs were able to “purify, control, and restrain” the selfishness and yearning for power present in fluid and egalitarian democracies.16 The result of these factors was a place in which liberty and moderation coexisted. Of course, religion was still central to the lives of Americans—yeoman, soldier, and leader alike. For instance, Jefferson and even George Washington exchanged pleasantries and prayers with Jewish, Baptist, and Quaker congregations. However, each correspondence crucially maintained that the government would never question their respective ideologies.17-19 Indeed, in America, these groups were equal under the law just as they had learned for millennia to be equal under God or (for Catholics) their priest.20 As the Frenchman eloquently put it, this close yet separate faith-state relationship ensured that “opinions [were] in harmony with the laws.”21 For many decades, Tocqueville’s insight was more than acceptable. An infant of a republic, comprised of idealistic and impassioned freemen, in an endless sea of monarchies and autocracies, America was inherently vulnerable to power struggles, splintering, and “Constitutionally-protected” chaos. Yet by concurrently restraining the faithful from participating in such chaos and not getting involved in politics directly, creeds of all sorts could stabilize democracy. Essentially, when people had two sometimes conflicting goals—in this case, civic power and eternal salvation— they approached each in a mild-mannered way. Thus, for many generations, it was

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advantageous for a regime to be rooted in, although not ruled by, faith. Nevertheless, Alexis de Tocqueville was in no way more important than the first sentence of the Bill of Rights in deciding religion’s role in the United States. The U.S. Constitution, in most any interpretation, does not protect Judeo-Christian solidarity as it protects freedom of religion and freedom from religion.22 For this reason, the American government has distanced itself from faith in modern times. In the 5-4 decision of Lee v. Weisman in 1992, for instance, the Supreme Court struck down prayer at school graduations because “The Constitution forbids the State to exact religious conformity from a student.”23 Justice Antonin Scalia’s dissent in this case notably points out the long tradition of benedictions at public events, which suggests a relatively new divide between religion and state.24 Two decades before, in the case Wisconsin v. Yoder, Old Amish students were legally exempted from truancy laws so they could freely exercise their beliefs.25 While this case did not necessarily make the state less religious, it exemplified a new reluctance by the government to associate itself with religion. This caution by the government was no coincidence. People today are less religious than ever before. The spiritual values and religious fervor praised by Winthrop and Tocqueville respectively are certainly paramount for some Americans, but for many, God is either a peripheral figure, a question, or a fallacy. In a country once founded upon faith, this divide has naturally spilled over into politics. Issues once decided by clear religious consensus like abortion, same-sex marriage, and school prayer are no longer so obviously answered, meaning each side has clamored for the political action they deem correct. In some ways, these differing opinions have created factions, with politicians simply promising to promote the agendas of prospective voters. In appealing to religious conservatives, some candidates will speak of Abrahamic values and morality. At the same time, the more socially progressive will want to hear of a lack of government involvement in such personal affairs as faith. In truth, no side is definitively correct. Religion can be a grounding factor, but family and basic human morality can also be such; perhaps some do not want laws to be rooted in piety, but the argument that the American democracy was successful when comprised of devout citizens is convincing. Ultimately though, every opinion is subjective. For republics to be successful, they must be founded upon republican ideals above all else. Therefore, at this point, the government cannot stray from the age-old principle of separation of church and state, regardless of the negative political effects. Such consistency is especially essential in a time when many people now demand it. And after all, the people, the true judges in the American democracy, have never moved to alter that key sentence commencing the Bill of Rights. Moving forward, one struggles to envisage a non-secular America. However, this does not mean that views on religion have not evolved greatly in the centuries

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since the establishment of Jamestown and Plymouth. At first, many colonists were driven to create a righteous society ruled by the laws of God. Their ideals of Christian morality, in fact, have lived on throughout Americaâ&#x20AC;&#x2122;s existence. However, those Founders like Thomas Jefferson and James Madison, drawing from practical, historical, and philosophical evidence, sought a separation of church and state that would ultimately strengthen and stabilize each institution. For as long as they could be, they were correct. While the removal of religion meant it could not turn into a projection of earthly tyranny and conflict, the presence of it moderated the free society and acted as a measure of solace for those involved in the hectic life of democracy. Therein lies one of the great ironies of American history. In a country formed by persecuted religious dissenters, with a guarantee of religious freedom in the first line of its constitutionâ&#x20AC;&#x2122;s Bill of Rights, and a highly diverse culture (even upon its founding), America was still home to a deeply rooted and highly functional interaction between faith and governmental efficacy. Nevertheless, this interaction has been changing for many decades now. While those who want righteous moral values embedded in the government will likely exist for the foreseeable future, more and more people are not religious at all and are thus heavily invested in protecting their right not to have religion imposed on them by the government. Whether this divide will continue to be problematic for the government is debatable, but it is certain that religion will not cease to be an influential issue in American politics. It is fairly clear that it always has been.

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Nate Wolf is a first year from Falmouth, Maine, planning to apply to the Batten School of Leadership and Public Policy. His interests range from foreign policy to sports trades and acquisitions.

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Seriatim | Journal of American Politics

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The danger of Dale

How the Supreme Court broke the precedential mold of expressive association for the worse

by Eric Leimkuhler

College of Arts and Sciences (2016)

n the 2000 Supreme Court case Boy Scouts of America and Monmouth Council v. Dale (heretofore referred to as Dale), the Court questioned the constitutionality of a statute banning discrimination on the basis of sexual orientation when the adult leader of a New Jersey Boy Scout troop was dismissed from the Boy Scouts of America (BSA) following the revelation to his superiors that he lived as an openly homosexual man.1 The plaintiff, James Daleâ&#x20AC;&#x201D;an actively involved member of the Boy Scouts since his early childhoodâ&#x20AC;&#x201D;sued the national organization for violation of the New Jersey public accommodations act, claiming that the Boy Scouts, defined as a public accommodation under New Jersey law, should be required to reinstate his membership, as his termination represented unlawful discrimination against him based solely on his sexual identity. The Boy Scouts of America countered by arguing that the retention of an openly homosexual leader contradicted the core ideologies that are professed through their guiding principles, philosophical teachings, and structured activities, ultimately forcing the organization to make an implicit statement that it approved of homosexuality as a legitimate lifestyle, when in reality it did not. The case, which ascended through the appeals process of the Federal Court system for eight years before reaching a

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Supreme Court ruling, was a seminal one in recent Supreme Court jurisprudence.2 Superficially, the subject of the case is already a hot-button topic in contemporary legal discourse—discrimination against homosexuals is the newest frontier in the American civil rights debate, with several contentious court cases in the past few decades seeking to interpret the rights of LGBTQ people and determine their future as citizens. At an even more foundational level, however, lies the principle of “expressive association” and its relevance to protected speech under the First Amendment; even beyond the scope of the debate over homosexuality, this concept would become the crux of Dale, as the case examined the rights of the Boy Scouts of America to exercise their freedom of expression via the exclusion of a member whose values were inconsistent with their collective ideology. The arguments—and the controversial ruling in favor of the BSA—prompt a number of questions for analysis. How did the Court arrive at, and also justify the concept of expressive association, that is framed in the Dale ruling? On what legal or other (e.g., discursive, ideological) grounds is this category of protected expression based? And, finally, what are the greater implications that the ruling could have in terms of discrimination against individuals’ involvement in organizations based on certain characteristics or identities? Through the connection of research and analysis of prominent legal scholarship, I assert that the majority opinion in Dale does not frame a reasonable argument in favor of speech rights for expressive groups, departing from a small amount of constitutionally sound precedence, and ultimately setting a new and dangerous precedent for the legality of exclusionary policies and the potential dissolution of anti-discrimination statutes nationwide. I. History, procedure, and opinion in Dale The adversarial relationship that Dale developed with the Boy Scouts over the course of nearly a decade was an ironic denouement to an otherwise successful scouting career; Dale had been a very involved member of the Boy Scouts from the early age of eight, joining his first troop in his hometown of Monmouth, New Jersey in 1978.1 He was first a Cub Scout, then a full-fledged Boy Scout, earning 25 merit badges and the honorable designation of Eagle Scout in 1988. When his membership in the BSA expired at age 18, he successfully renewed his membership status and became an assistant Scoutmaster before matriculating to Rutgers University. While Dale had known that he was gay during his youth, he felt comfortable enough to come out during his time at Rutgers, having made several openly homosexual friends, and feeling increasingly secure with the prospect of being perceived as gay on his college campus. From this newfound confidence

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sprung a desire for leadership and activism in the Rutgers LGBTQ community; Dale was eventually elected president of the campus Lesbian and Gay Alliance, going on to represent the organization at a social work conference between his sophomore and junior years. As part of the coverage of the conference, the New Jersey Star Ledger interviewed Dale regarding his role as a queer leader in the Rutgers community, to which Dale responded by openly affirming his homosexuality. The profile ran in the newspaper with a clear picture of Dale, as well as a large caption that included his title as co-president of the Rutgers Lesbian and Gay Alliance.3 This small instance of press coverage would come back to haunt him, however; very shortly after the article was published, Dale received notice that he was dismissed from his leadership post within the Boy Scouts for an unspecified reason. After corresponding with the Monmouth Council of the BSA, Dale was informed that “avowed homosexuals” were not permitted to be members of the Boy Scouts of America. Despite attempts to appeal his dismissal internally, the BSA resisted, leaving Dale no choice but to sue the organization for breaching the New Jersey public accommodations law—a statute that prevents discrimination based on a variety of factors, including sexual orientation, within one’s use of or participation in “public accommodations,” an umbrella designation that included some private organizations such as the Boy Scouts.3,4 The suit and subsequent movement of the case through the court system illuminated the impasse between the civil rights claims of a single party and the free speech claims of a collective organization; while Dale argued that he was the victim of unfair and unlawful discrimination, the Boy Scouts argued that they were, in turn, the victims of an infringement upon their First Amendment rights to adequately express their group ideals. Dale’s argument, though initially unsuccessful in the lower courts, struck a nerve with the New Jersey Supreme Court, which ruled in his favor. The court found that the New Jersey public accommodations law, as an anti-discrimination statute that would have mandated his reinstatement, did not violate the free speech rights of the BSA in its facilitation of Dale’s return to scouting; rather, the law and its implications were legitimized by the New Jersey government’s compelling interest in the prevention of discrimination.1 Supporting this reasoning was the fact that the Boy Scouts, though they claimed to espouse an opposition to homosexuality as a part of their doctrine, had never clearly defined this aspect of their ideology in their governing principles, preferring to leave the teaching of sexual matters in the hands of families;5 indeed, there are no specific clauses within Boy Scout doctrine that explicitly condemn homosexuality as a concept. Rather, there are broader statements within the Scout Oath and Scout Law that require all members and teachings of the BSA to con-

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Seriatim | Journal of American Politics

form to what is “morally straight” and “clean,” which do not represent definitive views on certain sexual identities.3 Therefore, according to the State of New Jersey, the BSA’s freedom to express the fundamental messages of their organization was not significantly hindered by a legally mandated reinstatement of Dale. Yet the fight was not over; the decision was appealed by the BSA to the Supreme Court, which overturned the New Jersey Supreme Court’s ruling in a 5-4 decision favoring the right of the BSA to exclude Dale from their organization. According to the Court’s opinion, written by Justice Rehnquist, the Boy Scouts are a private association of people that engages in collective “expressive activity;” they exercise the right of expressive association that was condoned by the ruling in NAACP v. Alabama ex rel. Patterson, which asserted that the expression of speech by both groups and individuals “is undeniably enhanced by group association,” confirming the Court’s stance by citing precedence in De Jonge v. Oregon and Thomas v. Collins as further examples of group expression; indeed, the Court had historically provided for the protection of associative speech barring an “overriding valid interest of the state.”6 With this in mind, the Court in Dale claimed that the legally mandated inclusion of a member who is viewed as contradicting the expression of a group is indeed an infringement upon their rights under the First Amendment. The application of the New Jersey anti-discrimination statute is therefore unconstitutional, as it impairs the speech of the Boy Scouts by coercing their acceptance of a member whose presence implicitly conveys an acceptance of homosexuality that contradicts their views.4 Rehnquist noted “forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, ‘freedom of association . . . plainly presupposes a freedom not to associate.’” The Court, according to Rehnquist, was not in a position to interfere in the “internal structure” of an organization such as the Boy Scouts, as it would, in turn, potentially interfere with the First Amendment principle of the preservation of viewpoint diversity and the promotion of less popular minority views in social and political discourse. 1 According to Rehnquist, the Boy Scouts’ stated goal to “‘instill values in young people’”—based on their Scout Oath, among other nebulous doctrines— sufficiently indicated that the organization has expressed their opposition to homosexuality and, in concordance with their First Amendment right to free expression, may supersede the pro-diversity initiatives of the New Jersey public accommodations law and exclude an openly gay man for the sake of preserving the purity of this message.1 Rehnquist and the majority insisted that the Court must trust the judgment and self-evaluation of the Boy Scouts in determining what they are expressing and how they are doing it; if the Boy Scouts decide that

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they officially espouse a view, then regardless of their methodology or proof (or lack thereof), they are expressing that view, and thus deserve the full protection of the Constitution. In that vein, the Court asserted that not every group that brings people together must form for the purpose of expressing a certain message in order to deserve this same First Amendment protection—rather, according to Rehnquist, a group may simply meet the criterion of expressing any type of view in any way, explicit or implicit, in order to warrant First Amendment infallibility, and with it the right to exclude anyone who may represent a “significant burden” to their speech. This categorization included James Dale, whose open homosexuality and participation in leadership roles and conferences promoting alternative sexual identities labeled him an “activist” in the eyes of the Court.1 II. Departure from precedent This ruling represents a surprising and significant departure from the few instances of comparable precedence that the Court had decided in the years prior to Dale, creating the parameters for organizational rights to exclude and re-examining the concept of expressive association. Notable cases regarding the discrimination and exclusion of certain minorities from private organizations factored into the arguments and the Court’s deliberation, with several of them having resulted in rulings that ran contrary to the logic that prevailed in Dale. The 1976 case of Runyon v. McCrary analyzed the judicial concept of expressive association as it pertained to potential racial discrimination; two black students in Virginia filed a class action against two school directors, claiming that they had been denied admission to their respective schools based on their race. The Court, which cited the Constitutionality of expressive association that had been affirmed in NAACP, added a corollary to this opinion; despite the First Amendment right of parents to send their children to schools that teach racist ideologies, such as the schools in question in Runyon, the provisions of the First Amendment do not reciprocally protect the schools’ right to discriminate against students based on race, which violated Virginia anti-discrimination law. Additionally, the Court, in a similar string of logic that was found in the New Jersey Supreme Court’s assessment of Dale, asserted that the suppression of discriminatory admissions policies and the admission of the students whom had originally been excluded would not significantly impair the schools’ ability to teach racist dogma.7 The concept of expressive association was addressed again in Roberts v. United States Jaycees, in which an all-male Minnesota non-profit organization attempted to defy the Minnesota Human Rights Act—an anti-discrimination statute similar

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to the New Jersey public accommodations act cited in Dale—by barring the admission of women to the group for fear of a hindrance to their freedom of expression.8 The group, which the Supreme Court had determined to be undoubtedly classified as an expressive association based on its civic advocacy, lobbying, and fundraising, argued a similar case to the one that the Court would hear in Dale years later: the organization, on principle, was for males only, and the admission of women would create an unconstitutional burden on their freedom to express their ideas. The Court ruled in favor of Roberts, however, finding that such an argument was unconvincing—the admission of women as full voting members of the organization, according to the Court, was not a significant imposition on the male members’ abilities to express the values that were considered central to the Jaycees.8,9 In the case of this particular organization, and their efforts to exclude a group of people based on a similarly inherent characteristic, author of the opinion Justice Brennan found that the state’s interest in the promotion of diversity compellingly outweighed the desire of the Jaycees to keep their boys’ club atmosphere—a desire that the Court deemed too whimsical and inessential to their expression’s efficacy to merit First Amendment protection of an exclusionary policy. Brennan was sure to cover his bases in the opinion, noting that even if the presence of women within the group infringed slightly upon the rights of the Jaycees to admit members as they pleased (which was, indeed, a possibility), the infringement would be the necessary cost— “‘no greater than was necessary to accomplish the State’s legitimate purposes.’”8 Board of Directors, Rotary International v. Rotary Club of Duarte presented a similar case to the Court in 1987, when a rebellious Rotary Club in Duarte, California, refused to expel three females who had been admitted to the service organization as full members despite a stated ban on female membership, as well as institutionalized, specifically outlined limits on female involvement. The Duarte chapter argued that obstruction to female membership in their club stood in violation of a California anti-discrimination statute that banned discrimination based on a number of factors, including sex. The Court again ruled in favor of the inclusion of these contested members, asserting that the evidence presented advocating for their expulsion did not create a compelling enough argument; indeed, mandating the acceptance of female membership via the California act would do very little to detract from Rotary’s ability to continue its expressive work through its local clubs, or maintain its foundational ideologies. The small degree of infringement that might occur through the execution of the law would, as it had also been decided in Jay� cees, be a necessary sacrifice for the sake of the state’s interest in promoting a more diverse organization, and offering opportunities for a more diverse population. If these precedential cases decided in favor of the inclusion of those who

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would otherwise be excluded due to characteristics such as their sex, what logical reasoning caused the shift that would lead to the divergent opinion delivered in Dale? As evinced by the above, Supreme Court jurisprudence surrounding the concept of expressive association had in large part favored the excluded minority, championing diversity so long as it did not interfere with the right of organizations to convey their ideals under the protection of the First Amendment. According to the Courts, these three contested instances involving expressive association boiled down to win-win situations; the plaintiffs fighting for acceptance into these organizations were granted admittance, while the larger organizations that hosted them were deemed to be minimally burdened by the inclusion of these diverse members. Thus, the path had been well worn for the decision in Dale, with many of the variables in the case accounted for by prior jurisprudence; so what went wrong to compel only the slightest majority to reverse their prior stance? The following analysis of the logic employed by the majority to interpret Dale will attempt to answer this confusion, asserting that the reasoning in Dale, despite a firm and constitutionally sound basis of precedence, was flawed in several critical ways. III. Lack of specific views on homosexuality First, and perhaps most embarrassingly obvious, is the assumption underlying Rehnquist’s opinion that the Boy Scouts had any specific doctrine against homosexuality that needed protecting in the first place. As I previously mentioned, the Boy Scouts—while they are well known for their association with traditional and conservative values, especially vis-à-vis their frequent affiliation with churches—maintained no definitive policy on any type of sexual behavior, much less homosexual behavior and lifestyle choices, that would have constituted an expressive message that Dale’s presence could have warped. The Boy Scout Oath and Laws, which delineate the core principles that all BSA members are expected to adhere to in their actions and teachings, make no explicit mention of anything having to do with sexuality or sexual orientation; the BSA as an organization, as mentioned before, prefers to leave the teaching of sexual topics to the families of the boys who participate, leaving the concepts of “moral straightness” and “cleanliness” subject to interpretation, regardless of the prominence of an implicit message opposing sexuality.5 The Court in Dale erroneously justifies the use of an implicit, unofficial message as the basis for discrimination when Rehnquist notes that the Court “need not inquire further” into the legitimacy of the Boy Scouts’ claim that they had institutionally opposed homosexuality; rather, according to Rehnquist, the record of the case and the testimony of the

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BSA would serve as adequate demonstration of the genuine nature of their antihomosexual sentiments and teachings.1 Within this facet of the case, the majority based a large part of their reasoning on a partial, unstable truth; while the leadership of the BSA may claim that rejection of homosexuality is a core tenet that definitively unites their organization, there exists little proof of this claim aside from anecdotal evidence. Indeed, when the plaintiff called upon the BSA to provide substantial documentation of their historically anti-homosexual positions, the organization was only able to provide one official position paper written before Dale’s membership that described these supposedly pervasive ideologies.2 This hole in the majority’s reasoning would become one of the primary qualms in Justice Stevens’ notable dissent; he attacks the vaguely stated principles of the BSA, opining that “[i]t is plain as the light of day that neither one of these principles—‘morally straight’ and ‘clean’—says the slightest thing about homosexuality,” adding, “BSA never took any clear and unequivocal position on homosexuality,” in the “Handbook, lessons, or otherwise.”10 O’Quinn, in his article supporting the ruling in Dale, argues that Justice Stevens irresponsibly overlooked passages in the Boy Scout Handbook that specifically address the topics of sexuality, abstinence, fatherhood, and generally “wholesome” relational behavior—however, he also openly admits in this same article that the Handbook does not address homosexuality specifically. Therefore, while the dissent may have misspoken in assuming that the Boy Scouts take no position on teachings regarding sexuality, they were correct in their assertion that the Boy Scouts’ vague language within these passages has no specific applicability in the situation of a gay Boy Scout.10 Thus, by turning a blind eye to the potential instability of this premise, Justice Rehnquist and the majority made the mistake of judging an organization— and its Constitutional rights to violate the civil rights of another—based on views that the organization claimed to have had, rather than anything more substantial; this is a flawed line of reasoning. The Constitution, after all, offers protection based on the concept of actual speech, not internalized thought that never escapes the lips of those who think it. If the Boy Scouts of America was to be treated as an individual, earning the same constitutional rights to collective expression that were guaranteed to all citizens, it would have to face the same such realities. Even if the BSA’s positions on homosexuality are believable to most who are familiar with the organization’s conservative tradition, they were not well supported or evinced in Court, and did not present a substantial viewpoint on the topic of homosexuality that would assume an inherent contradiction by readmitting Dale. The unabashed deferral by the Court to the BSA to determine the definitions and parameters of their own expressions makes little logical sense—reason would tell

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us that the Boy Scouts, left by the Court to self-assess and self-report their ideologies through which they may or may not discriminate, will operate in their own self interest to evade all potential restrictions on their discriminatory policies. IV. Disagreement about homosexuality within the BSA Without a central doctrine that preaches against homosexuality, the BSA added yet another pitfall to the case that the majority of the Court fell through: the assumption that, even if the BSA’s expressed opposition to homosexuality was nebulously implicit, it nevertheless represented the views of the organization as a whole, making it an uniting component of the BSA’s identity. On the contrary, however, there exists evidence that the BSA was not in agreement over their position on homosexuality and the question of admitting homosexual members. As mentioned by McGowan in his analysis of the case, multiple amicus briefs were filed by three different Christian denominations that typically affiliate with Boy Scout troops, arguing on behalf of both parties; the Methodist Church, for example, wrote a brief supporting the inclusion of a homosexual member, asserting that their church taught acceptance over bigotry and discrimination; the Catholic Church and Church of Jesus Christ of Latter-Day Saints, however, wrote briefs in support of the BSA’s position, asserting the immorality of homosexual lifestyle choices and the impropriety of a homosexual’s inclusion in the BSA.5 These briefs are clear material evidence for the discrepancies that may—and do—exist within the massive national organization regarding views on the morality and acceptance of homosexuality. However, even from a purely hypothetical and theoretical perspective, the Courts should not have gone so far as to assume that the BSA would be steadfast in their opinion on different issues that are not specifically outlined in their guiding doctrines. The situation is akin to one that is compared in McGowan’s work, which hypothetically poses an internal disagreement in the BSA over viewpoints on immigration reform, a topic that has, hypothetically, never been addressed in Boy Scout doctrine or official ideology. What would happen, for example, if the leadership of the Boy Scouts were split over whether to include or exclude boys from “’non-Caucasian’” families to make a statement for or against (respectively) a tightening of immigration policies? According to McGowan, even if a majority of the governing body of the BSA agrees to restrict the acceptance of non-Caucasian boys, the defense of this policy as an exercise of First Amendment freedoms would not hold in Court, as the Boy Scouts would not have a clearly defined, unanimous stance on the topic of immigration.5 A similar fear plagued dissenters in the Citizens United decision that

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would follow Dale in 2008—should a corporation, as an association of people, be able to use the investors’ pooled funds as a form of speech if not every investor were necessarily in agreement about where the money might go? According to McGowan’s argument and the evidence presented regarding the Boy Scouts’ lack of a defined, unified position on homosexuality, the Court’s logic disregarded the potential misplacement of discriminatory power in the hands of an organization that may be critically divided on these topics. This is most glaringly apparent in the Dale opinion’s disregard for applicable precedence, when Rehnquist notes that organizations have the ability “‘to express those views, and only those views, that it intends to express,’” sidestepping a clause in the prior Jaycees ruling that cited the ability of such organizations to “‘express only the views that brought them together’” (emphasis added). Indeed, the Court no longer required the Boy Scouts to discriminate based on an agreed-upon ideology—Rehnquist’s opinion notes that “the First Amendment… does not require that every member of a group agree on every issue” in order to be considered an expressive association. Rather, they could slap together an explanation of their supposed greater “intention” to sway young boys’ morality against homosexuality, and use it to discriminate against potential members without any evidence or universal agreement supporting the principle.5 V. Dale: a homosexual “activist?” Further complicating Dale was the nature of Dale’s openness and behavior regarding his sexuality, especially within the context of his involvement in the Boy Scouts—as the BSA themselves were keeping mum for all of those years about their stance on homosexuality, so too was loyal member James Dale. As a Scout, and later as an adult troop leader, Dale had never purposefully made known his sexual orientation to anyone within the organization; though he did consider himself openly homosexual after coming out at Rutgers, the record of the case has shown that he did not express or even suggest anything regarding his sexuality to anyone in the Boy Scouts at any point in his life. He was presumably outed to the organization only by the article in the New Jersey Star Ledger, which discussed a role that Dale had served in completely separately from his involvement in the BSA. Thus, the judgment of the Boy Scouts that led to Dale’s expulsion did not revolve around any explicit messages or behaviors that he had engaged in as a leader—he had not, for example, preached to Cub Scouts about the merits of homosexual relationships. Rather, the reasoning of the Boy Scouts focused on the implicitly pro-gay message that his mere existence as an open homosexual within the organization would promote.3 The Boy Scouts argued that Dale’s public declaration of his homosexuality,

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as it was reported in the Star Ledger, as well as through his participation in the conference, was enough to poison their ideological well; his mere acceptance within the organization would implicitly contradict the moral values that, according to the Boy Scouts, opposed homosexuality, denouncing it as an illegitimate lifestyle.3 The Court majority erroneously subscribed to this view as well, citing numerous times in the opinion the fact that James Dale was a homosexual “activist” due to his honest openness about his sexuality when prompted, as well as his brief involvement with a campus club and a social work conference outside of his life as a Boy Scout.1 Does Dale’s relatively minor social activism, far removed from the context of his role in the BSA, create sufficient grounds for the Boy Scouts (or the Court) to clearly and indelibly label him as an activist for the sake of the case, despite the fact that he never once breathed a word about sexuality as a Scout or Troop Leader? According to the Court, even the smallest degree of openness and involvement in any realm of one’s life becomes inextricably linked with the identity of that person in all contexts—even those in which they choose to hide that facet of themselves. The majority’s logic viewed Dale less as a neutral Scout leader who in external situations happened to be gay, and more as a constantly flashing symbol for queer advocacy; by this logic, such a visibly interwoven part of his identity and third party audience perception would, in turn, permeate his leadership within the Boy Scouts, forcing the organization to affiliate itself with a public message that it supposedly disagreed with so vehemently.3 VI. A tradition of heteronormativity The flawed reasoning that contributed to the opinion in Dale is problematic for two larger reasons; first, it is unsettling that the discrepancies between the consistent jurisprudence of the precedence and the Dale ruling may have been the result of biases and underdeveloped ideologies regarding homosexual equality. One prominent question that is raised by the outcome of the case brings the notable departure from precedence in Dale back into the light—why, if there were several precedential cases that ruled in favor of minorities who desired to associate, did the Dale court decide against a gay Boy Scout? What makes the acceptance of women or racial minorities into these types of organizations an inherently different issue than the acceptance of a gay man? According to Knauer, the answer lies in the concept of the “backdrop of heteronormativity,” an assumption that heterosexuality is the correct and fundamental order of society; this, in turn, leads to an assumed aversion and moral opposition to homosexuality that has characterized much of the historical foundation of our society, and has only partially dissipated today.2

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Indeed, the cause of homosexual acceptance is one that has only come to fruition relatively recently on the timeline of minority civil rights; despite some significant progress since Dale, the debate is still very much ongoing. While many of the battle lines that were drawn in the fights for women’s rights and racial equality have been erased at the legal level, the issue of homosexuality continues to create a tangled web of debate that produces conflicting laws and jurisprudence at all levels of government and society. It was as recently as 1973 that The American Psychological Association voted to declassify homosexuality as a mental illness, and many states still retain laws that ban sodomy and other homosexual behaviors, in addition to statutes that ban gay marriage—a heavily contested contemporary issue.2 This recent and widespread upheaval questioning the morality of homosexuality, as well as the civil rights of homosexuals, indicates that only in recent years have larger social institutions begun to question and break down homophobic assumptions and paradigms; the view of homosexuality as a “degenerate” “inversion” of normal heterosexual values and behaviors has only lost some momentum within the past several decades, breaking from centuries of widely accepted understanding that anything even resembling homosexuality as an immoral perversion that should not be considered legitimate.2 Thus, with the support of Knauer’s theories built on decades’ worth of indicative social science research, it is reasonable to posit that the Supreme Court reversed the original New Jersey ruling based on the assumption of the “prescriptive force of heternormativity”; in the eyes of the Court, the Boy Scouts did not ever need to specifically outline a policy against homosexuality, as this stance was implicit in their existence as a conservative, traditional organization throughout history. The majority could easily have assumed that the BSA defaulted to the view that homosexuality was immoral, considering the pervasive heteronormativity that had dominated social norms during the organization’s chartering in 1915, and for a large part of its existence.2 While it is true that similar widely held assumptions and prejudices formed the basis for legal discrimination against women and minority racial groups at various points in American history, racist and sexist views are perceived as anachronistic and unfounded relative to current views of homosexuality. One can reasonably infer that the Court’s ruling in Dale is evidence of the gray area that homosexuals continue to occupy in society and under law—a disputed, morally ambiguous area that issues of discrimination based on factors such as race and sex have largely been removed from. Indeed, as Justice Stevens asserted in his dissent, the majority opinion relies on an assumption “that homosexuals are simply so different from the rest of society…” (including racial and gender minorities) “… that their presence alone… should be singled out for

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special First Amendment treatment.” He goes on to argue that the Court’s justification of such discrimination against a homosexual based on his openness is “tantamount to a constitutionally prescribed symbol of inferiority.”11 It is conceivable that this compartmentalization of homosexuality in the Dale ruling may have been based on the backdrop of heteronormativity, or even on personal moral biases and ambiguities held by the justices themselves—regardless, it sends an unsettling message about the state of homosexuals under law in contemporary society. VII. New grounds for arbitrary discrimination Secondly, and perhaps equally unsettling, is the dangerous precedent that the Dale ruling may have set in its favor toward the discriminatory policy of the Boy Scouts of America; I posit that the outcome of Dale serves to undermine the purpose of anti-discrimination legislature, such as the New Jersey public accommodations act, that has become standard in many states. In the precedence that I have cited in the cases of Roberts, Rotary, and Runyon, the Court upheld the application of anti-discrimination statutes that were designed to protect minorities against exclusionary discrimination within the organizations’ respective states; these laws supported the civil rights of both the female and the African American plaintiffs by assuring that their admittance to these organizations was within the compelling interest of their states to pursue diversity and equality for minorities. The ruling in Dale, however, damages this established precedential support of equality—not only for homosexuals, but for other minorities as well—by protecting the discriminatory interests of virtually any organization based on vague and overly lenient criteria. In A Tripartite Approach, Carpenter discusses how the ruling in Dale provides a dangerous resolution to the conflict between the rights guaranteed by the First Amendment and the anti-discrimination laws that serve to limit organizations’ discriminatory power. In order to keep anti-discrimination laws from burying rights to free speech, the Court has resolved that organizations such as the Boy Scouts must be categorized as “expressive associations” in order to merit the full free speech protections guaranteed by the First Amendment—including the right to exclude, if doing so would preserve the integrity of their expressed message. The criteria to garner the title of “expressive association,” however, are far too vague: the opinion in Dale establishes that the category of “expressive association” is “‘not reserved for advocacy groups,’” and may encompass organizations that “‘engage in some form of expression, whether it is public or private,’” pursuing “‘a wide variety of political, social, economic, educational, religious and cultural ends.’”1, 12 If this set of criteria seems nebulous and overly inclusive, that is because it

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is; indeed, the Court acknowledged that “‘it is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.’”12 Therefore, the category of expressive association cannot conceivably include almost any group of people meeting for any reason—or can it? Based on the principles of self-assessment and deference of interpretation that the Court established in Dale, an organization could, in the eyes of the Court, meet the vague criteria for an exclusionary expressive association very easily; a group must simply report in “‘sincerity’” and “‘good faith’”—even retrospectively, through the process of litigation—that their espoused views justify discrimination against potential members who might “significantly burden” and contradict their views for whatever reason, even simply by having an individual identity outside of the organization.12, 13 Through this faulty employment of logic and judicial standards, the Dale ruling is effectively a dog chasing its own tail within the Supreme Court’s interpretation of expressive association; by contradicting earlier precedence and setting an easily subverted, deferent standard for organizational rights to discriminate, Dale may have potentially devastating and self-destructive repercussions. Regardless of the specific nature of the case, the new precedence that it establishes gives a litany of private and public organizations a wide avenue to pursue arbitrary discrimination, potentially rendering a long list of state anti-discrimination statutes useless. With the tools forged by Dale in their back pockets, what is to stop any group of people—a community pool, a museum, a medical practice, or even a major corporation—from legally excluding any type of person from employment or service for any reason? With the right explanation asserting the “‘significant burden’” of the potential member, it would seem that very little could stand in the way.13 VIII. Conclusion The greatest irony of this case, of course, lies in the free speech principles that have been warped by the Dale ruling for the sake of protecting organizations’ rights to discriminate. While the First Amendment supposedly exists to encourage a richer variety of equal voices within American society, it is also wielded as a double-edged sword—as we have seen in the case of Dale, the same principles that protect the rights of individual speech and expression were employed by the Court to allow a large group of people to exclude and marginalize an individual based on his identity, even when his avowed homosexual behavior only took place outside of the organization. The ruling in Dale thus holds

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a greater significance that transcends the scope of a small New Jersey township, potentially contradicting much of the progress that has been made in distinguishing free and protected speech from outright discrimination in both the public and private sectors. This faulty and irreverent decision further smudges and erases such a distinction, creating a dangerous slippery slope that equates the power of expressive association with the power to subvert statutory principles of equality and inclusion in prior American jurisprudence and legislation.

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Eric Leimkuhler is a third year Media Studies Distinguished Major and Spanish Major from McLean, Virginia. His interests include long-distance running, coffee and the ethical concerns surrounding media policy and law.

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Suppression of speech as theft from mankind Political theory, the First Amendment and John Stuart Mill’s harm principle

by Avery Rasmussen

McIntire School of Commerce (2016)

his paper attempts to explain the political theory forming the basis for the First Amendment to the United States Constitution. It draws on John Stuart Mill’s harm principle, in which he supports proscription on any kind of government interference in individual’s lives unless that interference serves to prevent harm to other individuals. Thus, the government can not interfere with one’s ability to speak freely, with only limited caveats like Justice Holmes’ clear and present danger test. This protects a man’s freedom of individual thought, which is necessarily contingent upon the ability to outwardly express such thought. However, the principle behind the First Amendment’s guarantee of freedom of speech goes far beyond this. Not only does freedom of speech allow each man to achieve individual fulfillment, but it also serves society as a whole. This paper expounds upon the theory that government interference with freedom of speech is essentially robbing society of important value. The ability for man to freely express his own thoughts is a relatively clear benefit for his own self-worth. In his essay On Liberty, though, Mill celebrates free expression as more than that—it is absolutely essential to the happiness and progress of mankind as a collective unit. To keep any ideas from the people, re-

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gardless of such ideas’ merit, would be akin to stealing from them. Mill’s analogy relating censorship to theft is particularly convincing from a utilitarian perspective, because expression of all ideas is not just beneficial for personal development and fulfillment, but increases societal happiness and prospects as a whole. Thus, robbing one person of the opportunity to speak effectively steals from the community opportunities for betterment, progress, and overall happiness. Though there are costs associated with free expression of ideas, the utility that it brings for society is so great that the short-term costs are largely overshadowed. It is clear that a right to freely express oneself holds important personal value for each individual man. To attempt to check a man’s thoughts and beliefs by disallowing his expression is to withhold an opportunity for genuine self-fulfillment, self-realization, and self-development. Majority tyranny that only allows the expression of popular opinion deprives a dissenter of his liberty—a liberty that some would say is innate. If this were the whole story, then it would matter how many people are obstructed in their pursuit of expression. If only one man is silenced, it is not as detrimental or dangerous as if one hundred men are silenced. Mill, however, sees the value of free expression as one deriving from a utilitarian perspective on public good, rather than from an innate, inalienable source. The utilitarian interest in allowing free speech for the value of all of society goes far beyond the individual fulfillment that most people associate with free speech. The value of freedom of expression is much more than just a personal prize, much more than an intrinsic freedom to self-realize—it holds implications for society as a whole, because the community, not just the individual speaker, benefits greatly from a variety of opinions that is enriched by dissent. When free expression is curtailed, society ends up being deprived of a vital component, even if it is just a single voice. It is being robbed of the chance to hear speech and ideas that may end up bettering the entire community. From this perspective, contrary to the view of oppression as simply a “private injury,”1 it does not matter if just one person is being censored versus one hundred people. Denying anyone the right to speak robs society universally, not just that one man, since the focus is on the collective development of mankind rather than just of any one man. In fact, it is actually more harmful to society if suppression aligns with public opinion and fewer men are censored, because when only one person is silenced, the rest of society is effectively oblivious to their deprivation of information. Society is robbed in the night without really realizing it. Majority imposition of beliefs on the minority dissenters hinders holistic development, and so to censor would be to deprive society of an opportunity to seek truth and progress.2 When uninhibited, exchange of ideas becomes an instrument for seeking

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truth. Expression of a nonconforming thought strengthens society, whether the thought is proven to be good or bad. If it turns out to be right, then humanity is enlightened in a way that would have otherwise been neglected. More commonly, though, the minority judgment will be proven wrong—but even this is not reason enough to curtail its expression. Actually, society has a vested interest in making sure that this “wrong” speech is voiced so that the force of reason can push back against it. Thomas Jefferson embodied this sentiment when he said, “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.” One cannot fully and truly know and understand something just on one’s own, but rather needs others to counter, to find objections, and to point out mistakes. Dissenting opinion forces man to strengthen his reasoning behind his beliefs, to close holes in his rationale and to have a firmer grasp of the truth. Society should thus handle erroneous speech by countering it with reason and strengthening what it believes to be true, rather than just silencing opposition. Mill points out that a man’s error should invite “remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not…compelling him.”3 Silencing counter-opinions just robs society of the opportunity to either reinforce the known truth or to find a new answer. If the value of free expression were to lie solely in personal gain and selfdevelopment, then one might argue that this goal is reached by mere freedom of thought. This view would allow curtailment of free speech, as expression differs from thought in that it regards other people. However, Mill argues firstly that free thought is of no value without the equal freedom to express these thoughts.4 But more importantly, since free expression is of utilitarian value to society as a whole, it should not face any restrictions other than those which align with Mill’s harm principle. Mill’s theory is that legal restrictions should only be used to protect others against harm. Thus, speech cannot be restricted due to societal feelings that the speech is wrong or immoral. Expression may only be limited where it poses harm, such as the incitement of violence, against another person.5 Thus, typical reasons for curtailing speech, like wickedness or error, are not sufficient, and serve as a mere excuse for robbing society of a valuable asset. Suppression of speech is frequently justified upon the rationale that those setting the law know better than the common man what he should do or think or say, a rationale not in line with Mill’s harm principle. Mill calls this type of erroneous belief a presumption of infallibility. Mankind has a tendency to become so sure of the correctness of its own or prevailing opinion that it deprives anyone else of the right to say anything counter. In this type of ineffectual society, people talk only with whom they already agree, so they are denied the opportunity to recognize

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weak spots in their arguments, strengthen their understanding of what they already know to be true, or discover an elusive truth. They begin to use mere feelings and convictions to support their beliefs rather than reason, since they avoid the only situation requiring them to give convincing, rational argument.6 What this society accepts as truth, then, becomes hollow words without a firm foundation, since it has never had to defend against challenge.7 Silencing dissent thus robs humanity of the chance to have its views tested and strengthened, in turn giving a “clearer perception and livelier impression of the truth, produced by its collision with error.”8 Therefore, in order to give society ample opportunity to approach realization of the truth, unpopular and even erroneous opinion must be given the opportunity to be voiced. Any viewpoint that is truly deserving of confidence is one that has endured frequent testing and questioning, countering criticism with adequate rationale or altering elements according to a newfound truth.9 An opinion that has not been successfully challenged solely because all refutations are disallowed is not worthy of any confidence. However, a belief that has not been successfully challenged because, despite every opportunity, no respectable counter has been posed, is one that can reasonably be accepted as truth.10 To silence dissent would be to rob a person of the confidence in their beliefs that they can acquire by facing diverging opinions. An ideal society would thus be one that does not quiet dissent, does not even just tolerate it, but rather invites opinions that call prevailing ideas into question. This way, if the challenges prove to be true, society will be the better off for knowing it. If false, then proving it wrong only strengthens understanding. If open expression is allowed, “we may hope that if there be a better truth, it will be found when the human mind is capable of receiving it; and in the meantime we may rely on having attained such approach to truth, as is possible in our own day.”11 The only way to be truly confident of a belief is to open it up to criticism and either counter those attacks that do arise, or else incorporate correct criticisms into the framework of society’s beliefs. Society draws great utility from the unfettered expression and exchange of ideas, significantly through a general increase in happiness. As a utilitarian, Mill lauds the greatest happiness for the greatest number as a guiding principle for his dogma. The way to reach this goal is to allow for freedom of expression. It is human nature to desire to reach truth, and so the ability to seek the ultimate truth of mankind is a precondition for happiness and even basic well-being. Thus, it is important to do anything that allows mankind to approach this truth. The way to bring society closer to realizing the prevailing truth is to allow for free thought and exchange of ideas. By this chain of causation, any utilitarian would be in favor of uninhibited free speech to allow for the greatest happiness

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of the human race. Viewed in an alternative light, any restraints on speech (other than those allowed by the harm principle) are essentially limiting society’s opportunity to approach truth and therefore happiness. Limits on speech rob mankind of an important opportunity to seek the greatest happiness for the greatest number by pursuing veracity. Allowing free dissent, according to the previously described benefits, is essentially a prerequisite societal condition for rational thought and the achievement of the greatest knowledge; therefore its limitation would subsequently mean a limitation on pursuance of wellbeing and happiness. A utilitarian vision for society is applicable in this instance. The greatest happiness for the greatest number should be taken into consideration when it comes to expression of ideas. Though it may presently decrease some individuals’ happiness to have their views attacked or to listen to what they consider senseless or even offensive ideas, the overall enduring happiness of We have much more room society should ultimately be the end goal. Short-term discomfort for progress if we keep an and unease by individuals is a small open mind and refuse to price to pay for a greater opportufall prey to the presumpnity to seek truth and find happiness for society as a whole. Thus, tion of infallibility. the utilitarian argument that free speech allows society to pursue the greatest happiness for the greatest number is in line with the comparison of hindering speech with robbery of the human race. Free speech also provides utility to society by encouraging progress. Despite the common presumption of infallibility, humans can not actually be sure that what we think now is the truth. Even if a premise is accepted by almost all of society, Mill argues that “ages are no more infallible than individuals,” pointing out that every age has seen some of its opinions proved “not only false but absurd” in subsequent ages.12 Just as we have come to reject many commonlyheld beliefs of past ages, surely future ages will reject or at least modify some of what we currently believe to be true.13 History has proven this pattern time and time again. Thus, the opportunity for progress requires a certain amount of humility in realizing that we have much more room for progress if we keep an open mind and refuse to fall prey to the presumption of infallibility. Silencing of dissenters nonetheless can often be justified by writing them off as “bad men.” Only a bad man, one might say, would desire to tarnish the beliefs held by society, and laws exist to restrain bad men.14 If only these “bad men” who truly have nothing but evil to add to society are restricted, then it

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seems that all is well. However, this idea again succumbs to the presumption of infallibility—this time claiming the power to decide which opinion qualifies as a “bad” opinion. This practice is essentially a higher authority deciding which opinions are worthy of hearing, robbing society of the opportunity to decide for itself to whom it should listen and whom it should believe. Furthermore, it is nearly impossible for anybody to know in the present a man who is worthy of speech versus a “bad man” who should be silenced. “History teems with instances of truth put down by prosecution,”15 of men who were, in their time, considered “bad men,” but then turn out to have a lasting influence on societal progress. Mill cites examples of Jesus and Socrates, men who were assailed as heretics or lunatics during their time.16 Jesus’ speech was once condemned by many as heretical and absurd, and now millions of people follow his teachings. Socrates, now hailed as “the master of all the eminent thinkers who have since lived,”17 was also regarded as a radical dissenter during his time and clashed with beliefs considered to be the prevailing authority. If these men had been successfully censored so as to not be able to propagate their messages at all, then history would not have progressed the same way in the ages to follow. These examples of history should teach us that no matter how confident we are in what we think to be true, we should not silence those who disagree, as we never know where their views will bring us in the future. Restrictions on speech essentially steal away the chance to see where unconventional, seemingly meritless ideas take mankind. Not only is progress hindered by the censorship of those who we perceive to be “bad men,” but it also deters people with original ideas from speaking. Men are robbed of the opportunity to explore new ideas by a fear of being labeled as one of these heretics.18 Creative, innovative, and differing thoughts are stifled as men strive to remain within the bounds of society’s accepted norms. “Free and daring speculation on the highest subjects is abandoned” where there is a threat of being seen as a heretic and legally silenced.19 Therefore, even if it were plausible to say that the government could truly identify “bad men” to silence, it would actually cause more harm to those who are not heretics but fear being labeled as such. There is no way for society to measure all of the opportunities for innovative thought of which it would be deprived due to fear of such ideas being labeled radical or “irreligious or immoral.”20 Regardless, it is more beneficial to encourage all lines of pioneering thought than to discourage some forms of it and risk deterring anyone from whose input society could directly benefit. The validity of the analogy between censorship and robbery is convincing for a number of supplementary reasons as well. For one, silencing dissenting speech, even if perpetrated by someone deemed a “bad man,” takes away from society the

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constructive opportunity to know who is harboring offensive beliefs and react accordingly. Silencing opinions that society believes to be wholly incorrect or bad, be them racist beliefs or communist beliefs, means that the rest of society will then be oblivious to who believes these things. Instead, it is much more beneficial to society to allow those with offensive and truly wrong beliefs to speak out so that truth can then drown such beliefs out. Instead of forcefully silencing a person for wrongness, they should be silenced purely by the countering voice of reason. Bad speech should be faced with more speech, not restrictions. This allows society to not only become more firm in the truth, as Mill pointed out, but also to establish a more secure and promulgated counter to dangerous beliefs and to recognize and reasonably counter those who entertain these dangerous beliefs. The threats to society posed by restrictions on expression, illustrated by Mill’s examples, hold true today. For example, in modern America, it might seem like a perfectly rational move to silence proponents of communist thought, since it can be seen as the speech of a “bad man” who wishes to end our democratic, capitalist system. However, we have no way of knowing if there is any merit in these ideas that will come to light in the future; and even in the meantime, we can strengthen our own democracy by bettering it to counter this opposing viewpoint. Another example of a modern application of Mill’s examples comes from society’s quick progression in terms of technology and new ideas. It seems extremely likely that novel, meaningful, and true ideas could present themselves in a single unconventional voice. If speech were allowed to be curtailed, that voice could easily be silenced in the interest of the popular direction that technology and society are generally progressing. It would not be a stretch to say that silencing a man with an eccentric or nonconforming idea would be robbing society of an opportunity to enjoy a new direction of progress that was perhaps not previously considered. The culture of free exchange and expression in modern society has been a major contributor to the rapid and innovative advancement of technology and ideas. It would have been very enticing for restrictions to be placed on ideas progressing towards, for example, artificial intelligence, since many men are fearful of and disagree with these types of human-like technological advancements. However, if a fear like this had, in some alternative universe, caused suppression of ideas concerning artificial intelligence, then society would have been robbed of new advancements—for example, technology in medicine like a robotic surgery machine—which save human lives. Due to all of the explicated reasons, Mill’s analogy between restrictions on speech and theft is very convincing. If we, as a society, do not allow all speech that does not fall under the umbrella of the harm principle, we are robbing the human race. We are robbing mankind of the means to better seek the truth, a precondi-

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tion to happiness in the long run, and to progress. Though individuals may not be happier in the short-run if they are having to face offense, discrepancy, arguments, and hard choices every day, the human race will be better off in the long-run if unconventional ideas are allowed to be expressed unfettered to stimulate discussion. We cannot deprive our society of the opportunity to inch closer to human happiness and to work towards progress even if it seems more convenient now to just limit speech that does not align with conventional beliefs. If the conditions for rational belief and knowledge are undermined, then one constituent of overall well-being is undermined. The current age will be divested of the opportunity to self-fulfill and self-express without fear of being labeled heretical, but even more so, of the opportunity to strengthen understanding of the truth against a prodding opposition. Furthermore, posterity is also deprived of the opportunity to progress from opinions that the past deemed unworthy of a voice. That is why Mill sees restrictions on free speech not just as a private injury to the man not allowed to express himself, but rather as a form of theft from society. Censorship robs society of the chance to improve, to voice reason, to drown out error, to strengthen and reinforce what we know to be trueâ&#x20AC;&#x201D;even to come together as a community behind what we believe to be true in order to combat error in peaceful discourse. There is undeniably a cost associated with allowing speech to be expressed relatively unrestrictedly. Such a policy will mean sometimes more discomfort, sometimes more inconvenience, or sometimes stupidity. However, such a strategy will ultimately enrich society in a way so valuable that it outweighs the short-term costs. Another cost of freedom of speech that Mill points out is that society is basically allowing certain individuals to make bad examples of their own lives. People who are blatantly wrong, under this principle, will be allowed to live their lives in error rather than be corrected by some authority. However, from a utilitarian perspective, the value of the benefits of free speech outweighs the cost of certain individuals choosing to lead incorrect lives. This viewpoint sees free expression as arising out of utilitarian necessity rather than an inalienable freedom; therefore, it is not a problem to let individuals dwell in wrong beliefs in order to use them as a bad example or counterpoint to strengthen the rest of society. The costs are worth the long-term happiness and progress that results from free expression. Theoretically, Millâ&#x20AC;&#x2122;s analogy between limitations on expression and robbery makes perfect sense. Society today, under a government that provides a largely free range of expression, is in a better position for innovative thought than it would be otherwise. However, regardless of whether or not a society actually takes the opportunity to break from any mold of conformity and pursue the end goal of progress and truth, the fact remains that the chance

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exists. This prospect would not even be possible in a society in which speech was significantly curtailed; therefore, society would be robbed of a fundamental opportunity, regardless of whether or not it would choose to pursue it.

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Avery Rasmussen is a third year from Panama City, Florida, in the McIntire School of Commerce with a double major in Political Philosophy, Policy, and Law in the College of Arts and Sciences.

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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

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, “long-run” 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 Con-

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Becoming less original

The curious case of Justice Scalia and District of Columbia v. Heller

by Carly Spraggins

Batten School of Leadership and Public Policy (2015)

or both its historical reverence and focus on the Constitutional text, originalism, or the dedicated pursuit of fidelity to the law is, at a rudimentary level, a framework of constitutional interpretation with broad public appeal. Supreme Court Justice Antonin Scalia is perhaps the most well-recognized and vocal proponent of this theoretical framework. Scalia states plainly that in matters of “legitimacy and predictability, it far surpasses the competition”.1 In its effort to determine the meaning of the Second Amendment in the case of District of Columbia v. Heller, the Court was provided with a rare opportunity for authentic application of a theoretical framework to a real-world case, as there was limited precedent to steer the Court’s decision. Scalia’s majority opinion in the case, which overturned the District of Columbia’s ban on usable handguns and firearms, makes clear early on that, at least in Scalia’s mind, the decision was guided by an originalist framework, using the ordinary citizen understanding of the Second Amendment. The Heller decision is unique not only in its interpretation of the Second Amendment, but also in its relationship to policy and political ideology. As it has developed through case law, originalism has come to be regarded as the tool through which justices can translate conservative politics into constitutional law.2 The Heller decision simultaneously supports a con-

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servative policy interest in individual gun rights while undermining a major tool of conservative judicial philosophy. Through distortion of textualism, considerations of pragmatism, and activist policy intervention, Justice Scalia’s majority opinion in DC v. Heller strays from originalism, effectively undermining its legitimacy as a theoretical framework. While they can be understood as having varying levels of emphasis on historical context and meaning, the originalist and textualist schools of constitutional interpretation are inextricably linked in both their ends and methods. Though originalism itself has many permutations, each seeks at some level to find original meaning and will at some stage look for this in the body of the Constitution. While Scalia seeks to carve for his framework some semblance of flexibility by creating a distinction between original meaning and original intent, the two lead to very similar ends, both factually and rhetorically.3 The crossover is exemplified in the expression of “what someone meant to say,” which uses intention as a tool for ascribing meaning. Additionally, with various references to fixity of time, future application, and the ability to contain enumeration, “the Constitution itself is textual.”4 Scalia’s opinion acknowledges the parallel existence, if not total co-dependence, of these two theories in his opinion. After his extensive outline of its textual meaning, he quickly follows that “this meaning is strongly confirmed by the historical background of the Second Amendment.”5 Understanding the meaning of the text fundamentally necessitates a comprehension of the context in which the words existed and what they signified. Scalia’s consideration of possible idiomatic use of language in the Second Amendment exemplifies this relationship, as the use of the idiom as a device is embedded in cultural and historical context. As a result of this close relationship, explicit divergences from textualism weaken and distort the originalist framework. A central premise of Scalia’s decision in Heller comes from his finding that the Second Amendment contains a right of selfdefense and individual gun possession. In looking at the Second Amendment, “the majority read an ambiguous constitutional provision as creating a substantive right that the Court has never acknowledged in the more than two hundred years since the amendment’s enactment.”6 In attempting to combat this history, Scalia rebuts that the right to individual gun possession had gone unrecorded in precedent because it was, in fact, so well understood that it was part of common knowledge. Much of his argumentation on the right of self-defense insists that the right pre-exists the creation and ratification of the United States Constitution.7 By making this assertion, the case assumes that the unarticulated body of pre-existing evidence for the right be given legitimacy equal to the Constitution. Even when that lens is focused back on the text of the Constitution, “the justices’ exhaustive analyses of the

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text and relevant history do not definitively resolve the ambiguity inherent in the amendment’s curious wording.”8 No matter the conclusions reached as to its meaning, every close reading of the Second Amendment ought to acknowledge the convoluted grammatical structure of the text. In the vein of fidelity to the document, a true textualist devotion to the document should allow for acknowledgement of varying degrees of clarity within the Constitution rather than imposing lucidity of meaning where it does not exist. This imposition of a substantive right and clear meaning to an ambiguous text creates significant complications for the legitimacy of originalism and textualism. As a matter of history, its opposition to non-textualism defines much of the meaning of textualism. For example, the textualist critique of the abortion case Roe v. Wade is based on how the decision creates non-textual rights. Simply by virtue of chronology and the significance of stare decisis, criticism of a right to privacy and/or abortion on the basis of its non-textual nature creates a special obligation to stick to textualism even more closely to maintain legitimacy.9 The association of fidelity to the law with the close textualist method of interpretation must also dictate an equal treatment of all aspects of the text. In describing originalism as a practice, Scalia says that, “the text is the law and the text is what must be observed.”10 When he crafts his opinion in Heller, Scalia pointedly separated the text of the Second Amendment into an operative and a prefatory clause. While the division itself does nothing to deviate from originalism, he goes on to say that “the prefatory clause does not limit or expand the scope of the operative clause.”11 In one sweeping declaration, Scalia manages to render half of the Second Amendment all but meaningless in terms of substantive applicability. The selective elevation of particular sections of text over others is as unrestricted and treacherous a strategy as total non-textualism. In the opening remark, Scalia lauded originalism for its predictability. This characteristic, he would argue, is strongly associated with the originalist methodology itself, the hunt for historical documentation of the public meaning of the text. Scalia’s instruments of dissection and search include dictionaries and thesauruses from the period of the Constitution’s drafting and ratification. Yet once again, Scalia distorts textualism by applying its methods inconsistently. In the specific analysis of the word ‘arms’, the Samuel Johnson dictionary of 1773 and the Timothy Cunningham legal dictionary of 1771 support Scalia’s preferred definition of ‘arms’ as all weapons serving to defend.12 However, he enigmatically dismisses a thesaurus of the same period that distinguishes ‘arms’ from weapons as “instruments of offence generally made use of in war.”13 In the same way that he treats these dueling sources as unambiguous, Scalia also follows discussion of the idiomatic use of ‘arms’ by say-

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ing that a nonmilitary use is “unequivocal,”14 though the possibility of idiomatic use would naturally imply the existence of multiple and imprecise meanings. Finally, Scalia goes most blatantly outside the lines of textualism in a passage that, though structured as a series of clarifications, further obscures the decision’s finding. The passage warns that Heller should not be construed as a prohibition on all firearm regulation and goes on to list traditional regulations it would deem acceptable such as “possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”15 While striking down the DC handgun ban based on the “inherent right of self-defense,”16 Scalia allows for an incoherent collection of subsidiary legislative limits. An inherent right with such specific caveats is by no means the product of a textualist interpretation of the Amendment’s normal and ordinary meaning.17 Rather, it follows that this puzzling passage of clarification is in fact an example of Scalia using the interest-balancing approach to constitutional interpretation that he claims to so adamantly oppose.18 In this way Scalia typifies his pursuit of the conservative end through abandonment of the conservative methodology of textualism: “The Heller majority seems to want to have its cake and eat it too—to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.”19 Beyond textualism, the majority opinion in Heller undermines originalism through its problematic mix of originalist theory with pragmatic considerations. In regards to designing a method of argumentation, as is the goal of any theory of constitutional interpretation, it is important at each step to follow what each assertion and assumption necessarily implies. In particular, one must be wary of too quickly construing a pragmatic desire as a codified right because the transition between the two allocates significantly more argumentative power to the desire than would exist otherwise. To assign a particular liberty as a ‘right’ allows it to act as a “‘trump’ over competing values and claims,” particularly in instances of the aforementioned interest-balancing approach.20 Scalia falsely posits a pragmatic desire as a right in his discussion of the popularity of handguns in America. In regards to the DC statute’s specific application to handguns, he states that, “it is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”21 The opinion goes on to state that the reasons for the handguns popularity are irrelevant and that the popularity makes its complete prohibition invalid. This is not enough and the reasons are relevant. Showing that a large number of Americans want handguns does not in and of itself establish that those Americans have a right to possess a handgun. Looking back at precedent, the fact that the American people

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had considered segregated schools to be the quintessential manner of public education was not enough to hold that they had a right to continue it in Brown v. Board of Education. In a practical example which on face value appears to support a historical tradition of arms regulations similar to DC’s, Scalia describes a 1783 Massachusetts law that prohibited the possession of firearms in all homes, workplaces, and buildings and gave the government power to seize any firearms found in those locations. Despite the wide scope that a textualist interpretation would imply, Scalia says that in practice the law was used to protect firefighters from the danger of firearms in a burning building and that the government of Massachusetts was unlikely to have enforced such a law in cases of firearms used for protection of the individual or individual property. In this way Scalia is both abandoning textualism and embracing consequentialism as a means of avoiding a historical precedent that contradicts his argument. Perhaps even more erratic is Scalia’s use of the Massachusetts law’s prologue to find this more non-textual purpose, despite his earlier denun- Combining originalist and ciation of the Second Amendment’s textualist meanings with own prefatory clause.22 Ultimately, combining origi- pragmatic desires and nalist and textualist meanings with pragmatic desires and consequences consequences has the has the potential to complicate the potential to complicate view of an issue such that its popular understanding is discordant with the the view of an issue... text of the Constitution. In addition to the issue of collective versus individual rights, the 5-4 split in the Heller case hinged heavily on the right’s level of association with military purposes. While the complicated wording of the Second Amendment has been interpreted numerous ways, any regard for the text shows some association with military activity (“a well regulated militia, being necessary to the security of a free State.”)23 Yet by considering the practicalities of the modern context, the amendment’s popular understanding has been flipped such that citizens assume total protection of an individual mandate while accepting legislative prohibitions of the arms mostly closely associated with military purposes. If originalism is to remain a legitimate framework, it should be distancing itself from, rather than tying itself to, popular responsiveness.24 The use of the aforementioned issues of cultural pragmatism and consequentialist specificities also undermines originalism by dragging the core of the issue from the abstract and academic world of theory into debates like the effectiveness

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and timing of trigger locks, something that would clearly otherwise be a legislative issue.25 The activist intervention of Scalia’s opinion in Heller is its final strike against the legitimacy of originalism. As was described in relation to textualism, Scalia finds much of the meaning and authority for originalism in the ways that it is dissimilar from the living constitution tradition. “My burden,” he says, “is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult.”26 In critiquing the alternative framework, living constitutionalism, Scalia says that when it is used as the framework for Supreme Court majority opinions, it has historically had the effect of placing limits on the power of the government. While some might argue this as reinforcement of the Court’s counter majoritarian function, Scalia presents it as an attack on the democratic process.27 Thus by his own distinction, the Heller decision follows a pattern more characteristic of living constitutionalism than originalism, as the Heller decision strikes down a regulation passed by the democratic government of the District of Columbia and gives all governments less flexibility for future regulation. The nature of constitutional interpretation as it relates to history is such that there will be disagreement among interpretations, even those “relying on much of the same historical evidence.”28 Such disagreements are inevitable “about any issue worth taking to the Supreme Court.”29 In such cases where textualist interpretations of historical evidence are opposing and equitable, the Court must defer to the democratic process, as to maintain the theoretical framework’s legitimacy and avoid veering into debates of policy and political preference.30 The same deference should also be shown in cases where rather than a split in historical meaning, the meaning has instead been “lost with the passage of time.”31 In addition to undermining the framework with which he is so closely associated, Scalia’s choice to overturn the relevant legislature also contradicts his own rule of deference. In his own dissent in Lawrence v. Texas, Scalia counsels that in issues of culture wars, the Court should be extricating itself and deferring to the legislature.32 Gun control, as much as any other controversial issue of public concern, would qualify as one fully immersed in a culture war implicating both political and ethical divides. The suggestion of legislative deference is one that specifically calls upon a reverence for the centrality of separation of powers to the American system of government. While the separation is blurred by the Heller decision on the whole, the clarifications of acceptable regulations passage is similarly problematic for what should be the originalist understanding of this system of government. While the textualist implications and hazards of the passage have been discussed, it also represents an overtly activist attempt to “preempt democracy.”33 The designation of particular gun

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possession regulations as both Constitutional and traditional creates pressure for their creation where they may not already exist and serves as “the Court’s impersonation of a legislature.”34 The preceding analysis is in no sense intended to label the decision and ultimate repeal of the DC handgun regulation to be incorrect. Rather, it seeks to draw attention to the disconnections between Justice Scalia’s proposed theoretical framework (originalism) and the opinion he ultimately delivered. Originalism as a framework depends not only on its link to textualism, but also on its uniform application and its abstraction from more the pragmatic and political aspects of law. The distortion of textualism, considerations of pragmatism, and activist policy intervention that exist within Scalia’s majority opinion undermine the originalism framework because, as it is used in Heller, it can no longer be clearly distinguished from its alternatives. Following the Scalia methodology, in post-Heller jurisprudence, “both sides are playing the same game.”35

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Carly Spraggins is a fourth year from Richmond, Virginia, studying Government and Media Studies and pursuing an accelerated Master of Public Policy in the Batten School.

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The Catholic question The 1960 presidential election and beyond

by Daniel Judge

College of Arts and Sciences (2016)

n the 1960 United States presidential election, Senator John F. Kennedy distanced himself from the Roman Catholic Church on political questions and abstained from answering questions of moral turpitude. In the context of 1960, these questions addressed diplomatic relations with the Vatican, federal aid to parochial schools, birth control, divorce, and even remarriage. This paper will chronologically define the Catholic question, discuss Al Smith’s 1928 presidential campaign, analyze John F. Kennedy’s 1960 presidential campaign, and discuss modern links to the campaign of Governor Mario Cuomo. Kennedy’s response to the prejudice surrounding the Catholic Church solidified the separation of Church and State for his campaign and all subsequent. The Catholic question was deeply concerning to many Protestant and Jewish voters, who feared a significant foreign influence on the American government. The Catholic question asked whether Catholic office holders would be too obedient to the Church and support political issues like federal aid to parochial schools and the propriety of an ambas-

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sador to the Vatican. The Catholic question presented significant and in some instances insurmountable difficulties for Catholic political candidates. In an October 1948 Gallup poll, the voters were asked: “If your party nominated a generally well-qualified person for President and he happened to be a Catholic would you vote for him? 34 percent of the Protestant and 6 percent of the Jewish respondents said no.”1 These biases and demographics shaped a daunting political landscape for Al Smith’s 1928 presidential campaign. As governor of New York, Al Smith fought to defend the interests of the Church and publicize his involvement with the pope, while unintentionally demonstrating a lack of doctrinal knowledge. Smith was elected governor of New York State in 1918, 1922, 1924, and 1926, and was generally considered a progressive and well balanced governor, despite having a mixed religious record.2 Albert Menendez writes in John F. Kennedy: Catholic and Humanist that in 1915 Smith attempted to remove the ban on state aid to parochial schools, he made highly publicized visits to Pope Pius XI, and he openly kissed a Chicago Cardinal’s ring. These actions evoked skepticism from people like Buffalo, New York’s Methodist Bishop Adna W. Leonard, who said, “No governor can kiss the papal ring and get within gun shot of the White House.”3 Sentiments like this were common during the early and mid-twentieth century, but were augmented by Smith’s intentional publicity. Smith’s involvement with the Church was often ill-advised because of the prejudice of the time, however he unintentionally demonstrated distance from the institution on multiple occasions. On one of these occasions, Smith was quoted as saying, “What the hell is a papal encyclical?” after having read a letter of concern regarding the Catholic question by Charles C. Marshall.4 This absence of knowledge should have silenced many of Smith’s critics, however he still lost the election by a landslide. The final count was 21.4 to 15 million in the popular vote, indicating that the political landscape necessary for a Catholic victory was still far off.5 With the exceptions of Massachusetts and Rhode Island, Smith failed to carry any Northern states, which Rev. John A. Ryan accredited to the severity of protestant prejudice towards Catholics.6 By 1960, the political landscape remained formidable to a Catholic candidate, but John F. Kennedy’s more distant relationship with the Church created a window of opportunity. An article in the New York Times on March 19, 1960 mentioned two crucial distinctions in the political landscape. First, the Republicans no longer dominated the election process: America was becoming more inclined towards the Democratic Party and it was no longer considered the “Republican Era.”7 Since 1928, the Republicans had controlled the majority of state legislatures, and Congress. However, by 1960, the Democrats controlled the majority of state legislatures and Congress, despite Dwight D. Eisenhower and the Republicans remaining in control of the White House. The second significant change in the political landscape was the fall of the Ku Klux Klan (KKK). The New York Times wrote, “In 1928, Midwestern Ku Klux Klan chapters

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opposed Catholics just as hard as the Southern chapter opposed Negroes. Now the Klan is defunct, at least in the Midwest.”8 The removal of such an influential and anti-Catholic organization provided direct relief for Catholics and indirectly indicated that the average American mindset was becoming more liberal. The change in the social structure of the United States created a direct positive change for Catholic politicians of the time. However, the most significant change between 1928 and 1960 was the change in political policy between Al Smith and John F. Kennedy. Kennedy and other political thinkers recognized that Al Smith failed to solicit the necessary votes not only because of his religious affiliation, but also because of his consistent association with the Church on policy issues. This reinforced the fear of the time, which was the essence of the Catholic question: would the leader of the free world subject himself or herself to a foreign power? By contrast, John F. Kennedy sought to distinguish himself from the Catholic Church, and to emphasize the differences in political opinion he had from the Holy See. This conscious effort of distinction made Kennedy a more electable candidate than Smith, regardless of any shift in political landscape. As a politician, Kennedy used Burke’s Dichotomy to establish himself as a true representative of his constituents, rather than make his decisions based on his own conscience. As a Senator and presidential candidate, Kennedy emphasized that he was elected to serve and reflect his constituents. In his book Profiles in Courage, Senator Kennedy wrote that his role as a legislator was to serve public opinion, regardless of personal preference. This proclamation, which came in 1955, demonstrates Kennedy’s consistent commitment to the opinions of his constituents, even over his own. This self-prescribed role would enable Kennedy to affirm his ability to separate his personal and professional relationships, and thereby maintain that he was not beholden to the Vatican. In addition to this distinction of professional and personal connections, Kennedy looked to answer the Catholic question through symbolic separations during his campaign. Kennedy demonstrated this symbolic distance through either policy focus or personal rhetoric. The policy focus used by Senator Kennedy was especially clear in his speech to the American Society of Newspaper Editors on April 21, 1960.9 His speech, entitled “The Religious Issue in American Politics,” was used to discuss the role of the media in his presidential bid and divert focus from the Catholic question. In “The Religious Issue in American Politics,” Kennedy addressed the legitimacy of religion as an issue in the race and offered acceptable questions and answers that focused solely on policy. He stated, “First: Is the religious issue a legitimate issue in this campaign? There is only one legitimate question underlying all the rest: would you, as President of the United States, be responsive in any way to ecclesiastical pressures or obligations of any kind that might in any fashion influence or interfere with your conduct of that office in the national interest? I have answered that question many times. My answer was—and is—NO.”10

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Seriatim | Journal of American Politics

He continues the policy focus by addressing federal aid to parochial schools, “I am opposed to it. I believe it is clearly unconstitutional. I voted against it on the Senate floor this year, when offered by Senator Morse.”11 Kennedy used this issue to establish himself as a candidate with consistent views in the minds of the press and the people, however he failed to acknowledge that he favored aid to parochial schools as a member of the 81st Congress from 1949 to 1951, an inconsistency that would later plague his campaign.12 Kennedy’s second policy-oriented address of the speech was his stance on an ambassador to the Vatican. Kennedy stated, “An ambassador to the Vatican could conceivably become a real issue again. I am opposed to it, and said so long ago.”13 This answer affirms that Kennedy distinguished himself from the policies sought by the Church in political issues, despite most United States bishops opposing an ambassador as well. He would face less scrutiny over moral questions because they did not encompass the Catholic question of the time. However, the relevance of moral issues would become part of the Catholic question in the ensuing decades. The second approach used by Senator Kennedy in his speech to the American Society of Newspaper Editors was his use of personal rhetoric. Kennedy hoped to silence critics by framing his religion in a private and insignificant context. In his speech he said, “I am not trying to be the first Catholic President, as some have written. I happen to believe I can serve my nation as President—and I also happen to have been born a Catholic.”14 Kennedy separates his political self from his religious self by giving the appearance that similar to physical attributes, his Catholicism was out of his control from birth. Kennedy gave a similar description of the relationship between his candidacy and religion in his famous Houston address. This speech, on September 12, 1960, was given to the Greater Houston Ministerial Association and looked to alleviate the concerns of many Protestants.15 To remedy their concerns, he used personal rhetoric similar to his previous American Society of Newspaper Editors address. Kennedy stated, “For contrary to common newspaper usage, I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me.”16 This distinction of political separation between Kennedy and the Roman Catholic Church was reiterated throughout the entirety of the campaign. It became a highlight, which gave Protestants and Jews the necessary confidence to vote for someone whose religion was arguably subject to a foreign power. There was general confidence in Kennedy’s ability to distinguish between his faith and politically-oriented obligations, although there remained a skepticism regarding moral issues. On moral issues like birth control and remarriage, Kennedy abstained from stating a definite position, but was able to remain electable because of the insignificance of such issues in 1960. In “The Religious Issue in American Politics,” Kennedy made both his ab-

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stention from a position on moral issues and the insignificance of this stance known to the American people. He stated, “The prospects of any President ever receiving for his signature a bill providing foreign aid funds for birth control are very remote indeed. It is hardly the major issue some have suggested. Nevertheless I have made it clear that I would neither veto nor sign such a bill on any basis except what I considered to be the public interest, without regard to my private religious views. I have said the same about bills dealing with censorship, divorce, our relations with Spain or any other subject.”17 This quote emphasizes Kennedy’s perspective of Burke’s Dichotomy and indicates his personal abstention from moral issues. However, both secular leaders and Church leaders disputed whether or not an individual could truly remove personal morality from these issues. Catholic leaders largely varied in their opinions of a leader’s ability to separate religious moral ideals from secular policy initiatives. Some believed it wasn’t possible to mentally make each issue mutually exclusive, while others argued that it was possible but wrongful. An opposing voice was given “When the Vatican newspaper L’Osservatore Ro� mano editorialized that the Church has the duty and the right to tell Catholics Both secular leaders and how to vote.”18 This statement forced Senator Kennedy to directly contra- Church leaders disputed dict the word of the Church and reas- whether or not an sure the steadfastness of his position. Vatican sources stated that this proc- individual could truly lamation applied to American politics, remove personal morality dispelling any other justifications of inapplicability. This statement was an from these issues. affirmation from the hierarchy of the Catholic Church that their jurisdiction not only extended to issues of moral turpitude but also to secular politics. An assenting opinion to Kennedy’s position on the separation of church and state was provided by “Rev. Gustave Weigel, a Jesuit priest and one of the church’s authorities on relations between church and state in America.”19 The New York Times covered this speech and summarized the essence of Rev. Weigel’s argument by stating, “The basic theme of the speech was that there is an important distinction between the law of the church and the secular law. Because of this difference, he said, an elected official, in effect, has a double life, worshipping as he pleases in his private life, but in his public role he is a man of the law which is framed for practical purposes and canonizes no philosophy or theology.”20 This speech indicated that there were dissenting opinions throughout the Catholic hierarchy and no clear position would be established from the Church. In 1960, John Courtney Murray S.J. wrote “We Hold These Truths: Catholic Reflec-

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tions on the American Proposition,” in which he argued for a separation of church and state.21 He claimed that in countries with a minority of Catholics there should be a distinct separation, but if the population consisted of a majority of Catholics there should be a union. This implied that in the United States, Catholics would actually be best served by this separation, so long as it was a freedom of religion and not a freedom from religion. Murray’s works serve as another example of the divide within the hierarchy of the Catholic Church, although they similarly maintain a consistent opposition to barbarism and secularism.22 Kennedy’s presidential campaign preached the separation of church and state on political issues and claimed abstention from issues concerning morality, making it one of the first American tailored campaigns. It looked to distance itself from the Church in order to persuade the Protestants and Jews, who together held a much larger electorate. Kennedy created the first equilibrium for American Catholics on the issue of church versus state, despite losing nearly 1.5 million votes because of his religious affiliation, according to a University of Michigan Survey Research Center study.23 He achieved 82 percent of the Jewish vote, 78 percent of the Catholic vote, 75 percent of the black vote, and only 38 percent of the Protestant vote.24 The lessons and tactics of Kennedy’s campaign would set a precedent for subsequent campaigns, including that of Mario Cuomo. Mario Cuomo ran for governor of New York in 1982, after spending a term as the state’s attorney general.25 Cuomo ran a campaign that focused on the separation of church and state in politics similar to Kennedy’s 1960 presidential bid. However, he also campaigned on moral separation and a more open Catholic background. When Cuomo entered politics, he was already 40 years old and “his value system had been firmly established…That foundation had already been firmly established through his family and his church.”26 Cuomo didn’t attempt to distance himself from the Catholic Church like Kennedy, instead he used his traditional value system, which stemmed from the Church to distinguish himself from the other candidates, including New York City Mayor Ed Koch. The most controversial aspect of Cuomo’s campaign platform was his moral liberalism, which strayed far from the Church. Unlike Kennedy’s presidential campaign, Cuomo’s was unable to abstain from moral issues like abortion, because they had become highly contestable in the 22 years since. During Cuomo’s gubernatorial campaign, the most pressing issue of moral turpitude was the issue of abortion. An article in the New York Times entitled “Cuomo Pledges Women ‘Reproductive Freedom’” best summarizes the unique and seemingly contradictory position held by the then Lieutenant Governor. It stated, “Mr. Cuomo received a standing ovation when he declared: ‘I’ll attempt to guarantee the constitutional rights of all women—regardless of their income or their age—to reproductive freedom.’”27 The New York Times noted that Cuomo never used the word ‘abortion,’ but continually pledged his pro-choice support. Following this meeting, Cuomo went to meet

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with New York State leaders in the Catholic Church, demonstrating the improbable balance required of Catholic candidates. Cuomo is a contemporary example of the continuing struggle of Catholic candidates to answer the always-evolving Catholic question. The Catholic question has become increasingly focused on moral issues like abortion and homosexual marriage. Along with the evolution of this question, the American electorate has experienced a steady trend towards liberal positions on social questions, making Catholic campaigns consistently difficult. Since Kennedy and Cuomo’s campaigns, Catholic candidates have faced political and moral questions because of their faith, including Geraldine Ferraro’s 1984 vice presidential campaign, and Joe Biden and Paul Ryan’s head-to-head bid for the vice presidency in 2012. Catholic candidates remain electable, however the difficulty of the Catholic question has only increased since Kennedy’s time, because it has become more encompassing in both political and moral issues. Kennedy established a working campaign formula in his candidacy for president of the United States that used policy and personal relationships to create a separation between church and state. Kennedy’s use of Burke’s Dichotomy five years before his candidacy and his steadfast opposition to diplomatic relations with the Vatican provided enough separation to win the majority of the Jewish demographic and some of the Protestant electorate. However, his inconsistency on aid to parochial schools caused doubt for his political consistency both within the Church and in the secular United States. Kennedy was the first politician to effectively answer the Catholic question while campaigning for president of the United States, because he was able to consistently abstain from addressing social issues and Catholic morality in his answers. By examining modern cases like Cuomo, it is evident that the option for abstention on social issues no longer exists in the Catholic question. Most of Kennedy’s 1960 platform would be either irrelevant or highly scrutinized in a modern context. However, through an examination of historical and contemporary answers to the Catholic question, it is evident that Kennedy solidified the separation of church and state in American political issues, because of his response to the prejudice surrounding the Catholic Church.

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Daniel Judge is a third year from Berryville, Virginia, with a double major in Philosophy and Political Philosophy, Policy, and Law.

Article title

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Re-examining ‘Making Democracy Work’ An effort to deconstruct civic engagement

by Jack Brake

College of Arts and Sciences (2018)

ongress’s approval rating, useful as a metric for citizens’ satisfaction with government, has recently languished at historically low levels, below 15 percent. In such an atmosphere, one might ask, “What is the status of our democracy?” Political commentators who have asked that question over the past decade have largely done so through the lens of Robert Putnam’s concept of “civic engagement.” Since Putnam’s book Bowling Alone: The Collapse and Re� vival of American Community was first published, “civic engagement” has come to frame much of the contemporary debate over the optimal conditions for democracy. Putnam includes under the umbrella of “civic engagement” all activities that create “social capital,” valuable networks and relationships that build trust, reciprocity, good will, and cooperation within a community. Despite the great popularity and obvious utility of this concept, its deficiencies are notable; “civic engagement” has simply accumulated too many connotations and varying definitions to provide any clear or meaningful insight into “making democracy work.” Lately, there has been an effort by political scientists and philosophers, such as Ben Berger, to break down “civic engagement” into its component parts for greater clarity. In his recent book Attention Deficit Democracy, Berger pro-

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poses the deconstruction of “civic engagement” into the components of moral, political, and social engagement. Building on the work of Berger, this paper critically examines each of these three types of engagement in search of the requisites for a (healthy) democracy. We find that moral engagement—specifically in liberal egalitarian norms—is most foundational because it is a precondition for both political and social engagement. In his first book, Making Democracy Work: Civic Traditions in Modern Italy, Putnam examines the effects of strong bonds of mutual trust and reciprocity, or the lack thereof, in northern and southern Italy.1 Putnam finds a striking correlation between large amounts of this “social capital” and northern Italy’s relatively non-corrupt government, vibrant social institutions and educational systems, and thriving economy. In contrast, vertical social integration, a corrupt government, and a depressed economy characterized the South, which is plagued by a deficit of social capital.2 After observing the dramatic effects of social capital in Italy, Putnam turned his attention to the United States, publishing the landmark book Bowling Alone: The Collapse and Revival of the American Community in 2000. In Bowling Alone, Putnam laments the decline of social capital in the United States over the past generation, manifest in widespread “civic disengagement:” an isolating trend in which citizens refocus their energies internally, on themselves and their immediate families, instead of externally, on society and voluntary institutions such as bowling leagues or church choirs.3 Putnam cites an array of evidence, from the sweeping to the specific, to support his assertion about declining social capital, most of which falls into three categories: citizens’ general feelings about the erosion of community, national trends in political or institutional participation, and specific examples of decaying organizations. For example, Putnam notes that, in a 1987 Gallup poll, “fully 77 percent [of Americans interviewed] said the nation was worse off because of ‘less involvement in community activities,’” while at the same time, political participation of any kind declined by a quarter in the two decades from 1973 to 1993 and VFW Post 2378 in Berwyn, Illinois, saw membership dwindle such that it “struggled to pay taxes on the yellow brick post hall” where it held its meetings.4 While this three-pronged approach to evidence succeeds in conveying the general slump in community life—and the negative correlated effects on perceived self-efficacy, crime, general happiness, and participatory, responsive government—Bowling Alone suffers from the general ambiguity of the term “civic engagement;” Putnam lumps together such disparate forms of engagement as donating anonymously to charity, joining a dinner club, and

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running for public office. For those seeking to examine the effects of decreasing social capital on modern society, a more precise vocabulary is necessary. Ben Berger deconstructs civic engagement in his book Attention Deficit Democracy: The Paradox of Civic Engagement. From an etymological standpoint, Berger posits, “engagement” is strong, while “civic” is weak. “Engagement” is “a combination of attention and energy,” aptly suited to describe the ideal behavior of a citizen in a democracy; without attention, a citizen will not be able to identify problems or contribute in a meaningful way, but attention without energy does not constitute any meaningful participation either.5 It is “civic” that leads to ambiguity because it means different things to different people: “When sociologists laud civic engagement they commonly mean what I call social or moral engagement, people’s attention and energies invested in social groups and networks or focused on moral reasoning and follow-through. When political scientists and theorists laud civic engagement, they often focus on what I call political engagement, people’s attention to and activity in political issues and processes.”6 It follows, Berger reasons, that the unhelpful “civic” should be replaced with these more specific forms of engagement. By subdividing civic engagement into the component parts of moral, political, and social engagement, commentators on American society have the tools to delve deeper into what democracy requires. Before examining these three forms of engagement, we must define them, as Berger does in his book. “Moral engagement means attention and activity relating to moral reasoning and moral agency,” such as anonymous charity; “political engagement means activity and attention relating to…political processes and political institutions,” such as running for local office or attending a town hall meeting; and “social engagement means activity and attention relating to social groups, dynamics, and norms,” such as “Putnam’s bowling leagues.”7 Though each of these forms of engagement has merit and utility, they are not equally critical to democracy. This paper is dedicated to discovering which combination of moral, political, and social engagement is best for “making democracy work.” Political philosophers who have long struggled to prescribe the best conditions for democracy have had much more success identifying the worst conditions for democracy—that is, what to avoid. Our question here is similarly answered, at least initially. Modern liberal democracy relies on equality of voice. Today, that concept translates, incompletely, to “one person, one vote.” When analyzing the requisites for democracy, then, it is key to protect this fundamen-

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tal equality of voice from forms of institutionalized inequality such as racial, ethnic, and gender discrimination. Put simply, the equality of citizens’ voices is unfeasible when widespread social inequality marginalizes a cohort of the population as second-class citizens. Theorists who point to political equality as a cure for democracy’s ills take the liberal egalitarian moral framework of the United States for granted. An appropriate example of this assumption can be found in the work of Carole Pateman, who envisions a “participatory” society where democracy extends from the voting booth to the factory floor to the family dining room. In her book Participation and Democratic Theory, Pateman posits that, “for a democratic polity to exist it is necessary for a participatory society to exist, i.e. a society were all political systems have been democratized and socialization through participation can take place in all areas…If individuals are to exercise the maximum amount of control over their own lives and environment, then authority structures in these areas be so organized that they can Moral engagement must must participate in decision making.”8 be placed before social In order to ensure political equality and democracy, Pateman and political engagement urges engagement in a democrabecause of the tized society, one where citizens foundational nature of enjoy the “educative” effects of participation in all spheres of daithis basic equality. ly life.9 Therefore, Pateman’s entire theory of a democratized society assumes a basis of egalitarian moral engagement because a lack of such engagement—i.e. segregation or widespread discrimination—makes mass participation in socio-political institutions impossible. Pateman, like many other theorists, takes the relative egalitarianism of the contemporary United States for granted. Yet, only a half-century ago, African Americans living in the Jim Crow South were systematically disenfranchised. Democracy existed in the pre-Civil Rights era South, but only in practice for whites. Without egalitarian morals, a society stands little chance of providing all its members with an equal voice in the spirit of one person, one vote. Moral engagement must be placed before social and political engagement because of the foundational nature of this basic equality, without which a fully legitimate liberal democracy can never exist. In his On Being Ashamed of Oneself: An Essay On Race Pride, W.E.B. Du Bois exposes the impossibility of democracy without egalitarian moral engagement,

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even with social and political engagement: “We [African Americans] were, by birth, law, and training, American citizens. We were going to escape into the mass of Americans in the same way that the Irish and Scandinavians and even the Italians were beginning to disappear. The process was going to be slower on account of the badge of color; but then, after all, it was not so much the matter of physical assimilation as of the spiritual and psychic amalgamation with the American people.”10 Du Bois goes on to propose political and social engagement as a longterm cure for segregation, criticizing the “racial patriotism” that was emerging in the black community in reaction to the exclusivity of white culture.11 However, American blacks were not widely accepted into white social and political culture until after the transformative moral reengagement of the Civil Rights Era. And Jim Crow is not an isolated example; in apartheid South Africa, the white 20 percent of the population barred the majority African population from engaging the power structure while purportedly maintaining a democracy. In this respect, Du Bois essentially has it backwards: social and political engagement on the part of disenfranchised minorities does not facilitate egalitarian moral engagement on the part of the majority; rather, moral engagement on the part of the majority facilitates the social and political engagement of minority populations. Moral engagement is preeminent; it is a prerequisite for social and political engagement. On a more extreme level, moral engagement prevents the manipulation and mobilization of democratic populations by totalitarian mass movements. Here, we assume that totalitarianism inherently contradicts democracy and that any institution limiting the risk of totalitarianism therefore bolsters democracy’s health. For example, in her book The Origins of Totalitarianism, Hannah Arendt partially faults widespread moral disengagement in Weimar Germany with the rise of Nazism as a mass movement: “The disturbing factor in the success of totalitarianism is rather the true selflessness of its adherents: it may be understandable that a Nazi or Bolshevik will not be shaken in his conviction by crimes against people who do not belong to the movement or are hostile to it; but the amazing fact is that neither is he likely to waver when the monster begins to devour its own children and not even when he becomes the victim of persecution himself.”12 Here, Arendt implies a process of mass moral disengagement from established liberal norms and engagement in illiberal norms, such as those of the Nazis. The rise of totalitarian mass movements is certainly an extreme example of democracy gone wrong. But without egalitarian moral engagement, equality

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of voice, equitable social and political engagement, and democracy itself are ultimately impossible, and this opens the door to decidedly “undemocratic” institutions and regimes. Simone Chambers and Jeffery Kopstein propose that “good associations,” i.e. engagement in democratic institutions, are not beneficial “if failure in social justice leads to disillusionment with the promise of liberalism,” citing examples of “bad civil society” such as the KKK and Nation of Islam.13 This is yet further proof that modern democracy is built on the foundation of liberal moral engagement. We have established that liberal moral engagement is a necessary condition to a healthy democracy, but is it sufficient? Decidedly not. One need only concede that a society in which citizens are extremely altruistic in terms of anonymous charity—a notable form of moral engagement—need not be democratic. Likewise, a society with relative social equality could theoretically be ruled undemocratically. The link between social equality and democracy is not causal. Given the insufficiency of moral engagement, we naturally turn to the two remaining elements of “civic” engagement: political and social. Our revised question is, “If egalitarian moral engagement is taken for granted, what further conditions are necessary for democracy?” At this point it is fitting to return to Putnam. In Bowling Alone, Putnam focuses on chronicling the decline of membership in voluntary institutions, typified by the now iconic bowling league: “in the last several decades of the twentieth century…community groups…across America began to fade.”14 Generally, membership in voluntary institutions and community groups is classified under social engagement; it fits Berger’s definition of social engagement as “activity and attention relating to social groups, dynamics, and norms.”15 However, Putnam also examines political engagement, specifically the decline in political participation in recent decades. For example, he notes that presidential voting, seen as a microcosm of political engagement, has dipped to less than half of eligible voters, “despite the fact that the most commonly cited barrier to voting [registration hurdles] have been substantially lowered” in the twenty-first century.16 If quadrennial voting is a relatively cursory form of political engagement, more intensive forms have also declined precipitously. The number of people volunteering in presidential campaigns, for example, has also dropped fifty percent since the 1970s.17 Public faith in government has suffered a similar slump; as Putnam remarks, the fact that three of every four citizens interviewed in the 1960s thought they could “trust…Washington to do what is right all or most of the time” seems today almost “Pollyannaish.”18 Though Putnam sees these trends in terms of civic disengagement in general, he is more specifically

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commenting on political disengagement. Putnam’s lamentations of political disengagement have been frequently echoed. Notably, Sidney Verba’s co-authored book Voice and Equality: Civic Voluntarism in American Politics focuses on the development of a “participatory distortion” within American politics that “exists when any group of activists— such as protestors, voters, or contributors—is unrepresentative of the public with respect to some politically relevant characteristic [such as]….demographic attributes…or participatory priorities.”19 This participatory distortion is closely tied to political disengagement since some cohorts—such as the poor or uneducated—are disproportionately likely to disengage and leave more power in the hands of “activist” cohorts, usually the relatively wealthy and educated. In Voice and Equality, Verba and his co-authors point to the dire inequity of modern American politics, citing an array of startling statistics. For example, the mean number of political acts (attending a rally, voting, writing an elected official, etc.) by individuals making over $125,000 a year is 3.4, 1.3 above the national average, while the mean number by individuals making under $15,000 (the poverty line at the time of publication) was 1.3, 0.8 below the national average.20 These rather broad numbers mask even greater inequality. When the U.S. population is broken up into two extremes—one under the poverty line and one above the national average—the latter is twice as likely to be affiliated with a political organization, almost twice as likely to vote, and nine times more likely to make a campaign contribution of any size.21 The positive correlation Verba establishes between wealth and political engagement is exacerbated by the extreme economic inequality exposed by scholars such as Jacob Hacker and Paul Pierson, who show that 23.5 percent of the nation’s income is raked in by the top 1 percent of earners.22 Clearly, widespread political disengagement and extreme political inequality have become stark facts of American politics. But how do these trends threaten democracy? The participatory distortion, fueled by political disengagement, threatens the equality of citizens’ voices and gives a minority of wealthy, educated, connected individuals undue influence. Inequality of voice perverts the concept of one person, one vote, which we have posited as a tenant of modern democracy. Political engagement is instrumental to assuring political equality, and political equality is no less important to modern democracy than the liberal equality provided by moral engagement; neither political nor moral engagement on its own is sufficient, but they are both necessary. Social engagement, too, is important. However, the right kind of political engagement—specifically, a return to local democracy and the values of

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the Republican liberal ethic—can provide the same benefits as social engagement. Of Berger’s three “engagements,” the social engagement most closely approximates Putnam’s original concept. Its benefits include: bonds of trust and reciprocity, stronger communities with less crime and better educational systems, and greater “bridging” social capital between disparate groups of people. Proponents of social engagement often equate it to a “strong civil society” with a plethora of vibrant institutions. As previously noted, a strong civil society is commonly credited with preventing the manipulation or mobilization of democratic populations. In his book The Politics of Mass Society, William Kornhauser implicitly lauds social engagement in his “democratic criticism of mass society.”23 The criticism states that, “if non-elites possess an independent group life and therefore are not readily available [to be manipulated and mobilized], widespread movements subversive to individual freedom are less likely than if non-elites are atomized…”24 The “group life” that Kornhauser credits with preventing mass movements is largely analogous to the associational membership held up by Putnam. Social engagement, then, not only builds bonds of trust and reciprocity, but also cultivates a more independent and stable social body. However, political engagement can have these same benefits when local government is made a type of social institution. The great commentator on American democracy Alexis de Tocqueville is one of the most prominent supporters of local democracy, which he calls for in the form of “administrative decentralization.” In Democracy In America, Tocqueville decries the centralization of “interests of special concern to parts of the nation, such, for instance, as local enterprise,” which “serves to enervate the people that submit to it, because it constantly tends to diminish their civic spirit.”25 On the other hand, Tocqueville recognizes the necessity of “governmental centralization,” centralization of interests common to the entire nation. Basically, Tocqueville believes that local government should largely be left alone, allowed to tend to its daily business without centralized oversight. The model of administrative decentralization in Democracy In America is the New England township, where the “New Englander is attached to his township…because he sees [it] as a free, strong corporation of which he is part and which is worth the trouble of trying to direct.”26 Local government provides an accessible mode of political engagement for the average citizen who is more likely to participate when he can directly affect change, or when the issues at stake directly affect him. Self-interest is a powerful motivating force, and one that is infinitely more powerful at the local level, at least for the average citizen, than at the state or national level. As Tocqueville puts it, local government has a greater capacity to “keenly excite men’s interest” and

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get them to engage.27 Local government can also act as a social institution, with the same benefits of accruing social capital as a bowling league or PTA. In Democracy in America, local government forms a “nucleus of strong attachments” wherein “the maximum possible number of people have some concern with public affairs. Apart from the voters, who from time to time are called on to act as the government, there are many and various officials who all, within their sphere, represent the powerful body in whose name they act. Thus a vast number of people make a good thing for themselves out of the power of the community and are interested in administration for these selfish reasons.”28 While government cannot completely replace voluntary institutions in its capacity to create social capital, it undoubtedly prevents the worst effect of social disengagement: the susceptibility of democratic populations to manipulation by anti-democratic movements. In fact, another student of mass society, Sheri Berman, claims that it is political disengagement, not social, Local democracy answers that led to the rise of Nazism. Indeed, Berman asserts that the Wei- one of the most pressing mar Republic actually had a strong questions of moral civil society, which the Nazis used to spread their movement. Unrep- engagement: how can we resentative political institutions, cultivate egalitarian morals on the other hand, should be correlated with the success of Nazism: without coercion? “Civil society activity alone, in short, could not overcome the country’s social divisions or provide the political cohesion that would have been necessary to weather the crises which beset Germany beginning in 1914. For this, strong and flexible political institutions… would have been necessary.”29 According to Berman, it is the existence of responsive political institutions, not a plethora of social institutions, that prevents anti-democratic movements. Local government is (ideally) such an institution. Local democracy—besides encouraging political engagement and providing many of the benefits of social engagement—answers one of the most pressing questions of moral engagement: how can we cultivate egalitarian morals in a democracy without coercion? How can we avoid Rousseau’s dilemma, wherein citizens are “forced to be free?” A proponent of Tocqueville’s peculiar republicanism, Michael Sandel, writes in his book Democracy’s Discontent: America In

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Search of a Public Philosophy that the current conception of “liberal freedom” revolves around the “central idea…that government should be neutral toward the moral…views its citizens espouse.”30 That conception contrasts sharply with the “republican ethic” which holds that, “liberty depends on sharing self-government.”31 In other words, the republican ethic “requires that citizens possess, or come to acquire, certain qualities of character, or civic virtues.”32 While critics may see the republicanism of local democracy and egalitarian moral engagement as at odds with each other—since the former can be construed as emphasizing a form of individual responsibility that butts heads with the idea of society propagating widespread equality—they are actually very compatible. As evidence, reenter Putnam and his social capital, specifically the “bridging” sort. Bridging social capital, as defined by Putnam, is compromised of networks that are “outward looking and encompass people across diverse social cleavages…[such as] the civil rights movement, many youth service groups… ecumenical organizations” and local government.33 Local government has the potential to be an institution that brings together disparate groups of people, especially in urban and other customarily heterogeneous areas. Of course, there are enclaves where local government would be as homogenous as the population. Modern society is still very much segregated, but all the time the once iron-clad barriers between enclaves are being broken down, a process only enhanced by the accumulation of bridging social capital across borough, city, county, or state lines. Generally, the proximity of local government alone will cultivate some measure of bridging social capital, which goes hand-in-hand with egalitarian moral engagement; bigotry and discrimination cannot long stand against networks of relationships or friendships across racial, ethnic, and religious lines. Put simply, bridging social capital tends to socialize citizens into liberal egalitarian norms. Moral engagement (in egalitarian norms) and political engagement (in local government) are the two ingredients absolutely necessary to ensure equality of voice and a healthy democracy. Without moral engagement, systemic discrimination will institute both overt and covert roadblocks to “one person, one vote.” Furthermore, we have seen that both political and social engagement are contingent upon egalitarian moral engagement. In short, moral engagement is a necessary but insufficient condition for democracy’s health. To complete the prescription, we stress mass political engagement, which prevents “participatory distortions” that leaves undue power in the hands of “activist” citizens who are unrepresentative of the people. The right kind of political engagement, in local government, may provide the same benefits (of accruing social capital)

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as social engagement, while preventing the worst effects of social disengagement: the mobilization of the masses. Plus, republicanism propagates a political atmosphere in which egalitarian morality plays a more central role. Moral and political engagement go hand-in-hand, â&#x20AC;&#x153;making democracy workâ&#x20AC;? from the public park to the polls.

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Jack Brake is a first year in the College of Arts and Sciences planning to pursue a major in Politics and Economics, with an interest in issues of democracy and participation.

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Seriatim | Journal of American Politics

Main headline Sub-headline

by Kurt Lockhart

Batten School of Leadership and Public Policy (2015)

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Rand and Rousseau on envy

The natural propensities of redistribution over free market capitalism

by Lital Firestone

College of Arts and Sciences (2017)

building is alive, like a man. Its integrity is to follow its own truth, its one single theme, and to serve its own single purpose.”1 Philosophers Ayn Rand and Jean-Jacques Rousseau, while embodying opposite positions on the liberal scale of freedom, agree that one’s individual liberty is dependent on his having a unique set of values, separate from the standards set by society. Both believe that men should be free, not because humans are not perfect enough to rule over others, but because men are capable of the pursuit of happiness based on their own judgment. They hold people to be essentially rational in their decision-making. Rand and Rousseau’s writings reflect their intolerance for envy and social measurement of physical and mental attributes. While Rousseau describes the “savage man” as someone who cannot be coerced because he is unconcerned with what others think of him, Rand considers the virtuous, driven man also free because he transcends the opinions of his critics. In this paper, I will explore the compatibility of these two arguments in their efforts to reflect the unnatural state of jealousy, which arises when people are molded

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to follow a common set of goals and purposes. This conformity leads to an unfree society because dependency on the needs of others is a form of oppression. However, their arguments diverge in two ways: (1) Rousseau concludes that man’s natural instinct for pity makes him equal to others in his flaws, while Rand believes good people should condemn the evil, and (2) the type of society they envision resulting from this emphasis on individual value (namely free market capitalism for Rand, and social democracy for Rousseau) differs. Ultimately, I will conclude that we can agree with Rousseau because he allows reasons for redistribution not motivated by envy, but natural propensities. Rand’s argument fails to understand that people have complex social interests, and that her promotion of free market capitalism actually encourages envy in itself. Rousseau and Rand create a similar philosophical system in which they articulate the features of the ideal human, and then reveal the organization of society that follows from this framework. Rousseau ventures to understand the source of inequality in modern life by observing the savage man before he became socialized. He argues that men, in their natural state, should not need each other. He then draws from this that people feel envy from interacting with other humans because they are not naturally sociable, and would not think to be wicked on their own. When the savage man “becomes sociable and a slave, he becomes weak, timorous, groveling, and his soft and effeminate way of life completes the enervation of both his strength and his courage.”2 Problems arose for the savage man when he established relationships with others that made him dependent on their approval, and began comparing himself to them. Rand’s theory of objectivism also focuses on the need to be somewhat unsocial. She believes we should learn to each focus on our own pursuit of virtue, and utilize our individual skill sets to freely create and innovate in the most productive way. Where this is accomplished, man will not need to be envious because he does not compare himself to his colleagues in the first place. Both philosophers recognize that individual growth and prosperity are obstructed by the norm-conforming values society inflicts on man. Rousseau’s ideal of personal authenticity requires man to follow his own truth. Rand would agree that when this is done, he could assume his full potential in whatever field in which he can best excel. Both agree that sometimes laws themselves can aggravate, or at least be symptoms of evil passions. As jealous men realized they could convince the public to unite, “the origin of Society and of Laws, which gave the weak new fetters and the rich new forces, irreversibly destroyed natural freedom.”3 Both Rousseau and Rand recognize the potential threat of envy and social comparison to coerce individuals and make them unfree. Choices are dictated as much

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by the needs and desires of others as by one’s own, and are thus a condition of slavery or oppression.4 For Rand, value has to be individualistic, and there is no such thing as public interest or a collective good.5 Take the thought experiment of a man named David, who has always desired to be a nudist in order to truly find self-love and be at peace with himself. However, David does not wish to seclude himself within a nudist colony, as he has many other goals to pursue in the clothed world. Since society has dictated nudity to be obscene, David is coerced into wearing clothes. The law is being oppressive in this sense because the conformed ideas of the group dominate David’s individual values. Though this is an extreme case, Rand and Rousseau aim to push society in the direction of formulating their own values in life, that are not obstructed by the conformity to social norms. Where their arguments begin to diverge enormously is in their approaches to categorize envy. Rand’s attitude is moralistic in claiming that it is irrational for people to desire to hurt others who are successful. Rousseau, however, has a more therapeutic approach to envy, where he wonders why it has to be an individual problem that is quietly ridiculed. He recognizes that it is difficult for humans to escape these natural feelings. He proposes that society be honest about this struggle, rather than simply condemn people for being immoral. The negative result of envy for Rousseau is conformity to values that stray from the individual values that make one intrinsically happy. For Rousseau, the increasing rationalization of modern development is a source of oppression. He is concerned about the ways in which natural inequalities are transformed into types of social and political domination. As man historically separated into powerful and weak divisions, “the breakdown of equality was followed by the most frightful disorder: thus the usurpations of the rich, the Banditry of the Poor… made men greedy, ambitious, and wicked.”6 For Rand, envy leads to virtuous men apologizing for their own achievements, and thus ending the incredible cycle of human innovation and growth. Rand points to many historical examples to reveal, “the curse of an overwhelming majority of men is passivity, lethargy, and fear, not ambition and audacity. But men’s well-being is not the motive of that chorus.”7 The result of envy and social comparison for Rand is that egalitarians claim to establish equality by fighting reality and nature through means of coercive institutions. These institutions rob the people who have worked hard for their success by redistributing their wealth. Rand claims, “Since personal attributes or virtues cannot be ‘redistributed,’” they seek to deprive men of their consequences—of the rewards of virtues.”8 Rand concludes that the introduction of envy into a society leads people to be coerced. When the geniuses in this world are unable to reap the benefits of their

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innovations because of the jealous inclinations of the majority to silence them, they no longer become free to think for themselves and create what would help society prosper. For Rousseau, the homogenization of values under one entity revokes the liberty of people who wish to explore their true values and initiatives. When society is bogged down by social standards of the appropriate way to live, members are deprived of the opportunity to discover what makes them intrinsically happy. Rousseau understands that people have complex social interests. The desire for approval in others’ eyes is felt by all, and denied by most. Even when societies were first developing, “Everyone began to look at everyone else and to wish to be looked at himself.”9 Today, people base an infinite amount of decisions on the actions of their neighbors. Each person yearns to be identical to his friend, who is himself looking at his friend for social guidance. But this guidance often turns into malicious envy and social obsession. Rousseau argues that we should work together to call out these flaws and work on them, but that in making this criticism to another, you also condemn yourself. Rousseau rejects the doctrine For Rousseau, the of original sin as part of the social contract—all men are flawed, and it homogenization of values is important to work together to acunder one entity revokes knowledge our faults. When man is unable to recogthe liberty of people who nize this need to unite against their wish to explore their true envy, “Here all private individuals again become equal because they are values and initiatives. nothing and since the subjects have no other law left than the will of the master, and the master no other rule than his passions, the notions of the good and the principles of justice vanish.”10 Essentially, everyone is tainted. However, Rand’s argument that there is a black and white world where some people are good and some people are evil is not realistic. She believes that the good can, without any hypocrisy, criticize those who envy them. Not only is this moral line very difficult to draw, but it is also futile for a society to waste its time bashing citizens who feel jealous inclinations. It is more productive to accept this characterization in many people, and make the choice to discuss its implication and learn to overcome it. Rousseau makes the distinction between natural versus civilized man. In the “natural” case, he reveals that the only limitations on one’s choices are imposed by nature, and not other men. In this case, they will have achieved a natural indepen-

Rand and Rousseau on envy

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dence and a real form of autonomy. While the natural man “lives within himself; sociable man, always outside himself, is capable of living only in the opinion of others and, so to speak, derives the sentiment of his own existence solely from their judgment.”11 Rousseau thus reveals how people today who obsess over other people’s judgments and envy those who have obtained what society has deemed as good cannot actually exist for themselves. Rousseau illuminates the mixture of the concept of amour de soi, a basic concern for one’s immediate needs, and that of pitié, the natural feeling of compassion for others’ anguish. The concern for self and others are thus in a natural and harmonious reciprocal positioning. Rousseau argues, “pity is a natural sentiment which, by moderating in every individual the activity of self-love, contributes to the mutual preservation of the entire species.”12 However, civilized man starts losing the freedoms of the natural man because his decisions are not solely dictated by his own desires. Thus love of self becomes self-conscious and results in “amour-propre, or his desire for self-preservation.”13 As one knows oneself through a certain ‘self-image’ that one is constantly concerned to preserve, compassion and pity gradually decline and are replaced by the selfabsorbed person.14 Rousseau’s problem with pride is how obsessed with ourselves we become. This leads us to have a disproportionate view of what is important. Our sympathy is negated, even though it is an important part of who we are. Given Rousseau’s inclination to find some method to be concerned for and support people who are less fortunate, he would concede to the creation of a social democracy that can reflect these needs. As citizens of this free democracy, we accept a social obligation to redistribute some of our wealth in exchange for being able to pursue our own interests and live well. This kind of empathetic society reminds us that we want justice. Today we are distracted by our own narrow, trivial concern to get ahead, and be good according to the materialistic way we have defined it. Rousseau argues that we should not invest in superficial things that deny something important and true in ourselves. When this true identity is ignored, we lose our liberty to pursue what makes us uniquely content. There is essentially an internal unhappiness with these obsessions. Much research has revealed the dissatisfaction people have in life in their pursuit of a goal outlined by someone else. The citizen “works to the death, even rushes toward it in order to be in a position to live, or renounces life in order to acquire immortality.”15 While people obsess over the right image, family, connections, and social status, they tend to grow ever unhappier even once they have achieved these material interests. In his book Authentic Happiness, Martin Seligman explores the results of his

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study of the School Sisters of Notre Dame. Essentially, Seligman argues that a monastery is an example of the incredible implications of eliminating amour propre. In comparison to the nuns that he studied, Seligman found that, “The belief that we can rely on shortcuts to happiness, joy, rapture, comfort, and ecstasy, rather than be entitled to these feelings by the exercise of personal strengths and virtues, leads to legions of people who in the middle of great wealth are starving spiritually.”16 The brain chemistry of several nuns at this monastery revealed the likelihood of living a longer life because of their focus on personal happiness without the distraction of material goods.17 Seligman uses the example of the nuns’ ability to pursue their true interests to reveal how they are freed of the mercenary temptations of a mundane life. Rousseau argues that amour propre is inherently bad, and that you simplify self-interest by not distinguishing between the two types of self-love. Rand believes that there is only your self-interest. It is strange for Rand to argue this because of its implications on her argument that the talented innovators and inventors in this world deserve praise for their work, rather than having to give away their awards. If Rand’s argument were true, why would these geniuses care about recognition if they were already rich? Rousseau would respond because amour propre exists in everyone, and that is why we must all work together to not let it overcome us as a society. Rand believes that free market capitalism is the only solution to deal with the problem of envious, wicked people creating a standard idea of what is good, and forcing those who think differently and more efficiently to be silenced. She notes that, “If a man regards intelligence as a value, but is troubled by self-doubt and begins to hate the man he judges to be intelligent, that is hatred of the good.”18 However, Rand’s conclusion for the type of society that could deal with this problem is inherently irrational in itself. Rand is hypocritical in this sense, as she wishes to avoid the introspection of envy in every human, and believes we should just simply condemn it. Additionally, Rand attacks social phenomena that many critics often associate with free market capitalism—namely, trivialized choices, mindless consumerism, and the materialization of intrinsic values. Rand does not acknowledge that, “Perhaps market society encourages people to be needy, insecure narcissists, who care too much about material comforts and become spoiled, passive consumers. Perhaps market competition often relies on, and exacerbates, vicious motives such as greed, avarice and envy.”18 In this type of market society, the negative results of envy that Rousseau associates with consumerism begin to emerge. If this is true, Rand cannot argue against envy because it is conflated with her solution to live in a society with no redistribution of wealth and no care or support for anyone else, unless it is in one’s own interest.

Rand and Rousseau on envy

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Rand’s idealistic concept of freedom is based off the ego and pursuing one’s own goals, regardless of its effects on others. But this concept does not actually work in reality if people are being cut out of the system, despite their attempts to get ahead. In reality, a capitalist system with no redistribution of wealth can disable many workers from supporting their families as the wealthy gain a monopoly on all viable resources, and they are completely denied the freedom to be happy. Both Rand and Rousseau reveal the extreme threat that envy and social comparison pose on liberty in any society. They demonstrate that personal resentment leads to “a second-hander who lives beyond his means, struggling to ‘keep up with the Joneses.’”19 For Rand, the only way to reinstall freedom into a society dominated by this wicked type of man is to live under free market capitalism, where individuals are free to think and live autonomously. For Rousseau, some type of social democracy must be implemented that focuses on eliminating the binding force of envy in all of humanity. Rousseau’s implications for achieving freedom via a universal understanding to stop pursuing empty, commodified goals are more sound than Rand’s proposal to establish a capitalist society that could trigger many of these envious inclinations themselves.

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Lital Firestone is a second year from Maryland studying Foreign Affairs. Lital was born and raised in Jerusalem and has an interest in humanitarian justice in developing countries.

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Post-heroism and U.S. strategy-making Warfare and the twenty-first century

by Tamar Ziff

College of Arts and Sciences (2016)

ost-heroism as a view of warfare became socially prevalent in the United States after World War II, largely as a reaction against the heroic, government-engendered and Clauswitziean perspective that prevailed during the late nineteenth and early twentieth centuries and required unquestioned public support. In the postWWII era, American military engagements were no longer conventional. Nuclear weapons, the emergence of global human rights norms, and the bipolar and, later, unipolar balance of power changed the character of warfare and eroded the ‘heroic’ construct. However, American policymakers did not begin to reevaluate military strategy until after the Vietnam War, when the incongruity of strategy with the nonheroic nature of modern war became pressingly evident. Post-heroism does not understand war as a necessary tool for the advancement of vital national interests, but as an extension of foreign policy, as more a matter of choice than of duty or vocation. In the post-Vietnam era, American policymakers realized that for any member of the public to voluntarily risk their life to achieve foreign policy objectives, the risk must be minimized. This essay will outline how the notion of heroism was applied to the Clauswitzean notion of war to create “heroic warfare,” and how that concept could no longer be applied to U.S. warfare after 1945. It will then explain how post-heroism

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has, and still is, shaping U.S. politico-military strategy in the twenty-first century, from the 1991 Gulf War to interventions in 2014. Though the US is still somewhat entrenched in heroic notions of war, there is a slow but inevitable progression towards post-heroic strategy-making.

Heroic warfare If you could hear, at every jolt, the blood Come gargling from the froth-corrupted lungs, Obscene as cancer, bitter as the cud Of vile, incurable sores on innocent tongues, My friend, you would not tell with such high zest To children ardent for some desperate glory, The old Lie; Dulce et Decorum est Pro patria mori. â&#x20AC;&#x201C;Wilfred Owen, 1917-1918

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orld War I was a prominent instance of so-called heroic conflict: a zerosum, all-encompassing endeavour concluded with a “visibly decisive” victory.1 It was a high intensity conflict, following the Clauswitzean model of “interstate conflicts wherein the players on both sides are states with regular armies.”2 Logistically, heroic wars are total wars: they involve mass armament and the mobilization of entire populations and resources to achieve ubiquitously understood national imperatives. The period between the American Civil War and the early twentieth century saw an exponential advancement in military and industrial technology and a marked increase in quality of life and capital in Western nations, giving states the manpower and the weaponry to engage in full-scale, total conflict. This military-technical revolution “fundamentally [altered] the…conduct of conﬂict”3 in the sense that strategic imperatives remained imbued with the heroic notions of the decisive winner-takes-all victory while tactical realities had changed. The nature of war was still “an act of violence intended to compel our opponent to fulfil our will”— the aim was to “[seek] out the army of the adversary, [envelop] it, [destroy] it…until his ability to resist any political demands had been crushed.”4,5 The “elements of totality” again flourished throughout World War II, making it the veritable apotheosis of heroic warfare.6 Germany threatened not only the territorial integrity of America’s allies in Western Europe, but the entire global order: the Nazis would “enslave the whole of Europe, and then use the resources of Europe to dominate the rest of the world.”7 Germany was the clear aggressor, “[challenging] rights”—i.e. the basic freedoms enshrined in the democratic system—“that are worth dying for,”8 posing an ideological threat to the United States, the “arsenal of democracy.”9 It had to be completely “disarmed”10 and made to capitulate to the Allies’ simple and one-dimensional desires: retreat and demobilization. WWII was thus seen by both American citizens and policymakers as a “good war:” its objectives were clear, and the “the plan of the war…[linking] the series of acts which are to lead to the [aim]” directly fed into the U.S. grand strategy of defending crucial allies championing a just form of government.11,12 World War II was the last of this kind of heroic warfare, wherein the United States was fighting by conventional means for a clear, tangible end. Post-heroic conflict As the United States emerged from World War II into the Cold War with the Soviet Union, “the nuclear powers strenuously avoided any direct combat with each other. There were many wars, but…deliberate and controlled behavior became the new norm.”13 Conflicts became unconventional and aimed more at political contain-

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ment than absolute military victory, and the heroic ideal of warfare was replaced by one calibrated to achieve low rates of mortality among military personnel, civilian populations, and, if possible and profitable, the enemy. The development of nuclear weapons and the consequent specter of mutually assured destruction “shook the raison d’être of the U.S. Army as an institution,” as it precluded any rational possibility of an existential threat from abroad.14 The United States could neither disarm its adversary, the U.S.S.R., nor directly engage with it. Instead, it chose to become involved in proxy wars and behave as though it were fighting a conventional conflict. The incongruence between U.S. strategy and battlefield realities, compounded by indeterminate aims, resulted in domestic discontent and a confused, demoralized military force. Neither the Korean nor the Vietnam War were therefore heroic. They could not be framed by the government as essential to the survival of the nation, as they lacked a clear, one-dimensional aim that soldiers and civilians could identify with. During the Vietnam War, “so microscopic were the stakes for which GIs were supposed to die that they could hardly even be explained to the American people,” and vague illustrations of a Communist “domino effect” did not outweigh the reality that Vietnam was of no “intrinsic strategic value” to the United States.15,16 The U.S. government attempted to apply the “good vs. evil” rhetoric that had won hearts and minds during both World Wars, yet it failed to explicate how America’s vital interests were linked to the fates of “faraway countries where the rights and wrongs of the situation were not self-evident.”17,18 American policymakers did not begin to re-evaluate heroic military strategy until after the Vietnam War, when the incongruity of strategy with the painfully non-heroic nature of modern war became pressingly evident. “The individual soldier became so disenchanted by Vietnam that he could no longer realize war as a meaningful human activity: the troops were without agency, were alienated, and couldn’t engage with their enemy as previous generations of soldiers could.”19 The Western public’s attitude was, if anything, even more skeptical of the possibility of heroic victory. The U.S. military thus began to harmonize the post-heroic nature of modern conflicts with military strategy and tactics. It adopted a strategy of “reasonable and proportional” instead of “total and complete” based on “work and exchange, not on sacrifice and honor.”20 Mandatory conscription was discontinued, and the concept of the hero—that of an individual impelled by the “fervor” of national duty—no longer applied as armies became professionalized and service became “just another job.”21 In a world where the United States was a hegemon, its wars shifted from grand and heroic enterprises to occupational endeavors, undertaken by “salaried, pensioned,

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and career-minded military personnel” incentivized by quotidian necessities.22 U.S. policymakers came to realize that heroic warfare was neither viable nor necessary— both the aims and the game had changed. Attempts at post-heroism The fall of the Soviet Union in 1991 left a unipolar world with the United States in a “guardianship role.”23 The recent “triumph of democracy” and implicit reassertion of self-determination and human rights led to a series of well-intentioned but “strategically aimless” U.S. campaigns in the 1990s.24 However, the 1991 Gulf War, the intervention in Somalia in 1993, and the Bosnian campaign in 1999 hinted at a U.S. strategy transitioning towards a greater recognition of the nature of post-heroic conflict. Casualty aversion was preeminent as evidenced by the hasty withdrawal from Somalia in the wake of a mere 18 casualties, the eschewal of ground troops in Bosnia, an increasing reliance on air power and surgical strikes, and supreme efforts to make international conflict multilateral and consensus-based. This post-heroic strategy recognized that the U.S. would increasingly engage in low intensity conflicts (LICs) where “principal adversaries are nonstate players with irregular or semiregular forces, who are employing terror and/or guerrilla warfare as its tactics and/or strategy.”25 Such LICs, unlike conventional, Clauswitzean wars, cannot be cannot be won or lost—they can only be controlled, or managed. Traditional heroic conceptions of zero-sum warfare therefore can not apply to conflicts with “belligerents of the third-rate or less,” who can only be countered with new and nuanced tactical maneuvering.28 There is no more clear evidence of the evolution of U.S. strategy than the recently concluded conflict in Iraq and the on-going war in Afghanistan. The quick, initial victories of U.S. forces on both battlefields harkened back to heroic campaigns of yore, but both conflicts quickly devolved into counterinsurgencies, and the stated U.S. goals became starkly post-heroic: at first, the elimination of weapons of mass destruction, and when these proved chimerical, declarations of wars against not a state, nor an army, but “terrorism.” U.S. forces entering Iraq and Afghanistan were terribly unprepared to face the third-rate belligerents therein, who, despite technological inferiority and smaller forces managed, to inflict considerable casualties on U.S. troops. Strategy and tactics had to be reconfigured in media res, as any form of decisive victory was manifestly unattainable. The United States approached both campaigns with a twenty-first century post-heroic strategy of “extremely precise, stand-off strikes; dramatically improved command, control, and intelligence; information warfare; and nonlethality.”29

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That strategy played out to support hydra-headed aims, as battling the Taliban in Afghanistan or the insurgency in Iraq morphed into a peacekeeping operation, then one to support democratic institutions, and ultimately to a battle for the selfpreservation of U.S. forces, given that the first rule of post-heroic conflict—unlike in heroic war—is “do not get killed.”30 Afghanistan and Iraq became long campaigns in which “borders [blurred] between war and peace,” professional soldiers fought for nebulous and shifting tactical goals, and the United States failed to recapture a heroic conception of the campaigns that muster military and civilian will to incur the concrete costs of a victory, particularly one increasingly acknowledged to be unlikely.31 Conclusion The evolution of the American way of war from heroic to post-heroic was catalysed by the advent of nuclear weapons, which made heroic warfare untenable, the rise of professional armies, and the proliferation of non-state actors in a world where “the end of the Cold War reverse(d) the millennial channeling of conflict outward & upward (to where) political and even violent conflict instead devolves downward and inward, all the way back to nation-to-nation, or even tribe to tribe.”32 U.S. experience in Korea, Vietnam, Iraq, and Afghanistan put paid to notions of heroic victories, and American military strategy and tactics have also shifted apace: “in its 2015 budget request, the Pentagon is calling for reductions of conventional forces but is proposing that special operations forces increase from 67,000 to 69,700 as the US moves from a state of perpetual war to perpetual engagement.”33 Though post-heroic warfare may be the twenty-first century way of war, recent events may spur some rethinking: U.S. Secretary of State John Kerry condemned Russia’s recent annexation of Crimea as “nineteenth century behavior” and sent heretofore complacent European bystanders like Sweden racing to explore NATO accession. Heroic warfare’s time may well be done, but the effectiveness of post-heroic warfare to deter and, ultimately, to wage conclusive war and cement concrete political gains have yet to be proven.

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Tamar Ziff is a third year studying Political and Social Thought. Addicted to bad puns and good coffee, her interests include Latin American politics, Art History Snapchats, movie quotes, and scuba diving.

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articles, et al.

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omprised of editorials and other short original works, the following pieces were written by undergraduates at The University of Virginia.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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Nuclear attraction

How the atomic bomb fits within fundamental American cosmologies

by Zeke Reed

College of Arts and Sciences (2017)

hen J. Robert Oppenheimer declared having thought, “I am become Death, Destroyer of Worlds” during the Trinity Bomb test, he vocalized the profound, divine-like agency Man had just realized.1 The relationship between Man and Nature was seemingly inverted as, for the first time in biological history, life had the capacity to destroy itself. America and the World at large were forever changed that day. Despite its revolutionary novelty, the Bomb and its effects on American society fit within pre-existing American cosmologies. Its creation reflects the American desire to emulate and harness the essence of Nature; the power it provides the President enshrines our conception of his rugged divinity; its use reflects the notion of American Exceptionalism and our capacity to remake the World. The Bomb gives new weight and meaning to long-held American ideology while simultaneously casting us into a perpetually liminal state of crisis. America has long been conceived as a natural-born state free from the artificiality of the Old World. In his article on the ritual underpinnings of US elections, U.Va. Anthropology Prof. Fred Damon comments on how America’s self-conception “is based on the notion that the country was created by Nature, rather than temporal human orderings.”2 We see ourselves as both products of Nature and agents capable

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of harnessing it, as both its children and its master. Damon reflects this duality in a political context when describing how “[a] candidate, once identified with Nature, must come into Culture.”3 In a broader context, this “coming into Culture” means expressing profound individual agency to mold and shape the World. Historically, this thrust inspired Western expansion and settlement, the building of canals, railroads and roads, the coal mining industrial behemoth, the transformations in agricultural and countless other transformations.4 These broad, macro transformations culminated in a microscopic transformation: the nuclear fission and fusion of atoms, the manipulation of nature on an elemental scale. The advent of the atomic bomb and its cultural relevancy follows from a long tradition of America’s relationship with nature and our cultural impulse to channel and master it. Similarly, the near-divinity of the Bomb Power President follows from a tradition of Presidential deification dating back to the Founding Fathers. In Damon’s model comparing the Kaguru Tribe Joking Relationships with the American electoral matrix, our “National Heroes” are orthologous to their “Gods.”5 Our national heroes are “celebrated and presented as models of appropriate action in public life.”6 Certain presidents like Washington, Jefferson, Jackson and Teddy Roosevelt are lauded and canonized as supremely and virtuously American. Damon further argues, “candidates seem to have to show they can be brutish.”7 The modern Bomb Power Presidency takes these qualities to new extremes. The Bomb Power President isn’t merely praise-worthy; he is beyond reproach. When the Truman administration sensed Oppenheimer’s unease with the Hydrogen Bomb, “it punished an enthusiasm-deficit by discrediting any form of dissent.” Truman’s brutish, anti-democratic response to dissent is a Bomb Power amplification of the rough-and-tumble characteristics Americans have always sought in their leaders. The American President has always been culturally rendered semi-divine and the Bomb makes that divinity tangible. According to Garry Wills, “this [is] Bomb Power, a thing new and absolute.”8 While the power is indeed new, its seeds are sowed in our cosmology. While from a domestic perspective Bomb Power rests in the hands of the President, on an international level America wields it as a nation. The fact that we were the first to do so and our consequent belief that we are also the most worthy of nuclear stewardship follow from the notion of American Exceptionalism that started with John Winthrop’s famous “City on a Hill” declaration.9 This cosmology brought us Manifest Destiny and turn of the century imperialism. The successful Trinity test only confirmed what we already knew: America is unique and superior among nations. This notion is exemplified by Truman and Secretary of State Byrnes belief that “America could preserve its unique custody of the Bomb.”10 When the Soviets managed to make a bomb, “it was felt that the Soviets could not have done this on

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“America rationalized its use of nuclear weaponry and its continued attempts to increase the nuclear payload in the spirit of American Exceptionalism.”

their own”.11 America thought itself the only country exceptional enough to produce such a marvel and morally just enough to wield it. Any American use of the Bomb was undoubtedly beyond reproach. Truman famously boasted that “he never lost a night’s sleep over dropping the first Bomb [and] was just as cavalier about pushing the Super (Hydrogen bomb) forward.”12 America rationalized its use of nuclear weaponry and its continued attempts to increase the nuclear payload in the spirit of American Exceptionalism. America had the literal power to wipe the map clean and the metaphorical power of nuclear baptism. Just as 19th century Southern campmeeting preachers and Northern protestant elites sought to remake American society in their image during the Second Great Awakening, nuclear America could reshape the globe on a whim. American religious cosmology parlayed into the new Nuclear Church. The Bomb became sacred, imbued with holy power. However, this power is so unstable that it forces us into a state of constant emergency. The Bomb redefines what are considered normal times and keeps us in a perpetual liminal state of security crisis. Damon describes a model of elections in which the liminal state of the election gives way to normal times following formal incorporation of the victor (i.e. inauguration). The liminal state is described as “dangerous” in relation to the normal times.13 By virtue of its awesome power, the Bomb creates a security crisis that makes even these normal times liminal and dangerous. According to Wills, “the care and keeping of that weapon began a whole series of security measures that made it impossible to put the nation back on a truly peacetime basis.”14 The reality of nuclear weaponry made peace times uneasy because even when not in open war, a warhead with previously unimaginable destructive potential could come flying at us at any given moment. Constant threat perception changed the nature of the executive, as “being poised for hair-trigger response to nuclear threat was now the normal state of the presidency.”15 This presidential paranoia lead the executive to consolidate power in peace times the way presidents had historically done only in times of war. The President took on new authority as “if everything is an emergency, all power is emergency power.”16 The liminal state created by the semi-divine power of the Bomb and its associated industrial complex has created a new normal characterized by uneasy peace and broad Presidential powers.

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The Bomb has come to occupy a unique role in an American cosmology developed over the course of our countryâ&#x20AC;&#x2122;s existence. It represents our triumph over Nature, our divine brutish character and our capacity to remake the World by virtue of our Exceptionalism. It has also taken on an identity of its own, granting us divine power but in turn demanding total submission and reverence. The Bomb comes with Faustian consequences. It has made America and Man divine but also subject to the horrific possibility of that divinity.

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Nuclear Solvingattraction the organ donor dearth in America

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Solving the organ donor dearth in America

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French parity laws and LGBT activism

by Alex Dunkenberger

College of Arts and Sciences (2017)

t is often said among American politicians and political analysts that the United States of America is a country where citizens are given â&#x20AC;&#x153;an equal opportunity to succeed.â&#x20AC;? It is conveyed that a citizenâ&#x20AC;&#x2122;s background plays has little to do with their chance in succeeding in business, education, or politics. However, as many aspects of United States history show, this has often proven to be untrue. Time after time, historical minorities, such as women, African Americans, and members of the lesbian, gay, bisexual, and transgender (LGBT) community, have faced severe hindrances in their ability to achieve equal status and opportunity in American culture. Particularly, minorities have been immensely oppressed when it comes to political equality in the sense that the groups have not had the opportunity to make up a proportional amount of representatives in their government. For hundreds of years white, heterosexual men have maintained control over most parts of the government, not only leaving other members of society without a voice, but suggesting that because someone is not a white, heterosexual man, they are unfit to govern. However, these politically oppressed groups have started working to change this lack of political equality. In the twentieth century, we saw both women and African-Americans gain equal access to voting as men. Still, further steps need to be

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taken. If political minority groups are to be seen as equal members of society, structural reform must take place. In order to find a way that this can successfully be done, it is helpful to look at the work of our peer nations, such as France. In 2006, following a “Parité” movement that lasted more than a decade, the French government passed a parity law requiring nearly all ballots for public office offer an equal number of male and female candidates. Studying this movement leads to many questions: would a quota system help women achieve equality in representation? Would the approach taken by French feminists (the “paritaristes”) work for other political minorities? The parité movement particularly dealt with women’s access to political representation. However, this movement addressed the women’s political rights unlike any other movement before it. In the parité movement, “women were no longer being made to fit a neutral figure (historically imagined as a male), nor were they reaching for a separate incarnation of femininity; instead, the abstract individual itself was being refigured to accommodate women.”1 Unlike previous movements, and movements often seen in the United States, women were not fighting to achieve equality in the sense that they held the same position as men, nor were they saying that they should hold office because their gender meant they would offer different and new ideas. Instead, the paritaristes were fighting to “make apparent and to recognize that women are representative of the universal in the same way as men are.”2 The paritaristes argued that the best way to ensure this political equality was to use quotas on ballots. These quotas would ensure that at least half of the candidates on the majority of ballots would be women, a number reflective of the percentage of women that make up the French population. The paritaristes were not seeking representatives that would serve to speak for women’s issues, but rather to say, “elected assemblies should in their composition reflect the diversity of the French population.”3 These egalitarian arguments are the exact approaches that should be taken to establish political equality in representation for women. This approach grants women political equality in representation not on the basis of special need or special interest, but rather to ensure that they make up a proportional part of the governing body. Scholar Rainbow Murray does not agree with quotas for women, rather encouraging ceiling quotas for men, arguing that the focus should not be on the underrepresentation of women, but the overrepresentation of men. However, Murray does paint a perfect picture of why action is necessary: “With men’s presence already accepted as the status quo, the burden of proof for justifying presence lies with the outsiders wishing to enter politics (women), rather than with those already present in excessive numbers (men).”4 The supporters of the parité law were not seeking special recognition for special interests, but rather seeking to gain the respect they deserved as equal citizens through equality of political representation.

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But would such equal representation laws help other political minority groups? Joan Wallach Scott notes that the parité movement coincided with the rise in the call for political and social rights among members of the LGBT community. Despite that fact that some paritaristes supported recognition of members of the LGBT community, the two movements did not align in their efforts. In the end the parité movement saw the gay rights movement as too complicated and too different to be an ally with the paritaristes, with arguments such as the need for procreation among a couple and portraying homosexuality as a form of narcissism.5 While I disagree with the reasoning given by opponents of the LGBT rights movement, I maintain that the quota system the resulted from the parité movement would not generate the political equality desired by members of the LGBT community. The paritaristes did not want to be treated as men, but wanted to portray the idea that men and women were equally capable of serving as representatives. This is a result of decades of hard work of feminist leaders to power through the challenges thrown at them. Each time a woman achieved something previously seen impossible for a woman to do they were celebrated and young girls were taught the success of those before them. It was through these years of hard working women breaking through glass ceilings and proving what women were capable of that brought the parité movement that encouraged equal representation for those that were finally seen as equals. However society has a long way to go before the LGBT community can call for the equality of representation that was encouraged for women in the parité law. Before those of us who belong in the LGBT community can ask for political equality based on fair representation reflective of our population in society, we must work to be accepted as equals among other citizens. Steps were taken to grant women equal political representation only after they proved themselves capable of achieving tasks once thought to be impossible for them to do. When women succeeded at such tasks they were celebrated for excelling despite their hardships. However when members of the LGBT community achieve tasks that were previously thought to be unachievable, our sexuality is downplayed, and said not to have an influence as to whether or not we would succeed. If we want to be viewed as equals we must celebrate our hard work and prove that we are capable of overcoming the oppression of the white, heterosexual male authority. It is then that society will view us as equal and it is at that time that we can follow in the steps of the parité movement and fight for equality of representation.

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The constitutional basis for marriage equality

by Zoe Pettler

College of Arts and Sciences (2018)

ver the past 126 years the United States Supreme Court has consistently affirmed that marriage is “one of the basic civil rights of man,”1 and that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”2 Although Loving v. Virginia (a case in which the Supreme Court ruled that marriage could not be denied to an interracial couple based solely on their races) is probably the most famous case dealing with marriage, it is by no means the only one. Since 1888 there have been no less than fourteen Supreme Court cases that have established the right to marry as a fundamental part of the rights guaranteed to a citizen of the United States.3 Portions of the Constitution cited as supporting these decisions include the Due Process clauses in the Fifth and Fourteenth Amendments. Further, Article IV of the Constitution, in sections One and Two, appears to protect a couple married under the law of a particular state from losing that privilege just by re-locating to another state (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”).4 In light of these protections, I suggest that same-sex marriage is a right protected not only at the state level, but also under Federal law. In what is known as the “Due Process clause,” the Fifth Amendment states that

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“no person shall… be deprived of life, liberty, or property, without due process of law.” As marriage has clearly been stated by the Supreme Court to be a basic liberty, to deprive a person of the right to marry would necessarily deprive the person of a liberty under the Supreme Court’s reasoning. Therefore, such a deprivation, without due process of law, is not permitted under Federal law. Since key wording in the 1996 Defense of Marriage Act was struck down in 2013, there is no explicit legal basis to deny marriage to same-sex couples.5, 6 The phrase “no person,” as used in the Fifth Amendment, is very direct. It leaves no room to doubt that the right to due process of law protected therein applies to everyone, regardless of that person’s religion, race, gender, sexual orientation, etc. This is further elaborated in the Fourteenth Amendment, where it is written that no state shall “deprive any person of life, liberty, or property, without due process of law.” With this slight change in wording, it is specified that no state shall be permitted to deprive a citizen of his or her liberties, including the right to be married, a right established by the Supreme Court to be a fundamental liberty. Article IV of the Constitution contains two clauses which reinforce the protection of same-sex marriage, the Full Faith and Credit clause, and the Privileges and Immunities clause. The first states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Marriage is the union of a willing couple by a contract made in due form of law.7 Therefore, if a couple is married in one state, their marriage must be recognized in every other state. The failure to do so violates the explicit language of the Full Faith and Credit clause. The Privileges and Immunities clause in this article states that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” further elaborating on this concept. According to this clause, out-of-state couples must be given the same rights as those who permanently reside within the state in question. This second clause further guarantees married couples the right to travel between states without having their legitimacy legally questioned. It has already been established that each state must allow all of its citizens equal rights under the law, and as marriage is a fundamental right, it follows that all citizens must be given the right to marry. Furthermore, if one state legalizes samesex marriage, those marriages must be legally recognized and protected in any and all other states. Therefore, according to the provisions of the Fifth and Fourteenth Amendments and Article Four of the Constitution, and consistent with the rulings of the Supreme Court establishing marriage as a fundamental right, same-sex marriage is a right that is protected by Federal law under the Constitution. The legalization of same-sex marriage is a quickly changing area of the law, and even as this article was written there have been changes to state laws. So far the

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Supreme Court has denied taking any cases related to the issue, presumably because until November 6, 2014, no court had upheld a ban on same-sex marriage. A ruling on November 6th questions whether it is really the responsibility of a state circuit court to make this decision, or if â&#x20AC;&#x153;this [is] a matter that the National Constitution commits to resolution by the federal courts.â&#x20AC;?8 Following this decision, which has created a split in the rulings nationwide, it seems inevitable that the issue will soon be taken up by the Supreme Court. A national Federal ruling on the issue of same-sex marriage would settle the issue once and for all, and would guarantee the Constitutional right of marriage to couples across the nation. To be in agreement with the words of our Constitution, it also seems inevitable that the Supreme Court must uphold the legality of same sex marriages in all states.

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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 seriatimjournal.com for the latest editions.

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Issue I Exploring issues of American democratic participation

Mr. Jefferson, on voter identification laws n American citizen would be hard pressed to find a place where democracy and government seem more functional—or more worthy of reverence—than at a polling place on Election Day. For this reason, modern voters often find it surprising that our forefathers, in all their glory, were effectively silent when it came to the determination of voting precepts. The phrase “right to vote” did not appear in the Constitution until the addition of the Fourteenth Amendment in 1868. Because of this, the Tenth Amendment left the regulation and execution of voting procedures wholly to the states—which by and large determined that only white, landowning gentlemen over age 21 should be afforded the privilege of casting a ballot. Coming off this historical record, one has to wonder: does a strict constructionist have a leg to stand on when approaching issues of voting rights? I will argue that the answer is yes, and that by employing our founding document’s careful balancing of state and national power, we can conclude legislation requiring

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The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. – Amendment XV, Section 1

photo identification to vote is indeed constitutional—not only in recent cases, but across the board. From Texas to Wisconsin, Pennsylvania to Arkansas, the past year has seen a host of states attempt to enact laws that require voters to procure a form of governmentissued photo identification at the polls, ostensibly to lessen cases of fraud. Opponents claim such policies represent right wing maneuvering intended to disenfranchise minority voters with whom Republicans typically tally less favor, emphasizing that requiring photo identification is neither necessary nor proper to lessen cases of voter fraud. On these grounds, such laws—due to their discriminatory effect—are unconstitutional under the Fourteenth and Fifteenth Amendment. This rhetoric of Realpolitik is effective in the political arena, but the legal landscape proves more complex. The Fourteenth Amendment, which affords citizens equal protection of the laws, and the Fifteenth Amendment, which assures no citizen will be denied the right to vote on account of race or color, both interact prominently with the

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Voting Rights Act of 1965, which prohibits voting practices and procedures that discriminate on the basis of race, color or membership in a language minority group. The single most important piece of federal legislation in determining the constitutionality of state election laws in the post-Civil Rights era, the Voting Rights Act, and its interpretation thereafter, have been the primary consideration in the three major Supreme Court cases on photo identification requirements: Anderson v. Celebrezze (1983), Burdick v. Takushi (1992) and Crawford v. Marion County Election Board (2007). Looking at the three cases enumerated above, it is clear that framing discussion of voter identification laws solely in terms of effective discrimination is a bit of a red herring. Anderson v. Celebrezze led to the establishment of a balancing approach in ruling on voting restrictions; rather than separate validation and invalidation restrictions point-blank, the court must now identify and evaluate a state’s interests to determine whether the burden put forth by the restriction is acceptable. The question, then, becomes whether the restriction is (a) severe and (b) justified by clear, specific interest. Burdick v. Takushi, meanwhile, sets forth a stricter standard. For a restriction to be unconstitutional, it must go beyond the inconvenient,” as states have It is hard to contest states “merely an “important regulatory interest” in do not have an express policing elections. Both of these delaid the foundation for the interest in preventing cisions Crawford ruling, which held that burelection fraud. den of requiring photo identification to vote is justified by the state’s interest in deterring and detecting voter fraud, moving forward with election modernization, and safeguarding voter confidence. Again, it is this careful weighing of burden and interest that is most important here—a sharp turn from the “discriminatory effect” arguments which drive opponents of the legislation. Obviously, listing precedent is not enough to affirm the constitutionality of photo identification requirements at present. And the Crawford ruling, as Justice Antonin Scalia points out in a concurring opinion, is largely flawed in that it resigns itself to caseby-case evaluation. The leading opinion written by Justice John Paul Stevens does little to inspire confidence that were a case from a state other than Indiana to appear in front of the court, the ruling would be consistent. And consistent it should be. To confirm the law’s constitutionality and generalizability, there are three questions that must be answered. First, we must look at interests. Are states’ interests in implementing photo identification requirements legitimate? Reflecting on this query, it is hard to contest states do not have an express interest in preventing election fraud. The three major interests as

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enumerated in Stevens’ Crawford opinion—deterring and detecting voter fraud, moving forward with election modernization, and safeguarding voter confidence—are not only morally neutral in and of themselves, but are also well within states’ jurisdiction as determined by the Tenth Amendment, and do not conflict with the federal Voting Rights Act. The legitimacy of these interests severely weakens any argument for mal intent. Second, we weigh the burdens. Do such requirements impose an undue burden on voters? Obtaining a government-issued photo ID may indeed be a hassle, at times requiring not only an extra trip to the Department of Motor Vehicles, but also a call back home to locate birth certificates or similar identifying documents. This is a pain—but it is not exceptional. In fact, ignoring that the majority of adults already possess such forms of identification, it is hard to say this burden is an increase over the typical logistical annoyances of voting—an act that by nature implies you will have to make time out of a busy workweek to drive to a sanctioned location and wait in a queue to exercise your democratic birthright. This reality may be pesky, but to say it represents a significant “burden” would be too severe—especially when the interests are perfectly valid. In answering these first two questions, it is clear that requiring government-issued photo identification to vote remains in line with the standards set by all three cases discussed previously. The last question, then, is this: does the letter of the law discriminate unfairly against a certain racial group? Though the burden is not extraordinary, is it intended to disenfranchise minority voters? I would argue no. The burden described above may be interpreted differently by separate groups due to its varied effect—no one would argue that the elderly or less financially stable may struggle more to obtain the necessary documentation for an ID—but the burden itself is singular and uniform. Because it is applied generally, the law itself is neutral. And because the law is neutral, it would be both imprudent and improper for the federal government to step in. Though states, in an effort to maximize voter turnout, have an express interest in publicizing requirement changes and encouraging volunteers to facilitate the transition for those who may find it more challenging, the responsibility is that of states alone. Thus, because the letter of the law provides equal protection—or in this case, an equal, justified encumbrance—the constitutionality of requiring government-issued photo identification to vote not only accords with precedent, but also accords with present lines of reasoning. Politics aside, the push to require photo identification to vote is universally valid under the standards set by the United States Constitution.

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Mr. Madison, on American electoral turnout ver the course of American history, legislative and constitutional measures aiming to protect and expand the right to vote have become widely revered. The 15th, 19th, 24th, and 26th amendments have enshrined expansion of the franchise into the Constitution, attempting to fully guarantee democratic access to all Americans, while measures like the Voting Rights Act of 1965 have revolutionized American electoral policy. Sadly, the current mainstream political discourse regarding voting rights centers on a much different issue. The policies and proposals of today seem to be more focused on achieving political victory than on ensuring that every Americanâ&#x20AC;&#x2122;s voice is heard. As the United States experiences dismal turnout rates and comparatively low rates of participation, the push for policies that claim to protect the integrity of our elections risks masking the structural, widespread problems that strike at the core of our democratic identity. American electoral turnout consistently remains below that of other developed democracies, representing a potential threat to the legitimacy of our democracy. Early projections of total turnout in the 2014 midterm elections put participation rates at 36.4 percent of eligible voters, the lowest rate in more than 50 years.2 Rates for state and local elections tend to be even lower, while turnout rates in presidential elections hover around 60 percent.3 With often fewer than half of eligible Americans participating, policies that affect the entire nation are being shaped by what has the potential to be a radically misrepresented cross section of American perspectives. Turnout skew has a very real impact on the relative influence of different age, racial, and gender groups, as relatively large disparities between proportions of population and proportion of active voters exist for several categories of voter; for example, in the 2012 election, there were more eligible Hispanics who did not participate than there were who cast ballots for the Presidency.4 If democracy demands that the government reflects the will of the people, then the vast disparities in voting and representation caused by low turnout could be some of the greatest threats to our political system. Instead of encouraging measures to address our democratic health, the current political climate has enabled the proliferation of specific policies that address voting rights on a micro instead of a macro scale. One of the largest movements has centered on protecting the integrity of elections, and by extension the legitimacy of our democracy, by fighting voter impersonation and electoral fraud. Other measures, like expansions of early voting and extensions of registration periods, have been put forth and advocated as ways to protect eligible citizensâ&#x20AC;&#x2122; ability to exercise their rights. The discourse surrounding these policies rings full with rhetoric implying that they will solve our democratic woes. The 2012 Democratic Platform declared that the

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right “to have your vote counted is an essential American freedom” and isolates opposition to Voter ID laws as an example of protecting democracy.5 In an opposing vein, the 2012 Republican Platform declares “honest elections” to be “the foundation of representative government,” and calls for measures to prevent and prosecute voter fraud through the use of photo identification.6 With entire subsections of their respective platforms dedicated to issues of voting and democracy, the two major political parties have utterly failed to even acknowledge the fact that a huge number of Americans do not vote. Neither of these platforms presents any plan to increase turnout or actively encourage the growth of a more participatory democracy, instead opting to stick to political issues they view as expedient and advantageous. Of course, the reference to specific platform issues is largely unnecessary—one only has to look at the issues commonly raised through opeds, cable news shows, and political campaigns to see that the current debates over voting rights largely American electoral ignore the broader issues of general turnout consistently political participation. Think back to the last two years: has there been a remains below that of serious discussion about structural other developed changes to encourage more electoral democracies. turnout, or has the debate over voting rights centered on more specific political issues like Voter ID laws? The past several political cycles have allowed issues of voting to become as polarized and political as any other issue, turning the focus from democratic legitimacy to electoral victory. In other countries there are a variety of approaches to encouraging turnout rates higher than those of the United States. Compulsory voting, increased civic education, and automatic voter registration all contribute to higher rates of turnout in other developed democracies. OECD countries average turnout rates around 10 percent higher than American rates, with some nations experiencing rates as high as 80 to 90 percent.7 Other structural differences, like allowing non-citizen residents to vote or automatically registering voters at birth, also boost turnout rates internationally when compared to the United States. However, with one of the highest incarceration rates in the world and a number of states denying voting rights to felons, America’s participation problem likely goes even further than simply getting people to the polls. Coupled with other contentious issues like pathways to citizenship for illegal immigrants, these problems illustrate the need for America to once again evaluate the question of who should be able to

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vote in the first place. Some of these international policies, like compulsory voting, would likely be dead on arrival in the United States; however, others, like increased civic education, could be a viable way to increase the health of our democracy while boosting voter turnout. Instead, our political discourse centers on competition over policies that (not to belittle them or those affected by them) influence the counting of votes by the thousands while millions of Americans do not vote at all. The proposed political “solutions” to protecting our elections could create a false feeling of success that undermines attempts to approach broader methods of promoting democratic participation. Politics is a game of momentum, and the current policies and proposals regarding voting rights could very well appear to be a general “solution” to protecting American elections, hurting the viability of more broad based democratic reforms in the future. Once the issues of Voter ID laws, absentee ballot regulations, and early voting are answered (be it in the courts or through the legislature), there is likely to be far less political will to focus on general issues of democracy. To use an old adage, there is a very real risk of losing sight of the forest for the sake of the trees, and with roughly half of Americans not voting, focusing on the forest is absolutely key. With as few as 40 percent of Americans voting in many elections, America needs to have legitimate debate about structural changes to increase democratic participation. The conversation about voting in America cannot simply end when the controversies over Voter ID die down, and Americans cannot be lulled into thinking that our democracy has been fixed if one side wins the current political debate over voting rights. The issues of turnout are intrinsically linked with those of the integrity of our democracy. America needs to continue its historical tradition of encouraging the growth of the franchise, and America needs to approach the discourse of lagging participation with the same philosophy it should have for all of its elections—the more people involved, the better.

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Mr. Hamilton, on campaign finance reform n the wake of November’s midterm elections, many political commentators, especially those on the left, are once again bemoaning the entanglement of money with modern politics. I am serially disappointed by the national debate over “getting money out of politics” because it is largely limited to modest measures of “campaign finance reform.” As a liberal, I hate campaign finance reform. First of all, the whole notion of “reform” suggests that some level of institutionalized political inequality is permissible, as long as it doesn’t exceed an arbitrary threshold imposed by a legislative body with deepseeded interests in allowing large donations from individual donors. Second, the focus on campaign finance reform distracts from the much larger and more pressing problem: increasing inequality of political voice. Our problem is that we conflate inequality of political voice with inequality of (financial) campaign contributions. This is a fallacy. Over the past decade, especially since the 2008 financial crisis, political scientists have spoken of a “participatory distortion” that threatens the precept of “one person, one vote.”1 The main idea is that prerogatives of wealth (time, education, and social capital) and burdens of poverty (imbedded distrust of political systems and low perceived self-efficacy) skew participation towards the rich and away from the poor. This indirect distortion of our political system is far more worrisome than the direct distortion (via financial contributions) that proponents of campaign finance reform suppose exactly because it cannot be solved by superficial reforms. Since Democrats have been so acutely reminded that unchecked money in politics is a problem, it might be opportune to outline a few of the reasons why limiting campaign contributions isn’t a valid solution. Then, whenever liberals find themselves in a position to legislate again, maybe they’ll know how to go about fixing democracy. First, let’s uncover the crux of the modern “participatory distortion.” Aggregating several veins of research in contemporary political science, we observe three important trends: political participation in general is declining; economic inequality is increasing; economic inequality increasingly equates to political inequality. Now for some data. From 1960 to 1996, voting rates in presidential elections declined by almost 25 percent.2 During approximately the same period, the average income of individuals in the top 1 percent grew 256 percent while the income of the 80th-99th percentiles grew only 55 percent. The poorest fifth of the nation realized a gain of only 11 percent. The top 1 percent now rakes in 23.5 percent of the nation’s income.3 Though Americans making over $125,000 a year constitute only 3 percent of the population, they are overrepresented in every major form of political participation. When it comes to campaign contributions, they are overrepresented by 32 percent.4 Add to this the string of recent judicial decisions that have eased or altogether eliminated legal restrictions on political spending, and the bleak picture of modern democracy is complete.

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It’s no surprise then that many on the right and the left have proposed limiting the influence of money in politics through various measures collectively dubbed “campaign finance reform.” But without major institutional change, these measures are token at best, and most likely useless. Even if the wealthy were completely prohibited from using their checkbooks as a direct tool for exercising political power, the prerogatives of wealth like time, education, and social capital mean that the participatory distortion would persist. First let’s look at time. It’s conventional wisdom that “time is money,” so it follows that the rich have more of it, and that it can be used to influence politics. Wealthy Americans, having attained financial security, are able to devote more time to politics; the richest 3 percent of Americans are responsible for 8 percent of the total hours contributed to political campaigns, while the poorest 19 percent are responsible for only 13 percent.5 The rich have more time to write letters, attend rallies, and sign petitions. They have more time to vote, and to simply think about politics. These are all material advantages that distort the political system, but are glossed over by reforms that limit campaign contributions. Next up is education. While education is not necessary for socio-economic success, there is undeniably a correlation. Social scientists generally include education level as a major factor in determining status.” Harvard’s Campaign finance reform “socio-economic Sidney Verba has said that, “educais a sorely inadequate tion has premier position among the determinants of acsolution to the socio-economic 6 tivity.” Put simply, wealth leads to edparticipatory distortion. ucation and education leads to more, and more effective, participation. The greater a citizen’s understanding of how government works, the better able he or she is to affect the system. The last major prerogative of wealth—and arguably the most important—is the value of social capital. Social capital is the real value of relational networks and bonds of reciprocity. Basic logic states that bonds of reciprocity are most valuable when the reciprocating parties have the most valuable resources with which to reciprocate. There is a reason that politicians target celebrities and magnates to host fundraising galas and “bundle” donations: among the rich and famous, time, education, marketable skills, and money are highly concentrated. A potential “ask” for money is more likely to be followed by a large contribution. Social capital tends to be cyclical, creating an environment where one favor begets another and where political activism is both a way of creating social capital and a way of cashing it in. Even if campaign contributions are limited,

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politicians will still be able to fundraise easiest and most reliably by targeting wealthy communities. The majority of contributions will still come from the rich. Now we turn to the burdens of poverty that would continue to skew participation away from the working poor even if money were removed from politics altogether. Chester, Pennsylvania, about ten minutes away from the Philadelphia suburb where I grew up, is a good case study. Chester is the poorest city in Pennsylvania and one of the most depressed urban environments in the nation. For decades Chesterites have been manipulated by political machines that have used macing, bribery, extortion, fear, and their control of coveted patronage jobs to subjugate the city. Chester’s steadily deteriorating economic fortunes and decaying social infrastructure have bred hopelessness and disillusionment with the political process. Political participation in Chester and similar urban environments across the United States is limited by perceived self-inefficacy. Reforming campaign finance laws to restrict individual donations would have no effect on these deep-seeded socio-cultural inequities; it doesn’t matter if two or three people cannot single-handedly fund a candidate’s campaign if a whole city cannot or will not contribute a single dollar, nor participate in any other ways. So for all of these reasons, campaign finance reform is a sorely inadequate solution to the participatory distortion. I am not opposed to limiting financial campaign contributions. But campaign finance reform is a cop out, a way of “letting off steam” and reducing pressure on elected officials to face the more complex issues. The only sure way to fix democracy is to address the gross socio-economic discrepancies of which the campaign contributions conundrum is symptomatic. It is doubtful that any campaign finance reforms will be passed in the next few years, let alone any sweeping progressive economic legislation, but just because we can’t solve the problem doesn’t mean we shouldn’t be honest with ourselves about its extent.

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Interested in writing for Publius? The Editors of Seriatim welcome guest writers to share their perspectives on modern day problems of constitutional law as Mr. Jefferson, Mr. Madison or Mr. Hamilton. Get in touch at seriatimjournal.com.

speakerâ&#x20AC;&#x2122;s corner

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osted by Seriatimâ&#x20AC;&#x2122;s Editorial Board, Speakerâ&#x20AC;&#x2122;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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Sexual misconduct, policy and the law [with Office of Student Affairs Sexual Violence Project Coordinator Emily Renda, University Law Professor Anne Coughlin, Dean of the Frank Batten School of Leadership and Public Policy Allan Stam, and Legislative and Policy Director for the Foundation for Individual Rights in Education (FIRE) Joe Cohn] December 2, 2014, Garrett Hall moderated by Andy Boyer (CLAS 2017)

INTRODUCTION

ast semester was particularly trying for the University community. Never before have the realities of sexual violence and the need for institutional and cultural change been more apparent. While many avenues can—and should—be explored in the effort to ensure all students feel safe while pursuing an education, the enactment of specific policy is unique in its ability to make lofty ideals tangible. In the spirit of Seriatim’s mission—and with the hope of providing a platform for workable solutions—the Journal brought together experts in law and policy for an engaging discussion of the current political climate and the criminal and university justice architecture surrounding sexual assault adjudication.

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SUMMARY

n December 2, Seriatim and the Batten Council were joined in

Garrett Hall by University law professor Anne Coughlin, Foundation for Individual Rights in Education (FIRE) Legislative and Policy Director Joe Cohn, University Sexual Violence Project Coordinator Emily Renda, and Dean of the Batten School of Leadership and Public Policy Allan Stam. The conversation focused on the affirmative permission law—or “yes means yes”—recently passed in California and New York, as well as the various legal questions surrounding sexual violence adjudication as it relates to college campuses. The bill (SB 967) controversially changes the definition of consent to “unambiguous affirmative, conscious and voluntary agreement.” The panelists began by discussing, in detail, whether college campuses should be involved in the adjudication of sexual assault cases at all. Mr. Cohn, in particular, advocated forwarding all reports directly to the police and federal prosecutors. He asserted that colleges did not have the requisite infrastructure to swiftly encourage reporting, gather related evidence, and compile cases without bias, as is necessary to properly adjudicate sexual violence complaints. He also worried about the standards of proof in college justice systems— “a preponderance of evidence,” which is much lower than the criminal justice sys-

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No person in the United States shall, on the basis of gender, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. – Title IX

tem’s “beyond a reasonable doubt.” According to Mr. Cohn, such concerns fall into a broader category of issues with college justice that have to do with due process and the rights of the accused. Many, like Mr. Cohn, believe that forcing all cases to the criminal justice system will prevent anyone from being falsely convicted or given a trial without the concomitant rights necessary for a fair proceeding. Prof. Coughlin and Ms. Renda responded to Mr. Cohn by insisting that the criminal justice system certainly had a role to play in the process, but said that colleges also served a unique role in seeking and assigning justice in sexual misconduct cases. Prof. Coughlin provided a brief history of consent, rueing a time when a woman could “give consent” by failing to physically fight back in a disputed instance of rape. She hailed the affirmative permission standard because of its requirement for genuine, active consent. In addition, Ms. Renda outlined her disagreement with Mr. Cohn in his characterization of the criminal law’s adeptness to sufficiently address cases of sexual assault. She worried that the nature of sexual misconduct evidence made it nearly impossible for the criminal justice system to successfully prosecute a claim based—in most cases—on hearsay testimony. The presence of alcohol, in conjunction with the fact that adjudication usually takes place many months after the incident itself, can contribute to foggy memories and incomplete evidence. It is also rare for witnesses to be able to corroborate the most important parts of the

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complainant’s and accused’s stories. Due to the certainty implied in the “beyond a reasonable doubt” standard, she worried that no one would be able to bring these cases before a federal judge and have a chance to win, even in a relatively clear case of assault. Panelists also mentioned that the nature of the criminal trial process often re-traumatizes survivors and was likely to discourage people from reporting in the first place. Both Prof. Coughlin and Ms. Renda went on to discuss the very nature of civil rights law as a reason for maintaining some degree of university jurisdiction. Ms. Renda explained that while criminal law is retributive and punitive, civil rights law in education—the cornerstone of which is Title IX, banning discrimination based on sex— is meant to be restorative and rehabilitative. When colleges pursue justice in response to sexual misconduct, they have much more latitude in both the adjudication and punishment, when necessary. According to Ms. Renda, universities have the ability to convict these cases and assign proportional punishment, such as an educational program or community service. The claimed that the criminal When colleges pursue jus- panelists justice system is hamstrung by stattice in response to sexual ute because it mandates harsh punishments and does not differentiate misconduct, they have between kinds of sexual misconduct. much more latitude in both In this way, colleges allow all parties to get what they deserve: justice and the adjudication and punhealing. ishment, when necessary. Dean Stam then brought the discussion to the University’s backyard, noting with frustration that no student has ever been expelled for rape at a university that holds honor in the highest regard. His comments highlighted the frustration rippling through the community and pushed the panel to deal with the consequences of rape and the effect that sexual misconduct has on culture. Mr. Cohn responded that expulsion from a university does not make anyone safer: an expelled rapist is still on the streets and out in the world. The sad reality, he told those itching for more expulsions, was that a rapist could simply move off campus and continue to frequent school parties and social events. He worried that encouraging colleges to deal with sexual misconduct would limit the police’s role and thereby limit the chance to put criminals in jail. Prof. Coughlin responded with an appeal to the sanctity of the community. It is precisely because of the commitment to the community of trust, she and Dean Stam maintained, that the University ought to be expelling more people convicted of

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. – Amendment V

this awful crime. It is within the power of the university to express disapproval—or outright condemnation—of certain acts, and that it would then be the responsibility of the next community to do the same. She finished by saying that it is not only the right of the community to expel rapists, but also its duty, as it is responsible for those who now identify as survivors and those who are vulnerable to future assault. Ms. Renda concluded the discussion with the hope that the new sexual assault policy at the University and pending affirmative consent legislation would work through cultural change to lessen instances of sexual violence and, in turn, mitigate the need for adjudication altogether. For reference: public summary of proposed revisions to the University of Univ. of Virginia’s Sexual Misconduct Policy >>

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Proposed revisions: Univ. of Virginia Sexual Misconduct Policy [public summary of proposed revisions from Sexual Violence Education & Resources, virginia.edu]

Length. The Proposed New Policy is significantly longer than the current policy, which is focused almost exclusively on the procedures for resolving student disciplinary complaints. Consistent with new federal guidance, the Proposed New Policy outlines all of a student's options following an incident of Sexual Misconduct, including how to obtain immediate and ongoing support and assistance, how to report an incident to the University and/or to Police, and how to file a University complaint. The University has also developed a separate infographic to ensure that students have a reference sheet containing all of this information. The infographic has been widely distributed throughout Grounds. It is also posted here. "Intimate Partner Violence," "Domestic Violence" and "Stalking" Added as Defined Terms. The University's current policy addresses intimate partner violence, domestic violence, and stalking as forms of Sexual Harassment. The University's Proposed New Policy includes stand-alone definitions for these terms and treats each as a separate form of Sexual Misconduct. The Proposed New Policy adopts the definitions contained in the Clery Act, as amended by VAWA; the VAWA amendments now require colleges and universities to compile and report separate statistics for these three offenses.

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Clarification of the Definitions of "Effective Consent" and "Incapacitation." The concepts of "Effective Consent" and "Incapacitation" continue to play a central role in student Sexual Misconduct cases. Under the Proposed New Policy, these terms have been further elaborated and clarified. Revision of Sexual Harassment Definition; Explanation of "Hostile Environment." The Proposed New Policy clarifies the definition of Sexual Harassment and explains how the University evaluates the existence of a "Hostile Environment" from both a subjective and objective viewpoint. The Proposed New Policy lists several factors that the University considers in evaluating Hostile Environment claims, including whether the conduct in question is protected speech. Complicity Added. The Proposed New Policy adds "Complicity" as a type of prohibited conduct. "Complicity" means any act that knowingly aids, facilitates, promotes or encourages another person to commit any other form of conduct prohibited by the Proposed New Policy. Preservation of Evidence. The Proposed New Policy encourages students to preserve evidence of any act of Sexual Misconduct and outlines various methods for doing so. These methods include obtaining a confidential forensic examination by a sexual assault nurse examiner ("SANE Nurse") at the University's Emergency Department. Appendix I to the Proposed New Policy outlines how to obtain such an examination and what to expect at the Emergency Department. Accessing Confidential Sources. The Proposed New Policy outlines where students can go to obtain confidential counseling and support in the aftermath of an incident of Sexual Misconduct. Appendix II to the Proposed New Policy lists the confidential resources available both inside and outside the University. Assistance from the Office of the Dean of Students; Obtaining Interim Remedial Measures and Support. The Proposed New Policy provides students more detail about the many options for support and assistance available through the Office of the Dean of Students ("ODOS"), including the many types of remedial measures that ODOS can implement, following an incident of Sexual Misconduct. Means for Reporting Sexual Misconduct to the University. The Proposed New Policy incorporates new means for reporting Sexual Misconduct to the University. Students may now report Sexual Misconduct via an online system (Just

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Report It) or they may report by disclosing information about Sexual Misconduct to any "Responsible Employee." The University adopted a new reporting policy on August 25, 2014, requiring all "Responsible Employees" to report student disclosures of Sexual Misconduct to the University's Title IX Coordinator. The Proposed New Policy incorporates and reflects this new reporting policy. Explanation of University's Response When Reporting Student Does Not Wish to Participate in University Investigation or Disciplinary Action or Requests Confidentiality. The Proposed New Policy explains that such requests will be evaluated by a designated "Evaluation Panel," describes the specific factors the Evaluation Panel will consider, and describes the University's response in the event that such requests cannot be honored while ensuring the safety of the University community. Changes in How Formal Complaints are Investigated. The University has hired two new full-time investigators in the Office of Equal Opportunity Programs to investigate student and employee complaints of discrimination and harassment. Complaints filed under the Proposed New Policy will be investigated by these investigators. Changes in Formal Resolution of Complaints. Under the Proposed New Policy, the University investigator will prepare a report summarizing the evidence and recommending a finding of "responsibility" or "no responsibility," applying a "preponderance of the evidence" standard. This recommendation will be made only after the investigator has conducted a thorough investigation that includes equal and ample opportunity for each party to identify and respond to relevant witnesses and evidence. The investigator's recommended finding will be reviewed by a Standing Review Committee appointed by the Vice President and Chief Student Affairs Officer. Changes in Role of Sexual Misconduct Board. Under the Proposed New Policy, the role of the Sexual Misconduct Board ("SMB") will be limited to conducting Hearings on Sanctions. Recent OCR guidance discourages schools from allowing students to serve on hearing boards in cases involving sexual violence. This guidance is inconsistent with the University's tradition of student self-governance. Under the Proposed New Policy, the SMB will continue to include student members unless either of the parties objects, in which case the SMB Hearing Panel for that case will consist solely of faculty and staff members.

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Inclusion of List of Possible Sanctions. The Proposed New Policy includes a list of the range of sanctions that may be imposed by the SMB Hearing Panel. Consistent with the current policy, the Proposed New Policy requires the SMB Hearing Panel to consider a sanction of suspension or expulsion in every case. Changes in Voluntary Informal Resolution. Certain types of cases are ineligible for voluntary informal resolution under the Proposed New Policy. These include cases involving allegations of Sexual Assault (or the alleged use of Force or violence) or where, in the sole reasonable discretion of the Dean of Students, the allegations suggest an ongoing safety risk to the University community. Description of Training, Education and Prevention Programs. The Proposed New Policy provides general descriptions of the training, education and prevention programs offered to University students, faculty, and staff. Appendix III to the Proposed New Policy describes the University's training, education and prevention programs in detail.

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Old ties, new divides | Nate Wolf 1. Tocqueville, Alexis De. Democracy in America. New York: First Harper Perennial Modern Classics, 2006. 295. Print. 2. “The Mayflower Compact.” UVA Collab. 1620. Web. 29 Sept. 2014. 3. Winthrop, John. “On Liberty.” 1645. UVa Collab. Web. 29 Sept. 2014. 4. Winthrop, John. A Model of Christian Charity. Thesis. 1630. UVa Collab. Web. 29 Sept. 2014. 5. Ibid. 6. Winthrop, “On Liberty.” 7. Ibid. 8. Virginia. House of Delegates. A Bill Establishing A Provision for Teachers of the Christian Religion. Richmond: 01 Jan. 1784. UVa Collab. Web. 30 Sept. 2014. 9. The Constitution of The United States of America. The Federalist Papers. New York: Signet Classics, 1961. 542-68. Print. 10. Jefferson, Thomas. Notes on the State of Virginia, Query 17, 157-61. Thesis. 1784. UVa Collab. Web. 30 Sept. 2014. 11. Ibid. 12. Ibid, 3. 13. Madison, James. “Memorial and Remonstrance against Religious Assessments.” Letter to General Assembly of Virginia. 20 June 1785. UVa Collab. Web. 30 Sept. 2014. 14. Tocqueville, 444.

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15. Ibid, 291. 16. Ibid, 448. 17. Jefferson, Thomas. Letter to Danbury Baptists. 1 Jan. 1802. Jefferson’s Letter to the Danbury Baptists, The Final Letter, as Sent. UVa Collab. Web. 30 Sept. 2014. 18. Washington, George. Letter to Moses Seixas. The Letter from George Washington in Response to Moses Seixas. UVa Collab. Web. 30 Sept. 2014. 19. Washington, George. Letter to Annual Meeting of Quakers. Sept. 1789. Letter to the Annual Meeting of Quakers. UVa Collab. Web. 30 Sept. 2014. 20. Tocqueville, 288. 21. Ibid, 289. 22. Constitution. 23. Lee v. Weisman. New York Times Assorted Excerpts. Supreme Court of the United States. 24 June 1992. UVa Collab. Web. 30 Sept. 2014. 24. Ibid. 25. Wisconsin v. Yoder. Supreme Court of the United States. 15 May 1972. UVa Collab. Web. 30 Sept. 2014. The danger of Dale | by Eric Leimkuhler 1. Boy Scouts of America and Monmouth Council, Et Al v. James Dale. Supreme Court of the United States. 28 June 2000. LexisNexis Academic. Web. 31 Mar. 2014. 2. Knauer, Nancy J. “Simply So Different: The Uniquely Expressive Character of the Openly Gay Individual after Boy Scouts of America v. Dale.” Kentucky Law Journal (2000-2001): 1004-1028. HeinOnline. Web.

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3. Bezanson, Randall P. Art and Freedom of Speech. Urbana: U of Illinois, 2009. 83-107. Print. 4. Koppelman, Andrew, and Tobias Barrington. Wolff. A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association. New Haven: Yale UP, 2009. 25-27. Print. 5. McGowan, David. “Making Sense of Dale.” Constitutional Commentary 18.1 (2001): n. pag. Academic Search Complete. Web. 31 Mar. 2014. 6. NAACP v. Alabama Ex Rel. Patterson. Supreme Court of the United States. 30 June 1958. LexisNexis Academic. Web. 31 Mar 2014. 7. Runyon v. McCrary. Supreme Court of the United States. 25 June 1976. LexisNexis Academic. Web. 31 Mar 2014. 8. McGuire, Daniel E. “The Supreme Court’s Latest Resolution of the Conflict between Freedom of Association and Public Accommodations Laws: Boy Scouts of America v. Dale and Its Implications In and Out of the Courtroom.” Villanova Law Review 47 (2002): 392-393. HeinOnline. Web. 9. Troum, Neal. “Expressive Association and the Right to Exclude Reading between the Lines in Boy Scouts of America v. Dale.” Creighton Law Review 35 (2001-2002): 652-653. Web. 10. O’Quinn, John C. “’HOW SOLEMN IS THE DUTY OF THE MIGHTY CHIEF’: MEDIATING THE CONFLICT OF RIGHTS IN Boy Scouts of America v. Dale.” Harvard Journal of Law and Public Policy 24.1 (2000): 319-68. Academic Search Complete. Web. 30 Mar. 2014. 11. Yatar, Eric KM. “Defamation, Privacy, and the Changing Social Status of Homosexuality: Re-Thinking Supreme Court Gay Rights Jurisprudence.” Law & Sexuality: A Review of Lesbian, Gay, Bisexual and Transgender Legal Issues 12 (2003): 151. Web. 12. Carpenter, Dale. “Expressive Association and Anti-Discrimination Law after Dale: A Tripartite Approach.” Minnesota Law Review 85 (2000-2001): 1536-1539. HeinOnline. Web.

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13. Gearey, David P. “New Protections after Boy Scouts of America v Dale: A Private University’s First Amendment Right to Pursue Diversity.” University of Chicago Law Review 71.4 (2004): 1583-604. Academic Search Complete. Web. 30 Mar. 2014. Suppression of speech as theft from mankind | by Avery Rasmussen 1. J.S. Mill, “On Liberty,” in On Liberty and Other Writings, ed. Stefan Collini (New York: Cambridge University Press, 1989), 20. 2. Ibid., 8-9. 3. Ibid., 13. 4. Ibid., 15. 5. Ibid., 13. 6. Ibid., 9. 7. Ibid., 41. 8. Ibid., 20-21. 9. Ibid., 23. 10. Ibid., 22. 11. Ibid., 24. 12. Ibid., 21-22. 13. Ibid. 14. Ibid., 25. 15. Ibid., 31. 16. Ibid., 27-29.

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17. Ibid. 18. Ibid., 35. 19. Ibid. 20. Ibid. Becoming less original | Carly Spraggins 1. “Scalia Defends Originalism as Best Methodology for Judging Law.” Interview. University of Virginia School of Law. N.p., 20 Apr. 2010. Web. <http://www.law.virginia.edu/html/news/2010_spr/scalia.htm>. 2. Siegel, Reva B. “Dead or Alive: Originalism as Popular Constitutionalism in Heller.” Harvard Law Review 122.191 (2008): 191-245. Yale Law School. Web. <http:// www.law.yale.edu/documents/pdf/Faculty/Siegel_Heller-HLRev.pdf>. 3. Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: An Essay. Princeton, NJ: Princeton UP, 1997. Print. 4. Green, Christopher. “”This Constitution”: Constitutional Indexicals as a Basis for Textualist Semi-Originalism.” Notre Dame Law Review 84.4 (2009): 1653. University of Notre Dame. Web. <http://www3.nd.edu/~ndlrev/archive_public/84ndlr4/Green. pdf>. 5. District of Columbia v. Heller. United States Supreme Court. 2008. 5. Print. 6. Wilkinson, Harvie, III. “Of Guns, Abortions, and the Unraveling Rule of Law.” Virginia Law Review 95.2 (2009): n. pag. 206. Web. 7. Heller. 8. Wilkinson, 267. 9. Ibid. 10. Scalia, Matters of Interpretation, 22. 11. Heller, 2.

Sources and endnotes

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12. Ibid. 13. Ibid, 3. 14. Ibid, 4. 15. Ibid, 12. 16. Ibid, 13. 17. Solum, Lawrence B. “District of Columbia v. Heller and Originalism.” Northwestern University Law Review 103.2 (2009): n. pag. Northwestern University. Web. <https://www.law.northwestern.edu/lawreview/v103/n2/923/LR103n2Solum.pdf>. 18. Scalia, Matters of Interpretation. 19. Wilkinson, 273. 20. Hartog, Hendrik. “The Constitution of Aspiration and “The Rights That Belong to Us All”” The Journal of American History 74.3 (1987): 1020. Organization of American Historians. Web. <http://www.jstor.org/stable/1902163.>. 21. Heller, 14. 22. Ibid. 23. US Constitution. Print. 24. Wilkinson. 25. Ibid. 26. Scalia, Interview. 27. Scalia, Matter of Interpretation, 41. 28. Sherry, Suzanna. “The Indeterminacy of Historical Evidence.” Harvard Journal of Law and Public Policy 19.2 (n.d.): n. pag. 440. Web. 29. Ibid.

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20. Wilkinson. 31. Posner, Richard A. “The Incoherence of Antonin Scalia.” The New Republic. N.p., 24 Aug. 2012. Web. <http://www.newrepublic.com/article/magazine/books-andarts/106441/scalia-garner-reading-the-law-textual-originalism>. 32. Siegel. 33. Wilkinson, 273. 34. Ibid, 304. 35. Ibid, 273. The Catholic question | Daniel Judge 1. Fuchs, Lawrence. John F. Kennedy and American Catholicism. (New York: Meredith Press, 1967), 153. 2. Menedez, Albert. John F. Kennedy: Catholic and Humanist. (Buffalo: Prometheus Books, 1979), 14-15. 3. Ibid, 15. 4. Ibid, 15-16) 5. Menedez, 18. 6. Peters, Gerhard. “The Presidency Project.” http://www.presidency.ucsb.edu/showelection.php?year=1928 (accessed May 4, 2014). and FACTORS IN DEFEAT OF SMITH REVIEWED. 1928. New York Times (1923-Current file), Dec 02, 1928. http://search.proquest.com/docview/104394503?accountid=14678 (accessed May 4, 2014). 7. WH LAWRENCE Special to The New,York Times. “THE DEMOCRATS: KENNEDY’S HOPE.” New York Times (1923-Current file): 1. Mar 20 1960. ProQuest. Web. 29 Apr. 2014. 8. Lawrence.

Sources and endnotes

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9. Menedez, 111. 10. Ibid, 114. 11. Ibid, 115. 12. Menedez, 35. 13. Ibid, 115. 14. Menedez, 112. 15. Kennedy, John F. “Transcript: JFK’s Speech on His Religion.” National Public Radio. National Public Radio, 5 Dec. 2007. Web. 28 Apr. 2014. <http://www.npr.org/ templates/story/story.php?storyId=16920600>. 16. National Public Radio. 17. Menedez, 115. 18. Fuchs, 175. 19. JOHN W FINNEYS pecial to The New,York Times. “JESUIT RULES OUT CHURCH CONTROL OVER A PRESIDENT.” New York Times (1923-Current file): 1. Sep 28 1960. ProQuest. Web. 29 Apr. 2014. 20. Finney. 21. John Courtney Murray, S.J., We Hold These Truths: Catholic Reflections on the American Proposition. Kansas City, MO: Sheed & Ward, 1960. 22. Garcia, Kenneth N. 2012. “Reversing the secularist drift”: John Courtney Murray and the telos of Catholic higher education.” Theological Studies 73, no. 4: 890-908. ATLA Religion Database with ATLASerials, EBSCOhost. Accessed May 4, 2014. 23. Menedez, 41. 24. Ibid.

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25. Faulhaber, Gregory. Politics, Law, and the Church. (Bethesda: International Scholars Publications, 1996), 18. 26. Ibid, 9. 27. MICHAEL ORESKES. “Cuomo Pledges Women ‘Reproductive Freedom’.” New York Times (1923-Current file): 1. Oct 28 1982. ProQuest. Web. 29 Apr. 2014. Making democracy work | Jack Brake 1. Leonardo Morlino, “Italy’s Civic Divide,” review of Making Democracy Work: Civic Traditions in Modern Italy, by Robert Putnam, Journal of Democracy 6, no. 1 (January 1995): 173. 2. Ibid. 3. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York, NY: Simon and Schuster Paperbacks, 2000), 17-9. 4. Putnam, Bowling Alone: The Collapse, 25, 45, 16. 5. Ben Berger, Attention Deficit Democracy: The Paradox of Civic Engagement (Princeton: Princeton University Press, 2011), 3. 6. Ibid, 4. 7. Ibid, 5. 8. Carole Pateman, Participation and Democratic Theory (Cambridge University Press, 1975), 43. 9. Ibid, 61. 10. W.E.B Du Bois, “On Being Ashamed of Oneself: An Essay on Race Pride,” 1933, in The Crisis 40, 199. 11. Ibid. 12. Hannah Arendt, Totalitarianism, vol. 3, The Origins of Totalitarianism (Benedic-

Sources and endnotes

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143

tion Books, 2009), 5. 13. Simone Chambers and Jeffery Kopstein, â&#x20AC;&#x153;Bad Civil Society,â&#x20AC;? Political Theory 26, no. 6 (December 2001): 859. 14. Putnam, Bowling Alone: The Collapse, 16. 15. Berger, Attention Deficit Democracy: The Paradox, 5. 16. Putnam, Bowling Alone: The Collapse, 32. 17. Ibid, 39. 18. Ibid, 47. 19. Sidney Verba, Kay Lehman Schlozman, and Henry Brady, Voice and Equality: Civic Voluntarism in American Politics (Harvard University Press, 1995), 15. 20. Ibid, 188. 21. Ibid,190. 22. Jacob S. Hacker and Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer- and Turned Its Back on the Middle Class (New York, NY: Simon and Schuster, 2012), 15. 23. William Kornhauser, The Politics of Mass Society (Transaction Publishers, 2008), 114. 24. Ibid. 25. Alexis de Tocqueville, Democracy In America, ed. J. P. Mayer, trans. George Lawrence, 1969 ed. (New York, NY: Harper & Row, 1966), 87-8. 26. Ibid, 68. 27. Ibid. 28. Ibid, 69.

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29. Sheri Berman, “Civil Society and the Collapse of the Weimar Republic,” World Politics 49, no. 3 (April 1997). 30. Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press of Harvard University Press, 1996), 4. 31. Ibid, 5. 32. Ibid. 33. Putnam, Bowling Alone: The Collapse, 23. Rand and Rousseau on envy | Lital Firestone 1. Ayn Rand, Gary Hull and Leonard Peikoff, The Ayn Rand Reader, (New York: Plume, 1999), 11. 2. Jean-Jacques Rousseau and Donald A Cress, Basic Political Writings, (Indianapolis: Hackett Pub., 1987), 138. 3. Idib.,173. 4. Idib.,165. 5. Rand, Hull and Peikoff, The Ayn Rand Reader, 428. 6. Rousseau, Basic Political Writings, 171. 7. Rand, Hull and Peikoff, The Ayn Rand Reader, 123. 8. Idib., 124. 9. Rousseau, Basic Political Writings, 166. 10. Idib., 186. 11. Idib., 187. 12. Idib., 154.

Sources and endnotes

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13. Idib., 152. 14. Colin Bird, “Rand” (Lecture, Philosophical Perspectives on Liberty, Charlottesville, Feb. 18, 2014). 15. Rousseau, Basic Political Writings, 187. 16. Rand, Hull and Peikoff, The Ayn Rand Reader, 115. 17. Martin Seligman, Authentic Happiness: Using the New Positive Psychology to Realize Your Potential for Lasting Fulfillment, (New York: Free, 2002), 8. 18. Ibid. 19. Bird, “Rand.” 20. Rand, Hull and Peikoff, The Ayn Rand Reader, 117. Post-heroism and U.S. strategy-making | Tamar Ziff 1. Luttwak, Edward N. “Toward Post-Heroic Warfare.” Foreign Affairs, Vol. 74, No. 3 (May - Jun., 1995), pp. 120. Web. 30 March 2014. 2. Kober, Avi. “Western Democracies in Low Intensity Conflict: Some Postmodern Aspects.” pp. 2 in Democracies and Small Wars, ed. Efraim Inbar. London: Frank Cass and Co. Ltd, 2003. Print. 3. Krepinevich, Andrew F. “Calvary to computer; the pattern of military revolutions.” The National Interest, Issue 37, Fall 1994, 30(13). General Reference Center Gold. Thomson Gale. University of Florida. 19 November 2006. Web. 30 March 2014. 4. von Clausewitz, Carl. On War, trans. James John Graham. London: N. Trübner, 1873. Print. Accessed through Clausewitz.com, 2012. Web. 30 March 2014. 5. Sheehan, Michael. “The Evolution of Modern Warfare” in Strategy in the Contemporary World, ed. John Baylis, James J. Wirtz, Colin S. Gray. Oxford: Oxford University Press, 2010. Print.

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6. Ibid, 56. 7. Roosevelt, Franklin D. “Radio Address Delivered by President Roosevelt from Washington, December 29, 1940.” Mount Holyoke College. n.d. Web. 30 March 2014. 8. Walzer, Michael. Just and Unjust Wars: A Moral Argument With Historical Illustrations. USA: Basic Books, 2006. 53. Print. 9. Ibid. 10. von Clausewitz. 11. Tucker, Connor and Erin Fitzgerald. United States Army War College, Colloquium Brief: Post-Heroic Warfare? June 17, 2011. Web. 30 March 2014. 12. von Clausewitz. 13. Luttwak, Edward N. “A Post-Heroic Military Policy.” Foreign Affairs, Vol. 75, No. 4 (Jul. -Aug., 1996), pp. 33-44. Online. 14. Tucker. 15. van Creveld, Martin. The Transformation of War. New York: The Free Press, 1991. 14. Print. 16. Tanenhaus. “Playing Dominoes,” New York Times, 24 October 1999. Web. 30 March 2014. 17. Kaldor, Mary. New and Old Wars: Organized Violence in a Global Era. Stanford: Stanford University Press, 2012. 28, Print. 18. Ibid, 30. 19. Tucker. 20. Detsch, Roland. “What Does ‘War’ Mean Today?” Goethe-Institut e. V., OnlineRedaktion. February 2010. Web. 30 March 2014. 21. Luttwak, Edward N. “Post-Heroic Warfare and its Implications.” In Paper for the

Sources and endnotes

* * *

147

Second Symposium of Fiscal 1999: War and Peace in the 21th Century. 1999. Web. 30 March 2014. 22. Ibid. 23. Gray, Colon S. “How Has War Changed Since the End of the Cold War?” Parameters, Spring 2005, pp. 14-21. Strategic Studies Institute, United States Army War College. Web. 30 March 2014. 24. Ibid. 25. Kober. 27. Kober, 9. 28. Gray. 29. Metz 1995 30. Kober 2003: 9 31. Detsch 2010 32. Luttwak 1996: 34 33. Wong 2014 Nuclear attraction | Zeke Reed 1. “Now I Am Become Death, the Destroyer of Worlds.” YouTube. YouTube, 02 Apr. 2010. Web. 03 Nov. 2. Damon, Fred H. “What Good Are Elections?” Taiwan Journal of Anthropology 39-81 1.2 (2003): 39-70. UVa. Collab. Web. 03 Nov. 2014. 2014. 3. Ibid.

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4. Ibid. 5. Ibid, 67. 6. Ibid., 68. 7. Ibid., 65. 8. Wills, Garry. Bomb Power: The Modern Presidency and the National Security State. New York: Penguin, 2010. 51. E-book. 9. Ferraro, Vincent. “John Winthrop’s City upon a Hill, 1630.” John ~Winthrop’s City upon a Hill, 1630. Mount Holyoke College, n.d. Web. 02 Nov. 2014. 10. Wills, 33. 11. Ibid. 12. Ibid, 36. 13. Damon. 55. 14. Wills, 41. 15. Ibid, 122. 16. Ibid, 133.

French parity laws and LGBT activism | Alex Dunkenberger

1. Scott, Joan W. Parité. Chicago: U of Chicago, 2005. Print. 2. Ibid, 60. 3. Ibid, 51. 4. Murray, Rainbow. “Quotas for Men: Reframing Gender Quotas as a Means of Improving Representation for All.” American Political Science Review 108.3 (2014): 520-34. Print.

Sources and endnotes

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5. Scott, 113-117. The constitutional basis for marriage equality | Zoe Pettler 1. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). 2. Loving v. Virginia, 388 U.S. 1, 12 (1967) 3. American Foundation for Equal Rights. 4. Article IV, Section 2 of the United States Constitution. 5. H.R. 3396 (104th): Defense of Marriage Act. 6. United States v. Windsor. 7. Legal Information Institute. 8. DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191, 2014 FED App. 0275P (6th Cir.), 2014 FED App. 275P (6th Cir.) (6th Cir. Mich. 2014).

Publius | Mr. Madison 2. Jose DelReal, “Voter turnout in 2014 was the lowest since WWII,” The Washington Post, last modified November 10, 2014, accessed Nov. 18, 2014. 3. “Voter Turnout,” The Center for Voting and Democracy, accessed Nov. 18, 2014. 4. Paul Taylor and Mark Lopez, “Six take-aways from the Census Bureau’s voting report,” Pew Research Center,last modified May 8, 2013, accessed Nov. 18, 2014. 5. “Moving America Forward: 2012 Democratic National Platform”, Democratic National Committee, accessed Nov. 18, 2014. 6. “We the People: A Restoration of Constitutional Government: Republican Platform,” Republican National Committee, accessed Nov. 18, 2014.

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7. “Voter Turnout,” The Center for Voting and Democracy, accessed Nov. 18, 2014.

Publius | Mr. Hamilton 1. See Sidney Verba, Kay Lehman Schlozman, and Henry Brady, Voice and Equal* * Press, * *1995).* * ity: Civic Voluntarism in American Politics (Harvard University * * * * has* had* This book (and the concept of a “participatory distortion” in particular) a resounding influence on subsequent developments in the field. For example, see Fishkin When the People Speak: Deliberative Democracy and Consultation and Lubenow, A User’s Guide to Campaign Finance Reform. 2. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York, NY: Simon and Schuster Paperbacks, 200), [32]. 3. Jacob S. Hacker and Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer- and Turned Its Back on the Middle Class (New York, NY: Simon and Schuster, 2012), [Page 23]. 4. Verba, Schlozman, and Brady, Voice and Equality: Civic, [Page 198] 5. Ibid, [194]. 6. Ibid, [18].

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Seriatim

Journal of American Politics

Design and photography Ian T. Robertson (CLAS â&#x20AC;&#x2DC;16) Printing Charlottesville Press

Fall 2014 * * * Seriatim * * * Journal of American Politics

Our Mission

To serve the University of Virginia community by supporting an engaged citizenry, fostering an open marketplace of ideas, and encouraging the productive exchange of political speech.

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