Williams College Law Journal, Volume I, Issue II by Williams College Law Journal

The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field. We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. Essays can be submitted via email or our website: http://williamscollegelawsociety.com/lawjournal/submit/

The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support. Williams College Law Society Williams College Deanâ&#x20AC;&#x2122;s Office Williams College Council Williams Multicultural Center Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267 WilliamsCollegeLawJournal@gmail.com www.WilliamsCollegeLawSociety.com/lawjournal

WILLIAMS COLLEGE LAW JOURNAL Volume I Issue II Spring 2012 Table of Contents Letter from the Editor-------------------------------------------------------------------iii Domestic Law Hot Coffee and Hot Button Litigation Reform Jessamyn Lockard-------------------------------------------------------------------------1 The Equal Protection Clause with a Bite: The Constitutionality of State Mandated Sterilization from Buck to Skinner Molly Goldberg----------------------------------------------------------------------------4 Fundamental Rights: Should Personal Liberties Gain Preferential Treatment over Economic Liberties in the Eyes of the Supreme Court? Charlotte Rose Young-------------------------------------------------------------------12 International Law Irish Head Shop Drugs: A National Headache Gil McDonald----------------------------------------------------------------------------28 Crisis in Darfur: Mass Murder and the Political Inconvenience of Genocide in the Modern World Tyler Jones-------------------------------------------------------------------------------36 Interview Interview with Sherman J. Clark: Kirkland & Ellis Professor of Law Sarah Clark-------------------------------------------------------------------------------48

ii!

LETTER FROM THE EDITOR Dear Reader, Law Journal Editorial Board Editor-in-Chief Corbin Chu Managing Editor Becky Tseytkin Domestic Focus Editors Alexander Foucault Yogeeta Chatoredussy International Focus Editor Caroline Kaufman Legal Education Editor Markus Gonzales Interviews, Book Reviews, & Special Features Editor Marissa Robertson Layout, Graphics & Design Editor Glorida Joo

Williams College Law Society Executive Board CO-PRESIDENT Emanuel McMiller CO-PRESIDENT Dan Zhao VICE PRESIDENT Narah Moon

It is my pleasure to introduce you to the second issue of the Williams College Law Society’s Law Journal. As the Journal is still in its nascent stages, we face the unique challenge and opportunity of creating a publication that serves both as memory and as a legacy. These ideals are not solely embodied in the Journal’s organized look for readers to enjoy, but also in our great efforts to seek out articles that give our audience a variety of narratives that speak to the dynamic world of law ranging from our daily lives to the world at large. Who exactly are “we”? My fellow editors and I have worked hard to serve as organizers and as a critical lens for the Journal’s articles, yet that is only the beginning. None of this would have been possible without the essential support we receive from our skillful writers, Williams College Law Society, Williams College Dean’s Office, Williams College Council, and the Williams Multicultural Center. It has been an honor to see the Journal come into fruition in its first year. I hope that the Journal can continue to serve its readers by planting seeds of knowledge and taking root as inspiration for the future. Without further delay, I welcome you to the Law Journal. Enjoy. Until next time, Corbin Chu Editor-in-Chief

SECRETARY Nicolle Perry TREASURER Nick Kraus PUBLIC RELATIONS DIRECTOR Gloria Joo EDITOR-in-CHIEF Corbin Chu LAW TEAMS DIRECTOR Yazmine Nichols

The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, Williams-Mystic Maritime Studies Program, or Williams College. All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

iii

Domestic)Law) Hot Coffee and Hot Button Litigation Reform

Jessamyn Lockard Williams College

The story of the McDonald’s coffee case is notorious but many of the salient facts are absent from the public narrative. The story became the punch line of much late night comedy, and similar incidents were spoofed in Seinfeld episodes and Weird Al songs. Many people incorrectly think that Ms. Stella Liebeck spilled coffee on herself while driving and sued because the franchise did not warn her that the coffee was actually hot. Many Americans were outraged that this seemingly frivolous suit could “get” Liebeck over $2.7 million in damages. Since so many blamed her injuries on carelessness and a lack of common sense, the McDonald’s coffee case is the poster child for tort reform.1Proponents of tort reform point to supposedly frivolous cases, like this one, as indicative of overall litigiousness and greed. First, tort reformers would make it more difficult for potential plaintiffs to bring their case to court. Furthermore, once the cases were decided, tort reform would limit the amount of financial compensation for victims. Compensation comes in two forms: punitive damages such as those for “pain and suffering” and compensatory damages, which are for property damages, lost earnings, or medical bills. Rick Santorum exemplified the attitude of tort reformers when he characterized the legal system as “unfair” because “individuals…hit the jackpot and win the lottery in some cases” and receive excessive monetary compensation for their misfortunes.2 According to University of Wisconsin law professor Marc Galanter, underlying “these proposals for reform” is an “empirical claim regarding the increased frequency of frivolous lawsuits.” 3 However, this is not empirically true, as most mainstream sociolegal scholarship has suggested.4 In fact, the number of cases brought to trial has actually declined. 5 Due to the lack of empirical evidence, the reform !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Professor James David Nolan, Law and Society, Williams College, Spring 2011 http://www.kraftlaw.com/Articles/Hypocrites.htm 3 http://www.lexisnexis.com/hottopics/lnacademic/?verb=sf&sfi=AC07STJrnlsSrch 4 Ibid. 5 Professor James David Nolan, Law and Society, Williams College, Spring 2011 2

! Volume!I!Issue!II!!!Spring!2012!

Hot)Coffee)and)Hot)Button)Litigation)Reform) ) movement resorts to heuristics. As Joshua Kelner discusses in recent law review article, "proponents of tort retrenchment are winning by controlling the language and imagery of the political struggle."6 By recasting the McDonald’s case as the height of frivolity, tort reformers gained a notorious example which resonated emotionally with many Americans. Crucially the McDonald’s case was not frivolous; the facts demonstrate that the suit was not only legitimate, but also good for public health and safety. Liebeck was wronged by McDonald’s policy of serving coffee between 180 and 190 degrees Fahrenheit; she received third degree burns that required skin grafting surgery and debridgement, which is a painful procedure to strip dead tissue from the living. In court, the McDonald’s quality assurance manager admitted that the coffee was “hazardous” at the temperature that it was served at, and implicitly agreed it was not fit for consumption within five minutes of serving.7 The corporation was aware that burns resulted from their policy on an average of once every five days. In the previous ten years, McDonald’s had received over 700 burn complaints regarding the same issue, but a human factors engineer deemed the problem “statistically insignificant.”8 Strikingly, McDonald’s did not even open an internal inquiry about safety concerns. The cost for McDonald’s to settle was miniscule compared to its total revenue; Despite its vast revenue McDonald’s only paid $500,000 to settle the 700 claims that had be filed, which must have seemed minuscule compared to the costs of changing policy and perhaps shrinking its customer base. Since the cost of paying the legal penalties was lower than the cost of complying with the spirit of the law, the corporation had a financial incentive to continue the policy. An economic incentive was needed to force McDonald’s to change its policy. The jury awarded Liebeck $200,000 in compensatory damages, which were later reduced in proportion to the judgment that she was 20% at fault. The jurors did not award the $2.7 million in punitive damages arbitrarily; the amount equaled the revenue from two days’ coffee sales. According to Judge Robert H. Scott, the written transcript did not capture

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6

http://www.lexisnexis.com/hottopics/lnacademic/?verb=sf&sfi=AC07STJrnlsSrch http://www.jtexconsumerlaw.com/V11N1/Coffee.pdf 8 http://www.jtexconsumerlaw.com/V11N1/Coffee.pdf 7

! Volume!I!Issue!II!!!Spring!2012!

Domestic)Law) the Defense’s demeanor and “attitude of corporate indifference.”9 The jurors wanted the damages “to punish and deter” this corporate Goliath; this is exactly the purpose of punitive damages: to signal the courts’ disapproval of the defendant’s behavior. Only a combination of compensatory and punitive damages could be large enough to actually impact McDonalds to the degree necessary to improve its practices. Therefore, the award of $2.7 million was necessary in order “to send a clear message [about the necessity]…of corrective measures.”10 This case underscores the importance of punitive damages, because if the jurors had not been able to award punitive damages, McDonald’s would have received a much lighter slap on the wrist. The court system acted reasonably in this case, and even attributed some responsibility to both parties. This concept of comparative negligence, which accepts that both parties can be partially responsible, is relatively new to the common law tradition. It is inherently moderate, and is in accordance with the ideals of personal responsibility and “common sense” touted by those in favor of tort reform. Indeed proponents of tort reform should be pleased that the punitive damages were later reduced by the presiding judge. However, codifying this moderation by restricting punitive damages would undermine their very function in the Courts. Punitive damages are needed to punish and discourage defendants or else the profit motive of corporations will lead them to continue policies that endanger the public. As a society we need to make violating the law too costly to be profitable. !

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9

http://www.jtexconsumerlaw.com/V11N1/Coffee.pdf Ibid

! Volume!I!Issue!II!!!Spring!2012!

The$Equal$Protection$Clause$with$a$Bite$ The Equal Protection Clause with a Bite: The Constitutionality of State Mandated Sterilization from Buck to Skinner Molly Goldberg Williams College

In the infamous 1927 Buck v. Bell majority opinion, Justice Oliver Wendell Holmes, Jr. discarded and mocked the Equal Protection claim brought forth by Carrie Buck’s lawyer, Irving P. Whitehead. 1 Endorsing state police power and ignoring fundamental rights as we know them today, the Court upheld the Virginia statute for the sterilization of the “feebleminded,” or mentally ill. 2 The ruling legitimized eugenic sterilization laws in the United States and led to dozens of states adding statutes similar to Virginia’s. Although the Buck decision has never been fully overturned, fifteen years later the Court deemed Oklahoma’s Habitual Criminal Sterilization Act of 1935 unconstitutional on grounds that it violated the Equal Protection Clause of the 14th Amendment. 3 The shift in the Court’s interpretation of the Constitution, from prioritizing societal welfare and public wellbeing in Buck to defending individual rights of criminals and minorities in Skinner, can be at least partially explained by the historical events of the period. Ultimately, shadows of Hitler’s “massive” eugenic campaign and the Court’s constitutional revolution of 1937 led Justice Douglas to extend the Equal Protection Clause of the 14th Amendment and establish “strict scrutiny” in his majority opinion in Skinner.4 To understand the motive behind state mandated sterilization legislation, one must look to the origin of eugenics. Francis Galton coined the term eugenics in 1883 to mean “better breeding”.5 Galton believed that governments should regulate the fertility of the mentally ill and less fortunate to aid the wellbeing of society at large. These less fortunate individuals, Galton and his followers contended, inherited mental, physical, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Lombardo, Paul. Three generations, no imbeciles : eugenics, the Supreme Court, and Buck v. Bell. Baltimore : Johns Hopkins University Press, 2008, 170. 2 Ibid., 169. 3 Nourse, Victoria. In reckless hands : Skinner v. Oklahoma and the near triumph of American eugenics. New York : W. W. Norton & Co., 2008, 158. 4 Ibid., 159.! 5 Lombardo, Paul. Three generations, no imbeciles : eugenics, the Supreme Court, and Buck v. Bell. Baltimore : Johns Hopkins University Press, 2008, 7.

! Volume!I!Issue!II!!!Spring!2012!

Domestic$Law$ and behavioral “defects” that could only be passed from parent to offspring through gene lineage. 6 Poverty, criminality, illegitimacy, and alcoholism were genetically inheritable as well and therefore could be removed from society with the use of state sterilization statues. 7 Progressive reformers saw Galton’s eugenics as a collectivist solution to society’s ills.8 The middle class, who perhaps felt the greatest tax burden from the “unfit” class, turned to eugenics as a scientific solution to their tax burden. Feebleminded, families like Carrie Buck’s were seen as dependants who required the care and financial support of the remainder of society. Eugenics prompted sterilization to rid of the “cycle of dependency”.9 Despite the fact that society felt financially obligated to care for the mentally ill, most mentally ill individuals were institutionalized. Before World War I, physicians preferred institutionalization of the mentally ill to sterilization because they feared the potential medical litigation associated with forced sterilization.10 Accordingly, between 1907 and 1914, only 1,422 individuals were sterilized in the United States.11 Victims of state sterilization statutes in eight states challenged their respective states’ sterilization laws in court between 1912 and 1921.12 Judges struck down seven out of the eight state sterilization statutes, contending that the laws denied individuals procedural safeguards guaranteed under procedural due process of the 14th Amendment. 13 After the sterilization laws were struck down by the state Supreme Courts, state legislatures rewrote the statutes to include procedural due process legal protections for the “feebleminded” such as “mandatory hearings, jury trials, and appeals processes”.14 The Virginia sterilization law was the first state sterilization law to include these procedurals safeguards and, hence, Dr. Albert Sidney Priddy, a sterilization surgeon and the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 7

8 9

Kluchin, Rebecca. Fit to Be Tied. New Jersey: Rutgers University Press, 2011, 12. Ibid., 1.

Ibid., 1.

Ibid., 4. 10 Nourse, Victoria. In reckless hands : Skinner v. Oklahoma and the near triumph of American eugenics. New York : W. W. Norton & Co., 2008, 24. 11 Kluchin, Rebecca. Fit to Be Tied. New Jersey: Rutgers University Press, 2011, 15.!! 12 Kluchin, Rebecca. Fit to Be Tied. New Jersey: Rutgers University Press, 2011, 15. 13 Ibid., 15. 14 Ibid., 15.

! Volume!I!Issue!II!!!Spring!2012!

The$Equal$Protection$Clause$with$a$Bite$ ! superintendant of the Virginia State Colony for the Epileptic and Feebleminded, intended to use the Virginia law as a test-law in the Supreme Court.15 After Priddy chose the Virginia state law to challenge the constitutionality of sterilization, he chose Carrie Buck as a plaintiff in the case. Carrie Buck became pregnant at the age of 18 while under the custody of her foster family, the Dobbs. Further, Carrie Buck was dubbed “morally delinquent” for conceiving a child out of wedlock.16 Priddy chose Carrie Buck to represent the “feebleminded” women affected by the Virginia statute because both Buck’s mother, Emma Buck, and child, 8 month old Vivian, had been labeled by the state “feebleminded”.17 Similar to the aforementioned surgeons who preferred institutionalization to sterilization due to fear of litigation, in the Buck v. Bell, Dr. Albert Sidney Priddy intended to refrain from sterilizing Buck until the Virginia sterilization law received affirmation from the Supreme Court. 18 The Virginia Supreme Court upheld the sterilization statute and the United States Supreme Court agreed to hear the case. In the case, Irving Whitehead, representing Carrie Buck, argued that the Virginia statute denied Buck equal protection under the 14th Amendment because it arbitrarily classified mentally ill individuals to a distinct and separate class from the population at large and governed mentally ill persons differently than other individuals.19 Strode, the author of the Virginia sterilization statute, defended the Virginia law to the Supreme Court.20 He argued that the law provided the “feebleminded” with the procedural safeguards guaranteed under the due process clause of the 14th Amendment and that states have police power to control the “multiplication of socially inadequate defectives”. 21 Strode also reasoned that the Virginia plan for sterilization of all “feebleminded” complied with equal protection because the state intended to sterilize and release mentally ill persons from institutionalization, thus allowing space admit other mentally ill persons to these institutions to be sterilized. Eventually, the state !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 15

Lombardo, Paul. Three generations, no imbeciles : eugenics, the Supreme Court, and Buck v. Bell. Baltimore : Johns Hopkins University Press, 2008, 102. 16 Ibid., 140. 17 Ibid., 106.! 18 Lombardo, Paul. Three generations, no imbeciles : eugenics, the Supreme Court, and Buck v. Bell. Baltimore : Johns Hopkins University Press, 2008, 102. 19 Buck v. Bell, 274 U.S. 200 (1927). Case as reprinted in course packet page 72. 20 Ibid., 151. 21 Ibid., 151.!

! Volume!I!Issue!II!!!Spring!2012!

Domestic$Law$ could use other Virginia laws to direct “defectives” into mental institutions and, by serial admission, sterilize every mentally ill person covered by the statute, thus applying equal protection to mentally ill individuals.22 Justice Oliver Wendell Holmes, Jr., speaking on behalf of the Court in a 7-1 decision, endorsed Strode’s claims and upheld the Virginia statute and the state’s police power.23 Only Justice Butler silently dissented.24 Holmes rejected Whitehead’s equal protection legal logic and asserted, “But it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort”. 25 By tagging Whitehead’s argument as a “last resort,” Holmes mocks the lawyer’s equal protection claim.26 Holmes’ mockery represents the Court’s overall agenda during the era, which was to promote and protect the economic wellbeing of the United States over the liberties of the individual citizen. Between Buck v. Bell in 1927 and Skinner v. Oklahoma in 1942, the Court’s agenda shifted to uphold the liberties of the individual citizen with regards to sterilization. The shift was a result of the constitutional revolution of 1937 and the ensuring changes to the Court and the eugenic campaign emerging under Hitler’s reign. The sequence of events that lead to the constitutional revolution in 1937 can be traced back to the period between January 7th, 1935 and May 25th, 1936 wherein the Supreme Court voided more than a dozen of Franklin Delano Roosevelt’s New Deal laws.27 The following November, Roosevelt won the presidency by a landslide and he perceived his win as the American citizenry’s endorsement of the New Deal. Roosevelt responded to the Court’s voids by threatening to “pack the court” in 1937.28 Soon after, by beginning to uphold pieces of the New Deal,, the Court acted to preserve its institutional legitimacy and to save its constitutional structure. Moreover, the justices agreed to give deference !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22

Ibid., 152. Buck v. Bell, 274 U.S. 200 (1927). Case as reprinted in course packet page 73-75. 24 Buck v. Bell, 274 U.S. 200 (1927). Case as reprinted in course packet page 75. 25 Buck v. Bell, 274 U.S. 200 (1927). Case as reprinted in course packet page 73-75. 26 Lombardo, Paul. Three generations, no imbeciles : eugenics, the Supreme Court, and Buck v. Bell. Baltimore : Johns Hopkins University Press, 2008, 170.! 27 Nourse, Victoria. In reckless hands : Skinner v. Oklahoma and the near triumph of American eugenics. New York : W. W. Norton & Co., 2008, 114. 28 Ibid., 115. 23

! Volume!I!Issue!II!!!Spring!2012!

The$Equal$Protection$Clause$with$a$Bite$ ! to the legislature to determine whether or not the laws were constitutional.29 After the Court gave deference to the legislature, it assumed a new role in the political system, inspired by the Justice Stone’s Carolene Product’s Footnote Four: protecting individual liberties. 30 In this vision, the Court aimed to apply the 14th Amendment’s Equal Protection Clause to defend the rights of minorities over politically and socially powerful majorities in the United States. The new judicial agenda, coupled with Hitler’s eugenic campaign in Germany, provided the grounds for Justice Douglas’s extension of the Equal Protection Clause and establishment of “strict scrutiny” in the majority opinion in Skinner v. Oklahoma. Roosevelt’s court packing ploy for greater executive power at home frightened the Court and American citizens alike because it faintly resembled the expansion of Hitler’s authority in Germany. Meanwhile, in Germany, Hitler pushed massive eugenic policies. For example, the Hitler Youth Handbook claimed that Aryans were the superior race and that racial inferiority was based in genetics.31 Hitler’s eugenic campaign rhetoric echoed Justice Holmes’ majority decision in Buck v. Bell, haunting the United States. “The great racial troops of eugenics, the sticky traits of unmanliness, excessive sexuality, and animality had been turned on America itself”.32 Sterilization still held great popular support in the United States amongst citizens in the late 1930s and, even those who objected to its practice did not see reproductive regulation of “unfit” individuals “as a matter of right and fundamental human dignity”.33 Nevertheless, American scientists rejected Hitler’s claim that racial inferiority was genetic In December 1938, they signed a manifesto defending democracy and denying a scientific basis for racial inferiority.34 Even American eugenicists issued more moderate stances, supporting “democratic eugenics” as a means to distance themselves ideologically from Hitler’s massive eugenic scheme.35 Only fifteen years after the Buck decision, the Supreme Court agreed to hear

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 29

Ibid., 120. Ibid., 120.! 31 Ibid., 129 32 Ibid., 129. 33 Nourse, Victoria. In reckless hands : Skinner v. Oklahoma and the near triumph of American eugenics. New York : W. W. Norton & Co., 2008, 123. 34 Ibid., 119. 35 Ibid., 129. 30

! Volume!I!Issue!II!!!Spring!2012!

Domestic$Law$ Skinner v. Oklahoma to readdress the constitutionality of American sterilization statutes. The defendant in Skinner v. Oklahoma, Jack Skinner, committed three crimes before he was tried under the Oklahoma’s Habitual Criminal Sterilization Act of 1935. The Act held that men who committed three or less crimes were non-habitual criminals, while men who had committed three or more crimes were habitual criminals. 36 Skinner’s lawyer, Guy Andrews, argued that the habitual v. non-habitual criminal classifications were arbitrary and thus the Act violated the Equal Protection Clause of the 14th Amendment. 37 As mentioned earlier, the constitutional revolution of 1937 allowed the legislative greater leverage in determining the constitutionality of the laws. Justice Stone wanted to reestablish the recently undermined position of the Court following the revolution and he found the Court’s new role in Footnote Four. 38 Accordingly, Justice Douglas wrote the majority opinion for Skinner in which the Court overturned the Oklahoma statute and established “strict scrutiny”.39 Strict scrutiny was the highest tier of scrutiny; it was used to provide equality of protection for individuals similarly situated with regards to political issues and fundamental rights for “discrete and insular minorities”.40 Justice Douglas used “strict scrutiny” to justify Andrews’ equal protection claim, “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination”. 41 Justice Douglas also deemed the law unconstitutional on equal protection grounds because the Oklahoma statute arbitrarily classifies criminals between larceny and embezzlement crimes and applies different punishment to each criminal faction. Justice Jackson concurred with Justice Douglas, furthering the Court’s protection of minority rights:

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 36

Ibid., 140.! Ibid., 140. 38 Ibid., 142. 39 Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942). Case as reprinted in course packet page 95-98. 40 HIST 152 class notes October 13th, 2011 41 Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942). Case as reprinted in course packet page 97.! 37

! Volume!I!Issue!II!!!Spring!2012!

The$Equal$Protection$Clause$with$a$Bite$ ! There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority- even those who have been guilty of what the majority define as crimes.42 Justice Douglas’s formation of “strict scrutiny” and Justice Jackson’s concurrence proved the influence of the constitutional revolution of 1937 on sterilization law in preserving individual liberties. In addition, the impact of Hitler’s eugenics campaign was shadowed in the majority opinion, which stated that “the power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear”. 43 In this international statement, the Court criticized Hitler’s eugenic campaign and rejected the notion of “massive” eugenics in the United States. In 1942, in the aftermath of the 1937 constitutional revolution and in the midst of Hitler’s eugenic operation, the Supreme Court banned states’ sterilization of criminals in Skinner v. Oklahoma. “Strict scrutiny,” the precedent set forth in Skinner v. Oklahoma, is now a standard of judicial review central to constitutional law and the Court itself.44 The Court has since for used “strict scrutiny” in cases involving affirmative action, gender equality, and race discrimination. 45 In the time of Buck v. Bell, the Court prioritized the wellbeing of society at large and state police power. However, as a result of Hitler’s eugenic ideology and the constitutional revolution and Footnote Four, the Court ruled in Skinner v. Oklahoma in line with individual’s rights and minority interests. !

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42

Ibid., 98. Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942). Case as reprinted in course packet page 96. 44 Nourse, Victoria. In reckless hands : Skinner v. Oklahoma and the near triumph of American eugenics. New York : W. W. Norton & Co., 2008, 159. 45 Ibid., 159.! 43

! Volume!I!Issue!II!!!Spring!2012!

10!

Domestic)Law) Fundamental Rights: Should Personal Liberties Gain Preferential Treatment over Economic Liberties in the Eyes of the Supreme Court?

Charlotte Rose Young Knox College

Abstract: This paper takes an in-depth look at the Supreme Courtâ&#x20AC;&#x2122;s treatment of the non-enumerated right to privacy in comparison to the enumerated economic liberties. By examining what a fundamental right consists of and how these fundamental rights were incorporated for the direct benefit of the people, this paper analyzes how the rule of fundamental laws have affecting the application of the non-enumerated right of privacy. Additionally, the lack of Supreme Court adherence to strict scrutiny requirement of a fundamental right with economic liberties proves that the Court grants preferential treatment for non-enumerated personal liberties over the actual fundamentally enumerated economic liberties. Introduction Many people believe that the Bill of Rights was originally applicable to the citizens of the statesâ&#x20AC;&#x201D;this is not the case. The purpose of the Bill of Rights was to protect the states from the power of a strong national government; however, over time, these rights were gradually incorporated via the Fourteenth Amendmentâ&#x20AC;&#x2122;s Due Process Clause. Through differing methods of incorporation, the Supreme Court ruled that certain rights included in the Bill of Rights were to be granted to the citizens of the States without any infringement by federal and state governments. The rights that were incorporated into the states from the Bill of Rights were deemed necessary by Supreme Court cases because they were found to be rights that protected fundamental liberties. Although each fundamental right holds significant power, the Supreme Court has historically given more preference and attention to fundamental rights dealing with personal privacy liberties as opposed to fundamental rights dealing with economic liberties.

! Volume!I!Issue!II!!!Spring!2012!

11!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! Due Process There is a hierarchy of Constitutional liberties and rights within the Bill of Rights.1 At the top are the fundamental rights: these rights “enjoy more dignity than others, that some have a higher rank than others and deserve a greater degree of vigilance and protection than others.”2 The roots of these fundamental rights are not only found in previous Supreme Court opinions, but also in many other documents—the Magna Carta, the Constitution, and English Common Law—that help illuminate the legal history of the United States. Through the review of these documents, the Supreme Court Justices are able to determine whether a right has strong ties to the history and traditions of America. Fundamental rights are incorporated to the states through the due process clause of the Fourteenth Amendment: “…nor shall any State deprive any person of life, liberty or property, without due process of the law…”3 The Justices first look for guidelines to the definition of procedural due process within the Fourteenth Amendment when deciding if the right is fundamental; additionally, the Due Process Clause also ensures that the state respects all the proper legal procedures/rights that are awarded to a person. Justice Curtis sought to define “due process of the law” because the Constitution “…contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it [should] be due process.”4 Because there are no guidelines for due process, the Constitution leaves unanswered the question of how the Supreme Court should determine what constitutes due process. In the case Murray’s Lessee v. Hoboken Land & Improvement Company,5 Justice Curtis laid out a framework to answer this question: “…the process (to defining due process) must be twofold. We must examine the Constitution itself to see if the process is in conflict with any other provisions…We must look to those settled usages any modes of proceeding existing in the common and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Justice Felix Frankfurter felt that all rights in the Constitution should be “equally respected…and the function of the Court does not differ in passing on the constitutionality of legislation challenged under different Amendments.” His view was in contrast to the view of the Court when later a hierarchy of rights was established. Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. New Brunswick, New Jersey: Transaction Publishers, 2001. (pg1,2) 2 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 2) 3 Sullivan & Gunther, Constitutional Law, 17th ed., s.v. 2010 (pg 364) 4 Sullivan & Gunther, Constitutional Law 2010 (page 363) 5 Murray’s Lessee v. Hoboken Land & Improvement Company 59 U.S. 272 (1856).

! Volume!I!Issue!II!!!Spring!2012!

12!

Domestic)Law) statute law of England.”6 Using the same process that Justice Curtis described, the Supreme Court Justices take the right in question and look back to the Constitution, the Magna Carta, and some English Common Law in order to determine if the right is “deeply rooted in United States history and traditions.”7 If after review the right is found to meet these qualifications, then it is fundamental; at this point neither the federal nor the state governments are permitted to intervene. Fundamental Rights For the first time in 1931 the Supreme Court held a state statute unconstitutional because it violated the First Amendment freedom of speech in the case Stromberg v. California; 8 however, the Supreme Court did not create a formulated doctrine of fundamental rights until 1937.9 This doctrine allowed rights and liberties from the Bill of Rights to be tested and then accepted or rejected as fundamental rights. Under the doctrine, once a right is accepted as fundamental and incorporated to the states, the right is “enforced as a Constitutional guarantee against the states.”10 This doctrine solidifies the fundamental rights hierarchical position among the other rights. It was not always clear that the Bill of Rights contained fundamental rights. Originally, there was no establishment of a hierarchy of rights and liberties. Before the official incorporation of the first fundamental rights, Justice Harlan delivered several dissenting opinions in both 1884 and 1908 in which he claimed that “…procedural guarantees provided in the Bill of Rights as applicable to crimes against Federal law should be equally applicable to crimes against State law, under the Due Process Clause of the Fourteenth Amendment.”11 Justice Harlan’s dissents helped pave the way for the Supreme Court’s incorporation of a fundamental right in 1925 with the case Gitlow v. New York.12 In this decision, the Supreme Court stated that the “freedoms of speech and press are among the fundamental personal rights and liberties protected by the Due !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6

Sullivan & Gunther, Constitutional Law 2010 (pg 364) He does this by stating “The words, ‘due process of the law,’ were undoubtedly intended to convey the same meaning of the words ‘by the law of the land’ in the Magna Charta. Ibid.(pg 363) 8 Stromberg v. California, 283 U.S. 359(1931). 9 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 12) 10 Ibid. (pg 13) 11 Ibid. (pg 12) 12 Gitlow v. New York, 260 U.S. 652 (1925). Found in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 12) 7

! Volume!I!Issue!II!!!Spring!2012!

13!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! Process Clause of the Fourteenth Amendment,”13 and it was with these comments that the ideas supporting incorporation of fundamental rights began. Incorporation Incorporation and fundamental rights are interlinked because the process of incorporation is crucial for enforcing the importance of fundamental rights. If fundamental rights were not incorporated, then it would make the rights less powerful, because they would no longer bear the authority of protecting the citizens from both federal and state government intervention. Likewise, there would be no protection for the crucial rights of the citizens of the states. Despite the importance of incorporation, not all justices held the same ideas on the implementation of fundamental rights to the states. The methods of absorption and total incorporation are the main methods that were expressed in both the majority and dissenting opinions handed down in cases after the 1925 Gitlow decision.14 Issues of Incorporation Justice Cardozo’s opinion in Palko v. Connecticut15 highlighted the idea that fundamental rights hold a higher place among other rights. Although the decision in this case did not incorporate any right, Justice Cardozo created a principle to the doctrine of fundamental rights which played an important role in the Supreme Court’s future jurisprudence. 16 Justice Cardozo stated that those rights which are fundamental “represent the very essence of a scheme of ordered liberty…principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”17 This principal established the test of determining if certain rights are fundamental through the analysis of history. Although the Supreme Court held that the Double Jeopardy guarantee of the Fifth Amendment was not so crucial to the American form of liberty that it was deemed fundamental, Justice Cardozo’s opinion agreed that First Amendment rights were fundamental. Justice Cardozo stated that governments should !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13

Ibid Ibid 15 Palko v. Connecitucit 302 U.S. 319 (1937) 16 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 13) 17 Justice Cardozo as quoted in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 13) 14

! Volume!I!Issue!II!!!Spring!2012!

14!

Domestic)Law) not violate those “…fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”18 In Palko, Justice Cardozo also explained the method of absorption. This method states that certain rights will be absorbed naturally into the Due Process Clause of the Fourteenth Amendment not because they are rights within the Bill of Rights but because they are rights that are deemed “so fundamental that they must be held to be incorporated and …are binding on the states.”19 This definition goes back to the fact that the Bill of Rights was not originally indented to safeguard the people but rather the states. Justice Cardozo’s method of absorption reiterates that the fundamental aspect of a law is derived instead because it is naturally fundamental and not because it is stated in the Bill of Rights. Of course, this method leaves one to question the level of subjectivity within the decision to incorporate or not to incorporate. Justice Cardozo’s process of absorption for incorporation was not left unopposed. In a later case, Adamson v. California,20 Justice Black conveyed the process of total incorporation in his dissenting opinion. As in Palko, the Supreme Court did not find the right in question to be fundamental; therefore, it did not warrant incorporation. Justice Black dissented arguing that “…the adoption of the Fourteenth Amendment was historically intended to make applicable to the States each and every one of the first eight Amendments.”21 He believed that the entire Bill of Rights should be incorporated to the states because using either selective incorporation or the process of absorption22 would lead to “judicial usurpation.” 23 He did not find “historical or constitutional warrant…for the (Supreme) Court’s practice of substituting its own notions of decent and fundamental justice, its own version of natural law and natural rights, for the language of the Bill of Rights.”24 Justice Black believed that the Constitution does not !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 18

Ibid. Ibid. 20 Adamson v. California 332 U.S. 46 (1947). 21 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 14) 22 Although total incorporation and absorption are the main methods there is also the method of selective incorporation. This method states that the justices should look back to the Bill of Rights in order to tell if the right is fundamental. Many total incorporationists and absorptionists criticized this method because it was seen as subjective because it was up to the justices’ different interpretation and views on the Bill of Rights in order to tell if the right was fundamental. For the purposed of this paper I combine selective incorporation and absorption under the method of absorption because this method was more widely debated. 23 Ibid. 24 Ibid. 19

! Volume!I!Issue!II!!!Spring!2012!

15!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! support the practice of only certain rights found to be fundamental to the people. He found all other methods of incorporation to be subjective; instead, Justice Black thought it more fair to spare the subjective decisions of what is deemed fundamental and incorporate all the rights included in the Bill of Rights. Analysis of Incorporation On the surface, total incorporation seems to be the best option because it eliminates the biases of the justices; however, some questioned Justice Blackâ&#x20AC;&#x2122;s view of total incorporation for its limitations on the Fourteenth Amendment. A few dissenting opinions that concurred with Justice Black also feared that this method would subject the Fourteenth Amendment to a confining definition. Some feared that if total incorporation were to occur via the Fourteenth Amendment then it would make the amendment limited to what is found only within the first eight amendments of the Bill of Rights.25 By forcing the Fourteenth Amendment to apply only to the first eight amendments, the true purpose of the Civil War Amendment would be diluted and possibly lost. Although each method of incorporation deals with protecting fundamental rights, the methods are different in their approach and treatment of what rights are deemed fundamental. Strict Scrutiny The test of strict scrutiny is an important aspect of fundamental rights because this test is applied to legislation that intervenes with fundamental rights. In this test, the burden of proof is placed on the state in order to show that the interest for the state to regulate the fundamental liberty is so great that it overrides the fundamental right that has been infringed upon. This test is used in evaluating laws that restrict fundamental rights because it is important that the interest is proven to be so great that it warrants a restriction on rights that are otherwise protected from federal or state intervention. On the other hand, the mere rationality test is a test that is normally used in conjunction with legislation that deals with non-fundamental rights. Unlike the strict scrutiny test, the mere rationality test calls for any state interest that is not compelling to uphold the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 25

Ibid.

! Volume!I!Issue!II!!!Spring!2012!

16!

Domestic)Law) legislation in question.26 Because strict scrutiny is only applied in cases dealing with fundamental rights, “it is the test of strict scrutiny that gives advantage to the fundamental rights as distinguished from claims that are not fundamental rights.”27 The strict scrutiny test stems from a question that was proposed by both Justice Brandeis and Justice Holmes: what is the extent of liberty in relation to the Due Process Clause and to what level is a state able to restrict certain fundamental rights?28 Justice Stone explains guidelines for strict scrutiny and its proper usage within his famous footnote in United States v. Carolene Products Co.29 He states that “…legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, [may] be subjected to more exacting judicial scrutiny…”30 The main emphasis of the footnote was to guide the Supreme Court in those cases in which it should defer to state legislation. This footnote exemplifies the hierarchy of rights which establishes that fundamental rights require more rigid restrictions in order to prove that a statute is narrowly tailored and the interest is so compelling that it necessitates the violation of the people’s fundamental rights. Justice Stone’s famous footnote helped demarcate the boundaries for many other cases that dealt with the question of when to use the strict scrutiny test. Background on the Right to Privacy Many rights, such as the right to privacy, have been derived from established fundamental rights. The right to privacy is not enumerated in the Constitution; however, it has been justified by the liberty in the Due Process Clause of the Fourteenth Amendment. The development of the right to privacy faced much opposition. In the case Twining v. New Jersey, 31 Justice Moody’s majority opinion hinted at future Constitutional leeway for personal non-enumerated liberties: “…it is possible that some of the personal rights safeguarded by the first eight amendments against national action may also be safeguarded against state actions, because a denial of them would be a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26

These definitions are well known for the topic of fundamental rights; however, they were also solidified in Constitutional Law II class with Professor Sunderland. 27 Ibid. (pg 17) 28 Ibid. (pg 16) 29 United States v. Carolene Products Co. 304 U.S. 144 (1938). 30 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 17) 31 Twining v. New Jersey 211 U.S. 78 (1908)

! Volume!I!Issue!II!!!Spring!2012!

17!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! denial of due process…[This assertion is so] because they are of such a nature that they are included in the conception of due process of law.”32 Although this 1908 decision of the Supreme Court did not find the right against self-incrimination fundamental within the Fifth Amendment, the majority opinion would be of a certain importance in the future cases when the Supreme Court began to rationalize personal liberties as fundamental rights. Justice Moody’s support in Twining for non-enumerated rights helped shape the Supreme Court’s decision fifteen years later in the case Meyer v. Nebraska. 33 As Konvinz suggests, the legal question addressed in this case does not deal with enumerated rights in the Bill of Rights, but rather with certain derivatives of the liberty guarantee. The Supreme Court listed a few categories in which the liberty clause extends: freedom from bodily restraint, the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and to generally enjoy “the privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”34 In the case of Meyer v. Nebraska,35 the Supreme Court ruled that the statute interfered with the right to engage in any occupations of life, the right to acquire useful knowledge, and the right to establish a home and bring up children.36 With the Meyers decision, the Supreme Court began the eventual search for the right to privacy via the Due Process Clause of the Fourteenth Amendment. In the 7-2 decision, the Court officially ruled in favor of including certain personal fundamental rights within the liberty guarantee.37 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 32

Justice Moody’s majority opinion as quoted in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 61) 33 Meyers v. Nebraska 262 U.S. 390 (1923) 34 When listing a few things that the liberties section of the Due Process Clause, the Supreme Court did not want to make the list exclusive. The rights listed above are only ones that the Supreme Court deemed to be “without a doubt” applicable to the liberty guarantee. They are paraphrased from a list in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 62-63). 35 Milton R. Konvitz, author of Fundamental Rights: History of a Constitutional Doctrine, believes that the Supreme Court decision was leaning more towards the right of an individual to contract because the defendant had the right to “teach and the right of parents to engage him so to instruct their children”; however, the decision was more broad as to establish what was later considered the right to privacy (pg 63). 36 The Supreme Court’s majority opinion as quoted in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (page 63) 37 Ibid.

! Volume!I!Issue!II!!!Spring!2012!

18!

Domestic)Law) Later in the case Pierce v. Society of Sisters,38 the Supreme Court used the same rationale found in Meyers in order to grant other personal fundamental rights. The Court invalidated an Oregon state law that prohibited students from 8-16 years of age to attend private and parochial schools, holding that the statute violated the private institution’s property and contract interests.39 The Due Process Clause was given a great deal of power through the majority opinions in these cases, and because of this weight, it seems as though the clause has been given a “generative power to stand on its own without dependence on the specific liberties guaranteed by the Bill of Rights.”40 In Meyers and Pierce, the Court suggested something more significant in relation to personal/privacy rights—the Court embraced a non-enumerated right.41 The trend that Meyers and Pierce started continued to develop until the case Griswold v. Connecticut42 officially solidified the Supreme Court’s support for personal liberties by establishing the right to privacy through certain “penumbras.”43 In the Supreme Court’s majority decision, Justice Douglas pointed out “…the foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”44 Justice Douglas explained that the different guarantees of certain enumerated fundamental rights combine to create “zones of privacy.”45 For example, he stated that the First, Third, Fourth, Fifth, and Ninth Amendments all have penumbras that help to create the right to privacy. 46 Justice Douglas expressed that this right is “deeply rooted in American tradition and history,” and fit some of the requirements of a fundamental right. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 38

Pierce v. Society of Sisters 268 U.S. 510 (1925) Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 63) 40 Ibid. (pg 65) 41 It is important to note that in neither of these cases “the Court based its decision on any ‘letter’ of the Constitution, except the concept of ‘liberty,’ as the term is used in the Due Process Clause.” Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 64) 42 Griswold v. Connecticut 381 U.S. 479 (1965) 43 This right was also known as the “right to be let alone” but it stems from the right to privacy. For this reason it is recognized as both in other texts. The term “penumbras” was coined by Justice Douglas as a way of describing a privacy right as a derivative from the “penumbras” (shadows) that stem from other enumerated rights. Leahy, James E. Liberty, Justice, and Equality: How These Constitutional Guarantees Have Been Shaped by the United States Supreme Court Decisions Since 1789. Jefferson, North Carolina: McFarland & Company Inc., 1992. (pg 19) 44 Justice Douglas as quoted by Leahy, James E. Liberty, Justice, and Equality (pg 20) 45 This terminology comes from Justice Douglas’s opinion in the case Griswold v. Connecticut 381 U.S. 479 (1965). Sullivan & Gunther, Constitutional Law. 2010 46 Leahy, James E. Liberty, Justice, and Equality (pg 20) 39

! Volume!I!Issue!II!!!Spring!2012!

19!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! The decision by Justice Douglas in Griswold was both praised and criticized. Justices Goldberg, Brennan, and Chief Justice Warren agreed with the decision; however, these Justices held that the opinion should not simply rest on penumbras of the first eight amendments because the Ninth Amendment “expressly recognizes there are fundamental personal rights such as this one which are protected from abridgement by the Government even if they are not specifically mentioned in the Constitution.”47 Through this statement the Justices hinted at upholding a non-enumerated right as fundamental. On the contrary, Justice Black48 and Stewart argued that the right to privacy was neither applicable nor fundamental because no wording in the Constitution protected a right to privacy. Although ill feelings surrounded the Supreme Court’s creation of a nonenumerated right in Griswold, the new right, the right to privacy, was upheld again in Roe v. Wade49 which only further solidified the right’s protection under the Due Process Clause. The Supreme Court invalidated Texas laws prohibiting abortions because the Court found that they violated a woman’s right to terminate her pregnancy. As in Griswold, the Supreme Court concluded that, “[Roe] would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause; or in person by the Bill of Rights or its penumbras….”50 The majority opinion in Roe was not fully embraced. Justice Rehnquist dissented from the majority stating that “…liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law.”51 Instead of deciding if the statutes violated the woman’s newfound right, Justice Rehnquist found that the statute’s government goals were legitimate. 52 Despite the dissenting opinions, the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47

Ibid. (pg 21) The Ninth Amendment also reiterates the point that the Supreme Court enforced since the Meyers and Pierce cases. Both the Court and the Ninth Amendment state that some fundamental rights do not have to be enumerated in the Constitutional, but yet they are still fundamental because they uphold essential and fundamental liberties that the federal and state governments are not able to inflict upon. 48 It is interesting that Justice Black was an advocate for total incorporation of all of the Bill of Rights, but in Griswold he did not find the right fundamental. This is because in his belief of total incorporation Justice Black only stressed the rights already enumerated within the Bill of Rights to be incorporated—not the incorporation of any other non-enumerated rights. Ibid. 49 Roe v. Wade 410 U.S 113 (1973) 50 Leahy, James E. Liberty, Justice, and Equality (pg. 22) 51 Ibid. (pg 23) 52 Ibid. Justice White also delivered a dissenting opinion in which he reiterated what the dissenters stated in Griswold. He held that there was nothing in the language of the Constitution to enforce the right to privacy. In many cases dealing with privacy rights in the future this was the main concern by many dissenters.

! Volume!I!Issue!II!!!Spring!2012!

20!

Domestic)Law) majority decision in Roe helped advance the personal/privacy rights that were upheld starting with Meyers and continued with other cases including Webster v. Reproductive Health Services53 and Planned Parenthood of Southwestern Pa. v. Casey.54 Analysis of the Right to Privacy In the previously discussed cases, the Supreme Court discovered and upheld a non-enumerated right; however, there was much controversy that arose in these cases because the Supreme Court decisions continued to “promote democratic freedoms that were protected but not explicitly stated in the Constitution.” 55 Justices Black and Stewart agreed that “There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.”56 Despite their acceptance that specific provisions may lead up to the protection of privacy, the Justices dissented because “…the Court talks of a Constitutional ‘right of privacy’…But I think it belittles that Amendment [the Fourteenth Amendment] to talk about it as though it protects nothing but ‘privacy.’”57 The Justices suggested that it was dangerous to include privacy in the Fourteenth Amendment because it would “…dilute or expand a Constitutional guarantee. ‘Privacy’ is a broad and ambiguous concept which can easily be reduced in meaning but which can also easily be interpreted as a constitutional ban against many things other than searches and seizures.”58 Justice Black and Stewart pointed out that although a right may be derived from certain penumbras, the right to privacy was not a fundamental right. They embraced the right of the government “…to invade it [privacy] unless prohibited by some specific constitutional provision,”59 and in this case, Justices Black and Stewart did not feel as though the Supreme Court should prohibit the right of the government to invade privacy. The Supreme Court’s support of the right to privacy faced opposition. Justice White did not support the right reaffirmed in Roe, saying: “I find nothing in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53

Webster v. reproductive Health Services 492 U.S. 490 (1989) Planned Parenthood of Southeastern Pa .v. Casey 505 U.S. 833 (1992) 55 Sullivan & Gunther, Constitutional Law 2010 (pg 433) 56 Ibid. (pg 433) 57 Ibid. 58 Ibid. 59 Ibid. (pg 434) 54

! Volume!I!Issue!II!!!Spring!2012!

21!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! language or history of the Constitution to support the Court’s judgment.”60 He felt as though “The Court simply fashion[ed] and announce[d] a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invested that right with sufficient substance to override most existing state (abortion) statutes.”61 Justice White did not think that the right to privacy should extend to pregnancies let alone be upheld as fundamental because it lacked roots within the rights of the Constitution. Background on Economic Liberties Unlike the right to privacy, economic liberties are rights that are enumerated in the Constitution and have been incorporated to the states.62 The Fifth Amendment of the Constitution states “…[that] private property [should not] be taken for public use, without just compensation.”63 Justice Black listed this as a right that the Supreme Court had found to be “…of fundamental nature that is guaranteed by the Bill of Rights and therefore made immune from State invasion by the Fourteenth Amendment.”64 Because the last clause of the Fifth Amendment was always stated in the Constitution, “there was no ‘discovery’ of this right unlike with the right to privacy.” In the past, the Takings Clause was upheld in cases where land was taken from private owners for some sort of public use (which is a requirement) such as railroads, schools, and highways. For example, “In the mid-1950’s, the Supreme Court held that takings were for public use when they were intended to relieve various forms of urban ‘blight’.”65Also, in projects for cities that faced extreme economic hardships, the Takings Clause was applied in order to take rundown buildings and turn them into parks, schools, or other spaces that were clearly for the public use.66 In past cases that dealt with the last clause of the Fifth Amendment, the Supreme Court upheld the state legislation because the circumstances !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60

Ibid. (pg 440) Ibid. 62 The economic liberties are fundamental because they were the first provision of the Bill of Rights to be applied to the states in 1987. 63 United States Constitution in Sullivan & Gunther, Constitutional Law 2010 (pg A-9) 64 Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 69-70) 65 In Kelo the land was taken but Susette Kelo’s home was not considered part of the urban “blight” but instead it was in good condition. Epstein, Richard A. "Supreme Folly." The Wall Street Journal, June 27, 2005. Accessed April 26, 2011. http://online.wsj.com/article/0,,SB111982975240969952,00.html. 66 Ibid. 61

! Volume!I!Issue!II!!!Spring!2012!

22!

Domestic)Law) fell under case precedent and fit the requirements of just compensation and public use; however, after the New Deal Legislation, the Court began a new trend that lent a broader interpretation of the purpose clause.67 Kelo v. City of New London68 is an example in which the Supreme Court upheld the Takings Clause under shaky circumstances by deferring to state legislation. In 1990, after years of extreme economic issues, the City of New London was designated as a “distressed municipality.”69 The Supreme Court upheld the New London Development Corporation’s plan to help boost the economy of the City of New London. This plan involved taking land and homes, some of which were in good condition, 70 and designating part of the land for a $10 million Trumbell State Park project and the other part for a $300 million contract with Pfizer for the construction of a research institute.71 The Supreme Court refused to “…adopt a new bright-line rule that economic development does not qualify as public use” holding that “promoting economic development is a traditional and long accepted function of government…and the government’s pursuit of a public purpose will often benefit individual private parties.”72 Despite Susette Kelo’s fight, the Supreme Court favored the state legislation for the greater public benefit opposed to Susette Kelo and other homeowners private benefits. Analysis of Economic Liberties There was much controversy surrounding the decision of Kelo because it established a new definition for the “public use” requirement. Past cases involving the Takings Clause for the construction of railroads, schools, and highways are clear examples of projects that were meant for the purpose of public use. In order to use a phrase more fitting for the Supreme Court’s holding, the Justices redefined the idea of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 67

James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992). (pg 119) 68 Kelo v. City of New London (545 U.S. 469 2005) 69 This is the terminology that is used to classify the City of New London in the background information for the case. Sullivan & Gunther, Constitutional Law 2010 (pg 401) 70 The fact that Susette Kelo’s home and others was in good condition adds an interesting dynamic to this case because in the past it was usual for the Supreme Court to take homes that were run down because they were a part of the cause for the city’s poor economy; whereas, in this case the Court still took these sturdy homes even though they were not making New London’s economy worse. Reference footnote 69 for more information on “urban blight.”(Professor Sunderland’s Con Law II class discussions) 71 Sullivan & Gunther, Constitutional Law 2010 (pg 401) 72 Ibid. (pg 403)

! Volume!I!Issue!II!!!Spring!2012!

23!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! public use as public purpose.73 Similarly, the Supreme Court felt that although the Pfizer project was not a public company it would create new jobs for the people of the City of New London and help boost the economy—which was for the benefit of the greater public purpose. In the majority opinion, the Supreme Court stated “…it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.”74 This requirement is one that the Supreme Court has failed to adhere to strictly. For example, in the case Strickley v. Highland Boy Gold Mining Company,75 the Supreme Court “…embraced the broader…interpretation of public use as ‘public purpose’.”76 In many cases, the interpretation of public purpose opposed to public use did not directly benefit the people. Public purpose came to mean anything, no matter how loose of a connection, that in some way would benefit the public. In Kelo and many other economic liberties cases dealing with the Fifth Amendment after the New Deal legislation, the Supreme Court adopted a looser form of the public use requirement. The public purpose requirement tends to contradict the original intent of the Fifth Amendment Takings Clause. The Fifth Amendment—from which the Takings Clause stems— is a fundamental right, and given that a fundamental right requires strict scrutiny, unless specified otherwise by the Supreme Court, it would follow that strict scrutiny ought to be applied in cases like Strickley and Kelo in order to prove the compelling interest. This rationale does not occur in the decisions of the Court. If strict scrutiny were applied in Kelo, then it would force the Supreme Court to adhere to the original constitutional meaning of public use. Such scrutiny would eliminate the trend that the Court is following by embracing the term public purpose instead of public use. By adopting the broader requirement of public purpose, the Supreme Court strayed from seeking a compelling interest that would have surfaced with the use of strict scrutiny; instead, the Court supported a broader state interest !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 73

Although the decision did not say that the two terms were equal in meaning, the Supreme Court was attempting to substitute public purpose in for public use since the early 1900’s cases. This shift symbolizes the Court’s new take on the Takings Clause as we see here with a more modern case. 74 Ibid. (pg 401) 75 Strickley v. Highland Boy Gold Mining Company 200 U.S. 527 (1906). When the Fifth Amendment was applied to the states at the start of the 19th century “it endorsed the ‘use by public’ as the proper definition of public use;” however, this strict view loosened and eventually became public purpose. 76 Sullivan & Gunther, Constitutional Law 2010 (pg 402)

! Volume!I!Issue!II!!!Spring!2012!

24!

Domestic)Law) through the public purpose rationale. In other Takings Clause cases, the public use is obvious because it usually involves taking private land for primary use by the public. In the case of Kelo, the Supreme Court stretched the constitutional requirements in order to continue to defer to state legislation. Although the Supreme Court continued its long tradition of upholding state legislation in economic cases, the Court also embraced a dangerous precedent that allows the treatment of economic liberties cases to be subpar compared to other fundamental right cases. Among cases that involve both privacy rights and economic liberties, the Supreme Court tends to grant rights dealing with privacy more preference in comparison to rights dealing with economic liberties. As Kathleen Sullivan states, “The Court has withdrawn from careful scrutiny of most economic regulations but has increased intervention as to laws infringing privacy and other noneconomic personal interests not explicitly protected by the Constitution.”77 Richard Epistein wrote in the Wall Street Journal, “Justice John Paul Stevens held that courts, especially federal courts, should be hugely deferential to a government decision…to displace one private property owner in favor of a second private party in the name of overall economic development.” 78 In Kelo, Justice Stevens stated that the Supreme Court should defer to state’s economic legislation. State preference helps explain the Court’s failure to apply strict scrutiny in cases of economic liberties. When addressing economic liberties, the state legislation pertains to specific geographical areas, and the Supreme Court defers to the legislation because the state is more aware than the justices of the certain needs for the area. If the Court feels that states have better decision-making capabilities when dealing with the economic standpoint of a certain area, then it follows that the Supreme Court will make all opportunities to adhere to state legislation possible. For the Court in Kelo and Strickley, this means bypassing the Constitutional requirement of strict scrutiny for a less compelling interest presented through public purpose.79

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77

Ibid. (pg 384) Epstein, Richard A. "Supreme Folly." The Wall Street Journal, June 27, 2005. 79 Epstein mentions that in some cases the expansive reading of public purpose has been used for good takings of private property for “private purposes with indirect private benefits.” Ibid. 78

! Volume!I!Issue!II!!!Spring!2012!

25!

Fundamental)Rights:)Personal)vs.)Economic)Liberties) ! Conclusion There are many possible reasons for why the privacy rights are given preferential treatment. Among the top of these reasons lies the issue of enumeration. Going back to the decisions of Griswold and Roe, there were major concerns addressing the existence of the right to privacy. Griswold stated that the privacy right was not an enumerated right, but rather derived from different â&#x20AC;&#x153;penumbrasâ&#x20AC;? or rights that are fundamental in the Bill of Rights. The right to privacy is not specifically spelled out; therefore, there is more room for different interpretations of its true meaning, which creates more opportunities for conversation and debate as to what situations rightfully fall under the non-enumerated right. Although it is important for the Supreme Court to uphold the right to privacy, it is also critical for the Court to apply a more rigid interpretation of the requirements for economic liberties. Clear differences exist between privacy rights and economic liberties; however, the differences are not so great as to dictate the varying treatment in the Supreme Courtâ&#x20AC;&#x2122;s decisions on each of the two rights. As stated before, the Court applies strict scrutiny to privacy rights. Although this may seem odd because privacy rights are not specifically enumerated in the Constitution, the rights are still inherent and thus found to be fundamental by the Court. Even if the exact test of strict scrutiny is not applied in fundamental rights cases, it is imperative that a higher level of scrutiny be upheld. It is difficult to suggest constant adherence to one specific test for fundamental rights when the Court itself has had trouble maintaining a consistency in this regard. Although a new test, the undue burden test,80 is followed in Planned Parenthood of Southeastern Pa .v. Casey, this test still requires a higher level of scrutiny just like the strict scrutiny test. In the cases of economic liberties the Court should look to the decisions in privacy rights cases for an example of their continuous use of a higher level of scrutiny. It is detrimental to fundamental rights if the Supreme Court continues to move away from the Constitutional requirements towards the broader requirements that were upheld in Kelo. If this pattern progresses, one might start to wonder what !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 80

The undue burden test was first applied in the case of Planned Parenthood of Southeastern Pa .v. Casey. Unlike the test of strict scrutiny this test placed the burden of proof on the mother, instead of the state, to show that the statute violating a fundamental right placed an undue burden on the woman.

! Volume!I!Issue!II!!!Spring!2012!

26!

Domestic)Law) place economic liberties possess within the hierarchy of rights? Over time, the fundamental aspect of economic liberties will slowly decline and the rightâ&#x20AC;&#x2122;s importance will pale in comparison to other rights in which the Court continues to demand a narrowly tailored compelling interest. After examining the Supreme Courtâ&#x20AC;&#x2122;s opinions in cases dealing with privacy rights and economic liberties, it is clear that the Court grants privacy rights preferential treatment. This treatment stems from a number of different reasons including the fact that privacy rights are not enumerated but derived while economic liberties are clearly stated within the Constitution. Given the fact that both rights are deemed so fundamental that it is crucial that all humans are granted these rights without interference by the federal or state governments, it is important that the Supreme Court uphold the requirements of fundamental rights in cases dealing with each constitutional guarantee. !

! Volume!I!Issue!II!!!Spring!2012!

27!

Irish&Head&Shop&Drugs:&A&National&Headache& ! Irish Head Shop Drugs: A National Headache

Gil McDonald Indiana University

Abstract: In the past few years Ireland has experienced a dramatic rise and fall in the use of legal head shop drugs. By utilizing a legal loophole head shops were able to sell substances that were nearly identical to the chemical structure of ecstasy and cocaine. The sharp rise in the use these drugs led to a significant spike violent crime and hospitalized overdoses. Police and legislators quickly recognized the damaging effects these drugs had on society and moved to outlaw them with The Criminal Justice Act 2010.1 While this legislation did ban a number of substances, Irish head shops have begun selling new drugs by utilizing new legal loopholes. While the crime wave created by original head shop drugs has been put to an end, this new “second wave” of head shop drugs suggests that this is a game of cat and mouse that will continue for some time to come. In the past few years Ireland has had to deal with a unique legal and criminal predicament. The introduction and popularization of head shop drugs occurred in a relatively short period of time but resulted in many permanent social and legal ramifications for Ireland. The whole illicit drug market has changed as a result of these once legal drugs and their current prohibition. This essay gives a brief history of head shop drugs and their effects on the Irish population. As head shop drugs are a relatively recent phenomenon very little objective scientific investigation has been done on the subject. Therefore, this essay relies more on experts’ observations, news articles, case studies, and my own personal interviews. I found that utilizing these sources was the most effective way to weave together the social, criminal, and legal aspects of head shop drugs into one cohesive narrative.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Criminal Justice (Psychoactive Substances) Act 2010, 22 of 2010.

! Volume!I!Issue!II!!!Spring!2012!

28!

International&Law& ! Head shops existed in Ireland for quite some before the head shop drug epidemic. Originally, these shops offered products typically used in illegal activities but that were not actually illegal themselves. Typical merchandise has included rolling papers, pipes, and tools used in the cultivation of marijuana; the pivotal point being that head shops do not sell anything that could get the store into legal trouble. Although the consumer will likely use their products for illegal purposes, head shops operate fully within the constraints of the law. In 2002, Irish head shops began exploiting a legal loophole to legally sell magic mushrooms and other psychoactive edibles to customers. This was possible because these psychoactive edibles were not explicitly listed as controlled drugs under the Misuse of Drugs Acts of 1977 and 1984. This went on for some time before the government closed the loophole in 2006 after one man’s accidental death while using the legal hallucinogen. This was a relatively minor hiccup compared to the massive problem head shops have presented to Ireland in more recent years. After the outlawing of mushrooms there were a few years before “head shop drugs” exploded onto the scene. Again, head shops began exploiting legal loopholes to sell drugs that were chemically similar to ecstasy and cocaine but were not actually forbidden by law. Mushrooms and similar psychoactives had been banned after the Misuse of Drugs Acts were amended to declare them controlled drugs. However, this new wave of head shop drugs contained narcotics that were not explicitly listed by the Misuse of Drugs Acts and thus legal. Some of the drugs that fall into this catchall category are mephedrone, Spice (imitation cannabis), MDPV, and methylone. These drugs became popular with the middleclass youth of Ireland. This wealthy customer base made the sale of head shop drugs an extremely lucrative business during a time when most of the economy was hit hard by the recession. This surge in business caused an explosion in the opening of new stores. In 2008 only 5 head shops existed in Ireland but this number had risen to a startling 113 shops by 2010.2 In early 2010 these shops were actually opening up at the rate of one new shop every week.3 The business of head shop drugs was so lucrative at this time that many of these shops would stay open 24 hours a day to cater to the constant demand. On a Saturday night of 2010 an Irish TV !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2!El-Higaya,

Emam, Ahmed Mohamed, and Brian Hallahan. "Whack Induced Psychosis: A Case Series." Irish Journal of Psychological Medicine 28, no. 1 (2011): 11-13.! 3!Mullooly, Ciaran. "Dramatic increase in 'head shops' – RTÉ News." RTÉ Ireland's National Television and Radio Broadcaster. http://www.rte.ie/news/2010/0126/head.html (accessed July 26, 2011).!

! Volume!I!Issue!II!!!Spring!2012!

29!

Irish&Head&Shop&Drugs:&A&National&Headache& ! crew filmed the front of a 24-hour head shop and observed more than 400 customers in a two-hour period.4 While the head shops were technically operating within the confines of the law there were a number of criminal ramifications that occurred as a result of these legal drugs. The head shops effectively flooded the market with cheap drugs that customers trusted more than traditional street drugs. Users no longer had to interact with potentially dangerous drug dealers to buy drugs that had the same effects as cocaine and ecstasy. As a result, illegal street dealers had to drop their prices dramatically. This reportedly caused cocaine to be sold for as little as €10 per bag and MDMA to sell for as little as €3 per pill.5 Illegal drug dealers became furious at the head shops for taking their business and reacted violently. There were a number of cases of head shop arson, pipe bomb attacks; some illegal drug dealers actually went into stores and threatened the shop owners face-to-face. A head shop located near the Dublin Criminal Courts of Justice had to permanently close after it was maliciously set ablaze one night in February of 2010.6 After one of these cases of head shop arson the authorities found over half a million euros in cash stashed inside the burned down shell of a head shop.7 This discovery gives a small glimpse of the large amounts of profits that head shops were amounting as a result of head shop drugs. The explosion of head shop drugs also created a brand new class of narcotics user in Ireland. Some users developed a tolerance to orally ingesting the drugs and began developing new ways to smoke, snort and inject the drugs into their bodies.8 The drugs also caused a sharp increase in muggings and violent assaults. Chief Superintendent Pat Leahy said in an interview “teenagers who had never been in trouble with the law in the past were turned, in a matter of weeks, into violent criminals with a string of offences to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4

O'Clery, Conor. "Ireland's Head Shops under Attack." Tucson Sentinel. www.tucsonsentinel.com/nationworld/report/042810_headshops/irelands-head-shops-under-attack/ (accessed July 26, 2011). 5 Domhnaill, Sean O., and Caoimhe Ni Chleirigh. "Mephedrone and 'head/hemp' Shop Drugs: a Clinical and Biochemical 'heads Up'." Irish Journal of Psychological Medicine 28, no. 1 (2011): 1. 6 "Head shop destroyed in Capel Street fire - RT É News." RT É Ireland's National Television and Radio Broadcaster. http://www.rte.ie/news/2010/0212/dublin.html (accessed July 26, 2011).! 7 Domhnaill, Sean O., and Caoimhe Ni Chleirigh. "Mephedrone and 'head/hemp' Shop Drugs: a Clinical and Biochemical 'heads Up'." Irish Journal of Psychological Medicine 28, no. 1 (2011): 2. 8!Domhnaill, Sean O., and Caoimhe Ni Chleirigh. "Mephedrone and 'head/hemp' Shop Drugs: a Clinical and Biochemical 'heads Up'." Irish Journal of Psychological Medicine 28, no. 1 (2011): 1.!

! Volume!I!Issue!II!!!Spring!2012!

30!

International&Law& ! their name.” 9 The one most commonly associated with violent street attacks is mephedrone. A stimulant belonging to the amphetamine drug class, mephedrone has been sold under many different brand names including Snow Blow, Recharge, and Diablo XXX. There have not been many scientific studies done on substances like mephedrone but it has been shown that its side effects include anxiety, paranoia, and disinhibition.10 This state of mind coupled with the highly addictive nature of head shop drugs has led users to do anything to get their next fix, including committing violent robberies. I had a chance to see these effects first hand while working at Terence Lyons & Co Solicitors firm located in Dublin, Ireland. While I have come across a number of cases involving head shop drugs and assault, the case of Jane Doe is perhaps the most striking (Jane Doe’s name has been changed for privacy reasons). Jane is a young woman who had not committed any violent offenses before she began taking head shop drugs. She quickly became addicted to the drugs and spent all of her time and money trying to her next legal high. When I met her, Jane was in Dóchas Prison serving a sentence for theft and assault. Jane had stolen a couple of cell phones from two girls she saw sitting at an outdoor cafe. During our interview she admitted that she stole these phones so that she could sell them and purchase head shop drugs with the profits. When the girls chased Jane to get their phones back Jane brandished a syringe and threatened to prick them if they did not walk away. Jane later admitted that the syringe was filled with head shop drugs that she planned on injecting intravenously. She was convicted of robbery and of assault using the syringe. It is a sad story but there have been a number of crimes like this that occur simply because people, like Jane Doe, have become enslaved to these head shop drugs. This surge in crime had an effect on most parts of Irish society; the Guardia had to spend more time dealing with violent assaults, average citizens became fearful of the streets, and solicitors firms had a huge influx of cases involving these head shop drugs.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9!Reilly,

Jerome. "Head-shop drugs blamed for huge upsurge in teen violence and muggings - National News Independent.ie." Irish Independent | Your News | Your Way | Your Say - Independent.ie. http://www.independent.ie/national-news/headshop-drugs-blamed-for-huge-upsurge-in-teen-violence-andmuggings-2200540.html (accessed July 26, 2011). 10 Domhnaill, Sean O., and Caoimhe Ni Chleirigh. "Mephedrone and 'head/hemp' Shop Drugs: a Clinical and Biochemical 'heads Up'." Irish Journal of Psychological Medicine 28, no. 1 (2011): 2.!

! Volume!I!Issue!II!!!Spring!2012!

31!

Irish&Head&Shop&Drugs:&A&National&Headache& ! The crime wave was not the only repercussion caused by head shop drugs. The drugs also had a number of health side effects that could wreak havoc on a user’s body. One user summarized the negative effects he experienced when using powdered head shop drugs: “[I had] heavy insomnia afterwards, it took at least 8 hours to get asleep. While doing it I was a mess, couldn’t string a sentence together, started to stutter but couldn’t stop talking, [I had] heart palpitations [and] sweats.”11 During the height of head shop drugs popularity there were a number of people with symptoms similar to these arriving in hospital emergency rooms around the country. In some extreme cases users arrived at hospitals showing symptoms of psychosis as the result of their drug use. That was the situation with “Case A” a case study that was held and observed due to their severe psychotic symptoms.12 “Case A” was an unemployed 30-year-old woman who had no psychiatric history. She had been in good shape mentally and physically before she became addicted to the head shop drugs Mint Mania (methylone) and Lime Fantasy (contents unknown). She had been taking these drugs for six to eight months before arriving at the hospital and reported she had usually used them in concert with alcohol. She admitted that while using the drugs she had shop lifted, had sex with strangers, and committed other illicit acts. When she was admitted to the hospital she was experiencing psychomotor agitation, disorganized speech, irritability, and paranoid delusions. The hospital held “Case A” over a five day period for detox and observation. During this period there was a rapid resolution in her symptoms and she was released after what the doctors termed a full recovery. All symptoms disappeared and she was able to return to normal life. It is clear from the example of “Case A”, along with many similar hospital reports, that head shop drugs can have very serious psychological consequences for the user. The Irish government quickly realized how large a threat head shop drugs were to societal safety as well as psychological stability. They responded with a two pronged strategy to put an end to the sale of head shop drugs. First, the government amended the Misuse of Drugs Acts of 1977 and 1984 to include head shop drugs such as synthetic !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11

O'Reilly, Fiona, Ruardhi McAuliffe, and Jean Long. "Users' Experiences of Cathinones Sold in Head Shops and Online." Irish Journal of Psychological Medicine 28, no. 1 (2011): 2. 12 El-Higaya, Emam, Ahmed Mohamed, and Brian Hallahan. "Whack Induced Psychosis: A Case Series." Irish Journal of Psychological Medicine 28, no. 1 (2011): 3.

! Volume!I!Issue!II!!!Spring!2012!

32!

International&Law& ! cannabinoids, mephedrone, and methylone as controlled drugs.

Second, the

government passed a new piece of legislation termed The Criminal Justice Act14, which went into operation on Monday, 23 August 2010. This piece of legislation also instituted a ban on a long list of substances that had been sold in head shops across the country. More importantly, it set out the maximum punishment for those in possession of the now illegal head shop drugs as either a fine that could not exceed €5,000, a prison sentence not exceeding 5 years, or a combination of the both. The Act also set out new procedures for the Gardaí (Irish police) to procure warrants to investigate head shops thought to be selling illegal substances. This piece of legislation was designed to be the ultimate crackdown, both on head shop drugs and the stores that were selling them. However, in the months preceding the passage and enforcement of The Criminal Justice Act15 it is clear that it has not worked out exactly as intended. Instead of ridding the country of head shop drugs like mephedrone and MDPV the new law has relocated the drugs to the black market. Now instead of picking these drugs up at the local head shop users will go to a street dealer, likely the same drug dealer one would buy cocaine, ecstasy, and harder drugs from. For people that want the same drugs they used to buy at head shops but do not want to interact with a drug dealer to get them, there is now a number of websites setup for the sole purpose of shipping illegal head shop drugs to Ireland disguised in inconspicuous packaging. Head shops have also figured out how to get around the new law by selling new drugs that are chemically tweaked versions of the old head shop drugs. A study performed by the Irish National Advisory Committee on Drugs found that, when they analysed head shop drugs purchased both online and in store, there were five new psychoactive substances that are not specifically banned by the Psychoactive Substances Act 2010.16 These new substances have been labelled as “second wave” head shop drugs and they usually contain the warning “Not for human consumption”. This is another loophole that head shops have found to legally sell psychoactive drugs. They now package the drugs as “bath salts” or “plant food” and give !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13

Ryall, Graham, and Shane Butler. "The Great Irish Head Shop Controversy." Drugs: Education, Prevention and Poplicy 18, no. 4 (2011): 1. 14 Criminal Justice (Psychoactive Substances) Act 2010, 22 of 2010. 15 Criminal Justice (Psychoactive Substances) Act 2010, 22 of 2010. 16 National Advisory Committee on Drugs. (2011). An Overview of New Psychoactive Substances and the Outlets Supplying Them. Dublin: National Advisory Committee on Drugs.

! Volume!I!Issue!II!!!Spring!2012!

33!

Irish&Head&Shop&Drugs:&A&National&Headache& ! explicit instructions that they are not to be consumed. When packaged in this way they are in full compliance with the law. While the Psychoactive Substance Act 2010 was in many ways a failure at ridding Ireland of head shop drugs, it was quite successful at decreasing the number of head shops that exist in Ireland. The height of the head shop craze saw 113 head shops operating in the country; this number has since dropped to 36 head shops due to Gardaí enforcement.17 Gardaí have also reported that, since the passage of the Act, there has been a 75% decrease in Dublin robberies. Previously, most of these robberies had been directly linked to head shop drug addicts. The new head shop laws have had a number of other positive effects that cannot be quantified. The reduction in head shops has led to decreased availability in drugs, resulting in less drug users and less drug addicts. In an interview, solicitors working at Terence Lyons & Co Solicitor’s office reported that current criminal cases that they represent do not involve head shop drugs nearly as much as they did in past years. There is a general consensus among solicitors that the Psychoactive Substances Act was successful in doing what it was intended to do. Ireland has come a long way since head shop drugs were first introduced. The drugs themselves are not new; it was their recent sale at head shops that sparked their popularization among the middle class youth. Many young people became enslaved to these drugs and committed violent robberies in an effort to secure their next fix. The Irish government quickly realized that these drugs were a danger to society as well the psychological wellbeing of users. They responded by passing The Criminal Justice Act18 in August 2010 and amending other legislation. The government’s move to outlaw head shop drugs was a step in the right direction. Authorities reported a significant drop in robberies and violent crimes since the prohibition came into effect. However, there has been a rise in a new family of second wave head shop drugs that is not covered by current legislation. It seems that the government and drug manufacturers are in the early stages of a game of cat and mouse, a game that could potentially continue for years to come. The most obvious solution to this problem would be to create a single government body that is charged with regulating all drug-like substances being sold in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17

O'Keeffe, Cormac. 'Aggressive' garda policy cuts number of head shops | Irish Examiner." Irish Examiner | Irish News | News from Ireland. http://www.irishexaminer.com/archives/2010/0607/ireland/aggressive-garda-policy-cutsnumber-of-head-shops-121725.html (accessed July 26, 2011). 18 Criminal Justice (Psychoactive Substances) Act 2010, 22 of 2010.

! Volume!I!Issue!II!!!Spring!2012!

34!

International&Law& ! Ireland. In the United States the Food and Drug Administration (FDA) is authorized to regulate drugs, medical devices, dietary supplements, and all tobacco products. In contrast the Irish Medicines Board only regulates substances used in the medical treatment of humans and animals. The Irish government should expand the regulatory power of the Irish Medicine Board to include all mind and body altering substances, specifically those sold in head shops. If Ireland remodels the Irish Medicine Board with the reach of the FDA and the enforcement power of the US Drug Enforcement Administration, the Irish Medicine Board would be able to stop new waves of head shop drugs before they start. In the current situation new legislation must be proposed and passed every time a new drug is to be regulated. However, if Ireland passes a single piece of legislation to empower and restructure the Irish Medicine Board the war against head shop drugs could be won once and for all.

! Volume!I!Issue!II!!!Spring!2012!

35!

Crisis%in%Darfur%

Crisis in Darfur: Mass Murder and the Political Inconvenience of Genocide in the Modern World Tyler Jones Indiana University

Genocide, ethnic cleansing, mass killings, ethnocide, and democide: call it what you will, the humanitarian crisis in the Darfur is one of the worst on record with more than 1.8 million people displaced through attacks by government-endorsed militias and Sudanese armed forces.1 The International community is obligated to act to halt the Genocide in Darfur but has failed to uphold their promise of: “Never again.” This paper will contend that the world has identified the genocide in Darfur but refuses to acknowledge it because of the burden the acknowledgement would bring economically and politically. This paper will reinforce this argument with the following methodology: an examination of the obligations of all UN members via treaties, a general history and exposition of the evidence of Genocide in Darfur, an examination of the restraints which limit a country’s ability to intervene, and lastly updates on current aid and involvement in Darfur. The history of laws concerning Genocide is recent, in part due to the only recent observance of Genocide as a crime. It was only after World War II, after the Holocaust, after one of the most climactic acts of human depravity ever undertaken in history, when any legal body in the world had considered making laws that would hold individuals committing Genocide responsible. It was through years of argument and legal debate that international lawyers, like Raphael Lemkin who famously coined the term “Genocide,” successfully convinced the UN to hold the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, and eventually adopt the entire convention by all signatory countries on January 12, 1951.2 To understand why foreign governments are arguing about intervention and their specific obligations, we must identify the passages of the United Nation Convention on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Scott Straus, “Darfur and the Genocide Debate,” Foreign Affairs 84, No.1 (2005), p. 123 United Nations,“United Nations Convention on the Prevention and Punishment of the Crime of Genocide,” Treaty Collection, http://treaties.un.org/Pages/Error.aspx?messageKey=SSIS#Participants. 2

! Volume!I!Issue!II!!!Spring!2012!

36!

International%Law% the Prevention and Punishment of the Crime of Genocide which legally hold signatories accountable to act in the occurrence of genocide. Article 1 of the treaty reads, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”3 The first clause is direct and ambiguous about the duties of treaty members. It states that members must actively seek to discourage genocidal actions, and to hold perpetrators accountable for it. The clause is vague though. It does not give any sense of how to undertake these actions or on what scale to undertake them.4 Even more, it comes into conflict with the Sovereignty Clause in the UN Charter, which states that members must respect the choices and decisions of other governments to rule, in the best manner those governments see fit. These conflicts have come up in past debates of intervention in cases like Rwanda and Somalia. Either way, the UN does establish that nations must try to stop genocide, if they cannot prevent it. There are two more important clauses. Article 4 states, “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”5 This clause allows for easier prosecution of genocide, because it is directed at prosecuting individuals and not so much the organization, party, or country.6 This can allow for, at the very least, the legal detainment of the leaders of the mass killings. It is much easier militarily and financially to catch a few leaders than to stop an entire nation. Arguably the most debated clause is Article 8, which states, “Any Contracting Party (member of the UN) may call upon the competent organs (the UN itself or other nations) of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.”7 Article 8, could be used to completely undo the work of Article 1 because of its use of the word “may.” This suggests that countries may so choose if they wish to participate in the actions of fighting and preventing genocide.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3

United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, p.1. Jack Bielasiak, in class 9.14.2011. ! 5 United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, p.1. 6 Jack Bielasiak, in class 9.16.2011. 7 United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, p.2. 4

! Volume!I!Issue!II!!!Spring!2012!

37!

Crisis%in%Darfur% As Professor Bielasiak states, “it suggests that the clause, itself, is voluntary.”8 The danger is that it implies that a state could wait for others to act, possibly costing more lives, if the state is not at a politically convenient point to act on, prevent, or punish genocide.

All these articles will be important to understanding why countries are

obligated to help in Darfur, and understanding their logic in why they are or are not helping. The evidence for genocide in Darfur is abundant. Khartoum has always had a weak, but definite grip on Sudan and her people.

Historic marginalization of the

outskirts of the country, mainly the traditionally blacker and African areas, has taken place ever since British colonial occupation in the late 19th- early 20th centuries.9 This marginalization has come despite Darfurians and many black Sudanese being Muslim and having, “years of intermarriage [which has] narrowed obvious physical differences between ‘Arabs’ and black ‘Africans.’”10 Successive Sudanese governments, comprised mainly of Arabs, continued these policies adding their own personal loathing of Africans or “Abids,” meaning slaves.11 Since Rwanda’s independence from Belgium in 1962, numerous governments and attempted coups have taken place, until 1989 when the National Islamic Front (NIF), a radical, pro-Islamic sect came into power via a coup d’état.

Along with new president Omar Al-Bashir, the NIF brought its own racialized

goals into the mix in Khartoum: A Pan-Arab dream of a “unified Arab state” in the region of the Sahara Desert.12 Miller describes policy change as soon as the NIF took power, “The Arab supremacists who wanted the region to evolve into a unified Arab state began their efforts to either forcibly move or destroy populations incompatible with their goals in order to change the ethnic composition of the area. This ideology, to which the elites in Khartoum subscribed, was indeed part of the region’s politics.”13

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8

Jack Bielasiak, in class 9.16.2011.! Molly J. Miller, “The Crisis in Darfur.” P.115-6. 10 Straus, p. 126. 11 Miller, P.116-8. 12 Ibid. p.118-9. 13 Ibid. p.119.! 9

! Volume!I!Issue!II!!!Spring!2012!

38!

International%Law% For these raids and attacks on innocents and rebels alike, Khartoum used a combination of government endorsed militias, known as Janjaweed, and their own military. The Janjaweed originated as early as 1986 when President al-Dahab institutionalized aggressive militaristic attitudes of local Arab tribes against the Sudan People’s Liberation army (SPLA) by endorsing the historic raiders and later arming them.14 The leader of the Janjaweed, Musa Hilal, “was deliberately recruited for his brutality by Khartoum and continues to receive substantial resources from Khartoum…”15 It seems quite clear that persecution of non-Arab Sudanese has historically been a focus for Khartoum. Evidence abounds of the atrocities committed in Darfur, not only from past injustices as mentioned above but in the evolving, genocidal actions of the present. President Al-Bashir has used raids, by the SPLA rebels, to largely justify the military and Janjaweed attacks on villages.16 Aiding Khartoum primarily in the 1980’s, Muammar Qaddafi, the dictator of Libya, supplied Khartoum and Arab tribesman with weapons. Qaddafi also called for “Arabization” and the supremacy of Arab traditions, customs, and the suppression of non-Arab religions and cultures. Qaddafi, like the NIF, dreamed of a pan-Arab super state across the Sahara Desert.17 Studying the violence that has occurred because of support from Khartoum and Qaddafi, the United States State Department created the Atrocities Documentation Survey (ADS) in 2004, which sought to study and understand the violence. The survey produced numerous results. Of the displaced Darfurians, the vast majority (~70-80%) of people surveyed said that racial epithets were used during attacks on their villages. The main tribes that made up the victims were the Zaghawa, Fur, Masalit and Jebal tribes. The respondents described their attackers as mainly a mix of Sudanese troops and Janjaweed. Violence involved a number of components from bombings, to shootings, to rape and arson.18 As early as 2003, many US satellite images reported that “around 574 villages had been burned

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14

Miller, p.118. Eric Reeves, “Watching Genocide, doing nothing: the final betrayal of Darfur.” p.7. 16 Miller, P.120. 17 John Hagan et al., “The collective dynamics of racial dehumanization and genocidal victimization in Darfur,” American Sociological Review 73, no. 1 (2008), p.880-881,! 18 Hagan, p.883-885. 15

! Volume!I!Issue!II!!!Spring!2012!

39!

Crisis%in%Darfur% down and another 157 damaged…”19 Straus also reported on the methodology of the attackers and the strategies they used, “Testimony, recorded at different times and locations, consistently shows that the attackers single out men to kill. Women, children, and the elderly are not spared, however.

Eyewitnesses report that the attackers

sometimes murder children.

For women, the primary threat is rape;

sexual violence has been widespread in this conflict.”20 More evidence of Genocide can be found in scholarly articles: Remco van de Pas, of the British Medical Journal, reported that about 100,000 displaced people at a Kalma camp run by the African Union and the United Nations, who had received just enough aid to survive.21 This is a clear example of the removal of conditions for these people to survive in, by the Sudanese government and a violation of the UN Convention on Genocide Article 2c. In 2006 Peter Moszynski, of the British Medical Journal, noted that African Union peacekeeping forces had been spread so thin that more troops were desperately needed. He also warned that much of the Darfur aid groups were in danger and by extension the Darfurian refugees, if the troops were not sent.22 The consistent theme through all of these articles and reports identify the government and militias as the primary perpetrators. They identify these troops as targeting non-Arab civilians, killing specifically the men and many others. The burning of villages conjures up images of Stalinist practices of destroying even the memories of peoples deemed “enemies of the state.” The killing of children and women revives images of Nazi troops, who were ordered to slaughter women and children in many ghettos and work camps. Even persecution over perceived differences in appearance (as previously discussed- there were not many in Darfur because of centuries of intermarrying) conjures up images of the Rwandan Genocide and of Hutus identifying seemingly different-looking Tutsis. It is obvious from the evidence that not only does this violence classify as genocide, as Eric !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 19

Straus, p. 127. Ibid p.127. 21 Remcon van de Pas, “Darfur-dependent population at risk,” British Medical Journal 333, no. 7573 (2006), p.846-7. 22 Peter Morszynski, “Troops are need in Darfur,” British Medical Journal 333, no. 7567 (2006), p.514.! 20

! Volume!I!Issue!II!!!Spring!2012!

40!

International%Law% Reeves believes, but also Darfur shares key aspects of other genocides, which many countries have previously recognized. A country would have to be in full denial to refute this clear evidence. Despite the nature of the violence, many countries have been hesitant to call the violence in Darfur genocide. However, economic investment in the region appears to play a role in what position countries take in the debate on genocide in Darfur. Sudan itself took the official position that the militias it had armed were fighting and killing the Sudan Liberation Army (SLA) and Justice and Equality Movement (Jem) rebels, who had begun the conflict by attacking Sudanese troops. 23 Sudan also feared that its rights as a state (via the UN state sovereignty clause) could possibly be violated because of what they saw as fabricated facts. Other nations like China and Russia strongly oppose the UN’s continual prying into the Sudanese government’s actions because they, China and Russia, have dealt violently with separatist rebel movements in the past; the Chechens were put down in Russia and the Uighurs were put down in China. Political controversy stems from every angle as both sides, the Sudanese and the pro-trial side, have legitimate legal positions, backed by UN laws that contradict each other. As mentioned earlier, the UN Convention on Genocide is ambiguous as to how exactly a perpetrator of Genocide would be punished, if that perpetrator was an active government administrator or a state itself, without violating the UN charter section on state sovereignty.

The Sudanese government, like it or not, has a completely valid

argument because if they are indeed aiming towards keeping control in their country, fighting rebels as they claim they are, then the world community has no international legal privilege or right to intervene in Sudan. Indeed, if signatories of the UN were to invade Sudan and physically stop the violence, then what little standing and authority the UN would have would die instantly, as its own charter, its founding text, would be violated so brazenly. Thus, not only is the UN legally frozen in its place because of the legal contradictions created between the UN charter and the UN convention on Genocide, but the signatory nations, and by all extent the only muscle of the UN, are as equally legally frozen as well. Despite legal ambiguities in international law, there are also economic incentives for nations to support Sudan. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 23

“Q and A: Sudan’s Darfur Conflict,” BBC News. January 23, 2012. Web. 4/26/2012. http://news.bbc.co.uk/2/hi/africa/3496731.stm.

! Volume!I!Issue!II!!!Spring!2012!

41!

Crisis%in%Darfur% The economy of Sudan today is based around agricultural production (cotton, livestock, sugar) and, most importantly, oil. Once debt-ridden and on the verge of having their IMF (International Monetary Fund) membership revoked, Sudan now uses oil profits to fund their ongoing military ambitions.24 Oil was first discovered in Sudan in 1979, primarily in the South. 25 American companies had not been invested in Sudan since 1966 because it was identified in the Anti-Terrorism Act (along with Iraq, Iran, Syria, Cuba, North Korea and Libya). With the Americans gone, mainly Middle-Eastern and European countries and companies began drilling in Sudan.26 The main drilling consortium is the Greater Nile Petroleum Oil Corporation (GNPOC), which is a multinational firm combining several companies’ resources. The four countries which are invested in the huge GNPOC firm the most are: China (the National Oil company owned by the state) at 40%, Petronas Carigali (State Oil firm of Malaysia) at 30%, the Canadian-centered Talisman Energy at 25%, and the National Oil company of Sudan at 5%.27 Along with these four main investors, numerous other countries have invested in Sudanese Oil including: France, Belgium, Sweden, Austria, and Qatar.28 These oil investments create a conflict of interests between economic practicality and global, moral obligations. Oil is a multibillion-dollar industry, enriching those who find it and sell it. For the countries that drill in Sudan, there is great incentive to preserve Sudan’s status as a non-genocidal country. This is because if Sudan were marked with this stigma, not only would these corporations, and in some cases countries, be breaking the UN treaty on Genocide (by supporting it through funding), but Sudan might get hampered with heavy trade barriers, making oil drilling much more costly and burdensome. Not to mention that public outcry at home would be much stronger to stop drilling and by extension supporting genocide. Talisman has already had numerous protests against it for being in Humanitarian disaster zones like Sudan anyway. 29 Also, any military action is expensive, and a sudden military burden, because of a UN treaty, may not be a tab !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24

Cleophas Lado, “Political Economy of the Oil Industry in the Sudan Problem or Resource in Development,” Erdkunde, Bd. 56, H. 2. (2002), p.159 25 Ibid. p. 160.! 26 Ibid, p. 161. 27 Ibid. p.161. 28 Ibid. p. 161.! 29 Lado, p.162.

! Volume!I!Issue!II!!!Spring!2012!

42!

International%Law% countries are desirous to foot.

Needless to say, these countries would suffer

economically and would be at a great political inconvenience, if much of the oil from Sudan disappeared and they were obligated to enter into expensive military actions, all because of a genocide classification. Unhindered by the political inconvenience of Sudanese Oil, the United States House of Representatives voted to label the Darfurian violence as “genocide” in July 2004, based off of numerous US reports and other sources. Thus the US was the first nation to ever enact article VIII of the UN Convention on Genocide, forcing the UN to enter into discussion about Sudan.

Then US Secretary of State Collin Powell

acknowledged that his determination of “genocide” came from the feedback of the ADS reports. As expected though, a variety of nations fought back, refusing to acknowledge the violence in Darfur as genocide. Canadian, British, European Union and Chinese officials all sidestepped the word “genocide.” 30 This can surely be related to heavy levels of investment in Sudanese oil, especially by Canada (25%) and China (40%), and the huge political inconvenience of these charges. Even UN Secretary-General Kofi Annan seemed reluctant to label Sudan as genocide.

His feelings came not out of

inconvenience, but of maintaining the stability of the UN. Annan knew that if he issued any strong bill calling for the military neutralization of Khartoum, it would be quickly vetoed and rejected (the veto party being led by China and Russia). This would not only undermine his authority, but the legitimacy of the UN Genocide Convention.

September 2004, Kofi passed a weak bill, (an attempt at a happy medium) barely approved by China, which called for a small five man commission to investigate the charges against Sudan. It also quietly threatened economic sanctions, and it called for the African Union to monitor a cease-fire between the Sudanese government and (at that time, before the creation of South Sudan) the Southern Sudanese Rebels.31 Looking back on the “Commission of Inquiry (COI)” Eric Reeves explains his disgust with the purposeful sabotage of the entire investigation: “An inquiry was obligatory. At the same time, Annan knew perfectly well that a finding of genocide by the COI would destroy the credibility of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 30 31

Ibid. p. 131.! Lado, 130.

! Volume!I!Issue!II!!!Spring!2012!

43!

Crisis%in%Darfur% Security Council. For China and Russia would have been no less willing to exercise their veto power in protecting Khartoum after such a finding than they were before.

The spectacle of the Security Council remaining

paralyzed… was too much for Annan, and this ensured in advance that no such determination would emerge. Massive crimes against humanity, war crimes, and other violations of international law were all fine, as was finding

‘possible’

genocide-

but

not

decisive

genocide

determination…”32 Kofi did what he thought was right, by attempting to preserve the integrity of the council. At the same time, Eric Reeves would go on to show that Annan personally put weak investigators on the case, along with strict rules for them and scarce resources. A determination of partial or “possible genocide” was all but predetermined.33 Although it was against UN policy to speak about the report, Reeves reports that many UN officials attempted to hint at the truth. This is evident in the example of Jan Egeland, head of UN humanitarian operations, who stated that the violence in Darfur is “ethnic cleansing of the worst sort.”34 Interestingly, the US already considered their obligations of the UN Conventions on Genocide filled. Collin Powell believed that, by simply researching and determining that genocide was happening, the United States had already fulfilled its contractual obligations in the UN Convention on Genocide.35 Powell also cited the US’s numerous aid forces in Sudan and other pressures that Washington had placed on Khartoum. Reeves and other sources all cast doubt on the US’s “action” against the genocide in Darfur, most noting that because Washington was wrapped up in two expensive wars/occupations, of Afghanistan and Iraq, military action against Khartoum would have been incredibly politically and fiscally inconvenient. There have been efforts to help the refugees of the violence who have settled in between the Sudan-Chad border.

Numerous aid foundations, including the World

Health Organization (WHO), the International Committee of the Red Cross, the United Nations, numerous countries, and numerous other organizations have become involved !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 32

Reeves, p.8. Ibid, p.8.! 34 Ibid, p.8. 35 Straus, p. 131. 33

! Volume!I!Issue!II!!!Spring!2012!

44!

International%Law% in Darfur, to alleviate the burden of the refugees.

Each of these entities has provided

these refugees with some of their only lifelines of survival. 36 But even for these organizations, the situation in Darfur appears bleak. The African Union forces are weakening and even contracting their areas of protection, allowing many aid workers to go unprotected from the militias.37 Violence is even making its way into eastern Chad, where many refugees have fled. Eric Reeves is crushed by the idea that so many key political players know what is going on in Darfur, yet remain politically indifferent. The inaction in Darfur manifests images of the Rwandan genocide, when so many countries knew about the crisis and yet chose to do nothing about it or to justify the violence as tribal violence. In his article about the international response to Darfur, Nsongurua J. Udombana suggests, “Since peacekeeping appears to be the most that the global community can offer Darfur, the Security Council must summon the courage to deploy decisively. Time is of the essence in peacekeeping. Rapid deployment could determine not only the success of a mission, but also the ability to prevent massive loss of innocent lives.

It is indefensible to delay

deployment until Khartoum, the seat of perfidy and [the] engine room of terror, is pacified.

Although deployment of [UN forces] will not

necessarily end the crisis in Darfur, it could mark the beginning of a renewed effort to get the peace process back on track.”38 As he notes, it may be too much to expect the international community to fulfill their military role in Darfur, and so it falls on the shoulders of the UN to protect these people. He is not asking for a military takedown of the Sudanese government, just a strong, reliable force to protect the refugees while peace is in the works. There is one more window of opportunity for the international community to at least impede the genocidal efforts of Khartoum.

Because of Article IV of the UN

Genocide Convention, individuals may be brought up on charges of Genocide, regardless of what the state is doing. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This gives the world a chance to use Article IV to

Straus, p.127. Reeves, p.9.! 38 Nsongurua J. Udombana, “Still playing Dice with Lives: Darfur and the Security Council Resolution 1706,” The Third World Quarterly, 28, No. 1 (2007), p.109. 37

! Volume!I!Issue!II!!!Spring!2012!

45!

Crisis%in%Darfur% simultaneously take down the leadership in Khartoum and possibly maintain their economic investments. The “ringleaders” are Musa Hilal, the leader of the Janjaweed, and the President of Sudan, Omar al-Bashir, mainly because they are the faces of their sector of genocide. Hilal is already notorious around the world for his actions, and numerous war crime charges and humanitarian accusations have come against him via the International Criminal Court. President Bashir was recently (2009-10) issued an arrest warrant by the ICC, wherein he was to turn himself in for the crimes of genocide and various other things.39 Of course, Khartoum would not willingly give up two of the most important leaders to their “Arabization” goals, so it falls upon the international community to put pressure on Sudan. Although it is a long shot, this is a “middleground” of sorts, wherein full military pressure would not be needed and economic investments could possibly remain unhindered by any stigma or national label of “genocide.” Some might argue that Darfur is not genocide because it has not been labeled as such by the international community. They might say that if it were genocide, the countries would be legally bound to stop it. Since there is no action, we can determine that countries see no evidence of genocide. To respond to this, we have proof of all forms of genocide, as discussed in Professor Bielasiak’s class: direct (killings, murder), indirect (withholding of necessities for the conditions of life) and auxiliary (purposeful efforts to stop reproduction, or to contaminate the ethnicity through rape/ sexual assaults) forces. 40 Secondly, nations have many reasons, primarily economic, which keep them from fully reporting genocide.

Therefore, countries may very well see

genocide happening, but whether they decide to act on it, and admit what they are seeing is genocide, is a completely different story. Many can even justify their inaction through article VIII of the UN Convention on Genocide, although this has not been used, yet. We cannot use the international response as a basis for genocide’s definition because there were many genocides, which were not responded to quickly, or at all (e.g. Nazi Germany, USSR “Great Terror,” Rwanda, Armenia). Therefore we must base our

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 39

“International Legal Materials: Arrest warrant for Pres. Omar Al Bashir,” American Society of International Law, 48, No. 3 (2009), pp. 466-469. 40 Jack Bielasiak in class, 9.14.2011.!

! Volume!I!Issue!II!!!Spring!2012!

46!

International%Law% definitions of genocide solely on the evidence, and not on what response is given by the international community on the subject. The world has become preoccupied. The consequences of another unheeded Genocide are far from the minds of nations.

Instead, they are preoccupied with

economic development, the current recession and other current socio-political occurrences to worry about the consequences of Genocide.

They have used the

ambiguity of the UN treaty on Genocide to justify limited action (USA) and inaction. Some countries are so concerned with promoting their financial wealth and limiting debt that they have refused to even acknowledge the Genocide in Darfur. As I have shown, entities who are preoccupied with practical interests or restraints, be them economic (China), political (USA), or fights for continued relevance (Kofi Annan & the UN), are tempted away from their moral duties. Ultimately we stand in the midst of another Armenia, another Rwanda. The world has placed self-interest before moral obligation and thus, the world has failed the people of Darfur.

! Volume!I!Issue!II!!!Spring!2012!

47!

! Interview with Sherman J. Clark Kirkland & Ellis Professor of Law By Sarah Clark

Professor Sherman J. Clark was educated at Towson State University and Harvard Law School. He practiced in Washington, D.C., with the law firm of Kirkland & Ellis. Clark joined the University of Michigan Law School’s faculty in 1995 and teaches courses in torts, evidence, and sports law. In addition to his teaching, Clark served as an advisor to lawyers for Wayne County, Michigan, and the City of Detroit in their efforts to hold gun manufacturers liable for allegedly negligent distribution practices. More information about Professor Clark is available on the University of Michigan Law School website’s faculty bios page. When and why did you decide you wanted to go to law school? I decided to go to law school primarily because I thought it would offer a path to a good career. After getting out of the Army in the 80s, I briefly held a few jobs that were not particularly rewarding – either personally or intellectually or financially. I figured law might be a bit more so on all counts. What did you enjoy most about law school? Least? What I enjoyed most about law school was the intellectual growth. I went expecting to work hard and learn some useful stuff; and I did both. But what I did not expect was how much fun and how invigorating law school would be. As it turns out, law school is not mainly about learning legal rules. There is some of that, of course – along with some practical skills training. But studying law, if approached in the right spirit, is actually more like three more years of excellent liberal arts education. Law, as it turns out, is a terrific intellectual lens – a kind of focusing device – through which to look at and think about all sorts of things. It is about philosophy, social science, political theory, psychology, even literature… Everything, really. Law school is learning and thinking and arguing about all that stuff – all anchored by the persuasive and pragmatic necessities of law. Cool stuff. ! Volume!I!Issue!II!!!Spring!2012!

48!

Interview!

When/why did you decide you wanted to be a law professor? After law school, I went to work for a terrific law firm, Kirkland & Ellis. I learned a lot there, and enjoyed much of the work. I got to work with some very skilled and smart lawyers on some interesting cases. And I gained valuable exposure to high-level law practice, which gives me an understanding of the work many of my students will do. But I began to realize that what I liked most about law school was not such a big part of law practice. What do you enjoy most about being a law professor? Well, I could go on and on in response to that question. I feel fortunate in so many ways to have this terrific work to do. But let me at least identify a few things: First, I am always in contact with smart, curious, energetic young minds, which keeps me thinking and helps me to do so. Second, I can hope to have some modest influence over how some of the next generation of lawyers do think about the law. Plus, the lifestyle is very nice – very human – substantial control over my schedule, good colleagues, a good town, good books and conversation every day. Mainly though, what I like is what I mentioned a moment ago -- I get to think about the things of interest to me, rather than the things a client happens to need me to think about. I suppose to explain it I’d quote that Robert Frost poem, Two Tramps in Mud Time:

“But yield who will to their separation, My object in living is to unite My avocation and my vocation As my two eyes make one in sight.” That’s what I get to do, and I think I see better for it. What is/are your area(s) of research? I have researched and written about a number of things over the years, including evidence law, political theory, criminal procedure. Recently, I am thinking about the indirect impact law and legal rhetoric may have on our character and thus our capacity to thrive. Many scholars ask how law can be made more efficient and useful in various ways – by deterring crime, facilitating economic growth, promoting safety, and things like that. Good things all. Other scholars think about how law can be made more just or fair. Those are good things too, obviously. I am trying to add to the conversation by thinking about how law can be made more noble, and ennobling. You could put it this way: if the legal academy is primarily made up of various sorts of consequentialist thinkers and various sorts of deontological thinkers, I am trying to carve out a third way – an approach analogous to virtue ethics as classically practiced. I suggest the law should ! Volume!I!Issue!II!!!Spring!2012!

49!

Interview!with!Sherman!Clark! ! care not just about what we get or accomplish (although that definitely matters), and not just whether we are right or wrong (although that certainly matters too), but also about who we are – what traits and priorities and ways of being we are able to construct and develop and whether those traits and priorities and ways of being are helping or hindering us in our efforts to live fully and well. What kinds of people would enjoy law school? My sense is that the students who thrive in law school are those who love to read and think and learn for its own sake, and who do well in school because they are very smart and clear thinking and articulate in making arguments. By contrast, students who might not love law school so much are those who always want to know what will be on the exam. Law school is not like that. It is about thinking and arguing and learning ways of thinking and arguing, rather than being fed information by a professor and then spitting it back out on an exam. Students who cannot embrace that are sometimes frustrated by what feels like that uncertainly of the ongoing conversation that is legal education. What makes law school worthwhile? Well, here too I could go on endlessly. But let me just say this. Law school, if approached in the right spirit, is both a path to a terrific and wide range of career options, and a wonderful and intrinsically valuable intellectual experience. I do not mean merely that you can balance those two aspects – perhaps by taking some “practical” classes and some “theoretical” classes. No. I mean something deeper than that. I mean that the ways of thinking that will ultimately make you an excellent lawyer – including, for example, the habit of engaging deeply and well with alternative viewpoints – are also habits of mind, which conduce to real personal and intellectual growth. Some people say that law school is de-humanizing. Some even experience it that way – as being all about exams and pressure and competition. But those who experience law school in that way have so tragically missed the point that I wish they could get another shot at it. It is as if someone went to the Superbowl or a U2 concert and despite the fact that the game or the music was great, they paid attention only to the lines at the restroom and the high snack prices. True, those things may well have been annoying; but really – you were at that incredible event and that is what you chose to focus on? You do not need to choose between good career training and an enriching course of study – between your vocation and your avocation. Law school, if you let it be, can be a terrific part of both.

! Volume!I!Issue!II!!!Spring!2012!

50!