Virginia Review of Politics Spring 2018

VIRGINIA REVIEW POLITICS

SEI ZE THE DAY

MEDICARE FOR ALL

STEPHEN BREYER

ENOUGH IS ENOUGH?

Letter From the Editor-in-Chief Politics must always be looking to the past for lessons, the present for problems, and to the future for solutions. Politics combs history for precedent and advice, in order to confront the issues of today and future years with experience and wisdom. Finding solutions to the world’s problems thusly requires creative, inventive thinking, much of which will be developed and led by the next generation of political problem solvers. It is our hope that the Virginia Review of Politics contributes to that bright future through the nurturing of young writers, interviewers, editors, and thinkers at the University of Virginia.

Our inaugural print edition features a variety of unique and previously unpublished articles from writers both new and old.

John Han and Androw Ebrahem tackle the thorny problems of health care and gun violence respectively, with fresh arguments for concrete suggestions on both fronts. Hallie Griffiths examines citizenship and its relationship to political growth in a divisive age. Varun Sharma looks back at demonetization’s effects on India and its future consequences, while Avital Balwit examines blockchain voting’s impact and future with Pia Mancini, the founder of Democracy Earth and Open Collective. Edie Tepper examines President Trump’s use of hypotheticals in her article on “whataboutism”. Catherine Huang looks at the contemporary prison system and its striking parallels to slavery. Finally, Alex Hendel, my interviews editor, and I interview Justice Stephen Breyer of the Supreme Court, and address his perspectives on the future of the Court, its relationship to the rest of the world, and its jurisprudence in a partisan age.

While obviously incomplete as a chronicle of political discourse and debate at the University of Virginia, it is my hope that this magazine helps shed light on issues past and present directly relevant to finding future solutions to some of the world’s greatest challenges. The Virginia Review of Politics was founded in order to give UVA students a voice in theorizing and shaping that future; this volume and future editions of the Review will continue to further that mission in the upcoming years.

Eric Xu Founder and Editor-in-Chief

Staff Editor-in-Chief, Eric Xu Managing Editor, Eileen Ying Production Manager, Irena Huang Operations Manager, Jackson Samples Print Director, Ethan Sullivan Associate Print Director, Edie Tepper Associate Print Director, Matthew Nalls Creative Director, Alyson Lee Editor, Jonathan Haynes Editor, Elizabeth Kruse Editor, Luke Nicholson Editor, Arijeet Sensharma Editor, Alex Hendel A special thanks to the Miller Center, the Jefferson Scholars Foundation, and the UVA Politics Department for helping establish and fund the creation of this print edition.

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Common Sense Gun Legislation We currently live in an America where mass shootings are a frequent occurance...children are dying — and there is a way to prevent these deaths.

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n March 14, our nation witnessed a powerful, inspiring, and historical event. Across the nation, students of all ages walked out of their classrooms to participate in a 17-minute march. Each minute was meant to remember one of the 17 victims who were shot and killed in a high school in Parkland, Florida the previous month. This walkout, however, was more than just a memorial- it was also a protest. America’s streets were filled with students chanting “never again” and “enough,” students voicing their fear. They grew up and live in an America where mass shootings have become the new norm. But, what is most inspiring about them is their refusal to be passive. They took to the streets and demanded that Congress take action to “ban assault weapons, require universal background checks before gun sales, and pass a gun violence restraining order law that would allow courts to disarm people who display warning signs of violent behavior.”

Charlottesville saw its own walkouts, both from high school students and students at the University of Virginia. At Albemarle High School, about a quarter of the student body left their classrooms to join the voices of their peers around the nation. These students understood the issue not as “all about guns” but rather “about the safety of schools and how lawmakers should find common ground.” One student said that we need to “ just put politics aside and work together because nobody … wants to send their kids to school and wonder if they’ll come home the next day.” It seems that for some of these students the issue is not all political.

For others, the protest was extremely political. The march at the University of Virginia, for example, was very political. The crowd of almost 1,000 people that participated in the protest called for a ban on assault weapons and for implementing universal background checks. Student Council president Sarah Kenny said, “I don’t believe that you can separate politics from

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the issue of gun violence because policy is needed to change our communities … this isn’t a polarizing issue in terms of public opinion.”

“I don’t believe that The walkout was not the you can separate polonly march that UVA witnessed.

There was another march later itics from the issue of that day held by the Minority gun violence because Rights Coalition to end gun vipolicy is needed to olence. In the same spirit as the change our commumarch held earlier, the MRC nities...” - President sought an end to gun violence.

Sarah Kenny However, this march was different in that it was to “stand in solidarity with black and brown victims of gun violence perpetrated by the state.” The aim here was to draw attention to the multitude of ways in which gun violence affects different communities and give a voice to those whose voices “have been left out of this recent burst of activism.”

Ten days after these events took place, the nation saw another protest against gun violence. This time, it was not just students who protested. Hundreds of thousands of people rallied in more than 800 different protests in the United States and internationally, in cities such as Tokyo, Rome, Madrid and Berlin. One of the student organizers called this rally “the revolution.” The protesters hoped to elevate gun control as a key issue for the upcoming elections. Again, they demanded universal background checks and bans on assault-style weapons. They also emphasized the importance of voting. They threatened that they would soon have the power of the ballot and support only those candidates who favored gun control.

These gun control activists, led by students who survived shootings, have made their voices clear. They want to make sure that children go to school safe and that no other school will suffer such a tragic loss. And the way to do this, according to them, is to pass pieces of “common sense gun legislation” that prohibit assault rifles and mandate universal background checks.

However, not everyone is on board with the idea that the so called “common sense gun legislation” will stop gun violence.

In Salt Lake City, for example, a group of protesters showed their

opposition to the demands from the March of Our Lives. They demonstrated while carrying pistols and flags, and with one sign reading: “what can we do to stop mass shootings? SHOOT BACK.” In some areas there was tension between those who supported gun control and those who opposed it. In Boston, for example, the police had to separate a small group of Second Amendment supporters from gun-control activists.

Those who oppose stricter gun laws have said that it makes no sense to “blame an inanimate item” and that the problem is not guns but the mental health crisis. The majority of those opposing the gun-control laws have said that they infringe on the Second Amendment. Others have said that the true way to protect children is not to ban guns but rather to increase their presence. In a video released by the NRA, they ask “what if we had put armed guards in every school in America five years ago?” and “what if the football coach … had an AR15?”

It is important to realize that these arguments all fail to make a strong case against the demands of the rallies. On the one hand, those who oppose gun control are claiming that we cannot blame the gun, that the shooter could have killed with any other weapon. Yet, they also turn around and say that we need to arm the “good people.” If one claims we cannot blame guns for shooting, then we also cannot claim that arming good people with guns is the only way to stop the killings. If a bad person can kill without a gun, why can’t a good person kill the shooter with something other than a gun?

“If one claims we cannot blame The obvious reply guns for shooting, then we also here is that a knife cannot claim that arming good or a baseball bat is people with guns is the only no match for a gun, and that supports way to stop the killings.” the point that the protesters are making. Guns, especially assault rifles, are much more powerful weapons than any other weapon that the shooter could have used. The idea that another item could have been used to kill students is misleading. And this is clear from the opposition’s argument that the solution is to arm teachers or coaches

-- which is nothing but a contradiction. Those who make such a claim simultaneously affirm and deny the power and importance of guns.

Furthermore, those who claim that the students are using their first amendment rights to infringe on others’ second amendment rights are mistaken in two ways. First, they are not truly understanding what these rallies are calling for. Virtually no one is calling for an all-out ban on all guns. That would be arguably overstepping the boundaries of the Constitution. The primary demand here is for a universal background check system and a ban on assault rifles.

These are reforms that are compatible with “the right of the people to keep and bear arms.” This means that these reforms are something which all should support, even those those who argue that we should blame people and not guns. A background check will, in most cases, make sure that those who should not have a gun will not get one. The second, and certainly related, way that those who appeal to the Constitution misunderstand the protest is that they seem to think that any sort of gun control will lead to an all-out gun ban. Thes opponents therefore either commit the red herring fallacy (in that they think “The primary demand here is for a universal background check the rallies are about system and a ban on assault banning all guns) or they are argu- rifles...reforms that are compatiing a slippery slope ble with the right of the people (that one piece of to keep and bear arms.” reform legislation will inevitably lead to a ban of all guns).

We currently live in an America where mass shootings are a frequent occurrence. High School children are dying and there is a way to prevent these deaths. The “Common Sense Gun Legislation” is not meant to completely do away with the right to own a gun. If that was the goal, I would be the first one writing in its opposition. But, a right to own a gun does not conflict with a reform to ban assault rifles and implement a system of background checks. It needs to be clear that this is what the protests are for. And these are not unreasonable demands to ask of Congress.

Androw Ebrahem Staff Writer Class of 2018

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Democracy Decentralized Pia Mancini: How Blockchain Voting Will Revolutionize Government In early March, the Review had the chance to interview Pia Mancini, a founder of Democracy Earth in New York. Pia Mancini is a political scientist, activist, and visionary in the intersection of technology and politics. She began her work in traditional politics in Argentina, but was frustrated by the lack of responsiveness there. In response, she created her own political party called the “Net Party,” which pledged to vote in accordance with an application they created, Democracy OS, allowing constituents to show their opinions by voting on their smartphones.

While Net candidates did not win an elected seat, the open-source software was adopted by parties around the world. The idea behind Democracy OS —to make voting more accessible and to empower citizens to participate in their own governance — continued in Mancini’s next project.

In 2015, Mancini cofounded Democracy Earth with her husband Santiago Siri. In 2016, Mancini cofounded Open Collective, a non profit that allows for a community’s funds to be collected and distributed in a transparent and decentralized manner. As power in the world becomes more decentralized and access to technology improves, Mancini sees Democracy Earth providing tools for governance, and Open Collective offering solutions for the financing of projects.

The following has been edited and condensed for clarity. The views shared here do not reflect nor do they suggest the views of the Virginia Review of Politics. The full length transcript, including questions not published in the print edition, can be found on our website, www.virginiapolitics.com/interviews.

Avital Balwit (Staff Writer): The first question that I wanted to ask is what factors made you realize that a tool like Democracy OS, and later Sovereign, were necessary in our current world?

Pia Mancini: I have been working in politics for a while and I always tell this anecdote, but I don’t want to frame it as an “Aha moment” because I don’t believe in “Aha moments.” Things build up, when you realize something is happening. One time I was campaigning.

I was head of Outreach for a Governor’s campaign for the province of Buenos Aires. We were campaigning in a relatively poor area in outer Buenos Aires. Normally when you do this thing people pull you around to show you around the place. They took us to this barn in the middle of the district. And there were these construction materials and mattresses and things to build houses for people who did not have houses. But they were all stacked there and it was the middle of July, which is freezing in Argentina. I asked why they were there, where they were coming from, and where they were going. And they told me, “We are waiting for next year, because the campaign is next year.” It wasn’t obviously an “Aha moment,” but it was a moment that really emphasized the realities of this system. It was the logical thing to do for them in the current system. To build houses just before the vote once every couple of years.

Charlie Thompson (Photographer): It shows how bankrupt the system is.

PM: Right, exactly. To me it was so clear, all those things were here and they could be used to help people now, but they were waiting

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for the campaign because that’s the logical thing to do. That’s how the game operates. It was then that I started to think more seriously about this systemic problem. I helped put together this program to prepare leaders for democracy. I helped people from the private sector who were really active citizens transition to the public sector.

I helped friends who I really trust and admire to be mayors and governors. But I think that moment showed me that it didn’t really matter. That this was the way that the system was set up.

AB: It seemed like you noticed that you couldn’t just put good people into a broken system. I think a lot of people agree with that, they see the same sort of brokenness but it comes down to the willingness to try something new and perhaps radical. I think a lot of people who even agree with the mission of Democracy Earth are startled by how big of a shift it is. They say people won’t adopt this or that governments will even be hostile to it. What would you say to people who doubt it could work?

PM: I think they are right to doubt it. But in general, I think there are three avenues for systemic change. The first one is a revolutionary approach where you get rid of everything and you start over again. I think that that is not an efficient or even a desirable avenue for change. There is huge human cost, and when you start you don’t really know where the process is going to end. You open the gate and it becomes a free-for-all kind of situations and you often end up with very bad outcomes. The second avenue for systemic change is incremental change. It is getting change from within the current framework. That is partly what we tried to do with Democracy OS

and the Net Party. It is a valid avenue, but I don’t think it is going to produce the systemic change we expect. That’s because it overlooks this basic element about power, that power is conservative.

CT: It is never given away, it is sort of taken in a sense.

PM: And also it is very hard for someone in power to devolve power... The nature of power is to stay. And a lot of progress has been done with incremental change, I am not saying that it hasn’t. I think about civil rights progress. A lot of that was incremental. But we are still waiting for real change. So while incremental change is a valid avenue, I think it still will not produce the systemic change we want. The last one, which I think is what we are trying to do, is to build another, an external system. And then to build bridges with existing systems until the new system renders the existing one obsolete. [Only] to a certain point, because I do not think the existing system will entirely disappear. But we are going to need to have a conversation about what the minimum amount of capabilities and monopolies we want the state to have, and what are the new jurisdictions and the new political actors -- what will they look like, what sort of technology can they use.... People doubt this, because what we are doing is very experimental. And I think that is fine. I think we should be experimenting. We need to build and try and experiment and fail and learn again. The beauty of being in the extreme is that we can experiment. The center cannot afford to fail.

But for us, at the border, we can fail because to fail is just learning.

AB: I wonder how with these new decision makers, will the distinction be made about what should be voted on directly and what shouldn’t?... When you look at this country we have such an issue with racial prejudice. There are issues throughout our history that if they had gone to a direct vote we would have seen some sort of prejudice play out in the population. Perhaps that is an issue with every political system, but I do not know if there is a way here to protect against a majority abusing some minority’s rights.

“The way I see it, we are building the institutions for the next 200-300 years.”

PM: Yes, absolutely. This is all part of building the type of institutions we want. There are some issues that need to be voted on widely, and maybe some that should be more protected. That is also why I think that there will be some capabilities that nation states need to preserve. The way I see it is that we are building the new institutions for the next 200-300 years. This is part of a larger conversation we must have -- and experimentation is crucial for that. Also, on that note, there is a lot of fear about how citizens will react. That fear is driven by a couple of things. The first thing is fear that is driven by citizens ourselves. We have not been participating in these processes in this way ever before, so we don’t know how to do it.... When the American type of democracy was created the whole system here was built around “the game” amongst professional citizens, the politicians, and everyone else was expected to retreat into the private sphere and go and generate wealth and leave the governing to this select group of people. If instead of that we had just a randomly selected group of citizens for our Congress 500 randomly selected people each year - the whole system would be pointed towards creating a very different kind of citizen.

AB: So you’re saying there is this interplay between the institutions and the citizenry, that if you change the institutions it could create a more engaged or educated citizenry.

PM: Exactly. On the one hand, it is us who is panicking about this new amount of responsibility because we don’t know what to do, but at the same time it is this system that always told us that we couldn’t participate because we weren’t ready, we didn’t know enough. It was a system that is only concerned with a small group of people, and does not try to make the information flow into society.

CT: The system is also designed to be very opaque. The language is very hard to grasp.

a very convoluted piece of legislation and I ask for a show of hands who has understood it. No one has usually, because it is written for lawyers by lawyers. It is designed to exclude.

“I go on stage and read a very convulted piece of legislation. I ask for a show of hands: Who understood it? Usually, nobody has because it is written for lawyers by lawyers. It is designed to exclude.”

AB: That was one of the things I loved most about Democracy OS, the idea that even just translating the legislation into simple language. That is such a big step. Even before people can vote on it they have to be able to understand what they are voting on.

PM: Yeah, I think that we should still do that at Democracy Earth.

AB: With Democracy Earth and Open Collective it seems like you aren’t just forming two new organizations, but that you are forming the new structures for a new kind of world. It seems like you want to create a decentralized power structure.

PM: For me they are part of the same sort of quest to build new institutions outside the nation state. Democracy OS and Sovereign are looking at it from a governance or political perspective, whereas Open Collective is trying to do it from an economic perspective.

What are the new structures that our generation needs -- Open Collective is how will we fund them, and then Sovereign is the governance mechanism for these organizations. They really are part of the same vision.

AB: People see your project and read the white paper and they are so passionate about it. I think that is the natural response when you see something so new and so bold and so idealistic about the world.

You want to help it. What are the ways that people can help you?

What do you need most right now?

PM: Obviously, developers can join the open source work for either project that is for Open Collective or Democracy Earth on Github.

Open Collective is hiring at the moment, looking for engineers to join our team. What we need more than anything are use cases. so create a collective or let us know if there is a pilot we can do with Sovereign, or a vote we can shadow. We need to learn; we need to break things and learn. Shadow voting is going to give us a lot of information.

AB: The final question I have for you is on top of all the work you have done with Open Collective and Democracy Earth, you are also known as the mother of the first blockchain registered citizen.

PM: (Laughs) That video will haunt me for the rest of my days!

AB: Does Roma [the blockhain citizen] change the way you view the new generation? Is there more hope or more urgency? Do you think there is something special about this newer generation?

PM: I don’t think Roma gave me that sense of urgency. I think that sense of urgency was already there. What Roma gave me was a sense of no bullshit. I don’t have time for bullshit anymore. What has given me a sense of renewed hope for the world is the #NeverAgain movement. I’ve been empathizing with them so much that my skin is breaking out... But the generation above them, I think we need to take ownership that we weren’t able to do that. We need to think about how we can help. I have seen a lot of “These kids are going to save the world.” But they are not, not unless we all do it together.

Avital Balwit Staff Writer Class of 2021

PM: I [prove] that in my Spanish talks a lot. I go on stage and I read

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Order in the Court Exclusive Interview with Supreme Court Justice Breyer As part of his recent visit to UVA’s Miller Center of Public Affairs, the Review had a chance to sit down with current Supreme Court Justice Stephen Breyer. A 24-year nation’s highest court, Justice Breyer has veteran of our natiwon’s been deeply involved in many of the most critical legal battles of our times. Below, we hear his musings on international law, ice cream, and the state of civil liberties in the United States.

Stephen G. Breyer is the 97th Associate Justice of the Supreme Court of the United States. Appointed in 1994, Justice Breyer previously served as Chief Judge of the United States Court of Appeals for the First Circuit. Born in San Francisco, California, August 15, 1938, Justice Breyer earned a degree in philosophy from Stanford University, before attending Oxford University’s Magdalen College as a Marshall Scholar. After graduating from Harvard Law School, he clerked for Supreme Court Associate Justice Arthur J. Goldberg, before becoming a law professor at Harvard. Breyer was appointed by President Carter as a judge for the U.S. Court of Appeals for the First Circuit, before being named chief judge. Justice Breyer’s books include Active Liberty: Interpreting Our Democratic Constitution, Making Our Democracy Work: A Judge’s View, and The Court and the World: American Law and the New Global Realities.

The following has been edited and condensed for clarity. The views shared here do not reflect nor do they suggest the views of the Virginia Review of Politics. The full length transcript, including questions not published in the print edition, can be found on our website, www.virginiapolitics.com/interviews.

Alex Hendel (Interviews Editor, Virginia Review of Politics): In his book, “How Judges Think,” Richard Posner lays out an argument that in many cases, especially those without judicial precedent, judges take into account extra-judicial factors, including public opinion. However, you have noted your disagreement with this position, saying that public opinion “can’t really influence [a judge’s] judgements.” To what extent then do you believe judges are influenced, consciously or unconsciously, by extrajudicial factors or extralegal factors?

Stephen Breyer: Extralegal factors...That’s a tough one, because I think most judges – indeed, Posner too – when you have a difficult case in a text, or a statute, or maybe the Constitution, there is a question: “What does it mean?” This typically means, “How does it apply?” In our court, we’re only going to hear cases – almost all the time the only reason we take a case is because lower court judges have come to different conclusions on the same question of law.

There’s already division of opinion. Then, we’ll hear it.

All of us, whatever court, when we’re interpreting a question of law – and it’s difficult – use the same basic tools. One, we read the text. If it says animal, that doesn’t mean vegetable. Second, we look at the tradition where that’s appropriate. Suppose the word is habeas corpus. That has hundreds of years of tradition, and we’ll look at it. Third, we will look at the history of this provision. How did it get where it is? That leads to the precedent, which is often split. It’s not that there isn’t any, it’s that it’s indeterminate or uncertain. Then, you look at the purpose, which you may get out of the history, or you may get out of the context. Why are those words there? Somebody wrote them. They had something in mind. What is the purpose of those provisions? Finally you will look at the consequences.

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That is, normally the consequences in terms of the purpose: if it’s a first amendment case, it’s probably going to be consequences related to speech or religion; fourth amendment, probably related to search and seizure or privacy.

We all have the same thing. We all have text, tradition, history, precedent, purpose, consequence. Purpose might be what the constitution values. We all have the same six. Some judges will put more emphasis on the first four. That was Scalia. He said “I never go beyond the first four,” which is language, tradition, history, precedent. You know, we used to debate this and discuss it in public, universities too, it was great. I enjoyed it, he enjoyed it, it was very civil and quite fun and interesting. But I’d say, “Look, I read a book in which there’s an essay by you, about how you look at purpose and consequence.” He said, “Well, sometimes.” And I said, “Of course I use the first four. Everyone does. It’s a question of emphasis.”

Now when you get to consequences, of course you’re looking at the public – that’s what it’s about. That isn’t a non-legal factor. You want to know how it will affect people. Now if you mean by “opinion” whether the pub“Yet, the reason they lic is going to think it’s good or bad, that’s besides the point. I couldn’t do it is because can’t say it’s 100% besides the they were afraid... they point, for this reason: when the Supreme Court of the United were afraid nobody States embarks on an effort to the law, as every thinkwould do what the interpret ing person thought it should be Court said.” interpreted, equal protection of the law means that black people

should receive the same protections as white people. You don’t have to be a genius to figure that one out. Yet, the reason they couldn’t do it is because they were afraid – and Holmes wrote an opinion where he said this – they were afraid nobody would do what the Court said. And that led them to hesitate. Read Thurgood Marshall’s argument in Brown v Board. It is in a sense a legal argument, but it’s a legal argument where he knows that every single judge on that court thinks he’s right. So his real argument is, can you do it?

Do you have the power to do it? Will people do what you say, or should you just not do it because you’re afraid it just won’t happen.

Read the argument, and he says “You have to do it.” The arguments against it are unjust – and then he describes them.

SB: I want to show that an idea informed the creation of the Constitution that the people have tended not to overlook, but to minimize. That is that – going back to the Greeks – the average person, a citizen of the United States who is not a lawyer, not a judge – and contrary to popular belief there are 319 million of our 320 million who aren’t lawyers – that they vote. They have a right to participate, indeed they must participate. Their liberty, which is the active liberty, the active liberty is that they take part in the decisions that will affect them. Does that influence our decisions? Of course it does.

But you see, so very rarely. You’ll say, “maybe we shouldn’t decide this now because maybe it’ll cause [something].” But that doesn’t normally happen. So where you say you’re influenced by public opinion – no. You try not to be. You do your best not to be. Are you influenced by what your children say or what your parents say?

Well in a legal case you try not to be. You can’t escape your own skin, you can’t jump out of your own shoes. But, no, I think the answer is no, except very rarely. Do you take into account the public? Of course you do. Do you take into account the consequences?

Absolutely. That’s part of the legal analysis.

Eric Xu (Editor in Chief, Virginia Review of Politics): You have always been the Supreme Court’s primary voice in favor of learning from international law precedent. What do you have to say to judicial isolationists who point to the United States’ unique tradition as precedentially removed from international decisions?

SB: In the book I’ve written, The Court and the World, which I’m giving a talk about, I put what you’ve just said in what may appear to be random, but they are carefully chosen, words. I say, look beyond our own shores.

What I think is most interesting – and the views set in terms of foreign precedent is a part of it, but not the whole thing – is that we live in a world where our own shores are making less and less of distinction, whether you like it or don’t like it. I’m not here to argue whether you should like it or not like it.

“We live in a world where your own shores are making less and less of a distinction, whether you like it or don’t like it.”

The world is such that whereas when I joined the Court, maybe one case a year would require us to look beyond the boundaries of the United States, today it’s 20-30%, 15%, somewhere in there. That’s not a change the philosophy of judges, it is a change in the world. We live in a world where buisness, disease, migration, the environment, you name it – of course the problems are international. They require us to take them into account in interpreting American law. That’s the most interesting thing. There are many, many cases where to get the right answer under the statute in front of us – antitrust statute, securities statute, let alone an international security statute with national security implications – you have to know more abroad.

Sometimes you look at the precedent. There’s nothing wrong with that. See what they say. Occasionally, we are bound by it, and when we are, Justice Scalia and I would agree we are, say in interpreting a treaty, or in interpreting an agreement with another nation. But, most of the time we’re not avowed. It’s just a question of learning something. You might learn something and disagree with it. But hey, we read law review articles – we read all kinds of things.

Where you find a relevant foreign opinion, read it.

EX: In your 2005 book, Active Liberty, you make the case that our understanding of the Constitution must work in conjunction with our received ideas about democracy, fairness, and liberty in order to stay relevant. Given increasing polarization and disagreements over what “active liberty” entails, how specific can the recommendations of your book be in deciding real cases?

For example, we had a decision about free speech, involving a restriction on politicking at the voting place years ago in a case called Burson. In interpreting the first amendment, that first amendment is not simply a negative liberty. It is not simply a negative liberty, that government should leave you alone. It’s much more than that. Read the first amendment.

There’s a good book by Burt Neuborne at NYU, and he says the music of the first amendment – I hadn’t seen this, but it’s there – it starts with religion (“Congress shall make no law establishing religion or interfering with the free exercise thereof ”). That’s a question, important at that time, generalizing a freedom to think.

Conscious ideas that are in your head. Next comes freedom to speak. That’s a good point. You don’t have the freedom to say everything you think. But, if you think something you want other people to hear, say it. There we have freedom of speech. And then, freedom of the press, which is when you speak, then you communi“[The First Amendcate those ideas to others so that ment] isn’t just the they can think and discuss them.

Then we go into freedom of asgovernment leaving sembly, which is that they may get you alone. It is also together in many forums. Think of that broadly. Forums like your you participating in magazine. Forums like a meeting thought and considof the bar association committees, of which there are thousands. Or a eration... in order to meeting of the ACLU or a meeting of the police association. All kinds bring about - we hope of meetings. It’s called voluntary - a more rational and societies, where people talk about things. Then comes freedom to pedemocratic result.” tition Congress.

You see, this is a kind of chain, translating the individual idea which was first in your head through speech, to communication, to gathering to discuss, to going to Congressional representatives, and eventually action. If you look at the form of that amendment, it calls to your mind through analogy that it isn’t just the government leaving you alone. It is also you participating in thought and consideration so that that thought and consideration of different ideas can lead to action in the form of government where you participate in order to bring about – we hope – a more rational and democratic result.

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EX: In your 2015 dissent in Glossip v. Gross, you advance several arguments against the death penalty on 8th Amendment grounds.

Why did you make the broader arguments that you did, rather than join Justice Sotomayor’s more case-specific arguments against the Court’s decision?

SB: Well, I’ve been on the Court for more than 20 years. I’ve seen a lot of cases involving the death penalty. Most, almost all were unanimous. A person is about to be executed. Even if they’ve been there a long time. Even if they’ve already had many arguments in courts. Raise an argument in our court at the last minute, normally it’s nothing new and nothing we can do about it. So I’ve seen a lot of death cases in that context. Gradually I have come to the conclusion that I came to in that opinion. It was fairly long, about 40 pages or so. I want to say that, isn’t it the case that at least there is a question? Is it possible to administer the death penalty in a way that is both fair and effective? Or, if you’re trying to be fair, are you gonna have people on death row for example, for 20, 30, 40 years, to a point where it no longer seems to make much sense in terms of any rational punishment? I wanted to point that out. And the only way to point that out, because it’s a long complicated argument – and there are sub arguments, and sub sub arguments – and if you really want to show that it seems to be irrational in its application, arbitrary in its application, arbitrary in who is selected, you have to spend time doing that. And probably I spent two years writing it. I knew there’d be a case where it would be appropriate. I put the result forward in part because that’s what I thought. In part, because I hoped people would discuss it and think about it. That’s why.

AH: Since you were confirmed by the Senate by a margin of 879, more recent nominees have been confirmed by much narrower margins. Do you feel that judicial nominations are becoming increasingly politicized? How does this bode for future Supreme Court nominees, and what are the implications for the judicial process?

SB: I think when I was there, being confirmed – and you say mine was easy – it doesn’t feel that way when there’s 17 Senators on one side of the table and you’re on the other side. I also had worked in the Senate – I worked for Senator Kennedy when he was chairman of the Judiciary. So I knew from those two years; I had been a teacher most of my life. The “So my opinion on that is Senators will ask the quesand do the things that sort of like asking for the tions, they think their constituents recipe for chicken a la king want. I thought, that’s what want to ask, it’s my job from the point of view of they to answer as best I can. In a sense, you’re asking me about the chicken.” what the process should be.

Remember, I was not the confirming person, or the appointing person. I was the confirmed position. So my opinion on that is sort of like asking for the recipe for chicken a la king from the point of view of the chicken.

The more serious point is that people don’t like the politics in Washington. If they’re unhappy about it – and I say this to students too particularly – I say “you know the first place to look?” I would call it – and it’s not a very nice thing to say – I say “the first place to look, if you don’t like what’s going on, is to look in the mirror.” The elected people will reflect what they think their constituents want. If you think there are other people around, and you don’t

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like what they want, try to convince them. That’s the purpose of this freedom of debate. Eventually people might get fed up with too much partisanship, and they might think, “we want to get together more.” If they do think that, and there are enough of them who “That’s the great thing think we should get together more with people we disagree about America. I still bewith, that will happen. That’s lieve in it. People don’t the great thing about America.

I still believe in it. People don’t agree with what I think? agree with what I think? Try to Try to convince them. convince them. Better than the other ways of solving disputes. Better than the other EX: What has been your most way of solving disputes.” memorable experience with your colleagues during your tenure on the Court?

SB: Well, we get along. We get along. So that’s a lot of minor things.

No matter how much we disagree at the conference table we’ll have lunch together, and I never heard a voice raised in anger in that conference room. You’re really irritated about what someone else says, then go home and tell your wife or husband and that’s it. We don’t say mean things about each other. That works. We’re highly professional. Probably the most stressful case was Bush v Gore, because we knew everyone was watching, we knew a lot depended on it, and we had to decide it in a very short time. Normally you have two or three months at least. That’s a tremendous blessing, and that’s the comparative advantage that judges can bring to something: time to think the thing through, get the arguments, begin to understand them, ask the lawyers. That’s a tremendous advantage.

In that case we had to decide quickly. It was important, and it was stressful. So I’d say that was probably that stick in my mind.

AH: Final question: What is your favorite kind of ice cream?

SB: [Laughs] My favorite flavor is rum raisin. My father would be shocked at that because his favorite flavor was peach. Now, vanilla is not bad, I completely agree. When I was a child, we would go visit my uncle in Redlands, California and they had a place which had date ice cream. Now I can still taste that in my memory. It was delicious.

EX: Thank you so much for joining us Justice Breyer.

SB: Thank you.

Eric Xu Editor-in-Chief Class of 2019 Alex Hendel Interviews Editor Class of 2020

For more in-depth coverage, and to find the full transcript of our interview with Justice Breyer, be sure to check out our website at www.virigniapolitics.org! virginiapolitics.org!

The Case for Single-Payer Healthcare No longer should the uninsured be saddled with medical debt under the cruel guise of “individual responsibility.”

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he political and business elite dismiss universal healthcare coverage as if it is little more than an undeserved handout, denying affordable care to the most vulnerable in society under the pretenses of upholding an “individual work ethic.”

These attacks are successful because of an individualistic pathology, built into American culture, that privileges self-servingness over collective action. People typically conceive of two different types of rights: those that oblige freedom from (negative) or access to (positive) something. For instance, Americans typically prioritize negative rights over positive rights and reject calls to ensure access to material goods. Yet sometimes this negative-positive distinction of rights breaks down when describing the same thing. As political philosopher Henry Shue argues, this dichotomy hides something more important: our rights are often as much about our duties as our lib“...without freedom from erty. Guaranteeing physipain and illness, we would cal security, which is often not have the basic ability presumed to be a negative to actively participate in right, necessarily requires a highly coordinated – and society.” tax-dependent – system of armed forces, police, and courts. Yet Americans generally hold that physical security, in other words freedom from harm, is a basic right that the government should guarantee (to a meaningful extent) so that people can safely complete tasks outside the home. So, too, is the fundamental right of healthcare necessary for people to enjoy other cherished rights and privileges: without freedom from pain and illness, we would not have the basic ability to actively participate in society.

To discuss rights, we must understand the extent of government obligations. The government, which serves as the exclusive entity for providing public goods and is bound by a social contract, carries some burdens. Being duty-bound to the people, it necessarily has obligations to fulfilling basic human rights, including the right to healthcare coverage. Beyond this general obligation, the government also has reparative obligations to the poor and racial minorities, who have historically been harmed by both deliberate action and inaction that contributed to unequal access to healthcare. This is to say that the government ought to “make up” for its failure to fulfill its primary obligation to ensure an adequate level of healthcare for them. Granting a universal right instead of continuing to encumber the poor and racial minorities with the oppressive market forces that inflicted those harms – through adverse social determinants of health and inaccessible coverage – would be a meaningful step in ensuring health equality and justice.

Single-payer healthcare isn’t just deontically justified.

Even if one doesn’t buy these arguments on obligations – even if one believes that rights are just a fancy but meaningless way of making normative claims – a single-payer system will lead to better utilitarian outcomes: healthier people, greater access, and, yes, cheaper care overall. It’s a win-win proposition. The question boils down to why a government-run single-payer solution would uniquely fulfill these obligations and lead to better outcomes than the hybrid public-private America has in place.

There are several reasons why our healthcare system is broken and fails to adequately serve those who need it the most.

These generally fall under the issues of access (i.e. to health insurance, which negotiates prices and subsidizes costs for patients), affordability, and health outcomes. Though the Affordable Care Act (ACA) extended coverage to millions of uninsured Americans by expanding Medicaid and private-insurance subsidies, nearly 29 million people – around 9% of the population – still remain without coverage. At the same time, even 63 million Americans who hold insurance still are “not getting the needed care because of cost” – i.e., they are underinsured and simply cannot reasonably pay for more-expensive procedures that require huge co-insurance fees. At the same time, Republicans in Congress and the Trump administration, in a cruel and mendacious twist, have been undermining the ACA at the same time insurance companies are leaving ACA-created state exchanges. The fight for universal coverage seems to be regressing by the year while almost every other nation in the Organization for Economic Co-operation and Development (OECD), a club of mainly rich nations, has an average insured rate of 99%.

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In addition to inadequate insurance coverage, there are two significant problems plaguing the American healthcare system: skyrocketing costs and gross inequalities in outcomes. Per capita, we spend $9,000 on healthcare – more than any other nation and twice as much as comparably rich nations, despite the fact that there is a significant undersupply of physicians, hospital beds, and social services relative to the OECD median. This is due to market failures, driven by perverse incentives and monopolization, that lead to spiraling costs for patients. For example, a bypass surgery costs around $75,000 in the U.S. while one in the Netherlands is priced at $15,000. The average price of Celebrex, an anti-arthritis drug, costs nearly five times here in the U.S. than in our next door neighbor, Canada. For the uninsured and underinsured, these cost-access problems are the exact reasons why they delay or abstain from seeking care at much higher rates than the insured population. This contributes to many national problems: stagnant wages, reduced spending on education, and increasing state and national debts. At the same time, Americans overall have the lowest life expectancy at birth compared to comparably wealthy nations, largely due to a higher disease burden, higher mortality rates, and lower funding on public health and social services. These are markedly worse for racial minorities (specifically African Americans and Native Americans), LGBT+ individuals, veterans, and rural communities; such groups face significant health disparities such as rates of obesity, opioid abuse, infectious disease contraction (particularly HIV-AIDS), and ischemic heart disease while having generally lower access to healthcare facilities and affordable care.

This “worst of both worlds” phenomenon – poor and unequal health outcomes despite high spending on medical care – is directly caused by our fragmented and pernicious insurance system. Contrary to free-market orthodoxy, the private insurance industry is highly inefficient and non-competitive, spending onethird of its revenue on either administration, marketing, and sales – essentially over $350 billion in waste. Medicare spends nearly nothing on marketing and only two percent of its revenue on

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administration; it also implements cost-controlling measures.

Perversely enough, private insurance is sustained by corporate welfare: its revenue is padded either by tax-free, employer-linked insurance plans or direct subsidies in guaranteed insurance exchanges established by the ACA. A private health-insurance system often amounts to a regressive tax subsidy for middle- and upper-class Americans that disadvantages poorer Americans relying upon public care.

Although administrative bloat is one reason why costs are so high relative to other nations, the largest driver of healthcare spending stems from a classic market failure: monopolies from consolidated healthcare providers – hospitals, drug and medical-device manufacturers – and massive asymmetries of information, including intentionally opaque pricing schemes. Given that multiple, competing insurers from Aetna to Medicare must negotiate prices with a single or a couple providers within an area (with different billing schedules per hospital), prices often artificially inflate to as high as the market can bear. This is especially the case for prescription drugs and medical devices, which gain extensive monopolies by renewable patents and low competition.

Fee-for-service payment models (in contrast to other nations’ capitation-based models) and rising administrative expenditures add to costs on the provider-side, especially for inpatient and outpatient care, resulting in higher insurer cost-burdens. As the population becomes relatively older, these costs are projected to rise even faster, eating up a larger proportion of individuals’ incomes in premiums, co-pays, and deductibles.

The idea behind a single-payer health insurance program is that a single public agency assumes all financing for healthcare at a basic level and universally guarantees care to its citizens.

Whereas profit-seeking insurers are incentivized to restrict coverage, leave states empty of insurers, raise prices, or drop the sick from their plans (it is unprofitable to insure those with preexisting conditions), a federally administered, tax-funded single-payer plan would ensure coverage for all – including the people who need it most. On the other hand, unlike private insurance, a single-payer system would require buy-in and coverage from the healthy as well, which allows for maximum risk sharing: the most sick would be paid for and not penalized. This is fundamentally different from the ACA, which aimed to expand coverage by mandating, regulating, and subsidizing the purchase of private insurance; indeed, a single-payer system in the U.S. could simply expand current (and effective) public insurance programs in place to provide essential services, leaving the private market for elective procedures and care provision, much like the French and Canadian models. It would be Medicare for all.

Beyond guaranteeing universal coverage by law, a single-payer system would result in better control over costs and health outcomes. It would undoubtedly provide the bargaining power needed to offset the monopoly power of care providers – much more so than the pernicious trend of mergers between hospitals and physician groups, and between private insurers and providers. This means that the government would be able to bargain-down and regulate the prices of drugs and procedures, eliminating the price-gouging routinely practiced by hospitals (like a $37 listed charge for a Tylenol pill). A single-payer system would also lower administrative costs, consolidating the fragmented private financing system and unifying the payment procedures used among hospitals – perhaps leading to a more sensible system of

capitation rather than the expensive fee-for-service model. Due to these improvements, it would be much more affordable for the average taxpayer; a recent analysis of a proposed single-payer model in New York found that “over 98% of households would spend less on health care than they do now” on employer-sponsored private insurance. These savings are especially significant for those households that make less than $75,000. Yes, taxes would be levied to pay for public insurance and would likely be substantially higher for the top 2% of income-earners. But the tax hikes would be massively outweighed by the funds employers and state governments would not need to spend on the private market, which would ultimately lead to greater savings for the vast majority of people. Added up, a single-payer system would shrink healthcare spending from 18% of GDP to 12% of GDP or less when implemented. Single-payer, in other words, would be fairer and more affordable.

A single-payer sys“Added up, a single-payer tem would also lead to system would shrink health- better health outcomes care spending from 18% of for Americans. Research GDP to 12% of GDP or less shows that the universal coverage guaranteed by when implemented.” single-payer systems

would improve life expectancy not just because of more efficient expenditures in healthcare, but also because of greater accessibility to primary care to those who need it the most: the sick and the poor, who currently seek care at half the rate of the insured.

Nations such as South Korea that historically transitioned from a hybrid public-private model to a nearly fully public single-payer model have “succeeded in reducing disparities in coverage across population groups.”

A majority of Americans and physicians support Medicare for all. While the political will to transition to single-payer is still hobbled by free-market fundamentalism and vested interests in the private insurance and hospital lobby, it is growingly within reach. Still, single-payer is only a means to an end; single-payer alone cannot solve for the extortive system of medical malpractice and the deep-rooted social determinants of health. These socioeconomic factors, from neighborhood safety to housing conditions to healthy-food availability, are truly the “fundamental drivers” of physiological wellbeing and persistent inequities in long-term health. But the movement towards health justice starts from creating a universal risk pool that guarantees coverage and affordability for all Americans, especially the most vulnerable in society.

Our current system of private insurance is predicated upon inherently risky and predatory markets that continue to disfavor the sick and poor. Although contemporary forecasts depict a gloomy future of healthcare, rife with industry consolidation, regulatory capture, ballooning costs, and even greater health disparities among racial and class lines, a single-payer system can change this. Healthcare should be more than a mere employment privilege that employ“Healthcare should be more ers use to cajole and punish workers. No than a mere employment longer should one lack privilege that employers use the means to pay for a to cajole and punish workers.” lifesaving surgery, and no longer should the uninsured be saddled with medical debt under the cruel guise of “individual responsibility.” Insofar as we hold the equality of opportunity and freedom to participate in an inclusive society as morally important, we ought to – and can – fix our system of healthcare into something more equitable.

John Han Staff Writer Class of 2020

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The Failed Indian Demonetization Experiment Empirical evidence indicates that Indians’ love affair with cash persists, despite governmental attempts to create a cashless society.

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n November 8, 2016, Indian Prime Minister Narendra Modi announced that the 500-rupee (Rs 500) and 1000-rupee (Rs 1000) notes, which constituted 86 percent of the paper money in circulation, would cease to be legal tender. The transition was to be swift. Following the announcement, citizens were given just 50 days to deposit their money in the banking system and all notes not deposited by December 30, 2016 would become void. Finance Minister Arun Jaitley argued that this policy would incentivize non-cash transactions and reduce black wealth (i.e. income illegally obtained or not declared for tax purposes). One and a half years later, it is clear that the banknote demonetization scheme failed to achieve these goals.

One of the major assumptions underpinning the case for demonetizing the Rs 500 and Rs 1000 notes was that a significant amount of black wealth was held in cash. By eliminating the cash reserves of tax-evading criminals, government officials believed they would cripple groups operating in the shadows, thereby reducing illicit activity. However, available data on black wealth in India tell a different story. In 2012, the Indian Ministry of Finance published a white paper on black money, which included statistics regarding the illegal assets seized by income tax officials between 2006 and 2012. It found that between 2006 and 2012, only 4.9 percent of undisclosed income admitted by convicted tax-evaders was held in cash. The vast majority of black wealth was actually stored in alternative assets like real estate, jewelry, and financial products. In September of 2017, officials at the Reserve Bank of India told a parliamentary panel that they could not determine whether demonetization eliminated any of India’s black wealth, suggesting the reform had limited, if any, impact on illicit activity.

India’s demonetization policy also relied on the assumption that tax-evaders would be unable to find ways to disguise their black wealth. This assumption, too, was proven false.

During the fifty-day exchange period, wealthy Indians devised

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a number of clever ways to convert their untaxed cash. For example, once government officials announced they would not scrutinize anonymous donations made to temples, some wealthy Indians made backdoor deals with temple officials. The scheme worked as follows: First, wealthy individuals wishing to convert their money made large cash donations to anonymous donation boxes in temples, known as “hundis”; next, temple officials redeemed those donations at banks, easily acquiring the full value of the donations in new banknotes; last, after collecting the new notes, the temple officials returned a significant portion of the money back to the initial donors, retaining small percentages from transaction fees. Numerous reports of temple-related black money schemes surfaced in the months after the demonetization policy was implemented. Famously, a priest from the Govardhan Temple in Mathura, a town in the North Indian state of Uttar Pradesh, was caught on camera offering to clean Rs 5 million ($76,850) for a 20 percent commission.

Another way wealthy Indians converted their black wealth was by offering cash advances to suppliers, employees, and household help using Rs 1000 and Rs 500 notes. In November 2016, the Economic Times reported that a real estate developer from the northwestern state of Gujarat paid all 100 of his employees six months’ salary in advance. To incentivize the arrangement, he offered each employee a 2 percent premium on their previously agreed base salary. This scheme was not limited to the real estate industry. Al Jazeera interviewed a young businessman with garment factories in the outskirts of New Delhi who disposed of the vast majority of his Rs 500 and Rs 1000 notes by purchasing significant amounts of fabric in advance from his suppliers. By purchasing fabric with old notes, this factory owner converted his black wealth into hard assets, leaving the suppliers with the difficult task of exchanging those old notes for new legal tender.

Fraudulent “Fraudulent temple donations temple donations and and hefty cash advances are hefty cash advances just two of the many ways Inare just two of the dians recycled black wealth.” many ways Indians recycled black wealth through the financial system. Throughout the demonetization process, money was also laundered through political parties, Jan Dhan accounts (bank accounts opened primarily for previously unbanked, low-income individuals), and smaller financial institutions that have historically avoided regulatory scrutiny. A report published by the Reserve Bank of India indicates that by June 30, 2017, 99 percent of the notes rendered invalid by demonetization were ultimately returned to the nation’s central bank. Since almost all of the legally and illegally

obtained notes were ultimately returned to the central bank, demonetization didn’t even help the Indian government eliminate the small percentage of black wealth held in cash.

Government officials who argued that banknote demonetization would help reduce black wealth also maintained that the measure would help India become a cashless society. This seemed plausible at first. Between November 2016 and November 2017, Paytm, India’s largest digital payment platform, increased its user base by a staggering 143 percent, from approximately 115 million to 280 million users. However, available evidence suggests that cash is still the preferred medium for most transactions in India.

One of the primary reasons for this is India’s limited internet access. According to Kantar TNS, a London-based research firm, only 1/3rd of Indians have access to to the internet; amongst that group, just 14 percent use digital payment platforms at least once per week.

Cash remains extremely popular in India, as demonstrated by its sustained ATM usage. Monthly ATM transaction data indicate that the use of cash decreased significantly during the demonetization period but has increased steadily since, illustrating Indians’ continued use of cash in everyday life. Policymakers also claimed that demonetization would substantially increase the use of mobile banking and wallets. However, in August 2017, mobile banking and mobile wallets comprised a measly 0.381 percent of all digital payments, roughly equivalent to their share in August 2016. The empirical evidence indicates that Indians’ love affair with cash persists, despite governmental attempts to create a cashless society.

Finally, banknote demonetization imposed significant costs on India’s poorest citizens. During the transition period, India experienced a major cash crunch. The government could not print new notes fast enough, so people were forced to wait outside banks for periods as long as six hours to convert their money.

Because the printing presses needed time to meet the demand for new money, the central bank imposed an ATM withdrawal limit of Rs 2,500 per day, which was ultimately raised to Rs 4,500 per day at the start of the new year. As a result of this cash crunch, commodity prices plummeted. Rukhsar Ahmed, a young farmer from the outskirts of New Delhi, told a journalist from Al Jazeera that she was forced to sell her crops at 75 percent discount.

This cash crunch also triggered massive job losses. According to

a study conducted by the All India Manufacturers’ Organization (AIMO), 40 percent of manufacturing employees 40-55 years old and 32 percent of manufacturing employees 22-30 years old lost their jobs during the first 50 days of demonetization. For some, demonetization even had tangible consequences on human life.

On November 9, 2016, an 8-year“To limit the scope of old girl died in Uttar Pradesh’s Mahua Mafi village because her the black market, India father did not have enough new must work to strengthcash to purchase gas to drive her en its institutions.” to the hospital. Two days later, a baby died in Rajasthan’s Pali district, because his parents did not possess enough new currency to afford an ambulance.

Despite the policy’s negligible impact on black wealth, limited effect on customers’ willingness to use mobile payment platforms, and the disproportionate negative costs it imposed on India’s poorest residents, the demonetization policy did have some positive effects. Data acquired through the demonetization process allowed the Indian government to deregister over 200,000 “shell companies,” inactive businesses primarily used as as vehicles for complex financial transactions, that were cleaning black wealth, which struck a significant blow to existing money laundering infrastructure. Demonetization also helped to increase access to affordable credit throughout the Indian economy.

Classical macroeconomic theory suggests that, all else equal, an increase in the supply of loanable funds will be associated with a decrease in the price of money (i.e. interest rate). In India, that’s precisely what happened. Between November 2016 and March 2017, bank deposits increased by Rs 3.5 trillion; as a result, on January 1, 2017, the Reserve Bank of India reduced lending rates on a variety of short-term bonds by 0.9 percent. As a result of lower interest rates, access to affordable credit in India is increasing; this credit will serve as the foundation for much needed investment in the economy as a whole.

One-and-a-half years later, it appears that demonetization did not achieve the lofty goals initially set forth by Finance Minister Arun Jaitley and Prime Minister Narendra Modi. To limit the scope of the black market, India must work to strengthen its institutions. In 2017, Transparency International listed India among the countries with highest graft and least press freedom in the Asia Pacific Region, ultimately ranking the country 81st out of 180 on its global corruption perception index. A stronger emphasis on the rule of law will help India focus on limiting bribes to elected officials, inaccurate corporate invoicing, and other activities currently fueling the shadow economy. To disincentivize cash transactions, the government should focus on the carrot instead of the stick, such as incentivizing digital transactions through discounts. The steps described above are not easy, nor are they comprehensive, but they will bring India much closer to eliminating graft and increasing cashless payments than an overnight money switch ever could.

Varun Sharma Staff Writer Class of 2019

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The History of Factions and the Role of Citizens in the United States The development of factionalism and the role of constituents proves especially compelling when one considers their effect on contemporary politics.

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n the afternoon of November 7th, four of my firstyear friends and I hopped into an upperclassman’s car and drove to the polls.

The 2017 Virginia gubernatorial election an election, as increasingly all elections seem to be, fraught with party politics and drastically varied public opinion was the first time I was eligible to vote in the United States.

Admittedly, elections have exhibited unsavory qualities since their inception in the United States—clearly evident in the election race of 1800, between Federalist John Adams and Republican Thomas Jefferson, throughout which insults were tossed with ferocity and abandon. Yet, the quagmire of party politics appears only to have thickened as time has progressed, leaving individual voters feeling compelled to choose between personal ideological beliefs and party loyalties.

As a citizen coming into my own politically and intellectually, I find myself evaluating where I stand within the larger political structure, and I think returning to the nation’s founding texts seems to offer a start to this process.

James Madison’s Federalist 10 justifies the institution of a republican democratic system in the United States’ Constitution, as such a system facilitates cohesion among a large body of constituents while maintaining individual liberties. The paper is best known for Madison’s address of the inevitability of factionalism in a society allowing for liberty of thought and speech. Madison counters concern regarding factions, stating, “Extend the sphere [of the state], and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” Despite Madison’s assertions, as early forms of populism took shape in America, factions quickly united and gained ground, simultaneously changing the manner in which the nation engaged in political action. Of course, underlying Madison’s statements was the context of the American Revolution. Colo-

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nial elites, rather than the lower classes, instigated and largely carried out the Revolution. Therefore, in the writing of the Constitution, and then by extension the Federalist Papers, Madison and the Founding Fathers predicated their vision of federal politics upon a status quo of the landed elites holding fast to the majority of political clout. Certainly, the link between money and political power persists into the present day; however, a shift in the factional dynamic beginning under Andrew Jackson altered irreparably the framework of the relationship between citizen and society as outlined in Federalist 10.

“Essentially, the larger the political machine, the less empowered individual voters feel to become or remain politically engaged, or to further develop their personal political sentiments.”

Certainly, the assumptions of the Founding Fathers proved well-intentioned, given that the new republic focused on the protection of liberty and freedom from tyrannical rule, and that the current state continues to carry on this legacy. Yet such assumptions provide an explanation for Madison’s vision of factions: namely, the purported inability of massive interest groups to organize. Madison stipulates, “The majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” In direct opposition to Madison, Andrew Jackson took the scattered majority will of the states west of the Appalachian Mountains and gave it a platform, providing the uniting voice of early 19th century American populism. Running on the platform of “Andrew Jackson and the Will of the People,” Jackson easily took the 1828 presidential election. Thus, Jackson extended the sphere, but not in the manner which Madison foresaw. As a result, the popular factions, once divided and unable to effec-

tively organize, now acted with a common motive and voice. The initial system of factions established under Jackson has morphed and evolved into an institution of party politics, in which the focus of political action is on furthering the influence of the parties and party leadership, shifting attention away from individual constituents and the will of the general body as a whole.

In this vein, the size and scope of politics within the United States has continued to increase rapidly since the 19th century; as the nation itself expands, a greater number of interest and identity groups has sprouted, vying for the attention of candidates and a platform nationally. In addition, the rise of mass media has contributed to a closed feedback loop between Washington, state governments, and national information channels. Pippa Norris, a lecturer in Comparative Politics at the John F. Kennedy School of Government at Harvard University describes that “for citizens, the typical experience of the election becomes more passive, in the sense that the “Partisans tend to repeatedly main focus of the camsupport their preferred party, paign is located witheven when the candidates in national television studios, so that most and the issues change.” voters become more - Russell J. Dalton distant and disengaged spectators in the process.” Consequently, citizens become mere bystanders, and the disengagement felt by constituents can be clearly demonstrated in voting data: the Pew Research center cites that only 55.7% of eligible individuals voted in the most recent presidential election, and only 157.6 million of the 245.5 million voting-eligible Americans were even registered to vote to begin with. Furthermore, the growing influence of party politics has only reinforced individual political passivity. As Russell J. Dalton explains in his research, “Partisans tend to repeatedly support their preferred party, even when the candidates and the issues change.” Following from Russell’s thoughts, strong partisan ties often counterintuitively affect the political involvement of constituents; while one may view party loyalties as a motivating factor for political participation, individuals often semi-blindly vote for candidates of similar party association.8 Essentially, the larger the political machine, the less empowered individual voters feel to become or remain politically engaged, or to further develop their personal political sentiments.

The analysis of the development of factionalism and the role of constituents proves especially compelling when one considers their effect on contemporary politics. In this vein, Roberto Alejandro, in his book, Citizenship, Hermeneutics, and the Public Sphere describes citizenship “The most viable solu- hermeneutically-- as a product tion to overwhelming of our contextualization and inparty politics is an terpretation of documents and empowered public...” media, in this case, Federalist 10.

Alejandro states, “Citizenship, in short, belongs to the realm of the symbolic; that is, a space of symbols that previous generations constructed, as well as a domain which is always in the process of reconstitution, and

whose meaning the state seeks to define.” In short, the state defines implicitly and explicitly the function of its citizens through its evolving body of texts, namely its founding documents, laws, and amendments. The intent of the republican system was to prevent the silencing of the minority faction through majority will; however, important to note is that although individuals constitute factions, the whole is not necessarily a sum of its parts, evident in the impact of partisan systems.

Consequently, as Madison explains, factions prove an inevitable feature of republican governments particularly in places, such as the US, where identity groups tend to share similar values and political sentiments. Likewise, political parties provide a convenient organizational structure for like-minded individuals, and at best streamline the inclusion of public opinion into the political sphere. Partisanship becomes pernicious only when individuals feel required to sacrifice personal ideological convictions in order to remain supportive of their respective party; or, when constituents forgo autonomy of choice, casting ballots only in favor of their chosen party. There intentionally exists no tangible enforcement mechanism preventing the formation of factions, as such a mechanism would infringe upon civil liberties comprising the foundational conceptions of democracy in the United States.

The most viable solution to overwhelming party politics is an empowered public, in which each constituent is guided by his or her values, and feels personally compelled to remain engaged.

Such empowerment is sourced in the way in which individuals are socialized into the political sphere, which stems directly from the hermeneutic conception of citizenship described by Alejandro. Myriad solutions exist to heighten public political participation: the most prominent of which are increased focus on history and civics in primary and secondary education, increased access to polls, and incentivized voting systems. Ultimately, citizens act as both products of and shareholders in democracy, and a continued analysis of both the foundation and the evolution of that democracy remains essential to its progress.

Hallie Griffiths Staff Writer Class of 2021

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What About Whataboutism?

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hen given the opportunity to condemn the Neo-Nazis after their rampage in Charlottesville, President Donald Trump instead exercised his favorite deflection technique - whataboutism. Whataboutism is defined as “the technique or practice of responding to an accusation or difficult question by making a counter-accusation or raising a different issue.” In this case, Mr. Trump proclaimed, “What about the altleft that came charging at, as you say, at the alt-right? ... You had a group on one side that was bad. You had a group on the other side that was also very violent.” In another interview, Mr. Trump was asked to explain his initial reaction and statement, and rather than redacting his ramblings, he again shifted blame away from those who deserved it the most. He pulled his statement out of his pocket, and re-read it to prove a disconcerting point; though the white nationalists left one dead and nineteen injured behind in Charlottesville, Mr. Trump could not help but blame the victims in a finger-pointing tirade.

This obstinate “Using whataboutism to an- refusal to adswer serious questions does not dress the gravity solve anything — it only compli- of such a situation symbolizcates the issue, pulls a veil over es an epidemic the eyes of the public, and frus- that is plaguing trates those with valid concerns.” our president. In simpler terms, Mr. Trump’s primary response when challenged is usually “say[ing] that someone else is worse.” Take one look at Mr. Trump’s Twitter account, and countless examples of whataboutism emerge. Upon initial examination, this may seem to be merely a harmless, annoying debate tactic; however, peeling back the layers of whataboutism reveals imminent danger. But we will get back to that.

Whataboutism can be traced to its Soviet roots, where it was first deployed as “a simple rhetorical tactic heavily used… [by] populists in particular, allowing them to be vague but appear straight-talking at the same time.” The tactic was used in abundance during the Cold War, as Soviet leaders attempted to turn attention away from domestic issues while simultaneously promulgating a negative view of the United States. After the Cold War, modern-day Russia adopted the technique. Recently, Vladimir Putin is guilty of promoting whataboutism in the Kremlin. When about its “treatment of prisoners,” Kremlin officials responded in the manner of fluent whataboutists, demanding, “What about the United Kingdom? Breaking the law during public gatherings there could lead to a fine of 5,800 pounds sterling there or even prison.” The application of this technique becomes an issue when attempting to hold politicians responsible. Using whataboutism to answer serious questions does not solve anything -- it only complicates the issue, pulls a veil over the eyes of the public, and frustrates those with valid concerns.

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An American following Mr. Trump’s Twitter frenzies might find Mr. Putin’s technique eerily familiar. Mr. Trump took to Twitter on February 17, three days after the tragic school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. He made the claim that the FBI’s failure to stop the carnage was due to the investigators involvement with and obsession over the Trump-Russia collusion case. In this scenario, Mr. Trump attempts to demonize Mueller’s indictments by blaming the shooting on their supposedly misplaced attentions.

Though this is not textbook whataboutism, strains of the rhetorical device are identifiable. Mr. Trump deflects attention from allegations of collusion by drawing the public eye to the failure of the FBI to follow through on a report that the school shooter was a ticking time-bomb. As Mr. Trump discredits the FBI for this failure, he plays the story to his personal interests as Robert Mueller releases his indictments. These insidious spinoff strains of whataboutism take different forms, each equally as dangerous.

Whataboutism is going viral as the technique evolves into the weapon of choice among those defending the president.

Mr. Trump is influencing a movement of Americans who, rather than addressing the facts and attempting to explain viewpoints, point fingers to the perceived faults of the Left. In an interview with MSNBC, Sam Nunberg, a former Trump campaign aide, was caught in an undeniable flourish of whataboutism. When asked what stance he believed President Trump ought to take on the Roy Moore scandal, Mr. Nunberg replied, “I don’t know, ask Bill Clinton!” In this textbook case of whataboutism, the former Trump aide is backed into a corner and attempts to escape questioning by distracting his interviewer with a jab at Bill Clinton’s well-documented extramarital affair. But Mr. Nunberg’s feeble and transparent attempt to evade serious questioning compelled the interviewer to press him until he finally admitted that Mr. Trump’s judgment of a person’s character might be based on what, and how much, that person can do for him.

Whataboutism works for the President because it seems like he is is making valid points. But a roundabout response to a direct question only shows a weakness in the argument. The only acceptable answer to a direct question is one in which a relevant point is made. Anything else should be rejected and questioned by the American public, the press, and responsible politicians.

When left unchecked, whataboutism is a danger to democracy.

By demanding developed and relevant answers, we can hold politicians responsible for their actions. Sooner or later, the American public needs to shatter this thin rhetorical argument with the same words every parent tells their child; two wrongs do not make a right.

Edie Tepper Staff Writer Class of 2021

The American Prison System As A Perpetuation Of Modern Day Slavery

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ocial activist Angela Davis first introduced the idea of a prison industrial complex (PIC) in an impassioned and deeply analytical speech, declaring that “taking into account the structural similarities and profitability of business-government linkages in the realms of military production and public punishment, the expanding penal system can now be characterized as ‘a prison industrial complex.’” At its fundamental basis, the PIC is the ever-increasing incarceration rate in the United States occurring because of the push from private agencies towards the intentional utilization of cheap prison labor for profit.

Davis created this term to shine a light on the issues that contributed to the absurdly high imprisonment rate of black individuals. The major issue at hand was the pervasive and deep-seated systemic racism that influenced the justice system of Davis’ day. Angela Davis delivered her speech in the fall of 1997.

Tragically, the same problems that plagued her society continue to afflict our modern-day society. Structural racism still characterizes the American prison system and has led to the unabated proliferation and expansion of the PIC. On February 21, 2017, Attorney General Jeff Sessions declared his intent to endorse and restructure private prisons. In public and private prisons, the modern-day explicit exploitation of inmates as a means of acquiring cheap labor is no secret.

Under the Federal Prison System, all inmates are required to work if they are “medically able.” Prisoners perform two types of labor. The first is typical prison work such as cleaning and kitchen or laundry duty; the prisoners are usually paid between 12 to 40 cents an hour. However, in Alabama, Arkansas, Georgia, and Texas, prisoners are not paid for their labor.

The second type of prison labor is contracted prison work. The Federal Prison Industries, euphemistically known as the correctional institute UNICOR, oversees a system that forces inmates from both public and private prisons to manufacture multitudes of products such as “mattresses, spectacles, road signs and body armour” for approximately only 90 cents an hour, as reported by The Economist. Additionally, 70-80% of the prisoners’ already minimal wages are deducted under the Prison Industry Enhancement Certification Program.

This exploitation of prison inmates becomes even more heinous when considering the disproportionate imprisonment and criminalization of minorities, especially African Americans.

A recent study published by The Sentencing Project found that, “African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites.” A 2017 study by the Prison Policy Initiative reported that 39% of the prison population are white while 40% prisoners are black. This is in sore contrast with America’s overall population where 64% is white and only 13% black.

This disparity of the prison population in the context of the American population highlights the prejudicial targeting of black individuals, which feeds the insatiable appetite of the PIC. The ACLU has recognized this and demonstrated how the Trump administration’s justice system unfairly targets and criminalizes

black Americans and other minorities through tactics such as increased deportation of illegal immigrants and the increased effort on the war on drugs. These policies provide a steady supply of laborers to privatized and public prisons to such an extent that overcrowding is a large issue that prisons face nationwide.

This rapacious practice has been casually incorporated within our prison systems and is largely accepted as the norm.

Now, the Trump administration is endorsing the perpetuation of this system, as seen in Attorney General Jeff Sessions’ rescindment of the Obama-era decision to phase out privatized prisons, which use inmates in contracted work for corporate profit. Because inmates have few rights, they are forced into low-paying or unpaid labor as a condition of their incarceration. This is not acceptable.

Unpaid labor is slave labor. The 13th Amendment outlawed slave labor.

Well, the 13th amendment technically outlawed slave labor. There is one tiny loophole, one small inclusive condition within the amendment, that has led to the endurance of slavery in modern-day America. The 13th Amendment states that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” That interjection, “except as a punishment for crime,” enables the continued existence of slavery in America under the guise of legal unpaid labor in prisons. Slavery was not abolished.

The cruel exploitation of black Americans for cheap and free labor was not abolished.

Because of high incarceration rates of minorities, black individuals and minorities are being disproportionately imprisoned and consequently enslaved. This practice, which is for the sole benefit of corporate profit, is incredibly widespread, and our president has made no move to put an end to this practice. In fact, he has done the opposite and enabled the continuation of prisoner exploitation in privatized prisons.

The PIC is only growing stronger now that it is has been set loose by the Trump administration. The evolution, or rather non-evolution of our justice system, has rebuilt the foundations of institutional slavery in the United States. The prison system is an unmistakable, living perpetuation of American slavery and of our shameful history of racism. In this great country we live in, this great archetype of freedom and liberty, there exists a very prevalent and reprehensible reality: slavery in America is not dead. It is alive and grossly thriving.

Catherine Huang Staff Writer Class of 2021

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