The Johns Hopkins Undergraduate Law Review | Volume 5

SPRING 2024 VOL 5

JOHNS HOPKINS LAW REVIEW

Spring Journal

DESIGNED BY,

Yashas Mallikarjun

Table of Contents Editor’s Note from Johns Hopkins Undergraduate Law Review

02

Physician Autonomy: How Abortion Regulations May Infringe on the First Amendment

03

Supreme Court Decisions on Gender-Motivated Violence

18

England 1215-1307: Courts, Due Process, and Justice after Magna Carta

27

Sovereignty and Human Rights from Nuremberg to the Responsibility to Protect

36

The Case for Civic Republicanism in Election Law

49

EDITOR’S NOTE

Editor’s Note Dear Readers,

JHULR EDITORIAL TEAM I am thrilled to present the latest edition of our annual Spring Journal. As the Editor-in-Chief of the Johns Hopkins Undergraduate Law Review (JHULR), I am proud to lead this publication dedicated to fostering engaging dialogue and strong legal analysis.

This issue features a diverse array of articles authored by students from universities across the United States. Our authors delve into critical contemporary issues such as the intersection of healthcare and constitutional rights, landmark Supreme Court decisions on gender-motivated violence, historical perspectives on legal evolution post-Magna Carta, the development of international human rights norms, and the advocacy for civic virtue in electoral processes.Through their compelling pieces, we amplify young voices and provoke thoughtful discussion, staying true to our mission.

As JHULR evolves, I extend heartfelt thanks to our dedicated staff and Executive Board, especially Managing Editor Jacqueline Rosenkranz. Their commitment has been inspiring.

I am excited to see our new Executive Board take the helm and continue to guide JHULR to new heights. Thank you for your continued support, and I hope you find this edition both enlightening and thought-provoking.

Stella Lee Editor-in-Chief Johns Hopkins Undergraduate Law Review

PAGE 2

Stella Lee Editor in Chief

Jacqueline Rosenkranz Managing Editor

CONSTITUTIONAL LAW

Physician Autonomy: How Abortion Regulations Infringe on the 1st Amendment KARINA KEWALRAMANI, GEORGETOWN UNIVERSITY

Abstract: Women’s reproductive freedom has been affected by governmental intervention for over a century. However, since Dobbs v. Jackson Women’s Health Organization, there has been an increase in abortion-regulating legislation at an unprecedented rate. These policies not only restrict a patient’s access to healthcare under the guise of “promoting health and well-being,” but they also impose on a physician’s right to advise and inform their patients. Though physician professional speech is not protected under the First Amendment, it has commonly been made analogous to commercial speech as they both share the goal of helping their client—or patient—make well-informed decisions. However, in recent years local governments have infringed upon the physician-patient relationship by forcing physicians to spread ideological or inaccurate messages, thereby contributing to a misinformed citizenry and opposing the expressed state interest. This paper will address how the physician’s role has evolved in response to changes in abortion precedent and shall highlight the increasing importance of their speech as abortion services continue to wane. Through an examination of various abortion mandates across the United States, it can be seen how they may run afoul of the physician’s First Amendment right and present harm to the public.

PAGE 3

CONSTITUTIONAL LAW

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Throughout history, governments have “manipulat[ed] the content of doctorpatient discourse” to increase state power.

— Justice Thomas, United States Supreme Court Justice in National Institute of Family and Life Advocates v. Becerra[1] 1. Introduction In March 2024, Idaho’s Attorney General released a statement clarifying Idaho’s 2022 statute criminalizing abortion. It explained that any healthcare professional who referred a patient across state lines to receive an abortion would have their license revoked.[2] This statement provoked outrage among Idahoan physicians, who promptly filed suit against the Attorney General on the grounds that his interpretation was unconstitutional under the First and Fourth Amendments.[3] The federal district judge granted an emergency request to block enforcement of the law based on what the Attorney General opined the law criminalized, stating that it infringed on a physician’s First Amendment right to provide their patient accurate medical guidance so that the patient could make a fully informed decision. The Idaho Attorney General’s attempt to curtail physician speech on a matter of such public interest led many to raise questions about the constitutionality of other abortion regulations across the country, especially in this post-Dobbs v. Jackson Women's Health Organization environment where different states are enacting different abortion-related laws.[4] How might a state restriction that controls a physician’s abortion-related speech be legal under the U.S. Constitution? Is there a point at which the line of constitutionality is crossed in the legislation of reproductive rights? If so, how will courts determine which standard or category to apply when First Amendment rights are suspected to be infringed upon?

Do these speech regulations influence the efficacy of care for the patient, and how will they affect the physician-patient relationship?

This paper addresses these questions through the examination of various abortion regulations and mandates across the United States. Section II of the paper will provide an overview of the U.S. Supreme Court’s changing opinions regarding the constitutionality of the right to an abortion and examine the changing physician roles within this context. Specifically, this section shall examine how much input and advice based on a physician’s expertise they could provide to their patients at each major change in precedence. This section will also discuss the evolving Supreme Court tests used to determine how a state may constitutionally regulate the right to an abortion at any point in the pregnancy. Section III of the paper will investigate the features and intentions of “professional speech” and compare them to the intentions behind commercial speech— to achieve the First Amendment aim of “enlighten[ed] public decision making,”— in the professional advice setting.[5] It will further discuss the importance of the physician-patient relationship and the consequences of eroding this relationship. Then, this section will address what constitutes a “professional,” in the legal sense of governmental regulation as well as the societal sense, and the importance of a patient having access to a community of established expert knowledge. This section finally outlines the distinct types of regulations that can be applied to professional speech—compelled and prohibited—and discusses how both can unconstitutionally infringe on not only the physician-patient relationship but also on the individual autonomy of the physician and patient to provide and receive relevant information. Section IV provides a detailed evaluation of the compelled regulations on abortion speech that run afoul of the First Amendment and explains why certain states’ statutes infringe on physicians’ rights as they require the forced dissemination of misleading information or ideological speech. Finally, Section V of this paper will argue that mandating professional speech with untruthful, ideological legislation can restrict a physician’s ability and expertise and violate the state’s interest in public health and overall welfare. It will further conclude that while informed consent laws are beneficial in fully informing the patient prior to medical decision making, the broadening of informed consent statutes across the United States, especially after Dobbs when access to abortion services is waning, can erode faith in the medical community and present harm to the patient.

PAGE 4

CONSTITUTIONAL LAW

II. History of Reproductive Rights: Legislating the Physician’s Role Women’s reproductive freedom in the United States, including patient access and treatment options has gone through many substantial transformations since the beginning of the 1900s. At the turn of the 20th century, abortion was made a criminal offense in most states in an effort by the predominantly male physicians to make midwives obsolete, thereby guaranteeing that women patients would be required to consult physicians for their prenatal healthcare decisions rather than midwives.[6] These anti-abortion regulations and the rhetoric surrounding the procedure were further escalated by the criminalization of any “obscene” materials, including information regarding contraceptives,[7] sex, and the termination of pregnancy, as well as the assertion of power by the American Medical Association, the Catholic Church, and the predominantly male physicians.[8] After abortion was made illegal across the United States, its access would not become legal and recognized as a right under the U.S. Constitution until the decision in Roe v. Wade (1973). This nearly 100-year period involved a fight for women’s reproductive rights through “legal, political, and religious” advocacy, as well as people gaining a greater understanding of medical practices and the desire for greater patient autonomy.[9] The landmark Roe v. Wade decision was the start of an ongoing conflict within the courts concerning the reproductive rights of women. In Roe, the Court recognized that there were compelling state interests in both “the mother’s health and safety and the potentiality of human life.”[10] As such, the Court decided that at the point of “viability” within the pregnancy, which they concluded was at the end of the second trimester, the controlling interest flips from the woman’s health to the potential life of the fetus, and the state could begin regulating abortion to protect the fetus at this point.[11] Before the point of viability, however, it was up to the physician and the patient to determine the health risk for the patient and to guide the patient towards the best decision for her well-being. This establishment of physician and patient autonomy in the first two trimesters preserved the integrity of the medical community from overbearing governmental intervention, and any regulations placed on abortions before the point of viability would be subject to strict scrutiny.[12] Despite the acknowledgment of a woman’s right under the U.S. Constitution to obtain an abortion that the Court recognized in Roe, some legislation emerged that limited an individual’s ability to learn about or have access to abortion services. For example, in the 1974 case, Bigelow v. Virginia, a newspaper editor in Virginia was convicted under a state statute that criminalized the publication of advertisements for abortion-related services.[13] The Court ruled that this statute infringed on Bigelow’s First Amendment right, recognizing that commercial speech in the abortion context, such as advertisements, is granted free speech protections under the U.S. Constitution. Furthermore, this advertisement contained information that was a matter of “public interest”; removing it from the paper would have been a disservice to the public and their right to be fully informed.[14] The next significant change in women’s reproductive rights arrived in 1992 with the Planned Parenthood of Southeastern Pennsylvania v. Casey ruling, which moved pregnancy viability standards sooner than determined in Roe as a response to improved medical technology and methods.[15] In Casey, the Court recognized that states could pass laws restricting abortion rights after the earlier point of fetal viability, and they could mandate the written informed consent from the patient and a 24-hour waiting period before an abortion procedure, along with other restrictions. The Court noted, however, that even after the point of viability, physicians could perform these procedures if it were a medical emergency.[16] Allowing more state regulations regarding abortion services resulted in states also restricting when, how, and where abortion services could be provided, including limiting how physicians could potentially advise and offer abortion services to their patients. This change in the court allowed an opportunity for the states to implement a more restrictive abortion policy and stronger informed consent laws.

Additionally, the Court ruled that regulations were no longer reviewed under strict scrutiny, but rather under the “undue burden test,” which required a law restricting abortion services to be analyzed on the basis of whether it placed a substantial obstacle on someone seeking an abortion.[17]

PAGE 5

CONSTITUTIONAL LAW

Post Casey, in 2018, the Court appeared to expand a physician’s right of speech through the National Institute of Family and Life Advocates v. Becerra. Becerra concerned the “California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act”, which required licensed medical clinics in California to provide family planning information, including abortion-related information, to their clients.[18] The Court ruled that the act was in violation of the First Amendment as it burdened the physician speaker by requiring them to “‘be an instrument for fostering public adherence to an ideological point of view they find unacceptable,’” thereby decreasing physician autonomy.[19] However, some justices argued that physicians under California’s Act were not being forced to disseminate a message in which they did not believe. Instead, this was similar to any other disclosure or informed consent law, such as the restrictions and guidelines outlined in Casey,[20] which allowed patients to receive more information regarding family planning options. Consequently, it allowed a woman to make the most fully informed medical decision, which was of greater societal value in protecting public health rather than preserving the rights of licensed clinics to selectively reveal the information in which the people in the clinic believed.

The most recent major development in reproductive rights arrived in 2022 with the case Dobbs v.

Jackson Women’s Health Organization, which overruled both Roe and Casey. This ruling was based on there being no historical precedent for abortion in America and no enumeration of this right in the Constitution.[21] Instead, access to abortion should be left up to the discretion of the states and the elected officials. This caused widespread trigger laws to immediately go into effect that outrightly banned abortion in 13 states. Six months after Dobbs, 24 states completely outlawed access to abortions, with even more passing restrictive legislation regarding patient autonomy and physician speech.

Since the Dobbs decision, there has been a substantial rise in statutes and legislation that limit people’s access to abortions and the physician’s role in referring or helping patients receive one. While the states may be able to place any restriction on access to abortion that they desire, people’s right to information and to voice their opinion cannot be obstructed by these abortion-related statutes. Therefore, in determining the constitutionality of this legislation that impacts physician speech, the courts must determine under which lens to evaluate this speech, whether that be public, commercial, or professional, and decide how the regulation of the speech influences patients’ access to information and overall societal well being.

III. Professional Speech in the Medical Setting A. Establishment of “Professional Speech” and the Professional-Client Relationship The courts have yet to establish professional speech as a protected category with clear parameters under the First Amendment; however, it has been alluded to that these rights can be made analogous to the protections granted to commercial speech. Established commercial speech doctrine declares that “the free flow of commercial information is indispensable” as it is a matter of public interest that the consumer be well-informed.[22] This reinforces the First Amendment objective of “enlighten(ed) public decision making” as a tenet of a successful democracy.[23] In order for the public to be properly informed, the disseminated information must be truthful and not “misleading.”[24] To ensure that the commercial speech is accurate, the U.S. Constitution allows states to issue regulations such “that the stream of commercial information flow(s) cleanly as well as freely.”[25] To some extent, the goals of commercial speech are the same as those of physician professional speech: to provide accurate, comprehensive information to the consumer. Specifically, in the medical setting, the physician shares information so that the patient is educated about their diagnosis and informed enough to make the best medical decision for their health and well-being. The consequences of a misinformed medical decision are arguably more harmful than those of a deceptive commercial communication because most individuals’ personal health is of greater value to them than economic spending. This further supports the idea that the transmission of accurate medical information from experts to patients would be necessary for promoting the well-being of the citizenry.

PAGE 6

CONSTITUTIONAL LAW

Therefore, any argument that professional speech should not be granted protection under the First Amendment is flawed given that protecting such speech promotes the societal interest of providing useful, and even necessary, information to the public, which aligns with the purposes of protecting commercial speech.

While commercial and professional speech both contribute to an informed citizenry through the sharing of accurate information, professional speech has certain differentiating properties and should be evaluated as a separate type of speech. Both commercial and professional speech are different from traditional ideas of free speech by an individual because the former types are more focused on the rights of the listener to gain certain information as opposed to the latter speaker’s right to express their belief freely. In the analysis of non-commercial speech, the opinions expressed by the speaker may diverge from those of the listener, leading to public debate and eventually a mutual understanding of multiple perspectives.[26] In commercial and professional speech, however, the speaker holds information that is valuable to the listener such that the listener, who is the consumer of the information, can make an informed decision.

Where commercial and professional differ, however, is that commercial speech is primarily concerned with the motivations of the speaker and increasing profits for them through advertisement and promotion of an item to a consumer base, thereby receiving lower levels of protection. In contrast, professional speech comes from an expert seeking to aid a client by way of specialized information and advice, which may or may not be related to a profit motive. In this sense, professional speech is more similar to traditional non-commercial speech in that both draw upon personal expertise to share information with a listener. As such, professional speech may be granted greater protections than commercial speech.

The question of who qualifies as a “professional” often arises in determining what constitutes professional speech.[27] Lower courts have used the following rationale to define a “professional”: whether they are subject to licensing and regulation, provide specialized services to a client, and can speak within the context of a professional relationship based on their knowledge or judgment drawn from their expert field.[28] Though the Supreme Court has asserted that this category is too broad as it gives the “States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement,” this definition is still cited in appellate courts, as the licensing of a professional group is necessary to regulate the accuracy of information communicated and the well-being of the client.[29] Licensing may be the initial step in classifying a professional group; however, the latter part of the definition — services to a clientele and engaging in a professional-client relationship—appears more meaningful to the characterization and regulation of professional speech in a medical context. Once a group is established as professionals, the members are part of a knowledge community with a shared breadth of established information drawn from collective understanding and “exchange of insights within the community.”[30] This intellectual differential between the professional and their client creates an asymmetric relationship in which the client seeks out specialized advice from the professional. These professional communities also have shared ethical norms and common “notions of validity that limit the range of acceptable opinions found within them.”[31] Therefore, while a professional may hold their own opinion and does not have a responsibility to share that with the client, they do have a responsibility to inform their client of the established information within the professional community that lay people would not have the expertise to know.

The communications between a professional and their client are specialized to the client’s needs and grounded in a foundation of trust that the client is receiving truthful, accurate advice. For a physician and patient, the matters of health discussed are often confidential and deeply personal, and the patient must be fully confident in their physician’s medical advice, as they may be using it to make a crucial life decision.

PAGE 7

CONSTITUTIONAL LAW

This relationship has been outlined in cases including Moore-King v. County of Chesterfield, Lowe v. SEC, and Rust v. Sullivan, in which Justice Blackmun illustrates the relationship of between a patient and physician:

In our society, the doctor-patient dialogue embodies a unique relationship of trust. The specialized nature of medical science and the emotional distress often attendant to health-related decisions requires that patients place their complete confidence, and often very lives, in the hands of medical professionals. One seeks a physician’s aid not only for medication or diagnosis, but also for guidance, professional judgment, and vital emotional support.[32] This special relationship causes people to attach “profound importance and authority to the words of advice spoken by the physician.”[33] Consequently, the state has a compelling interest in ensuring the validity of the information given by physicians to protect the health and well-being of the patient.

However, the question remains: at what point does regulation of physician professional speech infringe upon the physician-patient relationship and the physician’s First Amendment right of autonomy?

B. Regulatory Frameworks Within Professional Speech Under the professional speech doctrine, states have an interest in regulating and licensing certain professions, such as law and medicine, to best protect societal well-being. While some proponents of the marketplace of ideas theory say that discourse of any kind —including falsehoods and fallacies—leads to robust debate and the prevailing of truth, in a professional setting, it is not worth risking the welfare of the client to preserve the free flow of false speech. This viewpoint is the basis for doctrines of malpractice that can revoke a professional's license to practice for violating “strict standards of expert knowledge.”34 A doctor would commit malpractice if they treated or advised a patient in a manner deviating from established medical norms, as this threatens public health.[35] Aside from claims of professional malpractice, regulations can also be placed on physicians for failing to correctly inform their patients of all viable treatment options or potential health consequences of a medical decision, thereby violating the implied trust in the physician-patient relationship. These regulations on speech are permitted “given that professional speech lies on the audience’s ability to receive information rather than on the professional to speak as they choose.”[36] Since the turn of the 20th century, there has been an improvement in attentiveness to a patient’s autonomy and increased transparency between a patient and physician, bringing about the “informed consent doctrine.”[37] The origins of informed consent can be traced back to a New York Court of Appeals case from 1914 in which Justice Cardozo explained how patients can have autonomy in their medical decisions:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault for which he is liable in damages.[38]

Since then, the doctrine has developed to be an imposition on the physician to reasonably explain in non-technical terms the risks and hazards of their treatment or diagnosis so that the patient is capable of making a mindful medical decision.[39] Informed consent statutes only affect speech as far as the content of the physician’s professional speech is consistent with scientifically supported advice that is accepted within the medical community and their established shared understandings.

PAGE 8

CONSTITUTIONAL LAW

This full disclosure of a diagnosis and a plan of treatment within a physician-patient relationship is necessary to maintain public health standards and ensure patients have the knowledge to make autonomous, well-informed decisions. However, in recent years prior to Dobbs, even more stringent informed consent statutes in relation to abortion have been created, which critics regarded as temporary tactics to end abortion in the U.S. completely.

For example, South Dakota House Bill 1249 of 2005 emerged as an attempt to overturn Roe v. Wade, and it required that physicians describe the risks of receiving an abortion and not the risks of maintaining the pregnancy.40 This bill raised First Amendment concerns as it did “not merely compromise the ability of … members of the public to receive accurate information; it also undermines public trust that professional physician speech will reflect the expertise of the ‘medical community.’”[41] Therefore, it diminished the autonomy of the patient because they were neither well-informed nor were they able to rely on their doctor to disclose the totality of the expert knowledge they possessed. While informed consent statutes promote the First Amendment aims of informing the non-expert patient and “enlighten(ed) public decision making,” over-regulating physician speech can have a harmful effect on the patient by preventing the full acquisition of medical knowledge.[42] Regulation on professional speech can typically be subdivided into two sections: prohibited and compelled legislation.[43] Legislation that prohibits speech imposes a limit or ban on how professionals can communicate and act, and compelled speech legislation requires a professional to disseminate specific viewpoints or information. Even though they do not expressly compel speech, informed consent statutes can best be categorized as compelled speech regulations as they require the physician to provide all the applicable medical consequences and options to their patients. Both of these regulations can cross constitutional boundaries if they demand the spreading of information that is inconsistent with established knowledge or fail to disseminate crucial professional insights that harm the patient's decision-making abilities and, in doing so, contradict the state interest of preserving public health.

Prohibited speech laws often represent the most extensive abridgment of speech as they limit the dissemination of information, thereby affecting the authority and utility of the physician and the autonomy of the patient. In recent years, there has been a large uptick in prohibited speech “gag” laws in relation to abortion.[44] In 2019, the Department of Health and Human Services under the Trump administration administered a “Final Rule” which prohibited Title X-funded clinics from promoting, referring, or supporting abortion to a client, and a physician could “tell pregnant patients about some of their options” but “they may exclude any information about abortion.”[45] This directly harms a patient’s ability to make a fully-informed decision regarding their own health because the physician would be prohibited from providing information that may be crucial in allowing a patient to understand their medical options. In Rust v. Sullivan, the Court upheld a regulation on federally-funded family planning clinics from providing abortion counseling, thereby limiting physicians within these facilities from fully assisting their patients.[46] While the majority of the Court argued that the restriction in Rust did not “significantly impinge upon the doctor-patient relationship” as these facilities were not providing “allencompassing” professional services, but rather limited service providers in a government program, it still holds that the patient was prevented from making a fully-informed decision because of the impacted physician-patient relationship and the withholding of potentially relevant expert advice.[47] Compelled speech can also either be used to fully inform a patient and contribute to thorough decisionmaking, such as most informed consent laws, or they can require a physician to convey factually false information or an ideological message that belongs to the state as opposed to the researched understanding of the medical community. For example, in Casey, state law required physicians to provide information about abortions, the possible risks, other alternatives, and the cost of pregnancy and childbirth.[48] This information was “truthful and non-misleading,” and as such, was determined to be constitutional because it contributed to an informed decision by the woman.

PAGE 9

CONSTITUTIONAL LAW

On the other hand, in Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds, a statute in South Dakota required physicians to tell their patients that abortion would result in an “increased risk of suicidal ideation and suicide.”[49] This statute was found to be unconstitutional because it undercuts a physician’s best medical judgment and discretion by requiring them to relay information that is simply untrue, as levels of suicidal ideation were proven to be similarly low between women who received and were denied abortions.[50]The forced dissemination of misleading information erodes trust in the physician-patient relationship and does not allow the physician to draw upon their own medical expertise and knowledge within the health community. Instead, they must rely on the speculative opinion of the state.

Therefore, because the regulation of the physician-patient relationship is necessary to ensure that the patient is able to receive the widest breadth of accurate information to make their medical decision, this regulation can cross constitutional boundaries when the enforced speech is fictitious, misleading, or contains scientifically unsupported, state ideology.

IV: Abortion Speech Regulation: Developing a Misinformed Medical Decision A. Cases of Inaccurate Information As abortion becomes an issue of increasing importance in American culture and health care, there is an increase in state statutes both limiting and improving access to such procedures and the information surrounding them. With an increase in legislation comes a rise in concerns regarding physician and patient autonomy and how these new laws and statutes affect the integrity of the medical practice.

There have been multiple instances in recent years in which compelled speech statutes contain inaccurate, misleading information, thereby hindering a patient’s decision-making abilities and infringing on a physician’s ability to speak freely, relying on their medical expertise.

For example, as of 2020, Tennessee, North Dakota, and Oklahoma passed bills requiring physicians and abortion providers to tell their patients that if they were to receive a medication abortion, it could be “reversed.”[51] This effectively forced physicians and the entire medical community, including the American Medical Association and the American Congress of Obstetricians and Gynecologists, to endorse a practice that is wholly unsupported by scientific evidence.[52] Compelling physicians to essentially endorse an unscientifically proven, governmentally mandated message in this sense erodes the trust and confidence within a physician-patient relationship.

Not surprisingly, this relationship is built upon honest, ethical communication between the two parties, and it would deteriorate if physicians were required to mislead their patients by presenting factually incorrect information that “contradicts reality and science.”[53] These laws are a violation of the First Amendment in that they stray doctors away from the established reservoir of medical knowledge that they are supposed to employ in advising patients. Instead, they must deliver a governmental message that the majority of the medical community rejects, thereby withholding vital information from their patient and confusing their decision-making process. Not only does this conflict with constitutionally approved informed consent laws but it is also contraindicated in that the procedure of inducing an abortion through high doses of progesterone, the abortion reversal pill, has not yet met clinical standards.[54] This contradicts one of the goals of the First Amendment, which allows for the free flow of information to create a knowledgeable consumer base; it is also not aligned with the state’s concern for women’s health and safety. There are also 15 states in the U.S. that now require healthcare professionals to provide information on abortion reversals to their patients, which puts more and more women at risk of harm by requiring physicians to provide scientifically unsupported medical advice.

A further example of legislation that compels a physician to provide misleading medical advice can be seen in states such as Missouri, Texas, South Dakota, and Indiana, which requires physicians to tell their abortion-seeking patients that “objective scientific information shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age.”[55] This information must be relayed to all patients, regardless of the stage of their pregnancy; it is also scientifically unproven and misleading.

PAGE 10

CONSTITUTIONAL LAW

The scientific community agrees that a fetus does not have the physiological capacity to feel pain before 24 weeks, as the nervous and peripheral nervous systems are not developed enough to process pain transmissions.56 Additionally, some scientists believe that the experiential feeling of pain requires “conscious recognition of a noxious stimulus,” which cannot develop until the third trimester.57 This mandated speech fails to note these contradictions and shows “no real effort to give patients all the information that might inform their choice.”[58] These are only a few examples of compelled speech statutes that are not based on scientifically proven information and are required to be provided by healthcare professionals in the abortion-related speech context. Due to the extent to which medical technology and research are expanding, it is more likely that a patient will be drawn to a dangerous medical decision if they cannot rely on accurate information from their physician. Further, receiving unsupported information will erode the trust between patients and physicians in those states’ prenatal healthcare context.[59] B. Ideological Speech Mandates States also have a history of compelling physicians to represent and disseminate unscientifically proven, ideological viewpoints of the state. Not only does this prohibit physicians from making their own informed opinions based on their community of knowledge and expertise, but it also limits collaboration and discussion among professionals as they are all repeating the same unsupported governmental message. Furthermore, patients may be emotionally affected by this state perspective in a way that is not motivated by actual medical evidence.

The South Dakota Informed Consent Act of 2005 is a clear example of the spread of an ideological message. It declares that abortion may only be carried out if the woman is informed that “the abortion will terminate the life of a whole, separate, unique living human being.”[60] While this statement is written for the physicians, they have to produce the material for the patient to read or hear that contains this mandated information— it is not given in a state-authored pamphlet.[61] While the district court “agreed the law compelled ideological speech,” the Eight Circuit contradictorily held that since “human being” meant “an individual member of the species of Homo sapiens,” it did not promote an ideological message about the point at which life begins.[62] Instead of resting their decision on this biological definition of “human being,” the court should evaluate the First Amendment implications of the speech’s ability to affect the listener—the patient— whose opinion may be altered by the insinuation of life inherent in “human being.” Moreover, the words “separate” and “unique” seem to imply life and development in the fetus that is beyond the actual physicality, further suggesting a point of life. This statute goes beyond the informed consent law’s goal of providing medical advice and begins to make a philosophical and moral statement regarding existence. It is not the role of health care providers to present the state’s views nor their own in regard to these moral dilemmas that have no relevance to medically consequential information and are scientifically unsupported.[63] The same ideological issue can be seen in legislation that orders a patient to undergo an ultrasound 24 hours before obtaining an abortion and to have the ultrasound audibly described to them by a physician. These laws went into effect in many different states, including Texas. Texas’ informed consent laws mandate that physicians engage in speech that directly promotes the state’s ideological message and plays a vital role in the patient’s decision to follow through with her abortion, especially considering that the information described during the ultrasound [64] is not in a state-published pamphlet but is articulated by the physician regarding this patient’s specific condition.[65] While the ideological language in this bill may be more ambiguous than the South Dakota statute in that all of the communication between the physician and patient required in this case is scientifically factual, it can be clearly viewed as ideological in the broader context of the state’s moral campaign against abortion.

As theorist Roland Barthes argued, photographic messaging often represents a connotated or hidden message that is shaped by its cultural and historical context.[66] It is important to consider Texas’s effort towards limiting access to abortion.

PAGE 11

CONSTITUTIONAL LAW

Representative Sid Miller, the bill’s sponsor, even stated that it was fine with him if the bill dissuaded women from receiving an abortion, outwardly admitting to the pro-life intent.[67] Furthermore, during the bill’s signing, Governor Perry noted that this message was important in ensuring that women “understand the devastating impact that life-ending decision can have.”[68] Therefore, given the circumstances, one may understand how requiring these audible ultrasounds was a measure to persuade the patient against abortion by appealing to her maternal instincts and moral conscience.

Moreover, ultrasounds are not a necessary aspect of informed consent laws and do not contribute to the knowledge a woman needs to make an informed decision regarding an abortion. This is noted in the act, which states that women whose pregnancy is a result of “sexual assault, incest, or other violation of the Penal Code,” do not have to receive the “verbal explanation” of the sonogram.[69] This exception to the law applies to individuals for whom abortion is potentially more socially acceptable because of the events that caused their pregnancy. If the information from the ultrasound were actually necessary for the informed decision-making of the patient, there would not be exceptions based on the circumstances of conception. Therefore, this is a violation of physician autonomy as medical experts are forced to disseminate the state’s ideological viewpoint as opposed to information that will genuinely contribute to the patient’s decision.

V: Conclusion As access to abortion services continues to wane through restrictive regulation, the role of physicians in the dissemination of abortion-related information becomes increasingly important in order for patients to be fully informed about their prenatal healthcare options. In this sense, physicians and other healthcare professionals clearly contribute more to a functioning society that is well-equipped to make decisions in their best interests than commercial speakers. While the protection of commercial speech is necessary for consumers to make valuable economic choices, the voices of expert professionals in a community who are able to draw from a pool of established knowledge are much more effective in promoting state interests of well-being and health. As such, professional speech should be granted higher levels of protection. The professional-client relationship is similarly more valuable than the relationship between a business and its consumer base, as it is more personal and of salient value to the client’s individual health. The state must work to preserve the trust between a professional and their client in the midst of increasing regulation on professional speech.

While regulations, such as informed consent statutes, on physician speech are necessary to uphold this trust and provide the patient with the totality of information related to their diagnosis that is necessary to make a quality decision regarding treatment, other statutes may run afoul of constitutionality. There have been many examples in recent years of state legislatures implementing laws that infringe on a physician’s First Amendment right by mandating the dissemination of scientifically untrue information and ideological state messaging. These statutes pose a substantial obstacle for the patient as they are unable to access truthful, abortion-related information from their physician, which is usually their only avenue of medical advice.[70] Aside from these unconstitutional compelled speech mandates, prohibited speech mandates can similarly infringe upon the First Amendment as they forbid patients from receiving medical information from their physician. They violate the Court’s objective to foster a well-informed public by withholding information that may be necessary for individuals’ health. The Idaho Attorney General, who prohibited physicians from referring their patients across state lines for abortion-related services, provides one example of this type of mandate. In Idaho, any patient who sought an abortion needed to research and find a clinic across state lines because they could not receive these services in the state due to the installment of the “trigger” law after the overturning of Roe.[71] This prohibition of physician speech places an undue burden on the patient and probably dissuades some patients from receiving an abortion if they do not have enough time or means to find a clinic without the help of their physician.

PAGE 12

CONSTITUTIONAL LAW

Therefore, by regulating physician speech, the state indirectly promotes an ideological anti-abortion message because patients may feel that they do not have the option of receiving information on these abortion services.

Based on the consequences of an ill-informed public, regulations on physician speech that either limit speech or contribute to the spread of misinformation and ideological speech are unconstitutional and infringe upon the physician’s First Amendment right. To maintain a society of effective decision-making regarding medical and health issues, it is necessary to protect some sense of physician speech autonomy, especially in this climate of tightening abortion restrictions and increased public awareness of abortion-related issues.

PAGE 13

NOTES

[1] National Institute of Family and Life Advocates v. Becerra, 585 US_12 (2018) citing Wollschlaeger v.

Governor of Florida, 848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). and Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 US 622, 641 (1994).

[2] Raul R Labrador, (2023).

[3] Planned Parenthood Greater Northwest v Labrador, 1:23-cv-001420BLW (D. Idaho May, 2, 2023).

[4] Dobbs v Jackson Women’s Health Organization overturned the federal right to abortion in 2022 and granted states the ability to determine their own abortion access. See Dobbs v. Jackson Women’s Health Organization, 597 US_(2022). Though polling suggests that the majority of Americans hold a pro-choice stance, abortion has been an issue that is increasingly weaponized in partisan politics. As such, there is a larger effort from either political faction as the Republican party appeals to socially conservative voters through pro-life rhetoric, and the Democratic party targets young feminists by taking a stronger stand for reproductive rights. This ongoing conflict creates an atmosphere of tension that leads to extremist legislation.

[5] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 765 (1976).

[6] Brandon Baker, The History of Abortion Access in the U.S., Penn Today (Nov. 1, 2022).

[7] This paper will not address the legislation that regulates and restricts contraceptives, and will solely focus on abortion-services with a state interest in both the health of the mother and the promotion of new life.

[8] Comstock Act of 1873, 18 U.S.C. § 1461; Dine Ranana, Scarlet Letters: Getting the History of Abortion and Contraception Right, American Progress (Aug. 8, 2013).

[9] Ibid.

[10] Roe v Wade, 410 US 113 (1973).

[11] Id.,at 160 [12] Strict Scrutiny is a form of judicial review that courts can use to determine if a law is constitutional by testing if it is narrowly tailored to serve a compelling state interest. In the case of Roe, abortion regulations cannot be enacted before the point of viability unless they are necessary to serve the state interest of women’s health, which is rarely applicable.

[13] Bigelow v Virginia, 421 US 809 (1975).

[14] Id., at 821 15]Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).

[16] Id., at 844 [17] THE UNDUE BURDEN STANDARD AFTER WHOLE WOMAN’S HEALTH v. HELLERSTEDT, Center for Reproductive Rights (July 26, 2018).

[18] National Institute of Family and Life Advocates v. Becerra, 585 US_(2018).

[19] Wooley v. Maynard, 430 US 705 (1977).

[20] National Institute of Family and Life Advocates v. Becerra, 585 US_(2018) See Justice Breyer’s dissent.

[21] This idea that there must be historical precedence for a right to be constitutional stems from the Glucksberg test. See Washington v. Glucksberg, 521 US 702 (1997). The Glucksberg test holds that e[\numerated rights from the Due Process Clause of the 14th Amendment must be based in the history and tradition of this country, and cannot become constitutional if they do not have this historical grounding.This test is fairly narrow as it anchors any claim of enumerated rights to the past. Since the right to abortion has been historically illegal, it cannot become a constitutional right and must be left up to the discretion of the states according to Dobbs. Contrastingly to the Glucksberg test, the Kennedy test from Obergefell v. Hodges contends that unenumerated rights can be constitutional without historical grounding. They simply require the rights in question to be fundamental liberties. If the Kennedy test was applied to Dobbs instead of the Glucksberg tests, the decision would have been much different. See Obergefell v. Hodges, 576 US_(2015).

PAGE 14

NOTES

[22] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 762 (1976); This case was instrumental in determining the application of the First Amendment to commercial speech as it stated that the state could not limit pharmacists' right to provide information about prescription prices, thereby asserting that commercial speech is necessary to ensure the public is knowledgeable enough to make informed decisions.

[23] Id., 765 [24] The regulation that commercial information must be truthful and non-misleading stems from the Central Hudson test outlined in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York. See 447 US 557 (1980). The Central Hudson Test is 4 pronged: advertisements (1) must be lawful and not misleading, (2) cannot advertise illegal or untrue facts, (3) must support a substantial government interest, (4) and must directly advance said government interest without being over extensive. This test remains the dominant test in commercial speech doctrine and jurisprudence, and contributes to the maintenance of a properly informed public.

[25] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 772 (1976).

[26] Free speech contributes to the “marketplace of ideas” which refers to the ability to find truth through the unregulated sharing of opinion and information from a diversity of viewpoints. See John Stuart Mill, On Liberty (1859).

[27] National Institute of Family and Life Advocates v. Becerra, 585 US_(2018).

[28] King v. Governor of N.J., 767 F.3d 2016 (3d Cir. 2014).; Pickup v. Brown, No. 2:12-cv-02497-KJM-EFB (E.D. Cal. Sep. 15, 2015).

[29] National Institute of Family and Life Advocates v. Becerra, 585 US_(2018).

[30] Claudia E. Haupt, Professional Speech, 125 Yale Law Journal 40 (2016).

[31] Id., at 42 [32] Rust v. Sullivan, 500 US 173, 218 (1991).

[33] Ibid., at 218.

[34] Robert Post, Democracy, supra note 51, at 47.

[35] Claudia E. Haupt, Professional Speech, 125 Yale Law Journal (2016).

[36] Robert Post, Informed Consent on Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007(April 12, 2007).

[37] Id., at 961.

[38] Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914 like 128-132).

[39] Robert Post, Informed Consent on Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 969 (April 12, 2007) .

[40] Id., at 941 [41] Id., at 979 [42] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 787 (1976).

[43] Claudia E. Haupt, Professional Speech, 125 Yale Law Journal (2016).

[44] “Gag” laws refer to statutes that prohibit free debate, public comments, and outward expression of opinion.

[45] AMA v. Azar 6:19-cv-00318-AA (E.D. Or. Mar. 5, 2019).

[46] Rust v. Sullivan, 500 US 173 (1991).

[47] Ibid., at 192; Daniel Halberstam, COMMERCIAL SPEECH, PROFESSIONAL SPEECH, AND THE CONSTITUTIONAL STATUS OF SOCIAL INSTITUTIONS, 147 UPenn Law Review 772 (1999).

[48] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[49] Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 662 F.3d 1072 5 (8th Cir. 2011).

[50] Ibid.; Antonia Biggs Ph.D. et al, Five- Year Suicidal Ideation Trajectories Among Women Receving or Being Denied an Abortion, American Joural of Psychiatry, (May 2018).

[51] Andrew Beck, A Tennessee Law Requires Doctors to Lie to their Patients. We’re Suing, ACLU (Sep. 2020,).

[52] Kevin B. O’Reilly, Doctors battle state law that forces them to mislead patients, AMA, (June 2019).

[53] Ibid.

[54] Medical Abortion “Reversal” is Not Supported By Science, The American College of Obstetricians and Gynecologists (2020).

PAGE 15

NOTES

[55] Ian Vandewalker, Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, 19 Michigan Journal of Gender and Law 2 (2012).

[56] Gestational Development and Capacity for Pain, The American College of Obstetricians and Gynecologists (2020).

[57] Royal College of Obstetricians and Gynecologists, Fetal Awareness: Review of Research and Recommendations for Practice (March 2010).

[58] Ian Vandewalker, Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, 19 Michigan Journal of Gender and Law 2 (2012).

[59] Given that professional and commercial speech share many of the same objectives, the same standards of the dissemination of truthful and non-misleading information applies to both. As such, mandating physician’s to spread scientifically unsupported information not only violates the goals of professional and commercial speech outlined in Casey, but goes against the state’s interest of protecting potential life and women’s health. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882(1992) [60] S.D. Codified Laws 34-23A-10.1(1)(2012).

[61] Jennifer M. Keighley, Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech, 34 Cardozo Law Review 2347 (2012-2013).

[62] Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 662 F.3d 1072 (8th Cir. 2011).

[63] Prior to the informed consent law, South Dakota passed a bill in 2004 banning abortions; however, it was later vetoed by the Governor. See H.B. 1191, 2004 Leg.79th Sess. (S.D. 2004)(vetoed March 9, 2004; passed again by House, but failed by the Senate on March 15, 2004) This bill contained similar rhetoric as the subsequent law in 2005 including “it is within the proper sphere of state legislative enactment to … resolve the question of the beginning of life,”(Sec 2) and claims that abortion procedures can increase women’s risk of “depression, suicidal ideation, [and] suicide” (Sec.4). As such, this bill is not only ideologically assertive but exhibits misleading and fictitious information to patient.

[64] Texas’ informed consent law mandates an audible description of dimensions of the fetus, presence of cardiac activity, and the sound of the heartbeat by the physician. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F. Supp. 2d 942, 975 (W.D. Tex. 2011) [65] See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F. Supp. 2d 942, 975 (W.D. Tex. 2011), vacated in part, 667 F.3d 570 (5th Cir. 2012), 171.012(4)(D).

[66] Roland Barthes, The Photographic Message, in a BARTHES READER 194, 198 (Susan Sontag ed. 1982).

[67] 82nd Legislative Session House Floor Debate. TEX HOUSE OF REPRESENTATIVES (March 3, 2011) (statement of Sen. Dan Patrick).

[68] Anna M. Tinsley, Perry Signs Sonogram Before Abortion Bill into Texas Law, McClatchy DC (May 25, 2011, 7:40AM).

[69] H.B. 15, 2011 Leg. 82nd Sess. (TX 2011-2012).

[70] By providing a substantial obstacle or burden for the patient that outweighs their supposed societal benefit and not advancing the state’s interest, these statutes are in violation of Casey’s Undue Burden Test, which is a lower level of scrutiny than the strict scrutiny under Roe. See Whole Woman’s Health v Hellerstedt, 579 US_ (2016).; See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 874 (1992).

[71] The Idaho trigger law that completely banned physicians from giving abortions at any stage in the pregnancy—with acceptions for medical emergencies and victims of rape or incest– was passed in 2020 and automatically went into effect upon the decision in Dobbs. Furthermore, in 2023, they narrowed the ban to limiting the rape and incest exception to solely the first trimester. See After Row Fell: Abortion Laws By State: Idaho, Center for Reproductive Rights (2023).

PAGE 16

WORKS CITED

82nd Legislative Session House Floor Debate. TEX HOUSE OF REPRESENTATIVES (March 3, 2011) (statement of Sen. Dan Patrick).

AMA v. Azar 6:19-cv-00318-AA (E.D. Or. Mar. 5, 2019).

Baker, Brandon, The History of Abortion Access in the U.S., Penn Today (Nov. 1, 2022).

Barthes, Roland, The Photographic Message, in a BARTHES READER 194, 198 (Susan Sontag ed. 1982).

Beck, Andrew, A Tennessee Law Requires Doctors to Lie to their Patients. We’re Suing, ACLU (Sep. 2020,).

Bigelow v Virginia, 421 US 809 (1975).

Biggs, Antonia Ph.D. et al, Five- Year Suicidal Ideation Trajectories Among Women Receving or Being Denied an Abortion, American Joural of Psychiatry, (May 2018).

Center for Reproductive Rights, After Row Fell: Abortion Laws By State: Idaho, (2023).

Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 US 557 (1980).

Comstock Act of 1873, 18 U.S.C. § 1461; Dine Ranana, Scarlet Letters: Getting the History of Abortion and Contraception Right, American Progress (Aug. 8, 2013).

Gestational Development and Capacity for Pain, The American College of Obstetricians and Gynecologists (2020).

Halberstam, Daniel, COMMERCIAL SPEECH, PROFESSIONAL SPEECH, AND THE CONSTITUTIONAL STATUS OF SOCIAL INSTITUTIONS, 147 UPenn Law Review 772 (1999).

Haupt, Claudia E., Professional Speech, 125 Yale Law Journal 40 (2016).

H.B. 15, 2011 Leg. 82nd Sess. (TX 2011-2012).

Keighley, Jennifer M., Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech, 34 Cardozo Law Review 2347 (2012-2013).

King v. Governor of N.J., 767 F.3d 2016 (3d Cir. 2014).

Medical Abortion “Reversal” is Not Supported By Science, The American College of Obstetricians and Gynecologists (2020).

National Institute of Family and Life Advocates v. Becerra, 585 US_12 (2018).

O’Reilly, Kevin B., Doctors battle state law that forces them to mislead patients, AMA, (June 2019).

Pickup v. Brown, No. 2:12-cv-02497-KJM-EFB (E.D. Cal. Sep. 15, 2015).

Planned Parenthood Greater Northwest v Labrador, 1:23-cv-001420BLW (D. Idaho May, 2, 2023).

Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 662 F.3d 1072 5 (8th Cir. 2011).

Post, Robert, Informed Consent on Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007(April 12, 2007).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).

Raul R Labrador, (2023).

Roe v Wade, 410 US 113 (1973).

Royal College of Obstetricians and Gynecologists, Fetal Awareness: Review of Research and Recommendations for Practice (March 2010).

Rust v. Sullivan, 500 US 173, 218 (1991).

Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914 like 128-132).

S.D. Codified Laws 34-23A-10.1(1)(2012).

Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F. Supp. 2d 942, 975 (W.D. Tex. 2011), vacated in part, 667 F.3d 570 (5th Cir. 2012), 171.012(4)(D).

Tinsley, Anna M., Perry Signs Sonogram Before Abortion Bill into Texas Law, McClatchy DC (May 25, 2011, 7:40AM).

THE UNDUE BURDEN STANDARD AFTER WHOLE WOMAN’S HEALTH v. HELLERSTEDT, Center for Reproductive Rights (July 26, 2018).

Vandewalker, Ian, Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, 19 Michigan Journal of Gender and Law 2 (2012).

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 765 (1976).

Whole Woman’s Health v Hellerstedt, 579 US_ (2016).

Wooley v. Maynard, 430 US 705 (1977).

PAGE 17

CONSTITUTIONAL LAW

Reassessing the 14th Amendment:

Supreme Court Decisions on Gender-Motivated Violence IVY XU, HAVERFORD COLLEGE

Abstract: This research paper explores the intersection of the 14th Amendment to the United States Constitution and gender-motivated violence, with a focus on the judicial interpretations by the Supreme Court. Beginning in 1994, the implementation of The Violence Against Women Act (VAWA) fostered federal response to domestic violence, aligning its principles of civil protection with the 14th Amendment’s goal of safeguarding civil rights. However, in the early 2000s, the Supreme Court rulings in United States v. Morrison and Town of Castle Rock, Colorado v. Gonzales significantly curtailed federal provisions concerning equal protection and due process. This paper aims to examine the role of the 14th Amendment in gender-based violence, specifically focusing on the diminished federal capacity and increased state autonomy following the Morrison and Gonzales decisions. It argues that the Court’s refusal to acknowledge the broad scope of the 14th Amendment in these cases has facilitated state-level decisions that potentially undermine the rights of victims.

This paper also briefly touches upon the Supreme Court’s approach to the 2nd Amendment, noting its more effective implementation of firearm restrictions in domestic violence cases. This discussion serves to contrast the Court’s varying effectiveness across different constitutional realms, and to highlight the particular need for a more comprehensive legal framework that utilizes the 14th Amendment to protect victims of gender-motivated violence. The recent VAWA Reauthorization Act of 2022 is recognized as a step forward, yet it is often considered insufficient in addressing the judicial gaps exposed by the Morrison and Gonzales decisions.

PAGE 18

CONSTITUTIONAL LAW

Introduction The Violence Against Women Act (VAWA) passed by Congress in 1994 significantly shaped the legal landscape in addressing domestic violence and sexual assault in the United States.

VAWA recognizes domestic violence as a national crime, issues federal legislation to regulate state-level justice systems, and affords protections to the victims of gender-motivated violence.[1] The enforcement of VAWA aligns with the spirit of the 14th Amendment by seeking to ensure civil rights and liberty of the victims, which were formerly confined to only state actions. However, the judicial branch seems less cooperative in promoting victim justice under this federal legislation. The Supreme Court has struck down two significant cases of gendermotivated violence, United States v. Morrison (2000) and Town of Castle Rock, Colorado v.

Gonzales(2005), on the basis of the 14th Amendment. These decisions have curtailed the scope of federal provisions concerning equal protection and due process in the context of genderbased and domestic violence.

Gender-based violence cases often invoke two specific legal discussions under the Constitution: the 2nd Amendment and the 14th Amendment. While recognizing the Court’s progress in enforcing gun controls to domestic violence offenders, this research paper will center on how legal discussion under the 14th Amendment is substantially obscured. In regard to the Court’s opinion of Morrison and Gonzales, I argue that by denying the foundation of the 14th Amendment argument in gender-motivated violence cases, the Court fails to enforce enough federal provisions against these crimes. This lack of action allows state-level decisions to potentially restrict victims’ rights. After presenting the limitations in each case, I will discuss potential 14th Amendment claims to support the following arguments: 1) Civil rights under gender-motivated violence provisions should not be denied based on a public/private classification, and 2) As domestic violence comprises a significant portion of gendermotivated crime, the property rights that are linked to the restraining orders for domestic violence victims should be constitutionally enforced and protected.

Congressional Enforcement and Gender-Motivated Violence: United States v. Morrison Gender-motivated violence encompasses a range of crimes that cause physical and psychological harm to the victims.[2] While the judicial discourse surrounding these crimes often intersects with the 14th Amendment, there has been growing concern over the effectiveness of this amendment in guaranteeing the civil rights of the victims.

VAWA, a capstone federal legislation on gender assault and domestic violence, represented a significant federal response to the crisis of violence against women, and it provided comprehensive measures for victim protection and perpetrator prosecution.[3] Enacted in 1994, it marked a paradigm shift in how the United States addressed these issues by combining legal actions with supportive services. VAWA introduced new federal crimes, funded victim support programs like shelters and hotlines, and facilitated training for law enforcement and judicial officials to enhance their handling of such cases.[4] Periodic reauthorizations of VAWA expanded its scope as they addressed the evolving needs of diverse victim groups and communities.

Grounded on the reauthorized VAWA in 1996, Morrison was initiated by a female university student who alleged rape by fellow students.[5] In its opinion, the Court questioned the constitutionality of a part of VAWA that “provides a federal civil remedy for the victims of gender-motivated violence.”[6] The Court denied this federal statute under both the Commerce Clause and §5 of the 14th Amendment.

PAGE 19

CONSTITUTIONAL LAW

The latter’s rejection was based on concerns that extending Congress’s power under §5 would undermine the 14th Amendment’s intent to maintain the “carefully crafted balance of power between the States and the National Government.”[7]Citing the Civil Rights Cases of 1883, the Court argued that Congress lacked the authority under the 14th Amendment to regulate private acts of discrimination.[8] The Court concluded that discrimination against gendermotivated crime victims was not a nationwide problem, and identified the civil remedy as pure private conduct that no federal regulation should infringe upon.

Both former judicial opinion and authorized data have shown that adopting a private/public classification to deny the legitimacy of the 14th Amendment can be detrimental to protecting the rights of victims. As Justice Harlan argued in the dissent of the Civil Rights Cases, the 14th Amendment should be interpreted to empower Congress to legislate beyond private/public distinction.[9] Harlan’s reasoning underscores that the Amendment’s protection should extend to all forms of discrimination that infringe upon the fundamental rights of citizens, which justifies federal intervention in cases of gender-motivated violence that are inadequately addressed at the state level. This perspective is particularly relevant in cases like Morrison, even if the deprivation of civil rights is based on gender, rather than race. Gender-based violence should be recognized as a form of societal discrimination, rather than being diminished to a mere private dispute or civil damage issue. The Court’s narrow focus in Morrison restricts future judicial actions against discriminative gender-motivated violence.

The Department of Justice reports that in 1995, for every 1,000 female residents aged 12 or older, five experienced sexual violence. Among these victims, only “28 percent of rape or sexual assault victimizations against females were reported to the police.”[10] This data proves the insufficiency of local investigations on gender-motivated violence. Even worse, for those 28 percent of cases that are reported, state legislation could fail to provide adequate civil remedies.[11] After Morrison, the possibility of seeking reparations for damage through federal legislation has been foreclosed.

Under this misleading scope of private/public distinction formed by Morrison, the civil rights of gender-motivated violence victims are not adequately protected. As state officials continually fail to enforce enough provisions against these crimes, some argue that they carry “pervasive stereotypes about women and the family.”[12] This revictimization can be tied to the longstanding patriarchal norms that have deprived the fundamental rights of women. Specifically from a legal perspective, although the Reconstruction Amendments, ratified between 1865 and 1870, endorsed equal citizenship to all, women’s right to vote was not granted until the 19th Amendment was ratified in 1920. All gender-based distinctions deserve more attention that scrutinizes rooted issues of social and political inequalities; this justifies the civil damage remedy as a societal obligation that needs to be enforced by federal legislation.

Although one could argue that the civil remedy in Morrison is not adequately supported by §5 due to the ambiguity around congressional legislation, the importance of analyzing Morrison under the 14th Amendment remains evident through the Equal Protection Clause. As the equal protection argument encompasses an affirmative power, it requires the state “to explain why it could not employ less restrictive means” if discriminative acts are perceived.[13] This principle is exemplified by the Court’s decision in Loving v. Virginia, a landmark case in 1967 that challenged racial discrimination in marriage laws. In Loving, the Court applied the equal protection clause to dismantle laws that infringed upon fundamental rights and ruled that Virginia’s law prohibiting interracial marriage was unconstitutional.

PAGE 20

CONSTITUTIONAL LAW

Since Loving, the Court has prohibited states from arbitrarily using racial classifications in matters of marriage.[14] Similarly, in Morrison, the Court should have acknowledged the unequal treatment of women that results from the state’s failure to fully consider the societal impacts of gender-motivated violence.

The goal of equal protection aligns with VAWA’s: to promote the equality of women by penalizing acts of violence. The federal civil remedy meets the equal protection rationale, which offers a legal avenue for victims of gender-motivated violence to seek compensatory and punitive damages.[15] By providing this remedy, VAWA confronts state actions that infringe upon victims’ rights, showcasing the need to uphold civil rights beyond the public/private distinction, and ultimately guaranteeing equal protection for all victims.[16] Procedural Due Process and Domestic Violence: Town of Castle Rock, Colorado v. Gonzales Domestic violence, a crucial component of gender-motivated violence, represents the particular realm of intimate relationships and family dynamics.[17] From Morrison to Gonzales, both cases invoked a distinction of state-level and federal power and denied certain rights of gender-motivated violence victims under the 14th Amendment. While Morrison argued that federal law is not entitled to intervene in damage remedies of gender-motivated violence under §5, the Court of Gonzales based its claim upon the procedural due process rights of domestic violence victims.

In Gonzales, the Court questioned whether the property interest of Jessica Gonzales, the victim, whose children were murdered by her husband, was constitutionally protected by a state-enforced restraining order.[18] The case emerged when Gonzales’ children were murdered by her estranged husband, despite her having a restraining order against him.

Gonzales argued that the police’s neglect in enforcing the restraining order, despite her multiple calls for police intervention, constituted a breach of her procedural due process rights.[19] In a 7-2 decision, the Court ruled against the victim and stated that procedural due process did not proclaim this interest. This ruling was significant as it dealt with the complex interactions between state responsibility, federal constitutional rights, and the deeply personal context of domestic violence.

The majority opinion contains significant shortcomings in protecting domestic violence victims. The Court first categorized the property interest involved in a restraining order as a ‘benefit’ – implying it is a tangible entitlement rather than an abstract need or desire, which the victim might struggle to substantiate.[20] Following this claim, the Court argued that even if the order is mandatory, the police are not obliged to enforce the order. From a historical modality, the Court stated that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”[21] Up to this point, the Court had granted full flexibility to state-level provision enforcement of the restraining order.

In terms of the state and police administration, the discretionary enforcement of restraining orders fundamentally undermines the purpose to safeguard victims. This kind of police discretion does not comply with the very reason why victims seek state protection. The Court adversely narrows the scope of justice and potentially excludes essential needs for supporting domestic violence victims, such as the provision of basic safety for the women and children experiencing the violence and their future socio-economic reparation. These needs may not be adequately addressed if they are not recognized as part of the mandatory state’s responsibilities. As a result, the inadequate state intervention eliminates “procedural due process claims PAGE 21

CONSTITUTIONAL LAW

in situations where states have any law or policy regarding domestic violence.”[22] The decision to eliminate procedural due process claims in situations where states have any law or policy regarding domestic violence stems from a complex judicial interpretation of the 14th Amendment.[23] The Court’s rationale was centered around the idea that the enforcement of a restraining order does not constitute a property right guaranteed by procedural due process. This interpretation is controversial because it fails to consider the substantive rights at stake in domestic violence scenarios, restricting the implementation of the restraining order to a mere formality rather than a critical tool for protection.

Besides the state’s lack of restraining order enforcement, the justice system also fails to understand victimhood comprehensively, thereby establishing fewer judicial protections against domestic violence. Following Morrison, most domestic violence cases fall under state jurisdiction. This focus often tends to shield officials from liability and obscure the state’s responsibility to provide effective judicial and social remedies. Precluding the discussion of domestic violence under due process claim “is not a constitutional requirement,” but a limited decision solely made by the justice system.[24] This approach, a deliberate judicial choice, not only constrains the scope of due process claims for domestic violence but also fails to adequately recognize and address the complexities of victimhood, leading to significant judicial blockages that discard the fundamental rights of the victim.

An alternative claim to Gonzales can be built from a substantive due process perspective.

Rather than entitling property interest to solely procedural justice, one could approach Gonzales by considering the enforcement of restraining orders as one of the unenumerated civil rights. Domestic violence is a type of interpersonal violence “bound to the institutions of marriage and family.”[25] Long since Griswold v. Connecticut (1965), the Court has brought up the substantive due process claim that rights to marriage and family relationships are fundamental to society and to individuals, and should be guaranteed by the Constitution.[26] Therefore, in Gonzales, the property interests of receiving state protections under the restraining order can be interpreted under this unenumerated rights framework. This approach would consider the enforcement of the order as essential to safeguarding the fundamental rights of the victim, thereby sharing Griswold’s substantive due process claim.

Gun Control and Domestic Violence On the other hand, the Court has recognized the severity of firearm possession in domestic violence cases and continued to strengthen its enforcement. 18 USC §922(g)(9), enacted in 1996, defines a specific category of unlawful persons as “who has been convicted in any court of a misdemeanor crime of domestic violence,” while leaving the meaning of “misdemeanor crime of domestic violence” ambiguous.[27] The Court has made remarkable progress in defining the extent to which attackers should be prohibited from bearing guns. In 2009, the Court under United States v. Hayes held that a domestic relationship is not a defining component of the predicate offense, thereby widening the range of convictions that could trigger the firearms ban under this statute. Following Hayes, United States v. Castleman (2014) and Voisine v. United States (2016) each clarified “misdemeanor crime” as including indirect physical force and unattempted assault.[28] So far, §922(g)(9) has been polished to encompass a broader spectrum of domestic violence offenses, which reflects the Court’s commitment to better protect victims from firearm-related threats.

PAGE 22

CONSTITUTIONAL LAW

In terms of the ongoing United States v. Rahimi (2023), the Court’s ruling in 2024 appears promising in redefining how restraining orders are applied to perpetrators of domestic violence. This follows the 2022 decision in New York State Rifle & Pistol Association Inc. v.

Bruen, which struck down a New York state law requiring individuals to demonstrate a special need for self-protection to obtain a license to carry a concealed firearm in public. The Rahimi case could be viewed as a response to Bruen, specifically addressing concerns about the enforceability of restraining orders for domestic violence offenders.

In the oral argument of Rahimi, the Solicitor General argued from both the principle of responsibility and originalist perspective that domestic violence attackers might carry “unusual danger beyond the ordinary citizen.”[29] This argument presents the critical rationale for state-level firearm possession laws, illustrating how domestic violence crimes should never be excused under any tolerance. Overall, the evolving judicial discussion on the 2nd Amendment in the context of domestic violence represents significant progress in addressing this complex issue.

Conclusion This paper aims to point out the inefficiency initiated by state institutions that ultimately led to a nationwide failure to protect the victims of gender-motivated violence. In Morrison and Gonzales, the Court ignored the essential discussions of the 14th Amendment by lending too much arbitrary power to the state, thereby foreclosing further justice for the victims under equal protection and due process claims.

While the oral argument of Rahimi shows a promising sign that the Court will reject domestic violence attackers to bear firearms,[30] it has been almost ten years since the Court has not invoked primary discussions on the provision against gender-motivated violence under the 14th Amendment. Even though the potential harms to victims and societal outputs brought by gender-motivated crimes have been acknowledged to a certain point, mere provision on gun control is not enough. As the state authorities lack the checks and balances to effectively protect the rights of the victims, it is essential for Congress to establish federal provisions against every cause of violence.

The VAWA Reauthorization Act of 2022 was signed by the Biden Administration, marking a significant step in the ongoing effort to combat gender-motivated violence and to enhance protections for victims. Its proposal includes “increasing culturally-specific resources and support for survivors and communities,”[31] which may address the diverse needs of victims from varied backgrounds. However, as cases like Morrison and Gonzales demonstrate, there is an urgent need for the legal system to evolve beyond its current limitations, especially in its interpretation of the 14th Amendment in the context of gender-based violence. The Supreme Court’s hesitance to engage robustly with these issues underlines the inadequate commitment of federal legislation to fill gaps left by state jurisdictions.

PAGE 23

NOTES

[1] The National Domestic Violence Hotline, “Violence Against Women Act (VAWA),” www.thehotline.org/resources/violence-against-women-act-vawa/.

[2] UNHCR, “Gender-Based Violence,” www.unhcr.org/us/what-we-do/protect-humanrights/protection/gender-based-violence.

[3] The National Domestic Violence Hotline, “Violence Against Women Act (VAWA),” www.thehotline.org/resources/violence-against-women-act-vawa/.

[4] Ibid.

[5] Although the victim reported being assaulted by two students, only Morrison was found guilty. See the Opinion of the Court in United States v. Morrison, 529 U.S. 598 (2000).

[6] United States v. Morrison, 529 U.S. 598 (2000).

[7] Ibid.

[8] Ibid.

[9] Civil Rights Cases, 109 U.S. 3 (1883).

[10] Bureau of Justice Statistics, “Female Victims of Sexual Violence, 1994-2010,” U.S. Department of Justice, bjs.ojp.gov/press-release/female-victims-sexual-violence-1994-2010.

[11] Ibid.

[12] Christina R. Drum, Power, Legitimation, and Drawing Distinctions: Rendering of ‘public’ and ‘private’ in United States Domestic Violence Policymaking (University of Nevada, Las Vegas, 2004), https://ezproxy.haverford.edu/login?url=https://www.proquest.com/dissertationstheses/power-legitimation-drawing-distinctions-rendering/docview/305073195/se-2.

[13] Reva B. Siegel, Serena Mayeri, and Melissa Murray, “Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context,” Columbia Journal of Gender and the Law 43, no. 1 (2022): 67-97, https://ezproxy.haverford.edu/login? url=https://www.proquest.com/scholarly-journals/equal-protection-dobbs-beyond-howstates-protect/docview/2777765566/se-2.

[14] Loving v. Virginia, 388 U.S. 1 (1967).

[15] Michael R. Dimino, “Yes, Virginia (Tech), our Government is One of Limited Powers: United States v. Morrison, 120 S. Ct. 1740 (2000),” Harvard Journal of Law and Public Policy 24, no. 3 (2001): 895-920, accessed [date], https://ezproxy.haverford.edu/login? url=https://www.proquest.com/scholarly-journals/yes-virginia-tech-our-government-is-onelimited/docview/235204226/se-2.

[16] Ibid.

[17] U.S. Department of Justice, “Domestic Violence,” www.justice.gov/ovw/domestic-violence.

[18] Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Laura Singleton, Rethinking Private Violence: How Constitutions Structure State Responses to Domestic Violence (The University of Wisconsin - Madison, 2013), https://ezproxy.haverford.edu/login?url=https://www.proquest.com/dissertationstheses/rethinking-private-violence-how-constitutions/docview/1348977231/se-2.

[23] Ibid.

[24] Ibid.

[25] Drum, Power, Legitimation, and Drawing Distinctions.

PAGE 24

NOTES

[26] Griswold v. Connecticut, 381 U.S. 479 (1965).

[27] Legal Information Institute, “18 U.S. Code § 922 - Unlawful Acts,” Cornell Law School, www.law.cornell.edu/uscode/text/18/922.

[28] Ibid.

[29] Oral Arguments Transcript for United States v. Rahimi, Supreme Court of the United States, 2023, www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22915_986b.pdf.

[30] Ibid.

[31] The White House. “Fact Sheet: Biden-Harris Administration Celebrates the Twenty-Ninth Anniversary of the Violence Against Women Act.” September 13, 2023. www.whitehouse.gov/briefing-room/statements-releases/2023/09/13/fact-sheet-biden-harrisadministration-celebrates-the-twenty-ninth-anniversary-of-the-violence-against-womenact/.

PAGE 25

WORKS CITED

Ballou, Kate. “Failure to Protect: Our Civil System’s Chronic Punishment of Victims of Domestic Violence.” Notre Dame Journal of Law, Ethics & Public Policy 31, no. 2 (2017): 355-382.

Bureau of Justice Statistics. “Female Victims of Sexual Violence, 1994-2010.” U.S. Department of Justice. https://bjs.ojp.gov/press-release/female-victims-sexual-violence-1994-2010.

Civil Rights Cases, 109 U.S. 3 (1883).

Dimino, Michael R. “Yes, Virginia (Tech), our Government is One of Limited Powers: United States v. Morrison, 120 S. Ct. 1740 (2000).” Harvard Journal of Law and Public Policy 24, no. 3 (2001): 895-920. https://ezproxy.haverford.edu/login?url=https://www.proquest.com/scholarlyjournals/yes-virginia-tech-our-government-is-one-limited/docview/235204226/se-2.

Drum, Christina R. Power, Legitimation, and Drawing Distinctions: Rendering of ‘public’ and ‘private’ in United States Domestic Violence Policymaking. University of Nevada, Las Vegas, 2004. https://ezproxy.haverford.edu/login?url=https://www.proquest.com/dissertationstheses/power-legitimation-drawing-distinctions-rendering/docview/305073195/se-2.

Griswold v. Connecticut, 381 U.S. 479 (1965).

Liptak, Adam. “Key Takeaways from Supreme Court’s Second Amendment Case on Domestic Violence.” CNN, November 7, 2023. www.cnn.com/2023/11/07/politics/takeaways-supremecourt-second-amendment-domestic-violence-rahimi/index.html.

Loving v. Virginia, 388 U.S. 1 (1967).

Legal Information Institute. “Domestic Violence.” Cornell Law School. www.law.cornell.edu/wex/domestic_violence.

Legal Information Institute. “18 U.S. Code § 922 - Unlawful Acts.” Cornell Law School. www.law.cornell.edu/uscode/text/18/922.

National Coalition Against Domestic Violence (NCADV). “Statistics”. ncadv.org/STATISTICS. Supreme Court of the United States. “Oral Arguments Transcript for United States v. Rahimi.”

2023. www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_986b.pdf.

Siegel, Reva B., Serena Mayeri, and Melissa Murray. “Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context.” Columbia Journal of Gender and the Law 43, no. 1 (2022): 67-97.

Singleton, Laura. Rethinking Private Violence: How Constitutions Structure State Responses to Domestic Violence. The University of Wisconsin - Madison, 2013. https://ezproxy.haverford.edu/login?url=https://www.proquest.com/dissertationstheses/rethinking-private-violence-how-constitutions/docview/1348977231/se-2.

The National Domestic Violence Hotline. “Violence Against Women Act (VAWA).” www.thehotline.org/resources/violence-against-women-act-vawa/.

The White House. “Fact Sheet: Biden-Harris Administration Celebrates the Twenty-Ninth Anniversary of the Violence Against Women Act.” September 13, 2023. www.whitehouse.gov/briefing-room/statements-releases/2023/09/13/fact-sheet-biden-harrisadministration-celebrates-the-twenty-ninth-anniversary-of-the-violence-against-womenact/.

Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

UNHCR. “Gender-Based Violence.” https://www.unhcr.org/us/what-we-do/protect-humanrights/protection/gender-based-violence.

United States Attorney’s Office. “Federal Domestic Violence Laws.” U.S. Department of Justice. www.justice.gov/usao-wdtn/victim-witness-program/federal-domestic-violence-laws.

United States v. Morrison, 529 U.S. 598 (2000).

U.S. Department of Justice. “Domestic Violence.” https://www.justice.gov/ovw/domesticviolence.

PAGE 26

HISTORICAL NOTE

England 1215-1307: Courts, Due Process, and Justice after Magna Carta AVERY FARINO, NEW YORK UNIVERITY

Abstract: In the Crypt of the United States Capitol building lies the Wyems copy of the Magna Carta, a replica of one of the four surviving documents of its kind from 1215. The Architect of the United States Capitol highlights that this document provided a written foundation for concepts of individual rights and liberties to be realized, ascribing the formation and tone of the American Declaration of Independence to its influence.[1] American political memory holds fondly this document, its revolutionary ideals, and its influence on American independence. But this causal, “revolutionary” framework for understanding and remembering Magna Carta is far from complete. The first issuance of the Magna Carta was an episode in the already developing legal culture formulated by King Henry II (1154-1189) and had less immediate implications than often implied. Assessing this document and the legal terrain which evolved in the century to follow must question if a centralized justice system arose in response to the 1215 agreement and to what extent medieval English commoners experienced the changing ideals of fairness, liberty, and due process that the charter stipulates. In such an analysis, it becomes clear that strengthening notions of due process in medieval England’s first century of Magna Carta reflected a long evolution of justice and truth, rather than flowing directly from the charter’s implementation or a newly structured court system.

PAGE 27

HISTORICAL NOTE

Henry II Henry II is largely responsible for establishing the judicial culture of English common law that served as a precursor to Magna Carta era developments, most notably through his reforms of court organization and due process. The Writ of Right (circa 1188-90) was Henry’s weapon of choice, instituting an appellate level procedure through which tenants could bring grievances to their lord’s court. This royal writ compelled lords to ‘do full right’ by their tenants, and is emblematic of modern due process.[2] This assertion of the royal court’s central authority bolstered the notion of legal protection and expanded the jurisdiction of these higher courts to include the domain of land disputes, which were previously reserved for local courts. While the Magna Carta later responded to barrons’ grievances against King John, the Writ of Right was public facing and attempted to reduce local abuses of authority against commoners in the name of a benevolent monarch.

Henry II also introduced reform to trial by ordeal through his 1166 Assize of Clarendon, which can be traced as the origin of the modern grand jury system.[3] The Assize held that accusations, which then led to trial by ordeal, could only originate in the event that a jury of twelve neighbors provided incriminating testimony under oath.[4] This systematized method of accusation laid the foundation for jury trial and the central role of fairness and due diligence in English common law. It is also important to note that these early grand juries were another enlarging factor for royal authority. Henry’s newfound ability to place his loyal justices and sheriffs among these organizations, without a direct power conflict with barons, emboldened the King’s influence in the judicial system.[5] Henry II’s consolidation of royal authority and administrative control deserves credit for its major role in the centralization of the English justice system and its contributions to establishing a widespread application of due process.

This ostensible spirit of fairness, while perhaps not Henry’s express interest, made possible the later legal reforms of the twelfth and thirteenth centuries.

Medievalist Sara Butler further corroborates the role of Henry II and pre-1215 reforms in the development of the English legal system. Challenging the revolutionary tale of Magna Carta, Butler notes that the notion of due process was already ingrained into the region’s legal culture at the time of the charter’s issue.[6] Butler makes these claims with reference to the central role of consent. In a strange sense, trial by ordeal was easier for both justices and jurors to rationalize, as it left the fate of the accused to an infallible God. With the transition to jury trial mandated by the Fourth Lateran Council, consent was needed to effectively fill this gap—protecting the defendant's natural rights as well as insulating justices and jurors from the emotional burden of a death sentence.[7] According to American constitutional historian Leonard Levy, early English jury trials tended to include a number of jurors that were members of the jury of presentment for the same case, intended to reduce the defendant’s rights to an unbiased proceeding. However, the role of consent was so sacrosanct that it eventually forced a complete separation of the grand jury and trial jury proceedings to alleviate this issue.[8] The Magna Carta was also preceded by Pope Innocent III’s (1198-1216) Fourth Lateran Council, which was convened in April of 1215. Aside from demanding the transition from ordeal to jury, the Fourth Lateran delineated further rights to be afforded to lay society: plaintiffs could not overburden the accused with labor and expenses in their trial, excommunication required due process, and those excommunicated unfairly had a right to appeal their case.[9] The Fourth Lateran’s seventy canons and the Magna Carta’s sixty-three chapters were adopted in such close time, and overlapped so significantly in their dedication to justice and due process, that it is impossible to examine either in a vacuum.

PAGE 28

HISTORICAL NOTE

Their commonalities and proximity also indicate that the priorities of English society made possible, or even instigated, the pronouncement of such bold frameworks. It is also interesting to note that jurists gratefully credited the Pope with having created[10] these freedoms—the presumption of innocence in particular. But Pope Innocent did not establish this presumption of innocence just as Magna Carta did not establish due process and jury trial. The institutionalization of these fundamental rights and their reach among common people was disseminated slowly—from the reign of Henry II, to these major developments, and eventually to the turn of the fourteenth century, when it was widely believed that every person had a guaranteed right to due process.[11] By tracing the implementation of Magna Carta throughout the reigns which followed its initial issue, it becomes more clear that the medieval English legal sphere experienced a punctuated equilibrium of liberalization both before and after Magna Carta.

Henry III Examining Magna Carta’s effects on common society requires inquiry into its enforcement mechanisms. Upon entering the reign of Henry III (1216 to 1272), a proclamation immediately informed the public that Magna Carta would be reconfirmed.[12] However, the 1216 version of the Charter omitted several chapters[13] that were present in the original issue, which historian Ralph Turner believes to be a consequence of both civil wars and French soldiers threatening the English territory.[14] In what can be described as a medieval rally-around-theflag effect, Henry III’s barons and local authority figures recognized that the central government needed to recover its strength—in authority and income—in order to protect the longevity of the kingdom.[15] However, this deference to Henry’s leadership was not longlasting.

While the king did observe Magna Carta’s provisions in times of need, he also viewed it as a forced and unjustified usurpation of authority from the barons.[16] Thus, Henry evaded the charter whenever possible, often corrupted by his close associates. The King’s foreign relatives —most notably the Provençal and Savoyard uncles of his wife, Eleanor, and his Poitevin halfbrothers, the Lusignans—experienced the most lavish advantages. This corruption was accompanied by an infiltration of the justice system, perpetrated by judges who could be easily bribed in adjudicating cases for Henry’s favorites. This injustice has been heavily documented; in a list of grievances against Henry that was produced for King Louis IX of France (1226 to 1270), it is noted that “‘after the arrival of certain aliens whom the king, scorning his native subjects, drew to his counsels, no justice could be obtained in [his] court against these men or against certain courtiers.’”[17] Naturally, these violations infuriated the barons and inspired cries for reconfirmation of Magna Carta among commoners. Regardless, any reforms to the charter would afford barons no substantial remedy against abuses of the monarch, so Henry’s reign also brought in the first English Parliament. This enforcement group was composed of 24 barons who essentially uprooted royal authority, and took on the name of “mad parliament” in their short tenure. The group’s retribution even consisted of punishing obedience to some of the monarch’s legitimate orders as crimes against the state.[18] In the tumultuous political landscape of Henry’s reign one thing remains coherent: a democratizing public whose consistent calls for reconfirmation and reform reminded the King of his new limitations and the people of their agency as subjects. While there may not have been a clear enforcement mechanism of the Charter’s early forms, it nonetheless became an embodiment of liberty that both local leaders and lay society appealed to over several decades.

PAGE 29

HISTORICAL NOTE

Edward I Not unlike Henry, Edward I (1272-1307) faced a series of never ending conflict, both internal and international, which forced him into many concessions and reforms. Edward was similar to his predecessor in his open disrespect of the Charter and the resulting power struggles between himself and his barons. In one successful example of this corruption, Edward bribed his barons to turn a blind eye to his overburdensome taxes in exchange for the right to levy taxes on their own tenets.[19] With a reign hampered by quid pro quo negotiations, it is thus shocking that Edward is remembered as the ‘English Justinian.’ This disparity highlights the undue emphasis placed on both medieval leaders and political events, rather than on individuals, in instituting the judicial and administrative reforms of this age. During Edward’s reign, lay individuals began to appeal to the Magna Carta in common law courts when bringing grievances against the King and his officials. Exemplifying the gradual advancement of Magna Carta’s reach into common society, Edward’s subjects and their legal advisors provided not only perfunctory mention of Magna Carta’s ideals, as occurred in Henry’s reign, but rather cited specific chapters in making their claims.[20] Though this legal infrastructure was still largely reserved for literate society, Magna Carta—and more importantly the expectation of due process—was nonetheless advanced in Edward’s reign. Assisting in this advancement was Edward’s use of Magna Carta’s phraseology in much of his own legislation—meaning that the wording and history of the Great Charter would continue to be cited in courts and studied by students of the law.[21] Furthermore, this period experienced a solidification of courts’ jurisdictions, an enforcement of laws vigorous enough to dissuade robbery, the formation of the justices of the peace, and increased efficiency of local police regulations.[22] It is certain that the first one hundred years of Magna Carta brought about significant changes and judicial reforms, but this progress continued to operate mainly within the parameters of existing power dynamics and enforcement mechanisms.

Extralegal Enforcement Although the judicial spirit of Magna Carta circulated during Henry III and Edward I’s reigns, it is also relevant to identify who precisely acted as the arbiter of the Charter’s many reforms. In spite of a more centralized court system, a consolidation of administrative control under the monarch, and a newly formed parliament, enforcement largely continued to be carried out by the Church. The Magna Carta, even in its most idealist forms, never presented a judicial means of enforcement against the Kings’ violations. Instead, the original 1215 issue contained a security clause in chapter 61 which charged 25 barons with this duty.[23] This provision stated that any four barons, upon being made aware of any break in the peace or liberties of the Charter, could—with the support of the community—dispossess castles, lands, and further possessions from transgressors. This provision was an embarrassment for King John, who quickly disavowed the entire agreement. Upon the first reissuance under Henry III in 1216, this chapter had, unsurprisingly, been removed entirely.

The absence of chapter 61 left only one alternative for enforcement: excommunication. The Church supported the 1225 Magna Carta and, in its aim to prevent any further violations, it agreed to sentence excommunication upon any violators.[24] Even in analyzing the ritual through which the Kings and bishops conferred this partnership, it is clear that bishops were central in the Magna Carta era’s political culture. In a 1237 great assembly at St. Katherine’s chapel of Westminster Abbey, the King and bishops made their pledge by candlelight, extinguishing the light to symbolize the condemned souls of those violators they planned to excommunicate.

PAGE 30

HISTORICAL NOTE

The papacy represented a true spiritual fear for Kings, barons, and commoners; this ceremonial exchange capitalized on that fear and demonstrated a strong commitment of bishops as quasi-judicial figures. Furthermore, English bishops had an intuitive motivation to threaten excommunication publicly and loudly, believing that a violation of Magna Carta threatened the sanctity of the soul.[25] Thus, their dramatic rituals were designed to reach a wide audience, which further aligned the Church with the expansion of the justice system.

Medieval historians Dawn Oliver and S.T. Ambler seem to agree that the road from Magna Carta was long and jagged, but Ambler is more reluctant to accept this age as a prelude to the parliamentary state because of this decided role of bishoprics. This period’s failure to meaningfully separate the due process of law and theocratic power structures presents yet another caution against overemphasizing the role of Magna Carta in England’s path towards representative government.

Magna Carta and the Local Community Some historians and political scientists have analyzed Magna Carta’s agency in England’s democratic transition through its physical text. However, consulting the document alone could not credibly point to the Charter’s primary beneficiaries. Charles Howard McIlwain, a lawyer and academic, makes the case in his 1914 Columbia Law Review article that the Charter could not have intended to guarantee legal protection to all Englishmen. McIlwain dissects the Latin phrases judicium parium [trial by jury] and lex terrae [law of the land, also interpreted as due process of the law] to establish this argument.[26] Naturally, the barons at Runnymede, with whom the original charter was agreed upon, did not hold the same preconceptions about lex terrae as modern historians; to them, the “law of the land” could only have referred to preexisting trial procedures and legal protections. Thus, the Charter was not universal nor expansive and only became so through an indirect, incremental influence of common society.

This language-based interpretation seems to mirror the de facto usage of Magna Carta in the decades following its 1215 issue, particularly in the English shires. With each reconfirmation proclaimed by county sheriffs, its translation into French and English, and its recitation in courts and churches, the Magna Carta became publicly available in many ways. Among members of county society, for whom the behavior of sheriffs was a central grievance, Magna Carta allowed for specific protections. Chapter 42 of the 1217 Charter, reiterated in 1225, strictly regulated sheriff's holdings of county courts to be conducted only once per month. For example, in 1226, the sheriff of Lincolnshire violated this provision and reconvened the court for a second day due to a large number of cases left on the docket. The next day, two knights prevented any further proceedings in the name of Lincolnshire’s typical forty-day intervals and the Magna Carta’s protections.[27] Evidently, local communities were endowed with confidence and legal standing by Magna Carta even before the reign of Edward I. This slow diffusion of legal empowerment seems to have first operated within the local domains of law that common society had close access to.

The example of medieval English widows also highlights this non-revolutionary circulation of legal enfranchisement. Historian Janet Loengard concludes that the Magna Carta, which held extremely favorable and progressive provisions relating to the treatment of widows’ dowers, did not immediately provide any meaningful protections at the time. The 1225 Charter’s seventh chapter allotted for women a dower of “a third part of all the land of her husband which was his in his life,” but it was unclear whether this included land that a husband owned before the marriage.[28] PAGE 31

HISTORICAL NOTE

Ralph Turner also produces medieval plea rolls which indicate Magna Carta’s lack of clarity in the adjudication of widow’s cases.[29] In Edward’s reign, for example, one widow chose to appeal directly to chapters 29 and 39—land rights and due process—of the Charter, and sought protection from an unlawful dispossession of her land without due process rather than citing chapter 7.[30] Widows, local knights, and commoners, were undoubtedly influenced by Magna Carta’s symbolism, but its specific legal protections were evidently less forceful. Magna Carta’s revolutionary tale can be further complicated by its slow-moving progress; it was not until 1311 that widows were unequivocally entitled to a third of her husband’s land held at any time during their marriage.

Conclusion Modern day historians have only recently begun to argue that the Magna Carta was not the universal declaration of human rights that it is often remembered to be.[31] A great separation exists between what the Magna Carta meant to medieval society and what it means in contemporary political rhetoric. While English and American constitutional scholars like Leonard Levy continue to cite Magna Carta’s teleological utility vis-à-vis the development of their contemporary justice systems, this analysis should refrain from the use of causal language in its discussion of this historical episode.

A revolution is decisive, rapid, and consequential. This analysis of the Magna Carta’s influences on jury trial and due process, enforcement mechanisms, and extent into common society demonstrates that the Charter met none of these criteria. With a solid framework laid

by Henry II and a moderate evolution between 1215 and 1307, the Magna Carta can be aptly described as a contributing force to the development of the modern-era legal terrain.

Medieval English society did experience the changing ideals of fairness, truth, and legal protection that were implanted in the Charter, but this steady progress was a far cry from revolution.

PAGE 32

NOTES

Notes [1] The Architect of the Capitol—an online archive of Capitol art, documents, and architecture —writes that “Magna Carta forbade arbitrary arrest and imprisonment, established the rights to a fair trial and to security of property, and guaranteed that the nation's government was itself subject to the same laws as its subjects,” thus enfranchising American colonists with the same ideals. Not only does this oversimplified account misrepresent the relationship between these two periods, but it also overstates certain contributions of the document’s provisions.

See “Magna Carta Replica and Display,” in Explore the Capitol Campus: The Art Collection.

[2] Michael Nicholas, “King Henry II and his Legal Reforms,” in The Histories 6, no. 2 (2019): 12-23 [3] Richard H. Helmholz, “The Early History of the Grand Jury and the Canon Law," University of Chicago Law Review 50 (1983), pp. 613-627 [4] Leonard Levy, “The Double Jury System: Grand and Petty,” in Origins of the Bill of Rights, (2008): 210-230 [5] Nicholas, “King Henry II and his Legal Reforms,” p. 20 [6] Sara Butler, “Due Process and Consent to Jury Trial.” in Pain, Penance, and Protest: Peine Forte et Dure in Medieval England, 134-187 (Cambridge, 2021) pp. 134-187 [7] Butler, Pain, Penance, and Protest, p. 139 [8] Levy, Origins of the Bill of Rights, p. 214 [9] Butler, Pain, Penance, and Protest, p.158 [10] The idea that Innocent ‘created’ the presumption of innocence in the law went further than the Fourth Lateran’s canons, but was drawn from his papal decrees (decretals) to various figures. For example, in a decretal to an Italian leader, Innocent wrote that a cleric with a papal mandate did not need to prove himself worthy, because “‘he may be presumed worthy unless the contrary may be shown.’” This reinforces that, even among authority figures, these conceptions of justice and individual liberty were deeply ingrained in the hearts and minds of Europe before being formalized into law. See Butler, Pain, Penance, and Protest, p.158 [11] Butler, Pain, Penance, and Protest, p. 165 [12] J.C. Wells, Magna Charta; Or, the Rise and Progress of Constitutional Civil Liberty in England and America; Embracing the Period from the Norman Conquest to the Centennial Year of American Independence (Des Moines, 200), pp. 119-158.

[13] One of the most consequential omissions, here, was of chapter 61, which called for a committee of barons to enforce the King’s observance of the Charter. The 1216 charter instead suspended this “miscellaneous matter” for continued discussion after the kingdom was secure.

See Turner, Magna Carta, p. 81.

[14] Ralph Turner, “The First Century of Magna Carta.” in Magna Carta (Harlow, 2003), pp. 80111.

[15] Turner, Magna Carta, p. 80 [16] Wells, Magna Charta, p. 126 [17] Turner, Magna Carta, p. 92 [18] Wells, Magna Charta, pp.123-124 [19] Wells, Magna Charta, p. 134 [20] Turner, Magna Carta, p. 108 [21] The use of legislation to bring about reforms through statute allowed this phenomena to take place. This is especially evident though the Provisions of Westminster, which appealed to the 1225 Magna Carta text to extend certain reforms to tenants. See Turner, Magna Carta, p.

107.

PAGE 33

NOTES

[22] Wells, Magna Charta, p. 134 [23] Dawn Oliver, “The United Kingdom: From Magna Carta 1215 to the Rule of Law,” in First Fundamental Rights Documents in Europe: Commemorating 800 Years of Magna Carta, (2015), pp. 11-24 [24] S.T. Ambler, “The Church and Magna Carta in the Thirteenth Century,” in Magna Carta: History, Context and Influence, (London, 2018), pp. 41–50 [25] Ambler, Magna Carta: History, Context and Influence, pp. 46-47 [26] C. H. McIlwain, “Due Process of Law in Magna Carta,” Columbia Law Review 14 (1914), pp.

27–51 [27] J. R. Maddicott, “Magna Carta and the Local Community 1215-1259,” Past & Present 102 (1984), pp. 25–65 [28] Janet Loengard, “What Did Magna Carta Mean to Widows?” in Magna Carta and the England of King John, (Rochester, 2010), pp. 134-150 [29] Turner, Magna Carta, p. 109 [30] Ibid.

[31] Nicholas Mostyn, “Magna Carta and Access to Justice in Family Proceedings.” Denning Law Journal 27 (2015), pp. 77–105

PAGE 34

WORKS CITED

Ambler, S. T. “The Church and Magna Carta in the Thirteenth Century.” In Magna Carta: History, Context and Influence, edited by Lawrence Goldman, 41–50. London: University of London Press, 2018.

Butler, Sara. “Due Process and Consent to Jury Trial.” In Pain, Penance, and Protest: Peine Forte et Dure in Medieval England, 134-187. Cambridge: Cambridge University Press, 2021.

Levy, Leonard. “The Double Jury System: Grand and Petty.” In Origins of the Bill of Rights, 210230. New Haven: Yale University Press, 2008.

Loengard, Janet. “What Did Magna Carta Mean to Widows?” In Magna Carta and the England of King John, Rochester: The Boydell Press, 2010.

Maddicott, J. R. “Magna Carta and the Local Community 1215-1259.” Past & Present, no. 102 (1984): 25–65.

McIlwain, C. H. “Due Process of Law in Magna Carta.” Columbia Law Review 14, no. 1 (1914): 27– 51.

Mostyn, Nicholas. “Magna Carta and Access to Justice in Family Proceedings.” Denning Law Journal 27 (January 2015): 77–105.

Nicholas, Michael. “King Henry II and his Legal Reforms,” The Histories 6, no. 2 (2019): 12-23.

Oliver, Dawn. “The United Kingdom: From Magna Carta 1215 to the Rule of Law.” In First Fundamental Rights Documents in Europe: Commemorating 800 Years of Magna Carta, edited

by Markku Suksi et al., 11-24. Cambridge: Intersentia, 2015.

Turner, Ralph. “The First Century of Magna Carta.” In Magna Carta. Vol. 1st ed. Harlow: Routledge, 2003.

Wells, J. C. Magna Charta; Or, the Rise and Progress of Constitutional Civil Liberty in England and America; Embracing the Period from the Norman Conquest to the Centennial Year of American Independence, 119-158. Des Moines: Mills & Company, 2009.

PAGE 35

HISTORICAL NOTE

Sovereignty and Human Rights from Nuremberg to the Responsibility to Protect NOAH GORNSTEIN, WASHINGTON UNIVERSITY ST.LOUIS

Abstract: This article traces the development of the idea of conditional sovereignty. The end of the Cold War gave rise to a spike in humanitarian intervention, a practice where human rights considerations sometimes prevailed over traditional ideas about state sovereignty. This new, activist form of humanitarianism in turn evolved directly into what became known as the Responsibility to Protect (R2P), formally codified by the United Nations in 2005. This article concludes that the end of the Cold War is not the actual genesis of R2P, however.

Rather, state accountability to the international community for individual rights and abuses may be traced to 1945 with the Nuremberg Trial of the defeated leaders of Nazi Germany. The multinational tribunal’s introduction of individual criminal responsibility and Crimes against Humanity into international law jumpstarted a transformation in the very idea of sovereignty. Propelled by later United Nations agreements, international tribunals, and military action—all of which both incorporated and expanded on ideas from Nuremberg—states gradually lost exclusive jurisdiction over their domestic treatment of individuals.

PAGE 36

HISTORICAL NOTE

Introduction In 2005, heads of state attending the United Nations World Summit unanimously adopted a resolution recognizing their “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”[1] This concept, known as “The Responsibility to Protect” (R2P), was a normative innovation in its framing of state legitimacy as dependent upon a government’s treatment of its citizens. Scholars tend to point to this idea of conditional sovereignty as originating from the international community’s failure to prevent atrocities from occurring within state borders during the 1990s.[2] Yet ideas about sovereignty being conditional in international law were not suddenly reimagined. This article analyzes how the tension between state sovereignty and human rights developed in international law between 1945 and 2005.

This research builds on existing literature that finds ideas about state obligations for human rights expanded in a process that began in the waning years of the Second World War and culminated with the emergence of R2P, at which point such responsibilities explicitly conflicted with established norms of sovereignty.[3] The notion of people traditionally protected by sovereignty being subject to scrutiny by the international community to safeguard human rights was first operationalized in the 1945 trial of former Nazi leaders in Nuremberg, Germany by the International Military Tribunal (IMT). At the same time, the tribunal’s limitation of crimes against humanity to atrocities that had occurred within the context of an aggressive war served to strengthen a different aspect of sovereignty: one that confined international law’s jurisdiction to cross-border relations. In the judgment’s wake, however, the erosion of absolute sovereignty continued during the postwar era through the rise of human rights law and the expansion of international humanitarian law, subsequent international tribunals, and humanitarian interventionism. The Responsibility to Protect doctrine can thus be understood as an emerging international norm with roots that trace back to the proceedings at Nuremberg.

The emergence of the modern nation-state enshrined an expectation within the international system that sovereign states would not interfere with the internal affairs of other states.[4] As outlined by Francis Deng, former UN Special Advisor on the Prevention of Genocide, the modern international order was characterized by “a system of modern nation-states in which the sovereign reigned supreme domestically as well as in the state's relations with the outside world.”[5] This state-centric vision of sovereignty was reflected in early efforts to establish the rules of war in international law. For instance, the Hague Conventions of 1899 and 1907 were designed to regulate the conduct of states in their interactions with each other. [6] Enforcement of these war crimes rules was reserved to states, effectively omitting any individual liability for violations.

Shifting Goalposts of State Responsibility at Nuremberg On August 8, 1945, France, the Soviet Union, the United Kingdom, and the United States established the Nuremberg International Military Tribunal through the London Charter. The charter approved prosecution for Crimes against Peace— or waging aggressive war —War Crimes, and Crimes against Humanity. These crimes were innovations in international law in the sense that they entailed individual criminal responsibility. As highlighted by legal scholar Christian Tomuschat, this principle successfully penetrated the international norm of sovereign equality among states.

PAGE 37

HISTORICAL NOTE

Prior to Nuremberg, no serious effort had been made to hold state leaders accountable. No longer was international law relevant only in interactions between consenting states, leaving the judgment of any given individual to organs of domestic law.[7] The charge of Crimes against Humanity was also a new concept. As defined in Article 6(c) of the indictment, these crimes involved: …murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.[8] Through phrases such as “any civilian population,” “before…the war,” and “whether or not in violation of the domestic law of the country where perpetrated,” this clause appears to outline the legal justification for deep intrusions into sovereign exclusivity over human rights. While ideologically far-reaching, the crime was severely limited in its practical applicability due to the stipulation that such abuses must also be “in execution of or in connection with any crime within the jurisdiction of the Tribunal” (emphasis added).[9] The tribunal interpreted this restriction— which was not placed on either Crimes against Peace or War Crimes in the charter —to imply that Crimes against Humanity must be linked to the other two charges.

Atrocities committed against Jews within Germany before the war, for example, were not addressed by the IMT. This limitation was intentional. Robert H. Jackson, a US Supreme Court Justice who helped draft the charter and served as the Chief American Prosecutor at Nuremberg, directed the prosecution to pursue crimes against humanity only when such atrocities were connected to the waging of an illegal war. Legal scholar Lawrence Douglas concludes that this decision by Jackson was partly motivated by a desire to shore up the tribunal’s legitimacy by focusing on principles of international law that did not conflict with familiar concepts of sovereignty.

Despite the new enforcement mechanism, the aggressive war charge still fell within the relatively established domain of regulating interstate conduct in international law, for example. In this way, Nuremberg simultaneously strengthened and chipped away at the foundations of state sovereignty.[10] While certainly not sought by either the prosecution or the tribunal, Crimes against Humanity carried intrinsic significance. The Robert H. Jackson Center argues that Nuremberg’s introduction of the charge “effectively fathered a globalized concern towards certain attitudes in war and, by extension, for the rights of all human beings suffering the effects of certain modes of violence.”[11] The trial brought the morals of states who participated in the prosecution into the international community through international criminal law. This precedent, in turn, led to enforceable international human rights and humanitarian law that strengthened the presence of these values.[12] Ideas of universal human rights in the Crimes against Humanity charge were divorced from interstate conflict in the immediate aftermath of the war. This separation was promulgated by treaties and commitments adopted by UN member-states. These included the Nuremberg Principles, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the Universal Declaration of Human Rights (UDHR).[13] Notably, sovereignty among states was still being bolstered, as the principle of nonintervention had been enshrined in Article 2 of the UN Charter in 1945. In other words, the impregnability of domestic jurisdiction was built into the groundwork of the international community.[14] Consequently, the UN charter hindered the development of enforceable guarantees.

PAGE 38

HISTORICAL NOTE

Absolute state sovereignty was nonetheless increasingly challenged by the international community’s concern for human rights— a concern structured upon the ideas introduced at Nuremberg.

Lacking the necessary international political consensus, the global order following the outbreak of the Cold War largely halted the post-Nuremberg expansion of jurisdictional weight granted to international human rights enforcement. When national sovereignty was violated for purportedly humanitarian reasons, such as with Vietnam’s invasion of Cambodia that ended the Khmer Rouge genocide, widespread condemnation against the intervention by the international community followed.[15]The prevention of human rights abuses that were contained within state boundaries failed as a justification for intervention. This lack of legitimacy reflected an international legal system in which waging aggressive interstate war had been repudiated while expectations of non-intervention associated with sovereignty remained.

Post-Cold War Era: Breaking the Sovereignty Stalemate The end of the Cold War coincided with public revulsion against atrocities in the former Yugoslavia and Rwanda. These shifting geopolitical and public considerations led to a growing recognition by the international community of the right to intervene in the domestic sphere of other countries in order to prevent conflict-related humanitarian disasters. Central to understanding this realignment, however, is recognizing that the response to such atrocities found normative grounding established at Nuremberg. The emergence of humanitarian interventionism was guided by principles originated by the tribunal in 1945 and embraced by the United Nations, even though such ideas largely sat dormant due to a lack of political will during the Cold War.With the collapse of the Soviet Union in 1991, the decades of global tension between the Soviet Union and the United States came to an end. Conflicts within postcolonial states were reignited in this transformed landscape. Louis Arbour, the former UN High Commissioner for Human Rights and Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), synthesized these historical developments in the context of the ongoing debate over the role of state sovereignty: The principle of non-interference in a sovereign State's domestic affairs came under intense strain in the 1990s…as the Rwandan genocide, the atrocities in the former Yugoslavia, and a proliferation of devastating internal wars unfolded. It became increasingly clear then that sovereignty in and of itself should, at the very least, no longer shield perpetrators from punitive measures.[16] Examining this “principle of non-interference” in the context of Nuremberg highlights a recurring desire to deploy international law as a means of justice that transcends stateimposed barriers to accountability. As previously noted, the enforcement of purportedly shared principles among the international community when jurisdiction had yet to be explicitly established was a dismantling of state sovereignty that began in 1945. However, attempts to redress human rights abuses within states worked against an understanding of sovereignty fortified at Nuremberg. The supremacy of the aggressive war charge had reinforced the idea of international law being limited to interactions between states.

The “intense strain” that Arbour describes as being placed on this framework of sovereignty was propagated by a variety of actors and institutions. International relations scholar Michael Barnett explains that following the Cold War, “National security gave ground to human security.”[17] PAGE 39

HISTORICAL NOTE

In other words, security was now understood not only in regard to interstate conflict but also in the treatment of persons within states. Barnett further emphasizes that this shift in perspective ranged from the UN Security Council to NGOs to the general public.[18] Francis Deng elaborates that this broader view of security led to a more intense focus on human rights: “Human rights, humanitarian, and developmental organisations … began to intensify their activities as watchdogs over the extent to which these universal standards were adhered to within national borders.”[19] Deng additionally points to the democratization of newly independent postcolonial states as a post-Cold War development that further challenged previous ideas of sovereignty, as people increasingly felt that the authority of their leaders was only legitimate if those leaders represented their personal interests.[20] With global interactions no longer focused on strengthening the relative balance of power between two countries, security reflected more individualized considerations and globalized actors. The resulting view of humanitarianism would serve as justification for increasingly ambitious intrusions into the sovereignty of states.

Initial attempts to confront these new challenges to human rights were far from successful.

Even when the international community did intervene with UN personnel in places like Somalia, Rwanda, and Srebrenica, Bosnia, these efforts were inconsistent and ultimately ineffective, if not counterproductive. As Gareth Evans wrote while serving as the president of the International Crisis Group, while there was a growing political will at the international level to recognize and confront human rights abuses through military intervention, failures to take effective action reflected long-standing hesitations about intrusions into internal state affairs.

[21] Multinational military action was not used more decisively to prevent further human rights abuses until 1999.[22] As outlined in a US Department of Defense after-action report to Congress on NATO’s 78-day bombing campaign against Serbian forces, one of the mission’s main objectives was to “deter Milosevic [former President of the Federal Republic of Yugoslavia] from continuing and escalating his attacks on helpless civilians and create conditions to reverse his ethnic cleansing.”[23] Attacks were notably undertaken without the United Nations Security Council’s approval. Objections were raised by veto-power members China and Russia that such a use of force would violate Yugoslavia’s sovereignty.[24] Yet these protests did not deter the operation. This commitment to force despite pressure from powerful actors signaled an increasing belief by at least some influential world leaders in the necessity of humanitarian intervention.

In the realm of international criminal and humanitarian law, the formation of the ICTY and ICTR by the Security Council in response to atrocities in Bosnia and Rwanda further signaled this willingness of the international community to intrude into state affairs. These proceedings marked the first ad hoc international tribunals since the Nuremberg and Tokyo trials and were notably influenced by their predecessors.[25] Concepts that had emerged in international law at Nuremberg once again found their way into the indictments. For instance, the idea of individual criminal responsibility irrespective of government affiliation was first introduced in Articles 6-7 of the 1945 IMT Charter:

PAGE 40

HISTORICAL NOTE

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility [applicable crimes are then listed] ...The official position of defendants…shall not be considered as freeing them from responsibility or mitigating punishment.[26] Individual responsibility for international crimes was replicated in Articles 7 and 6 of the ICTY and ICTR’s respective statutes.[27] These subsequent tribunals thus reflected Nuremberg’s mission to hold leaders of countries personally accountable for their actions under international law. The re-emergence of individual responsibility under international law reinforced a breakdown of the traditional distinction between international and domestic law.

International human rights agreements created in the wake of Nuremberg’s introduction of the concept of Crimes against Humanity were cornerstones of the new tribunals. The Genocide Convention of 1948, in particular, was reflected within the statutes’ criminalization of genocide regardless of location or context. By applying these principles for the first time in an international court, the ability of states to deploy traditional ideas about sovereignty as a means of protection from inquiries into internal human rights abuses became less feasible. It is worth noting, however, that the importance of sovereignty was still evident during the tribunals’ enforcement of the ICTY and ICTR statutes. In the ICTY’s ruling on an interlocutory appeal by the defense in Prosecutor v. Tadic, for instance, the court held that “grave breaches” of Article 3 of the four 1949 Geneva Conventions could only be applied in conflicts of an international nature. Through this acknowledgement that the grave breaches requirement established universal jurisdiction for violators, ICTY Judge Antonio Cassese ruled that “The international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents.”[28]However, Cassese simultaneously recognized the merits of dissenting views that grave breaches applied to internal conflicts, such as those expressed in the amicus curiae brief filed by the United States Government: [the amicus brief] provides the first indication of a possible change of opinio juris of States.

Were other States and international bodies to come to share this view, a change in customary law concerning the scope of the ‘grave breaches’ system might gradually materialize.[29] The sensitivity of the court to such arguments is indicative of the shifting opinions in favor of the reach of international humanitarian law including non-international conflicts.

Cassese’s response also underscores the importance of norms in applying international law, as he signaled that no alterations to the relevant statute would be necessary as long as international opinions about the matter were to change. In other words, judicial interpretation of international law is conditional on the prominence of underlying values. This approach further implies that beliefs held by influential actors must reach a certain level of acceptance by others before taking on the force of a norm, at which point such ideas can modify or conflict with existing norms. While Cassese points to “States and international bodies” as the relevant sources for customary law, mapping the trajectory of ideas about sovereignty informs a more complete understanding of how norms are altered as public opinion informs institutional considerations.

PAGE 41

HISTORICAL NOTE

In expanding the reach of international law, these trials also represented significant departures from Nuremberg. In the absence of the post-conflict military occupation that underscored the proceedings at Nuremberg, Article 9 and Article 8 of the ICTY and ICTR’s statutes affirmed the “primacy” of the tribunals over national courts. Another difference between the type of conflict on trial was the relevance of conflict within state borders in the former Yugoslavia and Rwanda. This reality, combined with the greater international focus on human rights, had effectively sidelined the aggressive war charge that was central to the Nuremberg convictions.[30] Instead, criminality was assessed through crimes against humanity and war crimes. The comparative emphasis of these charges is highlighted by the introduction of novel international crimes in the ICTY and ICTR statutes. Genocide, as defined in the 1948 convention, was included as a separate charge in Articles 4 and 2. Other crimes against humanity outlined in Articles 5 and 3 included persecution on ethnic grounds— otherwise known as ethnic cleansing. Within these articles, provisions against imprisonment, torture, and rape reflected expanded liability for human rights violations.

The evolution of international law also continued, albeit subtly, between the proceedings of the ICTY, established in May 1993, and the ICTR, in November 1994. As expressed in Judge Cassese’s opinion, Article 2 of the ICTY Statute punishing “grave breaches” of the Geneva Conventions only covered violations of the laws of war committed during international conflicts. The ICTR, in contrast, explicitly criminalized “serious violations” of Article 3 common to the Conventions and Article 4 of the 1977 Additional Protocol II to the Conventions.[31] Importantly, both Article 3 and Article 4 extended the laws of war to include non-international armed conflicts.[32] The ICTR thus granted expanded jurisdiction over war crimes by recognizing a new area of international humanitarian law— intra-state conflict —as applicable to international criminal proceedings.[33] Furthermore, in outlining the requirements for crimes against humanity, Article 5 of the ICTY Statute requires a connection between such crimes and the presence of an armed conflict, whereas Article 3 of the ICTR statute makes no such requirement.[34] Removing interstate conflict as a prerequisite to crimes against humanity indicated a shift away from the Nuremberg-erected dominance of interstate conflict over human rights concerns. These changes reflect the incremental, yet impactful expansion of international law’s oversight of people within state borders at the expense of sovereign state control.[35] A world that was “no longer paralyzed by the Cold War” was prompted to respond to the atrocities of the 1990s.[36] A push for humanitarian intervention and a greater focus on human rights by international tribunals derived from Nuremberg by reviving and revising the International Military Tribunal’s principles and mechanisms of international justice.

Consequently, the degree of state protection from international review by sovereignty was limited. These developments shifted international focus to the idea of reframing sovereignty in line with universal protection of human rights, whereby states had a ‘right to intervene’ for humanitarian purposes.[37]

PAGE 42

WORKS CITED

At the same time, however, humanitarian intervention remained controversial. As Barnett notes, “The practice of compassion involves politics and privileges the power of the passionate.”[38] The idea of powerful international actors being able to use military force at their discretion led to germane concerns over the innocence of supposedly humanitarian motives. On one side of the debate were those who believed there was a right to military humanitarian intervention. On the other were those who adhered to long-standing principles of state sovereignty. The latter group included colonized states who were wary of intrusions due to their fragility and suffering from past interventions.[39] Deng summarized this tension as “governments whose domestic performance rendered them vulnerable to international scrutiny reacted against perceived attempts to undermine their sovereignty.”[40] Such backlash highlights the pervasiveness of the norms of national sovereignty. These 1990s humanitarian interventions failed to fully legitimize departures from entrenched norms of nonintervention.

The Responsibility to Protect By 1999, the conflict between growing concerns over humanitarian intervention and ensuring respect for human rights had fully materialized. In response, UN Secretary-General Kofi Annan presented a challenge to the General Assembly: If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?[41] Heeding Annan’s question, the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS), an expert group that then published a 2001 report that introduced the Responsibility to Protect.[42] Gareth Evans, the former co-chairman of the ICISS, elucidated R2P’s formation: “The core idea is very simple.

Turn the notion of 'right to intervene' upside down. Talk not about the 'right' of big states to do anything, but the responsibility of all states to protect their own people from atrocity crimes, and to help others to do so.”[43] R2P represented a significant evolution in thinking about the relationship between human rights and state structures. Under the doctrine, the basis for sovereign statehood is predicated upon the ability of a state to respect the rights of its individual citizens. Within this redefined understanding of state legitimacy, the international community would be obligated to intervene, both to prevent and react to atrocities, should a state fail to do so.

Conclusion While scholars have pointed to the post-Cold War environment that led to Annan’s challenge as the origin of the Responsibility to Protect norm, there is a need for a more expansive historical view. In order to properly contextualize the tensions between state sovereignty and respect for human rights by the international community reflected in the R2P idea of conditional sovereignty, one must begin at Nuremberg. The Robert H. Jackson Center concludes that “The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a sovereign against his own citizens – gradually emerged from the Nuremberg principles affirmed by the United Nations.”[44] Ideas conceived at Nuremberg that went on to shape internationally codified human rights principles help explain how the complete authority that states previously enjoyed over their national affairs was gradually penetrated.

PAGE 43

WORKS CITED

Many dimensions of concern for international human rights were not put into practice until the 1990s. Despite this fact, the actions taken by the international community continued a preCold War prioritization of individuals over country boundaries. The conception of the Responsibility to Protect doctrine formally enshrined the idea of sovereignty as entailing a responsibility to uphold internationally recognized conceptions of human rights. Ultimately, this norm was the product of expectations catalyzed by the 1945 International Military Tribunal.

PAGE 44

NOTES

[1] “The Responsibility to Protect: A Background Briefing,” Global Centre for the Responsibility to Protect, January 14, 2021, https://www.globalr2p.org/publications/the-responsibility-toprotect-a-background-briefing/.

[2] See Ibid; Louise Arbour, “The Responsibility to Protect as a Duty of Care in International Law and Practice.” Review of International Studies, vol. 34, no. 3, 2008, https://static1.squarespace.com/static/522cc5b4e4b0a015e8d59b21/t/522d2a25e4b0bb402a8 0c85c/1378691621406/Arbour_R2P.pdf, 447; Gareth Evans, “The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All.” Irish Studies in International Affairs, vol. 20, 2009, http://www.jstor.org/stable/25735145, 8.

[3] See Tove Rosen (ed.), “The Influence of the Nuremberg Trial on International Criminal Law,” The Robert H. Jackson Center, https://www.roberthjackson.org/speech-and-writing/theinfluence-of-the-nuremberg-trial-on-international-criminal-law/, Executive Summary.

[4] International Relations scholars generally attribute the emergence of this international system to the 1648 Peace of Westphalia, which ended the Thirty Years’ War. Others, however, contend that this view is anachronistic, claiming that such a system did not develop until the nineteenth and twentieth centuries. See Andreas Osiander, “Sovereignty, International Relations, and the Westphalian Myth.” International Organization vol. 55, no. 2, 2001, https://www.jstor.org/stable/pdf/3078632.pdf, 281-2.

[5] Francis M Deng, "From Sovereignty as Responsibility to the Responsibility to Protect." Global Responsibility to Protect, vol. 2, no. 4, 2010, https://heinonline.org/HOL/P? h=hein.journals/gloresp2&i=374. 355.

[6] Rosen (ed.), “The Influence of the Nuremberg Trial,” 1.

[7] Christian Tomuschat, “The Legacy of Nuremberg,” Journal of International Criminal Justice, vol. 4, no. 4, 2006, https://academic.oup.com/jicj/article/4/4/830/802420, 837-8.

[8] “Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal (August 8, 1945),” in The Avalon Project: Documents in Law, History and Diplomacy (New Haven, CT: Lillian Goldman Law Library), https://avalon.law.yale.edu/imt/imtconst.asp (accessed November 16, 2022).

[9] “Charter of the International Military Tribunal,” The Avalon Project.

[10] For a more complete discussion of the Nuremberg Charter, in particular the crimes against humanity charge, see Lawrence Douglas, “The Idiom of Judgement: Crimes Against Humanity” in The Memory of Judgment: Making Law and History in the Trials of the Holocaust, 38-64, Yale University Press, 2005.

[11] Rosen (ed.), “The Influence of the Nuremberg Trial,” 5.1.1.

[12] See also Tomuschat, “The Legacy of Nuremberg,” 838-9.

[13] Rosen (ed.), “The Influence of the Nuremberg Trial,” 5.1.1.

[14] At least in some instances. Article 2.7 of the Charter states that “Nothing should authorise intervention in matters essentially within the domestic jurisdiction of any State.” See Evans, “The responsibility to Protect,” 8.

[15] Evans, “The responsibility to Protect,” 8.

[16] Arbour, “The Responsibility to Protect as a Duty of Care,” 446.

[17] Michael Barnett, Empire of Humanity: A History of Humanitarianism. Cornell University Press, 2011, 163.

[18] Barnett, 162-166.

[19] Deng, " Sovereignty as Responsibility,” 359.

[20] Deng, 359.

[21] Evans, “The Responsibility to Protect,” 8.

PAGE 45

NOTES

[22] Evans, 8.

[23] United States, Department of Defense. “Kosovo/Operation Allied Force After-Action Report,” report to Congress, January 31, 2000, https://purl.fdlp.gov/GPO/LPS16504, xvii.

[24] Catherine Guicherd, “International Law and the War in Kosovo.” Survival 41, no. 2, 1999, https://is.muni.cz/el/fss/jaro2010/MVZ198/um/Guicherd__International_Law_and_the_War_in_K osovo.pdf), 26.

[25] Rosen (ed.), “The Influence of the Nuremberg Trial,” Executive Summary.

[26] “Charter of the International Military Tribunal,” The Avalon Project.

[27] “UN, Statute of the ICTY” International Committee of the Red Cross, https://casebook.icrc.org/case-study/un-statute-icty (accessed November 27, 2022); UN, Statute of the ICTR” International Committee of the Red Cross. https://casebook.icrc.org/case-study/un-statute-ictr (accessed November 27, 2022).

[28] Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction. October 2, 1995.

Appeals Chamber. In John C. Watkins and John Paul Weber, War Crimes and War Crime Trials: From Leipzig to the ICC and Beyond: Cases, Materials, and Comments (Durham, NC: Carolina University Press, 2006), 522.

[29] Watkins and Weber, 523.

[30] Rosen (ed.), “Influence of the Nuremberg Trial,” Executive Summary.

[31] Watkins and Weber, War Crimes Trials, 541.

[32] “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)”, International Committee of the Red Cross, 8 June 1977, https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp? documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action=openDocument.

[33] Tribunal statutes in the above two paragraphs are excerpted from Statute of the ICTY; Statute of the ICTR [34] Watkins and Weber, War Crimes Trials, 542.

[35] The establishment of the International Criminal Court by the 1998 Rome Statute marked the creation of the world’s first permanent international court. Reflected in its statute were procedural and jurisdictional elements alongside principles of international humanitarian law of the Nuremberg trial, the ICTY, and the ICTR. See Rosen, “Influence of the Nuremberg Trial,” 7.

[36] Rosen (ed.), 7.

[37] Arbour, “Responsibility to Protect as a Duty of Care,” 447.

[38] Barnett, “Empire of Humanity,” 223.

[39] Evans, “The responsibility to Protect,” 8-9.

[40] Deng, “Sovereignty as Responsibility,” 356.

[41] Kofi A. Annan, “'We the Peoples’: the role of the United Nations, 21st century” UN Department of Public Information, 2000, https://digitallibrary.un.org/record/413745?ln=en, 48.

[42] Evans, “The responsibility to Protect,” 9.

[43] Evans, 9.

[44] Rosen (ed.), “Influence of the Nuremberg Trial,” Executive Summary.

PAGE 46

WORKS CITED

Annan, Kofi A. “'We the Peoples’: the role of the United Nations, 21st century.” UN Department of Public Information, 2000, https://digitallibrary.un.org/record/413745?ln=en.

Arbour, Louise. “The Responsibility to Protect as a Duty of Care in International Law and Practice.” Review of International Studies, vol. 34, no. 3, 2008,https://static1.squarespace.com/static/522cc5b4e4b0a015e8d59b21/t/522d2a25e4b0bb4 02a80c85c/1378691621406/Arbour_R2P.pdf.

Barnett, Michael. Empire of Humanity: A History of Humanitarianism. Cornell University Press, 2011.

Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction. October 2, 1995.

Appeals Chamber. In John C. Watkins and John Paul Weber. War Crimes and War Crime Trials: From Leipzig to the ICC and Beyond: Cases, Materials, and Comments. Durham, NC: Carolina University Press, 2006.

Deng, Francis M. "From Sovereignty as Responsibility to the Responsibility to Protect." Global Responsibility to Protect, vol. 2, no. 4, 2010, https://heinonline.org/HOL/P? h=hein.journals/gloresp2&i=374.

Douglas, Lawrence. The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, 2005.

Evans, Gareth. “The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All.” Irish Studies in International Affairs, vol. 20, 2009, http://www.jstor.org/stable/25735145.

Guicherd, Catherine. “International Law and the War in Kosovo.” Survival 41, no. 2, 1999, https://is.muni.cz/el/fss/jaro2010/MVZ198/um/Guicherd__International_Law_and_the_War_in_K osovo.pdf).

“Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal” (August 8, 1945).” In The Avalon Project: Documents in Law, History and Diplomacy. New Haven, CT: Lillian Goldman Law Library. https://avalon.law.yale.edu/imt/imtconst.asp Osiander, Andreas. “Sovereignty, International Relations, and the Westphalian Myth.”

International Organization 55, no. 2, 2001: 251–87. https://www.jstor.org/stable/pdf/3078632.pdf.

“Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)”. International Committee of the Red Cross. 8 June 1977. https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp? documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action=openDocument.

Reisman, W. Michael. “Sovereignty and Human Rights in Contemporary International Law.” American Journal of International Law, vol. 84, no. 4, 1990, https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5282/Sovereignty_and_Human_Ri ghts_in_Contemporary_International_Law.pdf?sequence=2.

Rosen, Tove (ed.). “The Influence of the Nuremberg Trial on International Criminal Law.” The Robert H. Jackson Center. https://www.roberthjackson.org/speech-and-writing/the-influenceof-the-nuremberg-trial-on-international-criminal-law/.

“The Responsibility to Protect: A Background Briefing.” Global Centre for the Responsibility to Protect. January 14, 2021. https://www.globalr2p.org/publications/the-responsibility-toprotect-a-background-briefing/.

PAGE 47

WORKS CITED

Tomuschat, Christian. “The Legacy of Nuremberg.” Journal of International Criminal Justice, vol. 4, no. 4, 2006, https://academic.oup.com/jicj/article/4/4/830/802420.

“UN, Statute of the ICTR” International Committee of the Red Cross. https://casebook.icrc.org/case-study/un-statute-ictr.

“UN, Statute of the ICTY” International Committee of the Red Cross. https://casebook.icrc.org/case-study/un-statute-icty.

United States, Department of Defense. “Kosovo/Operation Allied Force After-Action Report,” report to Congress, January 31, 2000, https://purl.fdlp.gov/GPO/LPS16504.

PAGE 48

ELECTION LAW

The Case for Civic Republicanism in Election Law NICHOLAS CEFALU, GEORGETOWN UNIVERSITY

Abstract: Despite being the most essential acts of expression, elections are not explicitly defined in the Constitution. This has left wide room for judicial interpretation, leading to the Roberts Court’s problematic rulings in Rucho v. Common Cause and Citizens United v. FEC that greenlit the blatant abuse of the redistricting process for political gain and the unlimited use of corporate funds to influence politics. These disastrous rulings stem from the Court’s incorrect originalist analysis of the philosophies present at the founding, giving excessive weight to classical liberalism, which emphasizes maximum government non-interference in the public sphere, without proper consideration for civic republicanism’s commitment to pragmatism, and its consequently robust defense of elections regulations. Through an exploration of the case law in the administration of elections, partisan gerrymandering, and campaign finance, this paper illustrates how a reintroduction of civic republicanism in election law has the potential to remedy many of the current issues while remaining within the Court’s originalist lens.

PAGE 49

ELECTION LAW

I. Introduction Elections are arguably the most important acts of expression in all First Amendment jurisprudence. Without elections, every guardrail and right enforced by the Constitution stands to be lost, and without the First Amendment, this fundamental but unenumerated right stands to be trampled on. This grave responsibility imposed on the humble ballot box begs the question, why are elections, and more broadly expression, protected? Legal scholars have been questioning this since before the founding with two broad schools of thought, expression as something of intrinsic value and expression as something of pragmatic value. In contemporary electoral jurisprudence, the former has become broadly dominant, instituting a puritanical understanding of expression onto matters relating to the administration of elections, partisan gerrymandering, and campaign finance. Through an exploration of the philosophical history and case law surrounding these topics, it becomes clear that this understanding has been broadly detrimental to the electoral system, and that to counteract it, the Supreme Court must adopt a system recognizing that expression is a pragmatic tool, allowing for more appropriate electoral regulations. By doing this, the Court will be able to address the practical failings of the current originalist reading of the Constitution, broadening it to encompass the full breadth of thought at the founding, and ensuring that elections continue to serve their function as a pragmatic system for accurately communicating the will of the people.

II. Background While the Constitution doesn’t explicitly describe the nature of elections, it does provide for their administration and regulation through Congress and the state legislatures. These powers are primarily vested in Article I Section 4 Clause 1, known as the Elections Clause, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”[1] This clause gives state legislatures and Congress broad power to govern elections providing state legislatures with primary power to create election law while granting Congress ultimate authority over federal elections. In addition, the Constitution grants the federal government limited power over state elections through the Guarantee Clause which states “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”[2] Unlike the Elections Clause, the Guarantee Clause lacks explicit language regarding the scope of federal authority (i.e. what a Republican Form of Government is) and therefore gives Congress much less control over state elections than state legislatures have over federal elections.[3] Together, these two clauses form the constitutional basis for the regulation of elections, giving states broad authority to organize elections as they see fit with ultimate authority over federal elections resting with Congress, and state elections controlled entirely by the states themselves so long as they maintain a Republican Form of Government.[4] Numerous conflicts in election law have arisen as these powers have come into contact with the various rights protected by the Constitution’s amendments, most notably those under the First Amendment. Unlike the enumerated powers of the federal government, the First Amendment provides negative rights[5] to the people, creating broad zones of noninterference that often brush up against election regulations.

PAGE 50

ELECTION LAW

The amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,”[6] explicitly protecting the freedom of religion, expression, and peaceful protest.

[7] Of these, the freedom of expression has most often collided with election law, forcing courts to adjudicate difficult conflicts between the government's interests in effectively regulating elections, and citizens’ expressive rights. As in many other constitutional issues, this conflict dates back to one of the fundamental philosophical disagreements at the founding, the struggle between classical liberalism and civic republicanism.

Classical liberalism is widely considered the most influential of the many philosophies present at the founding. Commonly understood as a continuation of John Locke’s philosophical tradition, it emphasizes an individual’s right to conduct life with minimal interference from the government. This is accomplished by creating large swathes of protected natural rights, liberties that all persons have as humans, which the government cannot infringe upon.[8] In this paradigm, these rights are protected because of their intrinsic value as basic elements of human life distinct from any benefits they might provide. As applied to the First Amendment and election law, this moralistic understanding of expression puts considerable pressure on how far a person’s expression can be curtailed in order to fairly administer elections.

Consequently, as the dominant ideology since the founding, classical liberalism has often worked to minimize the government’s regulation of elections, placing the fundamental importance of expression above that of effective election administration.

On the opposite side stands civic republicanism, which espouses a more pragmatic conception of fundamental rights.[9] Unlike classical liberalism, which emphasizes rights of non-interference, civic republicanism centers around non-domination, or freedom from arbitrary authority, a markedly less extensive conception that provides the government with considerable leeway to exercise power over its citizens. What exactly freedom from arbitrary authority looks like is heavily debated, but it is generally understood to include the rule of law[10] and democratic governance.[11] Importantly, unlike classical liberalism, this fundamental freedom is pragmatic rather than idealistic and is designed to achieve the best outcomes by protecting society from the whims of a tyrannical ruler. As such, individual liberties, including the freedom of expression under the First Amendment, are a means to achieve better governance, not ends in and of themselves. This allows for considerably more election regulations under a civic republican system, where rules designed to produce more accurate and representative election results would be given similar if not more importance than the freedom of expression as a stand-alone right. Sadly, this more limited conception of liberty failed to win out during the ratification process and as such has been largely relegated to the periphery of American jurisprudence.

III. Case Law Despite this, civic republicanism’s historical importance as well as its limited appearances within case law leave the door open for a reintroduction of its principles more broadly within election law. This is most prominent in the Anderson-Burdick[12] line of cases that relate to the administration of elections,[13] in which the Court has adopted a somewhat civic republicanist stance.

PAGE 51

ELECTION LAW

Under this doctrine, the state generally only needs to meet a low standard of judicial review[14] when modifying purely administrative aspects of elections, based on the idea that strictly scrutinizing every incidental electoral change would impose an overly large burden on the government. In regards to redistricting, the Court has largely stepped away from civic republicanism, vacating any power to rule on gerrymandering outside of a racial context[15] by considering partisan gerrymandering a nonjusticiable political question outside the reach of the federal judiciary.[16] Finally, in campaign finance, the Court has held that restrictions on “corporate independent expenditure”[17] represent fundamental infringements on the First Amendment right of expression and must meet strict scrutiny,[18] effectively allowing unlimited amounts of money to be spent by wealthy persons[19] on elections. This threefold system showcases the piecemeal integration of civic republicanism into American jurisprudence, playing a controlling role when within purely administrative aspects but overshadowed when expression is visibly at the forefront regardless of the potential for disastrous practical implications as seen in partisan gerrymandering and campaign finance.

A. Election Administration The most pragmatic of these case lines have been those regarding the administration of elections. Centered around the idea of regulating the administrative details of elections, these cases lean heavily into civic republicanism undoubtedly because of the direct line that can be drawn to the Elections Clause’s power to regulate the “Times, Places, and Manner”[20] of elections. By giving Congress, as well as the state legislatures, a direct mandate to establish the ground rules and organize the institutions necessary to hold elections, the Elections Clause acts as a guiding principle for administrative disputes and makes a strong civic republican case for why legislatures need leeway to regulate these aspects of elections.

Conflicts over the administrative details of elections have naturally emerged throughout the nearly 250-year history of the federal constitution, but the principles that guide modern election administration law were established relatively late in Smiley v Holm (1932). Following the 1930 census, Minnesota was allocated nine congressional seats, one fewer than the state had held previously. This required a redrawing of the state’s congressional districts, which the state legislature carried out by passing a bill that was then vetoed by the governor. The state legislature nevertheless proceeded to deposit the bill with the office of the secretary of state to be implemented, provoking a suit demanding that all newly drawn districts be ruled invalid and new maps be drawn. While this case primarily focuses on the role governors play in the redistricting process,[21] it also describes in detail the various other legislative powers delegated to the states by the Elections Clause “in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”[22] Despite being focused on the redistricting process, Smiley set the foundation for modern election administration law by providing a detailed account of the powers delegated to the states by the Elections Clause.

While Smiley delineated the states’ regulatory powers it failed to articulate a clear legal theory as to how they should be applied, giving the states license to begin testing the boundaries of their newly defined powers. In Bullock v. Carter (1972), plaintiffs challenged a Texas statute requiring that candidates wanting to run in their party primary elections pay fees “ranging as high as $8,900.”

PAGE 52

ELECTION LAW

[23] Since the statute forced political parties to fund their primary elections they had to charge excessive fees to candidates severely limiting the pool of potential nominees.

Recognizing the immense harm this would cause by giving “the affluent the power to place on the ballot their own names or the names of persons they favor”[24] to the detriment of those of more modest means, the Court created the beginnings of a new test, which took into account the government’s stated interest and the burden that a regulation places on citizens’ rights.

[25] In this case, the Court ruled in favor of the candidates, determining that the state’s interest in protecting “the integrity of its political processes from frivolous or fraudulent candidacies”[26] did not justify “the imposition of filing fees ranging as high as $8,900”[27] which tend “to limit the number of candidates entering the primaries.”[28] However, the Court was not entirely hostile to the thinking behind such a statute, asserting that “not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review,”[29] but that in this case, the “State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation.”[30] This left space for well-reasoned election regulations to withstand judicial review provided they were properly tailored to the stated interest.

The Court would revisit this test only two years later in the 1974 case Storer v. Brown in which a group of candidates challenged a California statute preventing congressional candidates from running as independents if they had been affiliated with a political party within the last twelve months.[31] The statute was designed to prevent “intraparty feuds”[32] in which a candidate that loses the primary election runs a revenge campaign as an independent to get back at the winning primary candidate in the general election, stealing voters from the party’s base. In this case, the congressional candidates had only removed themselves from the Democratic party six months before the election and as such were ruled ineligible to run in district court. The Court upheld their ineligibility, stating “that the statutes served a sufficiently important state interest to sustain their constitutionality and dismissed the complaints”[33] because “the burdens are justified by the State's compelling interest in the stability of its political system.”[34] Once again, the Court restated that “there must be a substantial regulation of elections if they are to be fair and honest,”[35] emphasizing the point that the states have a right to regulate their elections so long as they don’t impose an overly large burden on protected rights.

The contemporary shape of this test was finally settled in Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992) from which the Anderson-Burdick test, which currently governs administrative election law, derives its name. As in previous cases, Anderson and Burdick related to the administrative details of elections, Anderson on an early filing deadline for independent presidential candidates in Ohio,[36] and Burdick on a Hawaii ban on write-in voting.[37] The Court ruled differently in both cases, striking down Ohio’s early deadline in Anderson[38] and upholding Hawaii’s ban on write-in voting in Burdick.[39] In both however, the Court solidified the language of the test, stating that “not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally suspect burdens on voters' rights”[40] and that “A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the U.S. Const. amend. I and XIV…against the precise interests put forward by the state as justifications for the burden imposed by its rule.” [41]

PAGE 53

ELECTION LAW

Currently, these two rulings form the controlling precedent in election administration law based on the Anderson-Burdick balancing test, which weighs the state’s interest in creating an election regulation against the burden it places on citizens’ rights though with general deference towards the state in most cases. This test, grounded in balancing the regulation of elections against the rights of citizens, advances a highly civic republican legal doctrine that is notably absent from the other main areas of election law: partisan gerrymandering, and campaign finance.

B. Partisan Gerrymandering Unlike the clear constitutional standards the Elections Clause provides for election administration law, redistricting operates in a much more constitutionally unchecked space.

The power to redistrict is vested in both the Elections Clause and Article I Section 2 Clause 3, known as the Enumeration Clause, which states: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall

by Law direct.[42] This clause provides for the decennial federal census from which the apportionment of House and state legislature seats is based and which when combined with the Elections Clause, gives state legislatures the ability to redraw districts based on the number of seats apportioned to them.[43] As redistricting allows state legislators to essentially choose their constituents, the system has been abused via gerrymandering, the creation of districts designed to favor one party, since the founding.[44] The lack of a clear standard within the Constitution has led courts to largely wash their hands of the issue, leaning into classical liberalism to justify noninterference for fear of accidentally infringing upon rights despite the disastrous practical consequences of such a stance.

For a significant portion of American history, federal court challenges to states’ apportionment of seats, whether concerning federal or state districts, were considered political questions outside the jurisdiction of the judiciary.[45] This finally began to change in Baker v. Carr (1962) in which a group of citizens challenged Tennessee’s apportionment of seats in the General Assembly, which had gone unchanged[46] despite significant population growth for more than sixty years. Unsurprisingly, this led to deeply unrepresentative districts and essentially locked a large portion of citizens out of the electoral process by giving more weight to the votes of certain voters over others. As such, citizens sought relief from a district court under the Fourteenth Amendment but were denied on the grounds that redistricting constituted a nonjusticiable political question. On appeal the Supreme Court reversed, holding that challenges to a state’s redistricting process did not constitute a political question. The Court supported this by defining the breadth of political questions to be issues related to foreign relations, dates of duration of hostilities, the validity of enactments, the status of Indian tribes, and claims made under the Guarantee Clause.[47] Since the citizens made no claim related to any of these areas, which the Court found nonjusticiable “primarily as a function of the separation of powers,”[48] PAGE 54

ELECTION LAW

the lower court ruling was reversed, making redistricting decisions broadly reviewable in federal court. While this case is widely considered one of the most important one-person, onevote cases protecting the equality of every person's vote, Baker did not hold Tennessee's maps unconstitutional but rather made the federal courts a viable location to bring redistricting disputes significantly increasing the breadth of potential remedies in gerrymandering cases.

Broadly speaking, the power to challenge redistricting decisions since Baker has largely been exercised against racial gerrymandering using the Fourteenth Amendment and the Voting Rights Act of 1965 as grounds. This has led to a relatively robust system of restrictions on racial gerrymandering based on three principles established in Thornburg v. Gingles (1986): First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district…Second, the minority group must be able to show that it is politically cohesive…Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it…to defeat the minority's preferred candidate.[49] This, along with several other cases including Shaw v. Reno (1993), and Cooper v. Harris (2017), [50] established a powerful precedent for the Court to use strict scrutiny when considering maps where racial gerrymandering is determined to have occurred. Unfortunately, this skepticism towards racial gerrymandering, based on race being a suspect class, does not extend to partisan gerrymandering.

The Court had for most of its history avoided stating an official test or position on partisan gerrymandering, but in Rucho v. Common Cause (2019) the Court finally addressed the issue head-on. Two consolidated challenges, one by Republicans in Maryland and another by Democrats in North Carolina claimed that their First and Fourteenth Amendment rights were violated by their respective states’ extremely gerrymandered congressional districts. In Maryland, where 54.0% of voters were registered Democrats, the map at the time gave the Democrats a majority in all but one of the state’s eight congressional districts.[51] In North Carolina, where 29.8% of voters were registered Republicans, the map at the time gave Republicans a majority in ten of the state’s thirteen congressional districts.[52] Chief Justice Roberts, writing for the Court, readily acknowledged that “these cases involve blatant examples of partisanship driving districting decisions,”[53] but despite this, the Court held partisan gerrymandering as a nonjusticiable political question because it would be impossible to create a standard for resolving such claims that is “grounded in a ‘limited and precise rationale.’”[54] The plaintiffs’ arguments that the Court should establish some form of test, as provided for in one-person, one-vote, and racial gerrymandering cases, were rebuffed on the grounds that it would be impossible for the Court to construct a fair test “in the absence of a constitutional directive or legal standards to guide it in the exercise of such authority.”[55] As such, the Court fully vacated the federal judiciary’s jurisdiction in partisan gerrymandering cases due to its nature as a political question reverting, at least within a partisan context, to the pre-Baker system. In doing so, the Court chose to shield itself behind classical liberalism’s non-interference doctrine to avoid a difficult decision with the potential for significant practical benefits on the principle that interfering could arbitrarily infringe on the ability of state legislators to draw districts in any way they see fit.

PAGE 55

ELECTION LAW

C. Campaign Finance Similar to administrative election law, while the constitutional power to regulate campaign finance can be readily identified in the Elections Clause, the implementation of that power has been marked by controversy. In general, campaign finance is regulated to advance two important interests: controlling how a campaign receives money, and how a campaign spends money. First, campaign contributions are generally limited to a certain dollar amount, and disclosures are required above a minimum. This is designed to doubly ensure candidates are not financed by a small well-endowed portion of society and to prevent the appearance of corruption by requiring contributions to be disclosed. Second, restrictions and disclosures on campaign expenditures are designed to prevent candidates from abusing their campaign funds for personal use[56] and again to prevent the appearance of corruption by limiting outside expenditures. Unlike election administration or partisan gerrymandering, the ideological basis of campaign finance regulation is much less stable, with portions very clearly embodying the classical liberal hands-off approach while others lean into the civic republican balancing method where fundamental rights and practical consequences are both considered. As such, contemporary campaign finance sits on the edge between classical liberalism and civic republicanism with significant practical issues pushing the courts to allow more restrictive statutes while classical liberalism’s puritanical understanding of fundamental rights pushes for increasingly lax regulations.

Unsurprisingly, considering the dominance of classical liberalism in American political thought, campaign finance went unregulated for much of American history with substantive rules first appearing during the 20th century. Among the most important of these statutes was the Federal Election Campaign Act of 1971 (FECA) which created quantitative restrictions on contributions towards and expenditures by campaigns, as well as establishing disclosure requirements,[57] all of which were challenged in the 1976 case Buckley v. Valeo. The plaintiffs challenged several of FECA’s provisions, among them a $1,000 restriction on the amount of money a person, defined as “an individual, partnership, committee, association, corporation or any other organization or group of persons,”[58] could give to any individual candidate, a $25,000 annual contribution ceiling for all donations, a $1,000 limit on personal expenditure to advocate for a candidate, varying campaign expenditure restrictions depending on the office sought, and disclosure requirements for most contributions and expenditures by campaigns and persons.[59] These challenges were brought under the pretense that they violated the First Amendment by limiting freedom of expression and association. The Court was somewhat receptive to these arguments, striking down the expenditure restrictions as they “necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,”[60] but in large part upholding the rest of the statute. Campaign contribution restrictions were upheld as they effectively advanced the state’s interest in “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office,”[61] while causing “little direct restraint on [the voter’s] political communication”[62] since the Court held the value of a campaign contribution to be its “symbolic expression of support”[63] rather than its actual contribution to a candidate’s victory. Finally, the Court upheld the constitutionality of the disclosure requirements for both contributions and expenditures though this was a point of minimal contention on which the parties broadly agreed, “[i]ndeed, appellants argue that ‘narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy.’”[64] PAGE 56

ELECTION LAW

In this case, the Court established that the state has a legitimate interest in creating campaign finance statutes to prevent corruption, or the perception thereof, in order to maintain the effectiveness of and public faith in the electoral system, and as such was willing to give more leniency to statutes purporting to address these issues. Outside of the contributions, the Court was quite hostile to expenditure restrictions, indicating that legislators must take special care that their statutes are narrowly tailored to achieving anticorruption goals.[65] Buckley held a controlling role in campaign finance law for nearly 30 years, but during that time political parties and their various associated organizations learned to evade FECA’s hard money restrictions.[66] Consequently, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA) which superseded FECA and sought to cut down on the amount of soft money that was moved through intermediaries to avoid the restrictions on hard money present in the FECA regime. To do this, BCRA limited soft money transfers to federal campaigns[67] and restricted non-party organizations from using general use treasury funds to fund “electioneering communications,”[68] a decision which was promptly challenged in McConnell v. FEC (2003) on the grounds that it violated plaintiffs’ freedom of speech and association under the First Amendment. In contrast to Buckley, where a significant portion of the statute was ruled unconstitutional, the Court in McConnell upheld the two central tenets of the BCRA, soft money, and electioneering limits, citing once again that “the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits”[69] because public faith in the electoral system is essential for it to function properly.

Regrettably, the strong defense of campaign finance regulations seen in this case would not continue, as the Court grew increasingly sensitive to the burden that campaign finance regulations placed on First Amendment liberties.

In Citizens United v. FEC (2010), the Court upended a significant portion of the regime established in Buckley and expanded in McConnell, ruling that restrictions on corporate independent expenditures[70] were an unconstitutional burden on corporations' First Amendment rights. To reach this conclusion, the Court pulled inspiration from several sources including Buckley in which the Court expanded on the holding that restrictions on the expenditures of a campaign or individual were unconstitutional to include those on corporate expenditures. Positing that since FECA defined a person as “an individual, partnership, committee, association, corporation or any other organization or group of persons,”[71] and the First Amendment protects the speech rights of all persons, the expressive rights of corporations must be protected, rejecting “the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”[72] Expanding further, the Court found that the FEC’s system of civil and criminal penalties constituted a system of prior restraint in which organizations would be forced to seek permission before disseminating an electioneering communication “analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.”[73] Drawing from these two main points, the previous rulings preventing corporate independent expenditures were overruled, leading to the system today where corporate political action committees (PACs) can spend unlimited amounts of money to influence elections.[74]

PAGE 57

ELECTION LAW

As such, contemporary campaign finance law has flipped decisively towards classical liberalism after a long streak of pragmatic civic republicanism, placing a broad interpretation of the rights provided by the First Amendment above practical concerns about the health of the electoral system.

IV. Conclusions Through these three case lines, the limited reach of civic republicanism in election law becomes clear. In administrative election law, civic republicanism's preference towards balancing the various interests at hand is apparent in the Anderson-Burdick test. In partisan gerrymandering and campaign finance however, civic republicanism’s pragmatism is notably less visible with Rucho jettisoning any ability to consider partisan gerrymanders in federal court while campaign finance has slowly moved away from the older civic republican precedent in favor of a more hands-off approach. As civic republicanism has retreated in these areas the nation’s electoral system has sustained significant damage, whether that be through absurdly lopsided districts in which politicians never need to appeal to the other side, or through decreasing trust in politicians whose campaigns are bankrolled by big business.[75] To deal with these mounting issues, it is paramount that the Court return to some form of civic republicanism in its jurisprudence, taking administrative election law as a model for how to consider the practical implications of a decision alongside the fundamental rights at issue.

Yet, before discussing this, it is necessary to address the Court's major issue with civic republicanism, subjectivity. Since the fundamental nature of civic republicanism is to balance the many competing interests at play in any case, the current majority has often asserted that it lacks solid ground from which to measure fairness. As Chief Justice Roberts put it in Rucho, “Even if [the majority] were to accept the dissent’s proposed baseline, it would return us to ‘the original unanswerable question (How much political motivation and effect is too much?).’”[76] Stated in plain English, this is asking how civic republicanism would draw the line between what is lawful and unlawful. The Chief Justice and the majority, who believe that the Court’s purpose is to interpret the law as the framers would through originalism regardless of practical consequences incorrectly assume that a civic republican, supposedly stuck in a landscape of legal relativism entirely lacking stable principles, is unable to answer that question. Unfortunately, this understanding is entirely wrong. Civic republicans, far from lacking principles, share many of the same principles as classical liberals, including a commitment to the rule of law and democratic government,[77] only diverging in that they see the Court’s true purpose to be the pursuit of better governance, not blind faith to abstract ideals. From this more nuanced perspective, civic republicans can consider both the framers’ original intentions along with the practical implications of a case, thus allowing for decisions that are both principled and compatible with the health of American democracy. As such, the majority’s attempts to portray civic republicanism as without judicial substance are incorrect.

In addition, civic republicanism is entirely compatible with the Court’s current originalist legal doctrine. Since civic republicanism, like classical liberalism, dates back to the founding era, it is not only valid but integral to correctly understand how the founders would interpret the Constitution and offers a fantastic tool to moderate some of originalism’s more extreme tendencies. By introducing an element of practicality to the high-minded idealism of current originalist election jurisprudence, civic republicanism offers an opportunity to make significant pragmatic improvements in both partisan gerrymandering and campaign finance.

PAGE 58

ELECTION LAW

Beginning with partisan gerrymandering, the Court could significantly improve the situation by reopening the federal courts as a venue to address partisan gerrymandering claims and establishing a limited test to reject overly manipulative maps. Reopening these courts is an absolute imperative as without the ability to challenge electoral maps in court, groups that have been gerrymandered out of electoral importance will have no way to affect change in a system dominated by one party.[78] Relying on civic republicanism, the idea of partisan gerrymandering as a nonjusticiable political question can be countered by the claim that the purpose of elections is to accurately represent the interests of the people, and since gerrymandering tampers with that representation it must be reviewable by federal courts to ensure that elections carry out their basic function. Turning to the difficulties of establishing a test for partisan gerrymandering the Court rightly identified that developing a hard standard for the number of seats allocated to each party is presumably impossible, but failed to fully appreciate the easily applicable solution in “traditional districting criteria, such as maintaining political subdivisions, [and] keeping communities of interest together.”[79] Through this system, it would be possible to establish districts that, while not perfect representations of the partisan makeup of a state, would at least be forced to conform to a measurable standard thereby reducing the capacity for partisan gerrymandering. By embracing civic republicanism, the Court would be able to ensure more accurate districts, leading to more accurate elections and thus a more effective governance system.

Campaign finance could be rectified comparatively easily with a return to the pre-Citizens precedent restricting independent corporate expenditures. The jurisprudential jump required by this switch would be relatively small, simply extending the existing logic that has upheld FEC contribution limits of $3,300 to $5,000[80] from PACs to individual candidates to include independent corporate expenditures, which while nominally independent of a candidate accomplish the same aim as directly donating to a campaign. While the logical jump is relatively small the philosophical change would be significant, requiring the Court to integrate civic republicanism into its originalist jurisprudence and suspend its classical liberal view that speech by corporate persons should receive the same measure of protection as speech by natural persons. Should this happen, the Court would be able to restore some measure of public trust[81] in the electoral process by reducing the perception that candidates are beholden to corporate backers, consequently creating a more effective and accurate electoral system.

Civic republicanism represents a unique opportunity to counter the failings of the current originalist system dominated by classical liberalism. In partisan gerrymandering, civic republicanism can provide a guide to fixing the outrageous abuses of the redistricting process currently commonplace throughout the country. In campaign finance, it can restore confidence in the electoral system by making the people’s representatives accountable to the people, not wealthy donors. Finally, for the country, civic republicanism offers an opportunity to remedy the inaccuracies of current originalism in election law and create a legal doctrine committed to balancing fundamental rights against their pragmatic implications for the wider health of American democracy.

PAGE 59

NOTES

1. “Article I Legislative Branch,” Constitution Annotated, United States Congress, Accessed November 20, 2023, https://constitution.congress.gov/browse/article-1/#I_S4.

2. “Article IV Relationships Between the States,” Constitution Annotated, United States Congress, Accessed November 20, 2023, https://constitution.congress.gov/browse/article4/#IV_S4. This clause contains additional unrelated language describing protections the federal government is obligated to provide the states against both foreign invasion and “domestic Violence” which in its archaic usage meant domestic insurrection.

3. In practice, the Guarantees Clause’s “Republican Form of Government” guarantee is rarely used and has only been defined to include a few of the rights provided by the Fourteenth Amendment’s Privileges and Immunities Clause, such as the right to petition for a redress of grievances and equality before the law.

4. Moore v. Harper, 142 S. Ct. 1089 (2022). The near total control of the states over state elections should not be misconstrued to mean total control by the state legislatures exclusively, known as independent state legislature theory, but rather full legislative power for the state legislatures coupled with judicial review by state courts.

5. Defined as rights that specify areas that the government cannot interfere in, rather than specifically enumerating all of the freedoms provided to the citizen.

6. U.S. Const. amend. I. 7. While the right to freely express one's religion and peacefully protest are both protected by the First Amendment they are not within the scope of this paper and will not be addressed in detail.

8. Shane Courtland, Gerald Gaus, David Schmidtz, “Liberalism,” The Stanford Encyclopedia of Philosophy, Stanford University, Spring 2022, https://plato.stanford.edu/entries/liberalism/#RepLib. The term liberalism has evolved considerably since the founding, coming to encapsulate a wide variety of political, and ethical ideas, but for this paper it is best understood as a predisposition towards maximum possible non-interference by the government in a citizen's life.

9. Frank Lovett, “Republicanism,” The Stanford Encyclopedia of Philosophy, Stanford University, Fall 2022, https://plato.stanford.edu/entries/republicanism/#WhaAboNonInt. Like liberalism, republicanism extends to a wide variety of ideas, but it’s important to distinguish civic republicanism, a system of governance drawing from the classical Roman tradition, from Republicanism which is related to the ideology of the Republican Party.

10. The idea that power must be exercised through a system of uniformly applied laws.

11. The idea that all power is derived from the people.

12. Anderson v. Celebrezze, 460 U.S. 780 (1983). Burdick v. Takushi, 504 U.S. 428 (1992).

13. This is a simplification used throughout, meant to convey disputes focused on the minutiae of running elections, such as the qualifications for getting on the ballot or how voting occurs, to distinguish from partisan gerrymandering and campaign finance which are mentioned later.

14. The test is somewhat more nuanced than this, with a balancing component that ratchets the scrutiny up or down depending on the circumstances, but in general, it has been interpreted to give states broad powers to regulate the time, place, and manner of elections with minimal judicial interference.

15. Allen v. Milligan, 143 S. Ct. 1487 (2023). The court has reaffirmed its commitment to fighting racial gerrymandering, but this is based on the Fourteenth and Fifteenth Amendments, not the First.

16. Rucho v. Common, 139 S. Ct. 2484 (2019).

17. 52 U.S.C ch. 301 § 30118 (2023).

PAGE 60

NOTES

18. Citizens United v. FEC, 558 U.S. 310 (2010).

19. Defined as “an individual, partnership, committee, association, corporation or any other organization or group of persons.” 18 U.S.C. ch 29. § 591 (repealed 1980).

20. “Article I Legislative Branch,” Constitution Annotated, United States Congress, Accessed November 20, 2023, https://constitution.congress.gov/browse/article-1/#I_S4.

21. Smiley v. Holm, 285 U.S. 355 (1932). The court determined that when state constitutions give the governor the ability to veto regular legislation then the governor may also veto congressional maps.

22. Ibid., 366.

23. Bullock v. Carter, 405 U.S. 145 (1972).

24. Ibid., 144.

25. The exact words of the Court were “Not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review…The existence of such barriers does not of itself compel close scrutiny. In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Ibid., 143.

26. Ibid., 145.

27. Ibid.

28. Ibid.

29. Ibid.

30. Ibid.

31. Storer v. Brown, 415 U.S. 724 (1974). This consolidated case also included a challenge to a requirement that independent presidential candidates obtain signatures equal to 5% of the number of voters in the last general election which was remanded to district court on advice to abstain and move the case to state court where the justices were better equipped to interpret state law.

32. Ibid., 735.

33. Ibid., 728.

34. Ibid., 759. The stability of the political system is an absence of unrestrained factionalism or infighting within the parties.

35. Ibid., 730.

36. Anderson v. Celebrezze, 460 U.S. 780 (1983).

37. Burdick v. Takushi, 504 U.S. 428 (1992).

38. The statute was struck down on the basis that it unconstitutionally burdened the independent candidate's ability to run for office, and that the state’s interest in preventing the same intraparty feuding as in Storer was moot as presidential primaries are not resolved for a significant amount of time, and the intraparty feuding is allowed to continue for a significant amount of time after Ohio’s presidential primary.

39. This statute was upheld on the basis that it represented a minimal infringement on the citizen’s rights, and efficiently advanced the state’s interest in preventing intraparty feuding and unrestrained factionalism during a general election.

40. Anderson v. Celebrezze, 460 U.S. 788 (1983).

41. Burdick v. Takushi, 504 U.S. 433 (1992).

PAGE 61

NOTES

42. Article I Legislative Branch,” Constitution Annotated, United States Congress, Accessed November 20, 2023, https://constitution.congress.gov/browse/article-1/#I_S2_C3. The clause continues several lines further than quoted, describing the initial distribution of seats to the original thirteen colonies, as well as the rule that all states must have at least one representative.

43. The form and number of districts are not described by the Constitution, and as such have been formed by Congress. Currently, the number of districts is limited to 435 by the Reapportionment Act of 1929, redistricting occurs automatically following every census by the Apportionment Act of 1941, and the number of representatives per district is limited to one by the Uniform Congressional District Act of 1967.

44. The term gerrymander is a portmanteau of 1812 Governor of Massachusetts Elbridge Gerry and salamander, created to mock the absurdly shaped state legislature districts he helped draw that resembled salamanders. Jennifer Davis, “Elbridge Gerry and the Monstrous Gerrymander,” Library of Congress, last modified February 10, 2017, https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrous-gerrymander/.

45. The meaning of a political question is defined more fully in note 47, but it generally means issues that are too subjective to be effectively decided by courts.

46. The statute in question is the 1901 Apportionment Act which linked statewide redistricting to the federal census, but for sixty years after its passage no newly drawn maps managed to pass in either house of the state legislature. As such by the time of this suit, the General Assembly was elected from districts originally designed when the state had 1.5 million fewer eligible voters.

47. Foreign relations, dates of duration of hostilities, validity of enactments, and the status of Indian tribes are all given political question status because of the judiciary’s duty to defer to other branches of government in these cases. For example, in foreign relations and the dates of duration of hostilities, the power to deal with foreign affairs is primarily vested within the executive, with the judiciary considering foreign entities “a republic of whose existence we know nothing,” and which the court cannot engage with. United States v. Klintock, 5 Wheat.

144, 149 (1820).

48. Baker v. Carr, 369 U.S. 210 (1962).

49. Thornburg v. Gingles, 478 U.S. 50-51 (1986).

50. Notably, all three of these cases came from North Carolina, emphasizing that legislators will continue to gerrymander their districts until a substantive restriction is placed on them.

51. “Eligible Active Voters on the Precinct Register - By County,” Maryland State Board of Elections, The State of Maryland, October 20, 2018, https://elections.maryland.gov/press_room/2018_stats/GG18_Eligible_Active_Voters_by_County .pdf. The stats for Republican and Independent voters are 25.1% and 17.9% respectively as of 2018. This map is also still in use today, giving Democrats control over all but one of the state’s nine congressional seats.

52. “Voter Registration Statistics,” North Carolina Board of Elections, The State of North Carolina, December 20, 2018, https://vt.ncsbe.gov/RegStat/Results/?date=12%2F29%2F2018.

The stats for Democratic and Independent voters are 37.8% and 31.9% respectively as of 2018.

Unlike the Maryland map, this one was struck down in Cooper v. Harris (2017) for being a racial gerrymander, changing the congressional delegation to an even 7-7 split as of 2023.

53. Rucho v. Common Cause, 139 S. Ct. 2505 (2019).

54. Ibid., 2488.

55. Ibid., 2508.

PAGE 62

NOTES

56. For evidence of this look no further than former representative George Santos who spent, among other things, $2,281.52 gambling in Atlantic City, $3,332.81 on an Airbnb holiday in the Hamptons, and $6,000 on clothing at the luxury store Ferragamo. Dareh Gregorian, “How George Santos allegedly spent his campaign funds,” NBC News, accessed November 16, 2023. https://www.nbcnews.com/politics/congress/george-santos-campaign-funds-how-spentwhat-to-know-rcna125531.

57. In addition, it also provided for the public financing of presidential campaigns, as well as the establishment of the Federal Election Commission (FEC) which consisted of a board of governors, two appointed by the Speaker of the House, two by the President pro tempore of the Senate, and two by the President for six-year terms, which oversaw the enforcement of federal election regulations.

58. 18 U.S.C. ch 29. § 591 (repealed 1980).

59. The plaintiffs also challenged the aforementioned public financing scheme and the structure of the FEC, citing discrimination against smaller parties in the former, and claiming the latter was repugnant to the Appointments Clause, which limits the ability to appoint officers of the United States to the president, thereby invalidating the mixed appointment system in use at the time. The Court would go on to strike down both these provisions.

60. Buckley v. Valeo, 424 U.S. 19 (1976).

61. Ibid., 25.

62. Ibid., 21.

63. Ibid.

64. Ibid., 60. The plaintiffs’ issue with this section was that the section was overbroad and would present an undue burden on smaller parties without the resources to file the enormous quantities of necessary disclosures.

65. Following this case, FECA was amended to remove the expenditure requirements, except for campaigns that accepted public money, and restructured the appointment system to be consistent with the Appointments Clause.

66. The contribution limits as well as disclose requirements are the hallmarks of hard money which is carefully monitored by the FEC. 67. This provision limited the route by which persons would donate money to state parties, which the state party would then transfer to the national party, allowing the donator to get around FECA restrictions. Additionally, the statute limited the activities that state parties could organize concerning federal elections, restricting voter registration drives within 120 days of a federal election, and get-out-the-vote (GOTV) events conducted in relation to a candidate that will appear in a federal election, among other things. “McConnell v. FEC,” Federal Elections Commission, accessed December 10, 2023, https://www.fec.gov/legalresources/court-cases/mcconnell-v-fec/.

68. BCRA replaced the Buckly definition of political advertising as “communications expressly advocating the election or defeat of particular candidates,” with the term electioneering communications, “which encompasses any "broadcast, cable, or satellite communication" that clearly identifies a candidate for federal office, airs within a specific time period (e.g., within 60 days of a general election and 30 days of a primary), and is targeted to the relevant electorate.” McConnell v. FEC, 540 U.S. 189 (2003). Non-party organizations were still able to engage in these activities if funds were directed through a political action committee (PAC) which would be subject to BRCA restrictions.

69. Ibid., 143.

PAGE 63

NOTES

70. This means uncoordinated, unsolicited expenditures made by a corporation with the express purpose of advocating for the election or defeat of a specific candidate.

71. 18 U.S.C. ch 29. § 591 (repealed 1980).

72. Citizens United v. FEC, 558 U.S. 343 (2010). The legal theory of corporate personhood, which grants corporations many of the same rights as natural persons, has a long history in the US, see Trs. of Dartmouth College v. Woodward, 17 U.S. 518 (1819), Santa Clara County v. Southern P. R. Co., 118 U.S. 394 (1886), Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949).

73. Ibid., 335.

74. Again note that technically these expenditures cannot be coordinated with a political campaign, but practically they achieve the same thing as coordinated expenditures.

75. 72% of Americans think there should be limits on campaign spending, and 80% think campaign donors and lobbyists have too much sway over members of Congress. Andy Cerda and Andrew Daniller, “7 facts about Americans’ views of money in politics,” Pew Research Center, Pew Research Center, October 23, 2023. https://www.pewresearch.org/shortreads/2023/10/23/7-facts-about-americans-views-of-money-in-politics/.

76. Rucho v. Common Cause, 139 S. Ct. 2505 (2019).

77. Frank Lovett, “Republicanism,” The Stanford Encyclopedia of Philosophy, Stanford University, Fall 2022, https://plato.stanford.edu/entries/republicanism/#WhaAboNonInt. Shane Courtland, Gerald Gaus, David Schmidtz, “Liberalism,” The Stanford Encyclopedia of Philosophy, Stanford University, Spring 2022, https://plato.stanford.edu/entries/liberalism/#RepLib. 78. While it is true that state courts are still open to hearing gerrymandering cases, state judiciaries are often closely tied to the partisan makeup of the legislative and executive branches, which will tilt excessively one way in a state with significant gerrymandering.

79. Rucho v. Common Cause, 139 S. Ct. 2500 (2019).

80. “Contribution limits,” Federal Elections Commission, accessed December 11, 2023, https://www.fec.gov/help-candidates-and-committees/candidate-takingreceipts/contribution-limits/.

81. See note 75 supra.

PAGE 64

JOHNS HOPKINS LAW REVIEW