McGill Pre-Law Review 2021 by The McGill Pre-Law Students' Society

THE PRE-LAW REVIEW

COPYRIGHT The McGill Pre-Law Students’ Society recognizes that McGill University is situated on the unceded territory of the Kanien’keha:ka, and is located on land which has long served as a site of meeting and exchange amongst Indigenous peoples, including the Haudenosaunee and Anishinabeg nations. We further stand in solidarity with indigenous students here at the university. Copyright © The Pre-Law Review: Journal of the McGill Pre-Law Students’ Society, McGill University, Montreal, Canada, 2021. This journal is jointly funded by: The McGill Pre-Law Students’ Society (www.mcgillprelaw.ca) The Students’ Society of McGill University (ssmu.mcgill.ca) All declarations of fact and assertions of opinion featured in the articles are solely those of the respective authors. They do not necessarily represent the views of the Editorial Board, Advisory Board, the McGill Pre-Law Students’ Society, Students’ Society of McGill University, McGill University, or its faculty and administration. Cover Photography by Adrien Mars.

The Pre-Law Review

Our Team EDITOR-IN-CHIEF Anthony Schokalsky

EDITORS Meredyth Dwyer Rachel Gertin Lillian Huang Maya Ibbitson Victoria Kalisky Ananda Kimm-Drapeau Kemal Kongar Brianna Morrison Dia Mukherjee Sophie Sklar

GRAPHIC DESIGNER Cassidy Barnes

Note from the Editor-in-Chief I recently listened to an interview with Steven Donziger, a lawyer who graduated from Harvard Law the same year as Barack Obama, and who is currently under house arrest for challenging the Chevron Corporation. In the 1990s, Donziger visited Ecuador, where he discovered a history of intense land-altering pollution committed by the oil giant. Between 1964 and 1992, Texaco (a company which later merged with Chevron) dumped 16 billion gallons of toxic waste into the rivers of the Amazon. The decimation of the Amazon reached Indigenous communities, many of whom began experiencing epidemics of cancer and other chronic health issues among children and adults, directly as a result of cancer-causing chemicals in Chevron’s waste. Donziger went on to represent plaintiffs from these communities and won an $8.6 billion verdict against the Chevron Corporation. In response, Chevron used over sixty law firms to harass and intimidate Donziger. Years into their legal disputes, Judge Lewis A. Kaplan ordered Donziger to hand over his phone and computer to the authorities. Doing so would have violated his privacy, as well as the privacy of people he represents – so Donziger appealed the request. In retaliation, Kaplan charged Donziger with criminal contempt of court and gave the authority of prosecution to Seward & Kissel, a private law firm with deep ties to Chevron. Since then, Donziger has been under house arrest without trial for 16 months – more than six times the length of the longest sentence imposed on a New York lawyer for contempt of court. Donziger’s legal battle with Chevron is a depressing and frightening gaze into the undemocratic and unjust practice of many courts today. It is an assertive threat by lawyers and corporations that anyone can be silenced for seeking justice against those who have grown too powerful. More than anything, it is a reminder of how much power law firms and judges can wield.

Should our conclusion then rest with a timid resignation against such institutions? No. The unjust punishment of Donziger is a story that tells aspiring lawyers and law students that our fate is in our own hands. The kinds of lawyers we choose to be, the firms we choose to represent, and the people we choose to defend, are all a matter of our decisions. While this plea for a more ethical legal sphere may seem naïve, Donziger’s story has affected many law students today. In February 2021, 300 students from 52 law schools in the United States began boycotting Seward & Kissel for their handling of Donziger’s case. In a letter sent to the firm, the students stated they refuse to consider employment with Seward & Kissel until it withdraws from its position as private prosecutor on behalf of Chevron. The rallying cry of the tired and weary is stronger than it appears. Among the aspiring lawyers who inspire me are the many people who have worked on the 2021 edition of the Pre-Law Review. I am once again astounded by the quality of legal texts produced by McGill University’s undergraduates. Without the incredible work of our writers, editors, artists, and graphic designer, this journal would be nothing. It has been a pleasure and privilege to be Editor-in-Chief of the Pre-Law Review. I wish the very best to the journal’s staff, all of whom I am certain will help usher in a brighter tomorrow. #FreeDonziger

Sincerely, Anthony Schokalsky

Table of Contents A Talmudic Law Perspective on Art Restitution Law Ezra Laroche

Inequity in American Elections Maya Mau

An Achievement of Generations of Human Beings

On the Dynamics of Law & Politics

Technologizing Society

Free Love, Postcard Divorces, and the Early Soviet Government’s Legal Regulation of the Family

Speaking in Turn Emily Vaillancourt

Transitions of Moral Labor

Rachel Nirenberg

Ghayas Osseiran

Mackenzie Birbrager

John Jakob Etter

Philippe Miller

Youth Street Gang Membership

107

The Diminished Citizenship of Ex-Felons in the United States Hannah Downard

133

Lauren McAuley

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A Talmudic Law Perspective on Art Restitution Law Ezra Laroche

Edited by: Victoria Kalisky Artwork by: Dana Mastrangelo

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he resolution of art restitution cases in the aftermath of Nazi conquests are based on principles of justice and fairness that are outside the scope of purely compensatory motivations. This is

true of Jewish survivors of the Shoah and the organizations which represent them1 as well as non-Jewish instances2. That fair and just solutions be provided to Holocaust survivors and their heirs is widely interpreted as a means of reinstating status, ensuring Jewish reintegration in Europe3, and part of the state’s duty to memorialization. The balance which needs to be struck is between acknowledging that past injustice is in need of (corrective) justice, consolidating order in the present, and looking to resolve all cases in the (near) future to ensure durable peace (as opposed to a sense of ‘unfinished business’)4. The survivors or their heirs face various legal obstacles relating to ownership that both safeguard the good in question as well as hamper restitution processes5. They involve at once different governments, laws (‘soft’ or not; both international and national) museums, auction houses, galleries, and individuals. It is not surprising as such that the legal process and the ultimate decision of restitution cases varies across jurisdictions, yet this status quo has ineffectively achieved the goals envisioned by the standard set by international law6. My contention is that Common, Civil, and Talmudic Law share a similar moral preoccupation for ownership. This is generally construed as a person holding a valid title, usually as a formalized safeguard against theft and profit therefrom. Talmudic law offers a decision that provides compromise between the parties involved. Indeed, it has recently been argued that alternative methods of dispute resolution (ie., mediation and negotiation) should be adopted to seek redress7 and while Talmudic Law has not been explicitly considered, I seek to show that it is compatible and consistent with the goals ambitioned by the various parties. This essay proposes to study the historical context of spoliation and understand the dependent legal variables in art restitution cases. A

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Talmudic Law perspective on art restitution will enable me to assess the different legal approaches to the singularity of the ownership of art, thus enriching the conceptual debate around the art-specific area of property law.

Introducing the Concept of Ye’Ush Ye’ush is a concept central to Talmudic Law when considering matters of lost property. An approximate translation of Ye’ush would be ‘abandonment’ or ‘despair.’ According to Talmudic Law, if an individual has lost an object and despairs of getting the object back, he loses title over the object. Conversely, if the owner has not despaired of getting the object back, then he keeps a valid title over the object8. The second notion closely interlinked with that of Ye’ush in laws pertaining to lost objects is the concept of siman or identifying mark. An object bearing a siman is an object which can be considered unusual or unique in the sense that the object is recognizable as unmistakably that object. The owner of an object with no identifying mark can reasonably be considered to have abandoned hope of recovering the object, whereas the owner of an object with an identifying mark will usually not abandon hope, since he can expect to be able to identify the object and recover it from the people who have found it. Ye’suh is a psychological phenomenon which can either be ascertained by the owner’s realization that the object is lost (upon which he is no longer the owner) or through legal reconstruction, which determines ownership (usually in conjunction with the concept of a siman)1.

Hope & Restitution According to Talmudic Law in the Context of the Holocaust Reconstructing and recalling (restituting) the circumstances surrounding the acquisition of an object by someone to construe Ye’ush is central to all cases of restitution in Talmudic law. As such, claims for own-

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ership center around the person presently in possession of the object and the history of the family involved in making the claim, resituated in the History of the Holocaust and Nazi persecution. Then why did the Jews of Europe, faced with the imminent threat of the Nazis, not despair?10 In other words, isn’t the concept of Ye’ush, central to our analysis, irrelevant in the face of considerations about the psychological state of the Jewish people during the Holocaust? The modern Talmudic Law scholar D. Bleich offers a compelling argument: “Ye’ush is a psychological phenomenon and it is unthinkable that Jews of the Holocaust generation would have been so lacking in faith as to believe that, in violation of His covenant with Israel, G-d would permit the annihilation of the entire Jewish community. Hence, the unfortunate victims would certainly have clung to the belief that the plundered books would ultimately find their way into Jewish hands. Indeed, that belief has been confirmed by history.”11 Indeed, Jews dispossessed of their property and livelihood could not be dispossessed of their faith. In the case of non-religious Jews, the argument can be extended to hope because both faced the same nature of persecution12. Consequently, Bleich’s argument applies.

Nazi Conquests, the Particularity of the Holocaust & its Legal Consequences History is also construed in terms of Nazi conquests and subsequent spoliation. From the point of view of international law, specifically the laws of war, the spoils of Nazi conquests are unlawful as they violate the principles established at the Hague Convention in 190713. This case is distinguished in Talmudic law, where the right of conquest is a way to gain title. For this reason, the legality of spoliation deserves a detailed account. According to the law of conquest (kibush milhamah), Nazi conquerors would become owners of what they pillaged by virtue of their conquests14. Bleich frames the issue as such:

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“The Gemara, Gittin 38a, declares that gentiles acquire title, even against Jews, to property seized in the course of war and that conquest in and of itself serves to establish title. Many commentators, including Rashi, maintain that, at least insofar as the property of Jews is concerned, the Gemara does not herein establish a novel mode of acquiring title; rather, title is incidentally acquired in the course of conquest by a quite standard mode, that is, by means of theft accompanied by Ye’ush”15 For this reason, possession via right of conquest cannot be established as title, unless Ye’ush has indeed occurred. That Ye’ush would automatically occur in the face of the Nazi hoard is a contention which was disproved in our initial analysis of Ye’ush16. If Ye’ush (despair of getting the object back) had not occurred, title could not be considered as lost. As for the legalized pillage, such as the ones perpetrated by the l’Einsatzstab Reichsleiter Rosenberg (ERR)17 in Vichy’s France to loot Jewish homes on a national scale, or in Germany by virtue of the Nuremberg laws, these fall under the principle of ‘dina demalkhuta dina,’ literally, the ‘law of the kingdom is the law.’ This essentially means that the laws of the kingdom (country) must be respected as they too are the laws governing the Jewish people. Talmudic Law as such is never ‘above the law’ of the land, but coexists with it. Maimonides, an eminence in Talmudic Law, determines that dina demalkhuta dina generally applies, with an important caveat: “but if his [the king’s] currency is not accepted, then he is like a thief, an oppressor, and it is similar to a band of armed robbers. Just as their rules are not [religiously valid] laws, so it is with this king and all his aides, he is [merely] a thief”18 Since the discriminatory laws enacted by Vichy or Nazi Germany cannot be deemed as accepted and because the Nazis were considered as oppressors, the laws of property applies and Ye’ush determines the outcome. However, the straightforward route by which the international convention serves as binding law in common and civil courts through the assumption of the universality of the work of Art on which the law is made, is subject

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to polemic19. “Le préambule de la Convention de La Haye entérine l’importance du bien culturel en affirmant une vision universelle de l’art selon laquelle « les atteintes portées aux biens culturels, à quelques peuples qu’ils appartiennent, constituent des atteintes au patrimoine culturel de l’humanité entière étant donné que chaque peuple apporte sa contribution à la culture mondiale”20 (emphasis added) This will be explored in the final section about museums and the concept of the universality of works of art.

History Understood as Time Gone by: Statutes of Limitations History is also at stake in the sense of ‘time gone by.’ Statutes of limitations are understood to be one of the greatest and most unjust obstacles to restitution21. I argue that statutes of limitations which prevent restitution cases are arbitrary instruments which focus solely on forward looking considerations, rather than regard for the original owner22. It is wholly inconsistent to hold at once that the individual’s right to ownership is a moral good which should thereby be protected by law and simultaneously assert that –after a specified period of time– ownership can be alienated.. In opposition to the inherent contradictions of statutes of limitations, Resnicoff argues that: “Various Jewish law sources, old and new, assert that the mere passage of time does not generally prevent a claimant from successfully asserting his claim. See, e.g., SHULHAN ARUKH, Hoshen Mishpat 98:1.”23 Ye’ush, the central concept and the process by which ownership is determined, does not factor in any other time than spoliation, conceptualized in terms of realization of loss. Accordingly, Ye’ush permits the judges to legally consider that feeling of injustice –acknowledged as a real harm to the individual. The outcome more effectively achieves the goals of redress and reintegration addressed by the authors24).

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The concept of statutes of limitations is also crucial in cases of restitution outside of the United States. According to civil law (droit commun) in France, extinctive prescription occurs after 30 years of the object being lost, whereby the onus is on the victim of restitution filing a claim after that 30-year period to demonstrate that the claim could not be filed within that period, or that the victims were misled as to their rights25. In some cases, this is more difficult to prove than others. The safeguard against this in France is the declaration of London which, from the date of the 16th of June 1940, presumes dispossession and the onus is on the defendant to prove ownership over the object (if the object is shown to have come out of the plaintiff’s possession after that date)26. To provide a remedy to the obstacles of statutes of limitations, the French introduced in 2014 a directive in internal law which applied to the art market to deal with limitation issues27. Against the traditional presumption that ‘for material goods possession counts as title’ was introduced the concept of ‘required diligence.’ This concept obligates the buyer to conduct research into the provenance or history of the work of art before the purchase is made. Mere possession does not stand in for valid title. Similarly, in Talmudic law, the title of muhzak generally applies to the possessor, with an important constraint: “Ordinarily, the burden of proof is upon the plaintiff. (…) the general rule of muḥzak would ostensibly apply, that is, a person in possession of property who asserts a claim of title to that property is presumed to be the rightful owner. The burden of proof lies with the litigant who seeks to defeat the prima facie evidence of possession.”28 This means that the fact of possession gives the advantage to the possessor of the object against which the claimant must provide sufficient evidence (the burden of proof), to raise doubt as to the legitimate ownership of the possessor. This burden is palliated by the caveat that mere possession can be defeated: “However, if [a] claim of title can be rebutted, the fact that [some-

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one] is a muḥzak, that is, that he is in actual possession of the disputed property, would not itself serve to establish title (…) The fact that a litigant is a muḥzak merely serves to confirm an otherwise cogent claim but, absent a cognizable claim, muḥzak alone is an irrelevant factor.”29 As such, Talmudic Law clearly distinguishes between ownership of a good and the present possessor of the object. This ensures that no unfair presumptions are made as to the possessor, absent a cognizable claim (which encourages the fluidity of the art market) yet the safeguard in place for dispossessed owners ensures that spoliated artworks be brought back into the possession of the rightful owners. Determining this typically involves other concepts in Talmudic Law, which are explored by Bleich and which will be illustrated later in this article in practical cases. As a necessary digression, restitution cases also reveal the severe shortcomings of adversarial systems as it related to the burden of proof.30 The way the process is conducted in adversarial systems is especially inapt for restitution cases which revolve around deep research into the provenance of the work of art (the dossier, as it is called in France, is of paramount importance in inquisitorial systems). In restitution cases, subjecting the parties to compete in an open court is prone to create unnecessary suffering for the parties involved rather than resolve an issue of ownership. Not only does the adversarial system further victimize the plaintiffs by inflicting the burden of proof on them in an open court, it also antagonizes possible good faith purchasers, potentially affecting their reputation because it lays the blame on them for crimes committed unbeknownst to them, this achieves the opposite of alleviating social tensions or contributing to the fluidity of the art market31. There is no such adversarial aspect to Talmudic law, in which the role of the lawyer or “To’en” is limited, nay ’superfluous,’32 as the system is decisively inquisitorial (to a larger extent than in civil law jurisdictions) where the judge and his students can formulate claims on behalf of the plaintiff and defendant as well as take an active part

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in questioning and cross-examining statements33. In this sense, Talmudic law is already closer to the solutions of mediation and negotiation advised, as they were envisaged during the conference on alternative dispute resolution in the field of Nazi-looted art held at the Peace Palace in the Hague in November 201234.

Museums, Reconsidered My final argument is related to ownership as it concerns museums. My argument deconstructs the presupposed universal nature of the works of art, the association we make between the works of art and museums and specifically, how these presuppositions transcribe into (property) law. I argue that the universal nature of the work of art is an argument founded on the intrinsic value of the good in question, rather than concern for the individual35. Museums as a Case Involving Communal Ownership In the case of art restitution, instead of conceptualizing the work of art as a store of value, the universality of the work of art conflicts with the very notion of property. This plays out interestingly when individuals file a claim against museums, as it is their right in civil law jurisdictions36. For example, in the case of the Di Giuseppe v. Musée du Louvre, in the lower courts the judge ruled that, because this was a case relating to national heritage (patrimoine national), the paintings in question were not to be restituted37. The idea of the inalienability of national heritage stems from the idea that the good does not belong to a specific person, but to the whole nation who has contributed to acquiring and preserving it according to a transcendental (hegelian) account of the state. In contrast, Jewish law provides for inalienability of communal property, as long as it is lawfully acquired, by the partnership that acquired it. Accordingly, matters of national heritage are defeated by the idea of Ye‘ush. Since the work of art was

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acquired from a thief, it is likewise deemed a possession of the present possessor but not his property. Ownership is not given on grounds of universal principles of property fostered by the existence of a state –where communal property is inalienable no matter what– but out of care for the parties involved. Bleich, in the case of a synagogue (but this is widely binding as a matter of common property), provides this answer: “The Gemara, Megillah 26a, declares that synagogues located in metropolitan areas cannot be sold. Rashi and Rashba, in their respective commentaries explain that ownership of such property is not vested solely in the inhabitants of the city; rather, “everyone” has a proprietary interest in the synagogue property. Hence, since it is impossible to secure the acquiescence (either personally or through communal officers acting as agents) of each and every person who enjoys a proprietary interest, including those living in distant areas, the property cannot be alienated”38 The question of whether this applies only to property which cannot be misplaced (like a synagogue) is not considered by Bleich but the same principle applies to cases of works belonging to the nation. The key concept is that the good becomes common property over time only in the cases where it is impossible to secure acquiescence. This is the case when there are too many owners, which is not the case of art-restitution claimants as private collectors and their family are the sole owners. Moreover, Jewish law pays attention to the transfer of the title of artworks by which the object enters into the hands of the new owner, which must be formalized at a point in time. Even property that enters into the common realm of patrimoine national must have entered it at a point in time where the work passed from private hands to the state’s and if at this point in time acquiescence could not be given, then that transaction must be regarded as a case of lost property (involving Ye’ush, etc...). In conclusion, nothing in Jewish law gives priority of common ownership over individual ownership, motivated by the concern to trace an object back to its individual owner(s).

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Ownership vs. Possession & the Question of a Safekeeper or ‘Baillee’ (Bleich) The previous case in France, the case of MNR (Musée National Récupération), addressed a specific type of legal proprietary statutes. The MNR was established to make unclaimed works of art available to the victims for eventual restitution. Under this regime, the museum assumes responsibility for said works of art for safekeeping. Herschkovitch describes the French situation as such: “As of the year 2000, some 15 000 works which hadn’t been returned to their owners, 2143 of which were marked specifically and deposited to museums under the name MNR (Musées nationaux récupération) in the form of precarious deposits [dépots précaires], in order to ensure they be ready for their owner’s disposal.”39 First, this is not a case of safeguarding the works from destruction (zuto shel yam)40, as the works of art were particularly coveted by the Nazis. Moreover, safeguarding the works does not make the museum the legal owner according to Talmudic Law. According to Bleich, once one takes on the status of a bailee, precisely in order to safeguard the object, he is not entitled to the ownership of said object41. This subsequently reinforces the previous argument against the universal safekeeping of a work of art for the ’culture of the world.’ According to Talmudic Law, an object must always be linked back to its owner. The status of Bailee reinforces the obligation to return the object to its rightful owner, without any statute (like statutes of limitations in other legal systems) or conceptual hurdles which make it possible to shirk from the responsibility of finding the owner, or otherwise seeking to avoid restitution.

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Notes 1 Roman Kent, It’s not about the money : a survivor’s perspective on the German Foundation Initiative in Holocaust Restitution: Perspectives on the Litigation and Its Legacy (2006) New York University Press. 2 Discourse which is especially prevalent in International Law. See generally Washington Principles on Nazi confiscated art 1998; also 2005 UN Basic Principles and guidelines on the right to a remedy and reparation for victims of gross violations of International Human Rights Law “define restitution as also encompassing dignity, worth, identity and family.” in Thérèse O’Donnell, “The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?” European Journal of International Law 22, no. 1 (2011): 49–80. 3 An effort which continues to this date. This is exemplified by the decision of the Spanish and Portuguese governments in 2015 to legislate towards enabling the return of the descendants of Sephardic Jews expelled from the country in the XVth Century. A decision accompanied by a formal apology for the horrors committed under the period known as the Inquisition. 4

Various Authors, Fair and Just Solutions, Alternatives to litigation in Nazi-looted art disputes: status quo and new developments (2015) a compendium of articles published by Eleven International Publishing in the Netherlands. - (Article 10, photo V). 5

Corinne Hershkovitch, “La restitution des biens culturels : fondements juridiques, enjeux politiques et tendances actuelles,” Ethnologies 39, no 1 (2017): 103-121. 6

Various Authors, Fair and Just Solutions.

Various Authors, Fair and Just Solutions. - (Introductory Notes).

See Quint, Emanuel A Restatement of Rabbinic Civil Law, Gefen Books (January 2005) Chapter on Laws of Lost and Found objects (1) The owner has abandoned hope. 9

”Whether or not ye’ush has occurred is ascertained either on the basis of the victim’s overt statements or is determined constructively by operation of law.” David Bleich, Contemporary Halakhic Problems Vol III, Part II, Chapter XV The Sotheby Sale. 10 Note that the History of this argument is not neutral. It was used as an anti-Semitic argument in Luther’s time to justify Jewish conversion as a blessing: “If they [Jews] had in them the faintest reason or intelligence, they should think: ’O God, nothing is going well for us, our misery is too great... God has forgotten us, etc.‘ I am not in truth Jewish, yet I really do not take pleasure in thinking about such an awesome anger from God towards this people” from Von den Jueden und Iren Luegen Wittenberg 1543. in The Destruction of the Jews of Europe (1985) Hilberg comments: “In short, if Luther had himself been a Jew, he would have embraced Christianity long ago.” 11 12

Bleich, Contemporary Halakhic Problems.

Hilberg portrays the evolution towards this biological anti-Semitism which demanded the annihilation of all Jews regardless of religiosity: “The missionaries had said: “you cannot live amongst us if you stay Jewish.” After them, the secular leaders had proclaimed: “you do not have the right to live amongst us.” Finally, the German Nazis decreed: “you do

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not have the right to live.”” Raul Hilberg, The Destruction of the European Jews Vol.I (1985). 13

“Quant à la spoliation des collections juives françaises par les nazis, elles débutèrent aussitôt l’armistice signé, et ce en totale contradiction avec les principes posés par la Convention de La Haye de 1907.” Hershkovitch, “La restitution des biens culturels,” 103-121. 14

”Helkat Ya’akov and Rabbi Teitz both suggest that purchasers of sacred books need not return those items to their original owners because the Nazi conquerors acquired title to the spoils of war by virtue of the “right of conquest” (kibush milḥamah).” in Bleich, Contemporary Halakhic Problems. 15

Bleich, Contemporary Halakhic Problems.

See Introducing Ye’ush.

“Le pillage et la spoliation des biens culturels appartenant à des juifs est organisée en France sous l’autorité de l’Einsatzstab Reichsleiter Rosenberg (ERR).” in Hershkovitch, “La restitution des biens culturels,” 103-121. 18 On ‘dina demalkhuta dina’ Maimonides, Mishneh Torah, Laws of Tenancy 2:9 in Resnicoff Steven H. Understanding Jewish Law 2012 Carolina Academic Press. 19

O’Donnell, “The Restitution of Holocaust Looted Art and Transitional Justice,” 49–80.

Hershkovitch, “La restitution des biens culturels,” 103-121.

See generally: O’Donnell, “The Restitution of Holocaust Looted Art and Transitional Justice,” 49–80; Various Authors, Fair and Just Solutions; and Footnote in Resnicoff: “(...) Article I of the 1968 Convention on the Non- Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, ratified by Russia and a number of Eastern European countries-but not by the United States or other major Western countries-would prevent the assertion of statutes of limitations against civil cases to recover plundered art.” 22 Veraart defines forward-looking considerations predicated on peace rather than justice: “The law’s objective is to achieve corrective justice – by returning the victim to the status quo ante, by offering restitution in kind or alternative compensation– is not abandoned but mitigated” in Various Authors, Fair and Just Solutions. 23

Steven H. Resnicoff, The Jewish Perspective on the Theft of Artworks Stolen During World War II, 10 DePaul J. Art, Tech. & Intell. Prop. L. 67 (1999). 24

Various Authors, Fair and Just Solutions.

Hershkovitch, french lawyer specializing in the restitution of art spoliated by the Nazis in cases involving Jewish owners, here about the Gentili di Giuseppe vs Louvre case, www.franceculture.fr/conferences/institut-national-du-patrimoine/patrimoines-spolies-pendant-la-periode-du-nazisme-33. 26 27

Ibid, 18.

“À cet égard, l’article 2276 du Code civil (qui précise qu’« en fait de meubles, la possession vaut titre ») instituait traditionnellement une présomption de propriété au profit du possesseur d’un bien culturel. La présomption de propriété découlant de la possession matérielle de la chose a ainsi prévalu sur le marché de l’art jusqu’à l’introduction en droit interne, par le biais de la transposition des dispositions de la directive du 15 mai 2014, du

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concept de diligences requises.” in Hershkovitch, “La restitution des biens culturels,” 103121. 28

Bleich, Contemporary Halakhic Problems.

Ibid, 27.

O’Donnell, “The Restitution of Holocaust Looted Art and Transitional Justice,” 49–80. 31 Ibid, 20. 32 Dov I. Frimer, “The Role of the Lawyer in Jewish Law.” Journal of Law and Religion,” no. 2 (1983) 297–305. 33

Ibid, 22.

Various Authors, Fair and Just Solutions.

In fact, Jewish law always goes the length to safeguard the individual over every other thing. Talmudic law explicitly prevents safeguarding goods if the safeguard of these goods places that individual in danger:” Since preservation of life takes precedence over other values, including preservation of cultural legacies, Jewish law would disfavor endangerment to life to preserve even the most priceless historical treasure. In Bleich, Contemporary Halakhic Problems. 36

Di Giuseppe v. Musée du Louvre, Cour d’appel [CA] Paris, 1e ch., June 2, 1999 (Fr.).

www.ifar.org/case_summary.php?docid=1377819921. (The decision was reversed in the higher court and the painting restituted) 37

Di Giuseppe v. Musée du Louvre, Cour d’appel [CA] Paris, 1e ch., June 2, 1999 (Fr.).

www.ifar.org/case_summary.php?docid=1377819921. (The decision was reversed in the higher court and the painting restituted). 38

Bleich, Contemporary Halakhic Problems.

Hershkovitch, “La restitution des biens culturels,” 103-121.

“Since the Germans clearly intended to preserve (objects) those volumes, the zuto shel yam principle is not at all germane. Accordingly, if the books were acquired by Greenberg before they came into Nazi possession, title would have remained with the original owner (and hence, even subsequent to ye’ush, could not pass to the successor in due course, viz., the finder).” 41

Bleich Citing a previous case ”Rabbi Weinberg reasoned that when his interlocutor came into possession of the books, he undoubtedly assumed that hostilities would soon end and that he would then return the books to the Hildesheimer Seminary library. In effect, he had no intention of acquiring title. Rather, he took possession of the books on behalf of their rightful owners and assumed the obligations of a bailee who accepts property for safekeeping. Rabbi Weinberg concludes his comments by stating that, in his opinion, it would be entirely proper and appropriate for the surviving directors and members of the faculty of the Seminary to allocate a portion of the rescued volumes to the interlocutor as compensation for his efforts.” in Bleich, Contemporary Halakhic Problems.

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Bibliography Adatto, Kiku. “Spain’s Attempt to Atone for a 500-Year-Old Sin.” The Atlantic, September 21, 2019. www.theatlantic.com/international/ archive/2019/09/spain-offers-citizenship-sephardic-jews/598258/. AFP, “Spain extends citizenship law for Sephardic Jews.” The Times of Israel, March 9, 2018. www.timesofisrael.com/spain-extends-citizenship-law-for-sephardic-jews/. BBC News, “Spain Gets 127,000 Citizenship Applications from Sephardi Jews.” BBC News, October 1, 2019. www.bbc.com/news/ world-europe-49890620. Bleich, David J. “The Sotheby Sale.” In Contemporary Halakhic Problems 3.2. New York, NY: Yeshiva University Press, 1989. Frimer, Dov I. “The Role of the Lawyer in Jewish Law.” Journal of Law and Religion, 1.2, 1983, 297–305. doi.org/10.2307/1051047. Campfens, Evelien. 2015. Fair and Just Solutions, Alternatives to Litigation in Nazi-Looted Art Disputes: Status Quo and New Developments. The Hague, NL: Eleven International Publishing. Frayer, Lauren. “After 522 Years, Spain Seeks To Make Amends For Expulsion Of Jews.” NPR, December 25, 2014. www.npr.org/sections/ parallels/2014/12/25/371866778/after-522-years-spain-seeks-tomake-amends-for-expulsion-of-jews. Hershkovitch, Corinne. « La restitution des bien culturels : fondements juridiques, enjeux politiques et tendances actuelles. » Ethnologies 39.1 (2017): 103-121. doi.org/10.7202/1051053ar. Hershkovitch, Corinne. « Patrimoines spoliés pendant la période du nazisme. » France Culture, February 31, 2020. www.franceculture. fr/conferences/institut-national-du-patrimoine/patrimoines-spolies-pendant-la-periode-du-nazisme-33. Hilberg, Raul, The Destruction of the European Jews. New York, NY: Holmes & Meir Publishers, 1985.

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Kalman, Matthew. “Seven Questions on Spain’s Restitution Surprise.” Haaretz, February 10, 2014. www.haaretz.com/.premium-7-questions-on-spain-s-restitution-surprise-1.5320537. Karo, Joseph. Shulhan Arukh. Venic, IT: 1565. Kent, Roman. “It’s Not about the Money: A Survivor’s Perspective on the German Foundation Initiative.” In Holocaust Restitution: Perspectives on the Litigation and Its Legacy, edited by Michael J. Bazyler and Roger P. Alford, 205-214. New York, NY: New York University Press, 2006. O’Donell, Thérèse. “The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?” European Journal of International Law 22.1 (2011): 49-80. doi. org/10.1093/ejil/chr004. Oshry, Ephraim. Responsa from the Holocaust. Translated by Y’hoshua Leiman. Edited by B. Goldman. New York, NY: Judaica Press, 2001. Quint, Emanuel. A Restatement of Rabbinic Civil Law. Jerusalem, IL: Gefen Books Publishing, 2005. Resnicoff, Steven H. Understanding Jewish Law. Durham, NC: Carolina Academic Press, 2012. Resnicoff, Steven H. “The Jewish Perspective on the Theft of Artworks Stolen During World War II.” DePaul Journal of Art, Technology & Intellectual Proprty Law 10, no. 1 (Fall 1999): 67-76. via.library. depaul.edu/jatip/vol10/iss1/5. Stern, Nehemia. “To Sanctify the Name of God: Ritual Precision and Martyrdom in Rabbi Ephraim Oshry’s Holocaust Responsa.” Holocaust Studies 22, no. 1, (2016): 100-124, doi.org/10.1080/17504902.20 16.1158540.

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Inequity in American Elections Racism in the United States Electoral College System

Maya Mau

Edited by: Kemal Kongar Artwork by: Tasmin Chu

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eading up to the 2016 United States presidential election, it seemed very likely that Democratic nominee Hillary Clinton would take a victory over Republican nominee Donald Trump.

After all, almost all of the polls suggested that Clinton had the plurality of American support.1 However, despite subsequently winning the plurality of votes, she lost the election to Trump. This outcome was due to the electoral college system, the system by which the United States selects its president every four years. Rather than each citizen having one vote, a system referred to as the popular vote, the electoral college system gives each state a certain number of votes based on the state’s total number of representatives in the two chambers of Congress: The Senate and the House of Representatives.2 Each state has two representatives in the Senate and a populationally proportional number of representatives in the House of Representatives. The design of this system means that the winner of the electoral college, and thus of the presidency, does not necessarily need to win the majority or even plurality of the popular vote. At first glance, this system may appear to be well-crafted because it prevents any single populous state from having too much influence.3 However, in reality, it is actually deeply flawed because it gives certain states (mostly smaller ones) and demographics proportionately more electoral power than they would have if each vote carried equal weight.4 For the most part, it benefits white voters and citizens of less populous states and disadvantages African American voters and citizens of more populous states. The electoral college system therefore nullifies the votes of millions of voters in the United States by disenfranchising certain demographics, and this inequity has large implications for the future of American politics. The electoral college system is not representative of the American population since it over represents less populous states. As noted, each state has two representatives in the Senate and is guaranteed at least one representative in the House of Representatives, so the smallest number of

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electoral votes a state can have is three. This essentially triples the impact of less populous states. In addition, due to the winner-takes-all system, the victorious candidates in small states receive an even more disproportionate advantage. This small-state advantage is due to the Connecticut Compromise, devised at the same time as the electoral college system, which provides all states with equal representation in the Senate.5 Today, California (the most populous state) has one electoral vote per 712,000 people, while Wyoming (the least populous state) has one electoral vote per 195,000 people.6 The fact that Wyoming voters have over three times the voting power than California voters do supports the idea that the electoral system triples the effect of voters in the least populous states. In “Electoral College Winner’s Advantage,” (2009) Riggs et al., a team of researchers at West Virginia University, conducted an experiment to investigate the effect of the “extra two electoral votes” on each state. They conclude that California loses an average of 1.056 electoral votes per election while Wyoming gains an average 0.024 electoral votes per election.7 In addition, California has twelve percent of the nation’s population but only ten percent of electoral college votes.8 These statistics show that the benefits that less populous states receive is at the expense of more populous states. The design of the electoral college was not only intended to protect the interests of less populous states but also to protect the practice of slavery in the South. The Three-Fifths Compromise included enslaved people in a state’s population count (as three-fifths of a person), despite the fact that enslaved people could not vote. It was planned in conjunction with the electoral college and Connecticut Compromise at the nation’s founding in the late-eighteenth century. The Three-Fifths Compromise meant that the counted population in southern states was significantly greater than the number of voters in these states. Therefore, white voters in these states were given significantly more voting power. This racist because it dehumanized enslaved people by treating them as property in terms of

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not granting them rights while referring to them as a partial person for the sake of strengthening the position of slave holders. It was also racist because it prevented voters in northern states, who were more inclined to oppose the practice of enslaving people, from having the voting power to abolish it. The fact that American founders did not intend for the electoral college system to give all voters equal voices suggests that the system is inherently unequal. Founders from southern states acknowledged that direct election would have been more equitable than the electoral system, but decided that preventing the abolition of the practice of slavery was a higher priority than equality.9 When arguing in favor of the newly-devised system, James Madison, a slave-owning founder from Virginia and the fourth President of the United States, wrote, “The right of suffrage was much more diffusive in the northern than the southern states; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”10 Madison’s statement reveals that the system of electors was intended to benefit his and his cohort’s interests by diminishing the influence of northern voters. This means that wealthy southern white men’s desire to continue practicing slavery was prioritized in discussions about structuring American government. It reveals that southern founders consciously created and promoted an unequal system of voting, and thus that today’s system is not based on notions of equality. As was intended, the combined effect of the Three-Fifths Compromise and the Connecticut Compromise benefited and continues to benefit some people’s political interests. In the United States’ early days, four of the first five presidents (including Madison) were men who owned enslaved people from the southern state of Virginia and were aligned with the ideology of the Democratic-Republican political party. This was in large part made possible by the Three-Fifths Compromise granting southern voters

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disproportionately more power. Today, the Republican party has more support from less populous states, and the Democratic party has more support from more populous states. It does not help that Democratic candidates typically win by quite large margins in more populous states. Though Biden won the state of California in the 2020 election by 5.1 million votes, he received the same fifty-five electoral college votes that he would have had he won by a single vote.11 In general, the trend of increasing support for Democrats in states that already tended to vote for Democrats poses a problem that the party would not be facing were the electoral college system not in place.12 In addition, the fact that, in the 116th United States Congress, the Senate was dominated by Republicans (fifty-three Republicans to forty-seven Democrats) and the House was dominated by Democrats (two hundred and thirty-five Democrats to one hundred and ninety-nine Republicans) supports the idea that proportional representation currently favors Democrats and equal representation favors Republicans.13 Thus, Republicans are unfairly advantaged in the electoral college system due to their support from less populous states. Even though the Three-Fifths Compromise has been void for the over one hundred years since slavery was abolished, the electoral college system still harms African Americans.14 Once African Americans gained the vote to right, some government officials tried to find ways to suppress African American votes by establishing practices such as poll taxes, voter ID laws, literacy tests, and fewer polling locations in African American communities. The electoral college, and the winner-takes-all system that is not written in the Constitution but has been in place since the 1824 Presidential election, amplifies the effect of this suppression.15 A state will receive the same number of electoral votes regardless of how much of the population casts a ballot. Since not everybody in a state votes, a fewer number of voters means that those who do vote will have more impact on the state’s outcome. When state government officials put measures in

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place to prevent African American voters from casting their ballots, white voters in that state can overpower the voice of the African Americans who do vote. In fact, the winner-takes-all system was devised by state leaders with the intention of providing maximized support to the state’s favored candidate.16 Since there are so many more voters in the nation than in any given state, such voter suppression would have less impact on popular vote results. Thus, the electoral college system provides greater “benefits” to state officials for disenfranchising African American voters than the popular vote would. The Voting Rights Act of 1965 identified this as a systemic issue and protected the rights of African American voters in states that historically suppressed votes by subjecting these states to preclearance, meaning that they had to have new voter registration laws approved by federal courts.17 However, despite evidence that the Voting Rights Act did limit voter suppression, the Supreme Court decision Shelby County v. Holder (2013) removed this protection of African American voters.18 In “Voter Purges After Shelby,” (2020) Feder and Miller, two political scientists at Barnard College of Columbia University, present results from their investigation into the effect of the Shelby decision on “purge rates,” the rates at which eligible voters (mostly African American) were removed from voting lists. Results suggested that the decision did, in fact, harm voters. Prior to Shelby, states subject to preclearance purged one percent fewer voters than states who were not, but following the decision they purged two percent more.19 Thus, the controversial 2013 decision led to a regression since it allowed historically racist states to return to blatantly racist practices In addition, the organization of the electoral college by state benefits white voters and disadvantages African American voters today due to state demographics. According to the 2000 census, the majority of the African American population lives in metropolitan areas within ten states with high populations.20 Given that voters in more populous states are dis-

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advantaged in the electoral college system, the fact that most of the African American population lives in states with higher populations shows that the electoral college system harms African American voters due to state demographics. In “One Difficulty… of a Serious Nature,” (2017) Blake, a political science professor at Indiana University, discusses the results of an MM-regression model, a type of model that seeks to establish relationships between variables while factoring in outliers. The model indicates that states with a higher proportion of white voters have considerably more electoral votes per capita (even when taking ruralness into account).21 That same model calculated that a one standard deviation increase in white population leads to a 6.9 percent increase in the median state’s electoral college votes.22 This is in line with the trend of African Americans having less voting power purely because they tend to live in more populous states. In addition, according to the 2010 census, whereas California (the most populous state) has a 71.9 percent white population and a 6.5 percent African American population, Wyoming (the least populous state) has a 92.5 percent white population and a 1.3 percent African American population.23 The fact that the voters in the state with the fewer white population and greater black population have proportionately less influence than the voters in the state with the greater white population and fewer black population supports the results that Blake discussed regarding states with more white voters having more electoral votes per capita. Another way in which the electoral college system has been racist in the past couple of years is that swing voters in three swing states have shaped the entire election, and these voters are mostly white and working class. African Americans tend to vote for Democrats and live in solidly Democratic states.24 This means that the states in which they live have predictable election results and are unlikely to have an unexpected impact on electoral results. On the other hand, swing states, which could be won by either Republican or Democratic candidates, could go either way. The

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winner-takes-all methodology, which is employed in every state but Maine and Nebraska, means that it does not matter by how much a candidate wins a state.25 It thereby amplifies the effects of racial inequality and places a lot of emphasis on undecided voters in swing states since they have the potential to deliver a candidate a sizable number of electoral votes.26 This was widely discussed following the 2016 election. Despite the fact that voter turnout reached a record-high 137.5 million, black voter turnout decreased 7 percent.27 It turns out that less than 78,000 white, working class, non-college educated people living in three swing states–Michigan, Wisconsin, and Pennsylvania–switched from voting for the Democratic candidate in 2012 to the Republican candidate in 2016; these voters alone made the difference in electing Trump by delivering him all forty-six of their combined electoral votes despite the small margin by which he won each state.28 This means that, at least in this case, white voters in swing states really did end up having the power to decide the results of elections. As such, candidates in the 2020 election and the media focused on these white, working class, non-college educated voters in swing states at the expense of other voters.29 In the 2020 presidential election, the majority of voters in all three states voted for the Democratic candidate and tilted the election once again, this time voting against Trump to help Joseph Biden become the forty-sixth president. In Why the Electoral College Is Bad for America, (2011) Edwards, a Yale University political science scholar, concludes that African Americans tending to live in more populous states that lean towards the Democratic party and the trend of white voters in swing states shaping elections “discourages attention to the interests of African Americans because they are unlikely to shift the outcome in a state as a whole.”30 The fact of where African Americans live and which states end up shaping electoral results shows that the organization of the electoral college system harms African American voters. Interestingly, the African American population in Georgia, which has traditionally voted for Repub-

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licans and was one of the ten most populous states according to the 2000 census, ended up flipping the state from Republican in 2016 to Democrat in 2020.31,32 This is in large part due to female African American political organizers who recognized that targeting African American voter turnout could make a significant difference in state and national politics.33 This implies that historic disenfranchisement of African Americans, whose effects are amplified by the electoral college and winner-takes-all system, not only diminishes their votes but also deters them from making their voices heard all together. Data from Georgia in 2020 has the potential to convince politicians to pay more attention to African American voters and alter the system that has perpetuated racism for so long. Recent history suggests that inequity in the American voting system will continue to shape American politics. In the past one hundred years, the electoral college has altered the results of the election twice, both times in favor of Republicans; George Bush in 2000 and Trump in 2016 both won the electoral college without winning the popular vote.34 This shows that the electoral college currently skews results towards Republicans due to Republican popularity in less populous states. In his statistical analysis of the effect of the electoral college on the results of the election, FiveThirtyEight analyst Skelley used the phrase “tipping-point state” to describe the state that delivered the winning 270th electoral vote.35 In 2020, Biden’s tipping-point state was Wisconsin while Trump’s would have been Pennsylvania, both of which Biden won by an average of 0.9 percent, which was 3.5 percent less than the percent by which he won the entire nation’s vote. In recent history, the margin by which Republican electoral college victors have won their tipping point state has mostly been smaller than the margin by which they won the popular vote, if they did win the popular vote. This suggests that the small margins by which candidates win the votes of tipping-point states will continue to amplify the voices of specific states at the expense of the rest of the electorate.

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In addition, Al Gore, Bush’s Democratic opponent, and Clinton both had a vast majority of African American support, 90 percent and 89 percent of African American votes, respectively.36 According to the United States census, African Americans (not counting African Americans who identified with more than one race) comprised 13.4 percent of the population in 2010.37 Though this is far from the majority of the electorate, African Americans still have a significant voice in elections. Even with a resounding amount of African American support and the majority of the popular vote, Gore and Clinton still did not win the electoral college. This reinforces Edwards’ claim that, due to the electoral college system, African American voters are unlikely to shape the outcome of the electoral college. This dangerously implies that Republicans will continue to win presidential elections despite losing the popular vote due to the amount of white support they have. In an era in which American politics are increasingly polarized, the bias of systems that determine which politicians and political groups wield power is extremely concerning. The nullification of some American citizens’ voices by the electoral college system are not limited to racism against African Americans and small state or swing state advantages. Citizens in United States territories can vote in presidential primaries but not presidential elections.38 Thus, the electoral college system of assigning votes to states nullifies the voices of American voters living in territories and further distances the results of the electoral vote from the majority of American people’s preference. Territories with permanent inhabitants are Puerto Rico, Guam, the U.S. Virgin Islands, North Mariana Islands, and American Samoa. Together, their populations reach almost four million, which is greater than the individual populations of almost half of the fifty states.39 Puerto Rico, the largest and most populous of these five territories, is more populous than Delaware, South Dakota, North Dakota, and Alaska combined.40 However, while each of these states has three electoral votes for a combined twelve electoral

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votes, Puerto Rico has none. In addition, 98.9 percent of Puerto Ricans are Hispanic or Latino, who (in addition to African Americans) have also been historically marginalized in the United States.41 Neglecting the voices of Americans living in American territories is one more way in which the electoral college system perpetuates racism. The majority of United States citizens support abandoning the electoral college in favor of a popular vote in which all citizens can participate.42 However, it is unlikely that the nation will take such an action since it would require overwhelming approval from states, many of whom benefit from the electoral college system. Abolishing the system would require an amendment to the Constitution, which would need support from two-thirds of each house of Congress and three-fourths of the state legislatures.43 Realistically, representatives of swing states and less populous states would not vote in favor of amending the Constitution and reducing their constituents’ voting power. In addition, some people argue that the electoral college is actually beneficial because it upholds the principles of America’s federalist government and discourages candidates from targeting any single state or demographic.44 However, the supposed benefits do not negate the fact that the system continuously marginalizes the same demographics. As a result of the continuation of this system, disparity will continue to grow. In “The Electoral College after Census 2010 and 2020,” (2009) Burmila, an associate professor of political science at Bradley University, creates a model and predicts that, by 2024, Republican presidential candidates will receive at least eight additional electoral votes based on patterns of migration within the United States.45 Thus, the issue of inequality that the electoral college system perpetuates might not just persist, but worsen. Recognizing the faults of the electoral college system of voting is crucial to understanding how presidents are selected in the United States. It also explains why the winner is sometimes not the candidate with the

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most votes, as was the case in the 2016 election. All in all, the system of voting is part of the country’s long history of racism and inequality, as it was intended to give small states a sizable voice and help wealthy white males retain their power. There is a long way to go until equality, racial or otherwise, is achieved. Abolishing the electoral college system is one concrete way in which the United States can work towards becoming a less racist society. The supposed benefits that come from using the electoral college system do not negate the fact that it continuously nullifies the same demographics and does not accurately reflect the preference of the majority of the American people. Statistical evidence suggests that it is not the matter of if the electoral college will select a president that does not have the majority of American support, but when. The only way to prevent this from happening is by addressing issues within the American electoral college and replacing it with a more equitable system.

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Notes 1 Denise Lu, “The Electoral College Misrepresents Every State, but Not as Much as You May Think,” The Washington Post (Washington, D.C.), December 6, 2016, www.washingtonpost.com/graphics/politics/how-fair-is-the-electoral-college/. 2 Todd Estes, “The Connecticut Effect: The Great Compromise of 1787 and the History of Small State Impact on Electoral College Outcomes,” The Historian 73, no. 2 (2011): 255. 3

Tara Ross, “The Electoral College: Enlightened Democracy,” The Heritage Project, November 1, 2004, www.heritage.org/the-constitution/report/the-electoral-college-enlightened-democracy. 4 Sheahan G. Virgin, “Competing Loyalties in Electoral Reform: An Analysis of the U.S. Electoral College,” Electoral Studies 49 (2017): 38. 5

Estes, “The Connecticut Effect,” 255.

Lu, “The Electoral College.”

Jack E. Riggs, Gerald R. Hobbs, and Todd H. Riggs, “Electoral College Winner’s Advantage,” PS: Political Science and Politics 42, no. 2 (2009): 354. 8

Lu, “The Electoral College.”

Wilfred Codrington, “The Electoral College’s Racist Origins,” The Atlantic, November 17, 2019, www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/601918/. 10

Codrington, “The Electoral College’s Racist Origins.”

Geoffrey Skelley, “Even Though Biden Won, Republicans Enjoyed The Largest Electoral College Edge In 70 Years. Will That Last?,” FiveThirtyEight, January 16, 2021, fivethirtyeight.com/features/even-though-biden-won-republicans-enjoyed-the-largest-electoral-college-edge-in-70-years-will-that-last/. 12 Skelley,

“Even Though Biden Won.”

13 Claire

Hansen, “116th Congress by Party, Race, Gender, and Religion,” U.S. News, December 19, 2019, www.usnews.com/news/politics/slideshows/116th-congress-by-partyrace-gender-and-religion?slide=2. 14

Codrington, “The Electoral College’s Racist Origins.”

Devin McCarthy, “How the Electoral College Became Winner-Take-All,” FairVote, August 21, 2012, www.fairvote.org/how-the-electoral-college-became-winner-take-all. 16

McCarthy, “How the Electoral College Became Winner-Take-All.”

Catalina Feder and Michael G. Miller, “Voter Purges after Shelby,” American Politics Research 48, no. 6: 687. 18

Feder and Miller, “Voter Purges after Shelby,” 687.

Feder and Miller, “Voter Purges after Shelby,” 689.

“Majority of African Americans Live in 10 States; New York City and Chicago Are Cities with Largest Black Populations,” United States Census Bureau, 2001, accessed October 26, 2020, www.census.gov/newsroom/releases/archives/census_2000/cb01cn176.html. 21

William D. Blake, “‘One Difficulty…of a Serious Nature’: The Overlooked Racial Dynam-

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ics of the Electoral College,” The Forum 2017 17, no. 2 (2019): 316. 22

Blake, “‘One Difficulty…of a Serious Nature,’” 316.

“Quickfacts.” United States Census Bureau, 2010, accessed October 26, 2020, www.census. gov/quickfacts/. 24 Nia-Malika Henderson, “Five Myths About Black Voters,” The Washington Post, October 24, 2014, www.washingtonpost.com/news/the-fix/wp/2014/10/24/five-myths-about-blackvoters/. 25

Riggs et al., “Electoral College Winner’s Advantage,” 353.

Jens Manuek Krogstad and Mark Hugo Lopez, “Black voter turnout fell in 2016, even as a record number of Americans cast ballots,” Pew Research, May 12, 2017, www.pewresearch.org/fact-tank/2017/05/12/black-voter-turnout-fell-in-2016-even-as-a-record-number-ofamericans-cast-ballots/. 28

John Agnew and Michael Shin, “The Counties That Counted: Could 2020 Repeat 2016 in the Us Electoral College?,” The Forum 14, no. 4 (2020): 677. 29

Agnew and Shin, “The Counties That Counted,” 683.

George C. Edwards, Why the Electoral College Is Bad for America (New Haven: Yale University Press, 2011), 142. 31

“Majority of African Americans Live in 10 States.”

Anna North, “6 Black women organizers on what happened in Georgia — and what comes next,” Vox, November 11, 2020, www.vox.com/21556742/georgia-votes-election-organizers-stacey-abrams. 33

North, “6 Black women organizers on what happened in Georgia.”

“Electoral College Fast Facts,” United States House of Representatives, accessed October 26, 2020, history.house.gov/Institution/Electoral-College/Electoral-College/. 35

Skelley.

Henderson, “Five myths.”

“QuickFacts.”

Aaron Steckelberg and Chiqui Esteban, “More Than 4 Million Americans Don’t Have Anyone to Vote for Them in Congress,” The Washington Post, September 28, 2017, www. washingtonpost.com/graphics/2017/national/fair-representation/. 39

Steckelberg and Esteban, “More Than 4 Million Americans.”

“QuickFacts.”

Miles Parks, “Abolishing the Electoral College Would Be More Complicated Than It May Seem,” NPR. March 22, 2019, npr.org/2019/03/22/705627996/abolishing-the-electoralcollege-would-be-more-complicated-than-it-may-seem. 43

Parks, “Abolishing the Electoral College.”

31 44 45

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Ross, “The Electoral College: Enlightened Democracy.”

Edward M. Burmila, “The Electoral College after Census 2010 and 2020: The Political Impact of Population Growth and Redistribution,” Perspectives on Politics 7 no. 4 (2009): 837.

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Bibliography Agnew, John and Michael Shin. “The Counties that Counted: Could 2020 Repeat 2016 in the US Electoral College?” The Forum 14, no. 4 (2020): 675–692. Accessed October 15, 2020. doi.org/10.1515/for2019-0040. Blake, William D. “‘One Difficulty…of a Serious Nature’: The Overlooked Racial Dynamics of the Electoral College.” The Forum 2019 17, no. 2 (2019): 315–343. Accessed October 15, 2020. doi.org/10.1515/for2019-0019. Burmila, Edward M. “The Electoral College after Census 2010 and 2020: The Political Impact of Population Growth and Redistribution.” Perspectives on Politics 7, no. 4 (2009): 837-47. Accessed October 15, 2020. www.jstor.org/stable/40407082. Codrington, Wilfred. “The Electoral College’s Racist Origins.” The Atlantic, November 17, 2019. www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/ 601918/. Edwards, George C. Why the Electoral College Is Bad for America: Second Edition. United Kingdom: Yale University Press, 2011. www. google.com/books/edition/ Why_the_Electoral_College_Is_Bad_ for_Ame/iJSzAwAAQBAJ?h. Estes, Todd. “The Connecticut Effect: The Great Compromise of 1787 and the History of Small State Impact on Electoral College Outcomes.” The Historian 73, no. 2 (2011): 255-83. Accessed October 15, 2020. www.jstor.org/stable/24455090. Feder, Catalina and Michael G. Miller. “Voter Purges After Shelby.” American Politics Research 48 (6): 687-692. Accessed September 15, 2020. doi.org/10.1177/1532673x20916426. Hansen, Claire. “116th Congress by Party, Race, Gender, and Religion.” U.S. News. December 19, 2019. www.usnews.com/news/politics/slideshows/116th-congress-by-party-race-gender-and-reli-

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gion?slide=2. Henderson, Nia-Malika. “Five myths about black voters.” The Washington Post, October 24, 2014. www.washingtonpost.com/news/the-fix/ wp/2014/10/24/ five-myths-about-black-voters/. Krogstad, Jens Manuek and Mark Hugo Lopez. “Black voter turnout fell in 2016, even as a record number of Americans cast ballots.” Pew Research. May 12, 2017. www.pewresearch.org/fact-tank/2017/05/12/ black-voter-turnout-fell-in-2016-even-as-a-record-number-of-americans-cast-ballots/. Lu, Denise. “The electoral college misrepresents every state, but not as much as you may think.” The Washington Post. December 6, 2016. www.washingtonpost.com/graphics/ politics/how-fair-is-the-electoral-college/. “Majority of African Americans Live in 10 States; New York City and Chicago Are Cities With Largest Black Populations.” 2001. United States Census Bureau. Accessed October 26, 2020. www.census.gov/ newsroom/releases/archives/census_2000/cb01cn176.html. McCarthy, Devin. “How the Electoral College Became Winner-Take-All.” FairVote. August 21, 2012. www.fairvote.org/how-the-electoral-college-became-winner-take-all. Parks, Miles. “Abolishing The Electoral College Would Be More Complicated Than It May Seem,” NPR. March 22, 2019. www.npr. org/2019/03/22/705627996/ abolishing-the-electoral-college-wouldbe-more-complicated-than-it-may-seem. “QuickFacts.” 2010. United States Census Bureau. Accessed October 26, 2020. www.census.gov/quickfacts/. Riggs, Jack E., Gerald R. Hobbs, and Todd H. Riggs. “Electoral College Winner’s Advantage.” PS: Political Science and Politics 42, no. 2 (2009): 353-357. Accessed October 15, 2020. www.jstor.org/stable/40647539.

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Ross, Tara. “The Electoral College: Enlightened Democracy.” The Heritage Project. November 1, 2004. www.heritage.org/the-constitution/report/ the-electoral-college-enlightened-democracy. Skelley, Geoffrey. “Even Though Biden Won, Republicans Enjoyed The Largest Electoral College Edge In 70 Years. Will That Last?” FiveThirtyEight, January 16, 2021. fivethirtyeight.com/features/ even-though-biden-won-republicans-enjoyed-the-largest-electoralcollege-edge-in-70-years-will-that-last/. Virgin, Sheahan G. “Competing loyalties in electoral reform: An analysis of the U.S. electoral college.” Electoral Studies 49, (2017): 38-48. Accessed October 15, 2020. doi.org/10.1016/j.electstud.2017.07.003.

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An “Achievement of Generations of Human Beings” The UDHR’s Drafting,Passage, and Legacy

Rachel Nirenberg

Edited by: Ananda Kimm-Drapeau Artwork by: Emilienne Hamel

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y the early 1940s, the movement for a universal bill of rights was picking up considerable speed. In 1941, a human rights conference was held in Buenos Aires, where delegates, mostly from Lat-

in America, drew up a preliminary bill.1 Practically every American legal organization, from the International Labour Organization to the American Jewish Committee, tried its hand at drafting its own version of the bill.2 Even the Catholic Church was on board. In 1939, shortly after his inauguration, Pope Pius XII wrote in an encyclical that, in order for there to be “harmonious and lasting contacts and […] fruitful relations [between nations] […] peoples [had to] recognize and observe these principles of international natural law […] rights to independence, to life and to the possibility of continuous development.”3 National Catholic Welfare, taking its cues from the Pope, sent repeated letters to Eleanor Roosevelt on the subject in an attempt to motivate her to put pressure on her husband.4 Still, despite the broad support for an international bill of rights in some form, the declaration was not passed until 1948, nearly seven years after the Buenos Aires draft was finished. Ultimately, the will to pass such a document was not able to be found until the atrocities of the Holocaust were widely recognized, and their horror processed. Though many had known about the genocidal regime of the Nazis during the war, it was only afterwards that its full scope was understood. Moreover, the Declaration was only able to pass in its final form due to the participation and feelings of inclusion among smaller states, the memory of the Holocaust, the worry that, if the Declaration was not passed in 1948, it never would be, and the promise that, at some point in the future, the question of implementation would be taken up. The memory of the Holocaust weighed heavily in the minds of almost all the drafters, but perhaps none more so than René Cassin, the French-Jewish lawyer who edited the UDHR’s second draft. During the war, Cassin had fled to Britain, joined the Free French government, and

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been stripped of his citizenship by Vichy France. The UDHR, Cassin argued, was needed to “refute th[at] abominable doctrine of fascism” which had killed so many and impacted him so deeply.5 The events of the war convinced even those who were relatively far removed of the need for action. Charles Malik, Lebanese representative and eventual Chair of the Human Rights Commission, for instance, agreed with Cassin that an international bill of rights was necessary to “oppos[e] the barbarous doctrines of Nazism and fascism.”6 Indeed, this repudiation of Nazism can be seen clearly in several clauses of the final version of UDHR. Most obviously, the UDHR’s preamble, written by Cassin, invokes the Holocaust as justification for its existence, citing “barbarous acts which have outraged the conscience of mankind” as part of the reason why it was created.7,8 The Holocaust is not addressed only in the preamble. Article 15, for example, which asserts that “everyone has the right to a nationality” and freedom from “be[ing] arbitrarily deprived of his nationality,” was a direct repudiation of the way that Nazi Germany had arbitrarily stripped citizenship from Jews like Cassin and other “undesirables.”9 Article 15, according to Eleanor Roosevelt, one of its drafters, was “designed to make clear first, that individuals should not be subjected to action such as was taken during the Nazi regime […] when thousands had been stripped of their nationality by arbitrary action.”10 The drafters of the UDHR were also careful to avoid anything that could be seen as legitimizing Nazi policies. For example, article 3, which affirms the “right to life, liberty, and happiness” had originally qualified that those rights were only valid “in cases prescribed by law and after due process.” However, when the World Jewish Congress pointed out that the laws under which thousands in Nazi Germany had been deprived of their liberty were “perfectly valid” from a legal perspective, the qualification was quickly dropped.11 Moreover, there was a sense that, if the UDHR was not passed

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in the years immediately following the war, it would not be passed at all. Stéphane Hessel, assistant to the Vice-Secretary General of Economic and Social Affairs, observed in 2013 that “this unifying of preoccupations of the West and East corresponded […] to those three or four years after the war. Had creating this text been put off […] it would have become almost impossible to motivate the East, the West, and the South to work together.”12 While Hessel may have been slightly overstating the impossibility of cooperation – both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which passed in 1966, were signed by all major world powers – there was undoubtedly a widespread feeling that the UDHR was time-sensitive. 1948 was an especially tumultuous year in global politics, seeing a communist revolution in China, Cold War tensions in Korea, and the blockading of West Berlin by the Soviet army. By the fall of that year, according to John Humphrey, the author of the UDHR’s first draft, the atmosphere at the UN was “charged to the point of explosion by the Cold War.”13If the UDHR did not manage to pass that fall, many worried it would not pass at all. It had already looked as though the UDHR were in danger of failing, especially in its initial phases. The four-person committee tasked with writing its initial draft, consisting of Humphrey, Malik, Roosevelt, and Chinese representative Peng-Chun Chang, devolved into an argument almost immediately. Chang, concerned that Western thought was dominating what was meant to a universal declaration, derisively told Humphrey that he ought to “put [his] duties aside for six months and study Chinese philosophy, after which [he] might be able to prepare a text for the committee.”14 The USSR, outraged at its exclusion, complained that there was “no European” on the committee.15 France, Canada, Chile, and Czechoslovakia voiced their displeasure as well, with Cassin adding that, just as there were no Europeans, there was also not “any representative of Latin America, nor anyone from the peoples’ republics.”16 Roosevelt biographer Mary Ann

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Glendon suggests that this comment of Cassin’s was entirely self-serving, objecting more at the absence of a “French lawyer, one, say, with a Vandyke beard” than expressing a genuine concern that everyone was getting an opportunity to participate in the drafting.17 Regardless of Cassin’s motivations, however, his point was well-taken. Humphrey had at times in his draft borrowed clauses wholesale from the Buenos Aires draft.18 That the countries who had written that draft in the first place were now being excluded from the UN drafting committee was certainly a legitimate cause for outrage. The complaints evidently struck a nerve, as, when Roosevelt heard them, she quickly added France, the Soviet Union, and Chile to the committee.19 Still, the drafting committee could not include every country in the UN. As such, the commission, in an attempt to be inclusive, allowed any member-state to submit its own draft of the bill and to comment on later drafts. Moreover, there is every indication that these comments, as well as those of NGOs and private citizens, were genuinely taken into account. Roosevelt opened the Third Session of the Commission on Human Rights by reading aloud a telegram that she had received from a series of NGOs.20 While not all of the suggestions were taken up – the Argentinian NGO Comite Permanente Espiritualistas’ request that “capital punishment be made unlawful in those countries where it still exists,” for example, was not included in any draft – there is no reason to think that they were not seriously considered.21 Small countries were even more dogged than NGOs in ensuring their priorities were taken into account. Part of this was due to Malik, the chairman of the Third Committee, who insisted on going over the whole Declaration in granular detail, giving countries ample opportunity to object to clauses they found problematic, something many countries took full advantage of.22 Hansa Mehta, from India, criticized at almost every stage the gendered language in the Declaration, despite Roosevelt and

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Humphrey’s insistence that “men” was meant to include women as well, eventually succeeding in changing the wording in at least the preamble.23 A Haitian objection to a clause about secret ballots on the basis of their inaccessibility to the illiterate resulted in the clause’s deletion.24 Colonies and former colonies pushed especially hard to be explicitly included in the UDHR. It was Egypt that supplied the clause that rights had to be upheld “both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction.”25 Colonies also pushed for a convention in addition to the UDHR, impressing on Roosevelt that “many of the smaller nations […] would feel that they had been cruelly deceived” without one.26 Their insistence even managed to push the United States into reluctantly supporting one’s creation. “When it was found that feeling ran high on this subject,” Roosevelt wrote in Foreign Affairs, “we immediately cooperated.”27 After all, Roosevelt insisted, the only reason the United States had objected at all was because it viewed such a convention as premature, not because it did not want to be held to one. While Roosevelt’s Foreign Affairs article was an obvious attempt to save face, it did clearly demonstrate the ability of small states to influence the drafting process, something small states took significant pride in. In the words of Abdul Rahman Kayala, the Syrian representative, the UDHR was not merely “the work of a few representatives in the Assembly” but an “achievement of generations of human beings.”28While Kayala’s comment is perhaps an overstatement, small states were not the non-entities in the UDHR’s drafting they are sometimes portrayed as. At the same time, it is difficult to deny that their influence and indeed, even the influence of historical powerhouses like Britain, was limited, at least compared to that of the two superpowers and especially the United States. Britain’s repeated attempts to include a ban on the death penalty, for example, were continually ignored because of the United States’ insistence that the death penalty was “necessary to address crime.”29 Britain’s complaints about the

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Egyptian-written article 3, which specified that the colonized were also entitled to the rights outlined in the UDHR, also went unanswered.30 Attempts from Asian countries, especially India, to have a section on duties added to the UDHR were brushed aside by the two superpowers, which did not consider such a section to be especially important. The rights outlined in the UDHR, Mahatma Gandhi countered, “only accrue to us when we do the duty of citizenship to the world.”31Chinese philosopher Chung Shu-Lo agreed, adding that “the basic ethical concept of Chinese social political relations is the fulfilment of duty to one’s neighbor, rather than the claiming of rights.”32 Without such a section, they argued, the UDHR would fail to resonate properly in the two most populous countries in the world. Though a clause was eventually added affirming that “everyone has duties to the community,” it was tacked onto the final article and hardly occupied the central place the Declaration’s critics were hoping for.33 The Declaration, Gandhi said, was “hardly worth fighting for.”34The simple fact of the matter was that, if it employed its enormous influence and power, the United States was able to block, or at least significantly slow, any part of the Declaration it did not like. It would be inaccurate to suggest, however, that the United States was the sole opponent of a convention, without whom such a document could have easily passed in 1948. While the United States dragged its feet on a convention, the Soviet Union outright opposed one. Though the Soviet Great Terror had ended ten years before, the totalitarian Stalinist system remained deeply entrenched. The creation of a convention, or worse, a world court, posed a serious risk for the government that had trampled nearly every right in the UDHR during the Terror. Yugoslav representative Vladislav Ribnikar spoke for much of the communist bloc when he described a potential world court as a “new attempt to transform the United Nations into a kind of world government, placed above national sovereignty.” The UN would essentially be reduced to a rubber stamp, he said, while

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“the country that was the strongest economically would have complete supremacy.”35 Nor did the Soviet Union’s complaints stop at a potential world court. It found flaws at nearly every step of the UDHR’s drafting. Malik and Chang, the Soviet representative Valentin Tepliakov bitterly complained, were “partisans of the position of the representative of the United States.”36 In fact, according to Tepliakov, nearly all non-communist countries “blindly followed the positions of the United States while pretending to express their own viewpoints.”37 Soviet diplomats also seemed to take Roosevelt at face value when she said that the United States wanted a convention. If that convention happened, the Soviet Union worried, it and the UDHR would legitimize intervention in their country. Even the UDHR on its own went “beyond the limits of international law [and would lead to] intervention in the affairs of individual countries.”38 Roosevelt long suspected that what the Soviet Union really objected to was article 13, which gave everyone the right to leave their country. The Soviet Union’s continued attempts to add a clause stipulating that citizens could only leave “in accordance with the procedures laid down in the laws of that country” meant that she was probably at least partially correct.39 Still, that was only part of the Soviet Union’s objection. Article 13 was part of a larger issue for the Soviet Union, namely, that it saw the whole of the UDHR as an attempt to weaken the state in favour of the UN, a body where it would always be outnumbered. “We weren’t able to make the changes we wanted to make,” Tepliakov wrote to Moscow.40 He was specifically referring to the UDHR, but the Soviet Union worried that in an empowered UN, the UDHR would only be the first in a long line of legislation it was powerless to stop or influence. The Soviet Union was far from the only country with serious objections. Saudi Arabia and many countries in the Arab world were experiencing a wave of Palestinian refugees after the 1948 Arab-Israeli War, and

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balked at the original wording of article 14, which gave everyone the right to “seek and be granted in other countries asylum from persecution.” The wording was changed to “enjoy” rather than “be granted.”41 Still, Saudi Arabia refused to accept clauses 16 and 18, which affirmed the right to marry outside of one’s religion and convert. “Apparently,” said Jamil Baroody, the Saudi representative, “the members of the draft declaration had […] taken into consideration only the standards recognized by Western civilization.”42 Article 2, which set out equal treatment under the law, regardless of race, was an obvious non-starter for apartheid South Africa. The USSR, along with much of the communist bloc, viewing the document as fundamentally flawed, also refused to support it. None of this opposition, however, was enough to kill the UDHR or even to force it to be rewritten once again. In fact, that none of these abstentions were outright votes against it speaks to the strength of the conviction that such a document needed to be passed. Ultimately, the memory of the Holocaust, the belief that the window to pass the UDHR was closing, and the ability of most states to have their demands met, especially regarding a future covenant, allowed the UDHR to pass in its current form in 1948. Even the covenant resisted by the United States and Soviet Union eventually came to pass, albeit in two parts and nearly two decades after the UDHR’s passage. Even without the covenants, however, the UDHR was met with enormous optimism. If such a thing had existed in 1939, said Henri Laugier, Assistant Secretary-General for Social Affairs, “international action would have been mobilized immediately against […] fascism and Nazism. The human community would have been able to stop [the Nazis] at the moment they were still weak.”43 Seven decades later, that optimism seems naïve or, at least, somewhat misplaced. The fact of the matter is that, in many cases, the International Bill of Rights has failed to prevent “barbarous acts which outrage the conscience of mankind.” As Roméo Dallaire, Major-General of the United Nations Assistance Mission for Rwanda put it in 2003, “almost fifty years to the

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day […] the extermination camps were uncovered and when, in one voice, humanity said “Never again”-we once again sat back and permitted this unspeakable horror to occur.”44 Rwanda has not been the only failure of the UN to prevent genocide – the genocides in Cambodia, Bosnia, Guatemala and recently, Myanmar, have all occurred in UN member-states with minimal intervention from the UN. It would be unfair, however, to suggest that the UDHR has been entirely useless. Articulating a series of (mostly) universally accepted rights was, in itself, a massive accomplishment. Moreover, the UDHR has served as the basis for several other UN bodies that are more than statements of norms, including the international criminal tribunals for Rwanda and the former Yugoslavia, which saw a combined total of 151 convictions.45 The legacy of the UDHR, therefore, is decidedly mixed.

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Notes 1 Johannes Morsink. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. (Philadelphia: University of Pennsylvania Press, 1999), 1. 2

Morsink, “The Universal Declaration,” 1-2.

Pius XII. On the Unity of Human Society. Encyclical Letter. Vatican website. October 20, 1939. 4

Morsink, “The Universal Declaration,” 1.

Johannes Morsink. “World War Two and the Universal Declaration.” Human Rights Quarterly 15, no. 2 (1993): 363. 6

Morsink, “World War Two,” 357.

UN General Assembly. “Universal Declaration of Human Rights.” 217 (III) A. Paris, 1948.

Mary Ann Glendon. A World Made New. (New York: Random House, 2003), 66.

“Universal Declaration of Human Rights.”

Morsink, “World War Two,” 393.

Morsink, “World War Two,” 366.

Thomas M. Krapf. “The Last Witness to the Drafting Process of the Universal Declaration of Human Rights: Interview with Stéphane Frédéric Hessel.” Human Rights Quarterly 35, no. 3 (2013): 758. 13

John P. Humphrey. Human Rights and the United Nations: a Great Adventure. (Transnational Publications, 1984), 66. 14

Humphrey, “Human Rights,” 29.

Glendon, “A World Made New,” 49.

Morsink, “The Universal Declaration,” 6.

Glendon, “A world Made New,” 49.

Morsink, “The Universal Declaration,” 9-10.

Morsink, “The Universal Declaration,” 9.

Susan Eileen Waltz. “Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights.” Human Rights Quarterly 23, no. 1 (2001): 58. 23

Waltz, “Universalizing Human Rights,” 63.

Waltz, “Universalizing Human Rights,” 55.

Waltz, “Universalizing Human Rights,” 65.

Eleanor Roosevelt. “The Promise of Human Rights.” Foreign Affairs, April 1948.

Morsink, “The Universal Declaration,” 12.

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Krapf, “The Last Witness,” 757.

Christopher N. J. Roberts. The Contentious History of the International Bill of Human Rights. (Cambridge: Cambridge University Press, 2015), 47. 31

Glendon, “A World Made New,” 75.

Glendon, “A World Made New,” 76.

“Universal Declaration of Human Rights.”

Roberts, “The Contentious History,” 32.

Glendon, “A World Made New,” 95.

Glendon, “A World Made New,” 33-4.

Glendon, “A World Made New,” 46.

Glendon, “A World Made New,” 59-60.

Glendon, “A World Made New,” 113.

Glendon, “A World Made New,” 33.

Morsink, “World War Two,” 383.

Morsink, “The Universal Declaration,” 24.

Morsink, “The Universal Declaration,” 14.

Roméo Dallaire. Shake Hands with the Devil: The Failure of Humanity in Rwanda. (De Capo Press, 2003), 29.. 45 “The ICTR in Brief.” Legacy Website of the International Criminal Tribunal for Rwanda, 2017, “Infographic: ICTY Facts & Figures.” International Criminal Tribunal for the former Yugoslavia, 2017.

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Bibliography Dallaire, Roméo. Shake Hands with the Devil: The Failure of Humanity in Rwanda. De Capo Press, 2003. Glendon, Mary Ann. A World Made New. New York: Random House, 2003. Humphrey, John P. Human Rights and the United Nations: a Great Adventure. Transnational Publications, 1984. “The ICTR in Brief.” Legacy Website of the International Criminal Tribunal for Rwanda, 2017. unictr.irmct.org/en/tribunal. “Infographic: ICTY Facts & Figures.” International Criminal Tribunal for the former Yugoslavia, 2017. www.icty.org/node/9590. Krapf, Thomas M. “The Last Witness to the Drafting Process of the Universal Declaration of Human Rights: Interview with Stéphane Frédéric Hessel.” Human Rights Quarterly 35, no. 3 (2013): 753–68. doi.org/10.1353/hrq.2013.0033. Morsink, Johannes. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press, 1999. Morsink, Johannes. “World War Two and the Universal Declaration.” Human Rights Quarterly 15, no. 2 (1993): 357–405. doi. org/10.2307/762543. Roberts, Christopher N. J. The Contentious History of the International Bill of Human Rights. Cambridge: Cambridge University Press, 2015. Roosevelt, Eleanor. “The Promise of Human Rights.” Foreign Affairs, April 1948. www2.gwu.edu/~erpapers/documents/articles/promiseofhumanrights.cfm. Pius XII. On the Unity of Human Society. Encyclical Letter. Vatican website. October 20, 1939. www.vatican.va/content/pius-xii/en/encyclicals/documents/hf_p- xii_enc_20101939_summi-pontificatus. html. UN General Assembly. “Universal Declaration of Human Rights.” 217

Pre-Law Review | 2021 (III) A. Paris, 1948. www.un.org/en/universal-declaration-human-rights/ (accessed October 24, 2019). Waltz, Susan Eileen. “Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights.” Human Rights Quarterly 23, no. 1 (2001): 44–72. doi. org/10.1353/hrq.2001.0012.

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On the Dynamics of Law & Politics Ghayas Osseiran Edited by: Rachel Gertin Artwork by: Fo Wu

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o state that the “law is inherently political” is to propose a confounding moral dilemma. The law must be grounded in neutrality and impartiality, while politics, on the other hand, aims to be

a more flexible and adaptable societal force. The convergence of these two spheres presents a volatile yet necessary moral hazard. In Jean-Paul Sartre’s infamous dirty hands problem he posits an interesting notion, that of the necessity of immoral actions when assuming a political role, especially when aiming to serve a greater good. In 1942, the United States conducted “Operation Underworld” where they received the aid of the Italian and Jewish Mafias in their WW2 efforts. These collaborations were instrumental for the US’s domestic defense strategy during the world war, and yet fundamentally undermined the US principle of justice pertaining to impartiality. What happens when this interjection of political ideologies and individually perceived “greater goods” hides behind the guise of legal neutrality and objectivity? Is the politicization of the law an unnatural phenomenon or a natural one? Is it an impermissible wrong or does it hold instrumental value? It’s no question that in times of war what we deem permissible for the protection of peace expands, but at what point does this permissibility halt? The law bridges the gap between morality and justice, and while politics can bear moral complexities that deal with necessary wrongs, such as receiving aid from the Mafia for the sake of national security, justice remains rigid and self-aware of the perceived legitimacy it is contingent on. To say this line is drawn at the law would be a gross deviation from the actual structures of western liberal democratic justice systems and their entanglement with political spheres. Consequently, the question of where this line ought to be drawn presents a more pertinent study. This essay will delve into the mechanisms which politicize the law, the philosophical foundations for these legal apparatuses, as well as discuss the historical implications of the relationship between law and politics. If the law is inherently political, then an important question that

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we must ask ourselves is how? What are the mechanisms through which the law can be politicized? The Minister of Justice of Canada is responsible for seeing that matters of public affairs and administrative justice remain in accordance with the law. Conversely, the Attorney General is responsible for litigating on behalf of the crown and acts as the chief legal advisor. In the United Kingdom, these two roles are separate and held by two different individuals, such that the Minister of Justice is a partisan member of cabinet, while the Attorney General is bound first and foremost to the law. However, in Canada, these roles are held by the very same person, David Lametti. This dual role underscores the law’s political dimension in the complications which arise from the conflicting natures of law and politics. In 2011 one of the biggest employers in Canada, SNC-Lavalin was being litigated by the Attorney general, Wilson-Raybould, on charges of fraud and corruption after having bribed the Libyan government for oil contracts. While the Shawcross Doctrine affords the Attorney General the final decision to prosecute, the duality of roles introduces political pressures on this decision. Prime Minister Trudeau’s administration pressured Raybould to favor her political role as Minister of Justice and place more weight on the protection of jobs that Lavalin provides. Her refusal to do so ultimately resulted in her resignation from the roles of Attorney General and Minister of Justice. Legal decisions hold political implications, whether that decision is to prosecute a company whose financial health is intertwined with that of the economy and the employment market, or whether the decision is on the constitutionality of LGBTQ marriage, or even on the legality of segregation laws. Western democracies are characterized by their civil societies, thus, wherever lies political implication, will also lie political interests that initiate pressure for or against those implications. How do these pressures figure themselves into the law? The way political pressures figure themselves into the law can be illustrated through the crucial distinction between the United States and

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the Canadian legal systems in their approaches to judicial appointment. While countries like Canada strictly appoint judges, many states in the US hold partisan elections, and appointments are overtly politically motivated. US Supreme Court judges for instance, are appointed by the president, and oftentimes these judges are appointed based on their alignment with the president’s platform. President Trump nominated Brett Kavanaugh for the position of Supreme Court judge with the express intent of shifting the court’s jurisprudence rightwards since Kavanaugh’s conservative stances on topics such as abortion closely parallel those of the right-leaning Republican president. This appointment system provides an avenue for political interests to influence the the shape the law takes. Sebastian Marotta, a legal academic at Georgetown, brings up a principal obstacle to the US adoption of the Canadian model for resolving Gerrymandering, which was the partisan bias of American judges given their election on the basis of a Democratic or Republican platform.1 One could argue however, that surely the interjection of political bias is limited in its influence on the law, how many cases in a docquet truly evoke a political bias? At the core of western liberal democracies lies a fundamental assumption, the aim to protect of the socio-political freedoms of individuals, so naturally when the extent protection is in question, these questions are going to have their day in court. Today’s legal world is machinated by cases of political freedoms, of social identity, and in legal systems like the US’ where the involvement of political alignment with judicial appointment has been normalized, political bias is an affluent legal force. In James B. Kelly and Christopher Manfredi’s paper on the Canadian Charter of Rights and Freedoms (2009), the relationship of the law and federalist politics is accentuated when the supreme court is described as “umpires of federalism.”2 Before the 1982 Charter of Rights and Freedoms, indigenous affairs and land claims were often resolved in the courts through the lens of federal or provincial jurisdictional

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arguments. In the 1879 indigenous land claim case Williams Lake Indian Band v. Canada (2018) for example, an indigenous land claim case dating back to 1879, the question of who should bear the onus of fiduciary duty, the provincial government of British Columbia or the federal government, served as a central point of contention.3 In other words, everyone agreed that the land was illegally procured, but the question of legal responsibility very conveniently - or inconveniently depending on who you ask - falls in the limbo of political disagreement. This case highlights a prevalent feature of legal debates on land claims before 1982, a federalist motif that has since been replaced by that of individual rights and freedoms. The deliverance of justice is limited by the frameworks set in place by the legislative forces which underscore it. When the 1982 Charter, was first passed it expanded the repertoire that legal actors have access to when considering indigenous land claims by absorbing the responsibility over the rights and freedoms of these indigenous peoples. In fact, Kelly and Manfredi’s paper charges the Supreme court with a second function, the status of “guardians of the charter.” The 1982 Charter expanded the role of courts by increasing judicial oversight over legislation, as well as on cases on conflicting political freedoms.4 In response to this expanse, the Charter received a lot of scrutiny from the legal and academic world. If appointed individuals make political decisions rather than elected actors, aren’t we at risk of trivializing the core tenets of representative democracies? At times, this would seem a prudent objection to judicial overreach, but in certain contexts, it would be in the interest of morality and justice that these appointed judges make decisions rather than the elected individuals. In R v. Lyons (1987) it is recognized by the Supreme Court of Canada that determining the penalty for particular criminal activity is a “right given to Parliament by this court.”5 When we’re faced with cases such as Her Majesty the Queen v D.B. (2008) where the youthful respondent challenged the legislative mechanisms of

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placing the onus of proving deservedness of a youth sentence on the defendent, a citizen is in dispute with the state on the subject of that same right which Parliament holds and its conflict with his freedom.6 This form of legal dispute between a citizen and the state over personal political freedoms is is not uncommon. Rather, the entire criminal system is built on contentions of this nature. Perhaps it would be more responsible to allow the court to shape the sentencing rather than continuing to afford this “right given to Parliament by this court” (R v. Lyons). In Queen v D.B. (2008) a principal point of discord was on the interpretation of parliamentary intent when balancing between “society’s safety and the reduced moral blameworthiness of youth.”7 Political forces in representative democracies must consider majoritarian public opinion, but when the level of society’s perceived level of safety influences how politicians determine legislation on criminal law, the implication can be subtle but volatile. In 1692 the judicial body of Massachusetts, United States, allowed their judgment of their perceived safety to dictate law by the power afforded to them by the state. Those trials were also commonly referred to as the Salem Witch Trials and ended in the litigation of over 200 suspected witches, and the execution of over 20 people. It is evident that when the power of the law is deviated by political fears, the outcomes are often disastrous. The aforementioned examples illustrate a dark and eerie picture of the political interjection in the law, however it is essential to then question whether there is a reason these two forces are so intertwined. To understand the other side of this marriage between law and politics, we must understand why the relationship exists in the first place. Legal scholars often situate the acceptance of a common moral and legal framework when we move from a state of nature to a civil state. This state of nature is characterized by its hypothetical existence before political association under a legitamate and centralized source of legal and political authority. The idea of law and justice is initiated by the conception of the

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state, by the introduction of an otherwise non-existent social fabric. What is the law if not the system of justice that mediates between agents, and what is a system that mediates between agents without a social fabric to hold them accountable to each other? The shift from the state of nature to a civil state initiates the conjoining of politics and law by virtue of the interdependence of justice and this social fabric that underscores our political spheres. When a society experiences this shift you assume something that wasn’t previously there, a societal fabric underscored by a legal obligation to people within your political field. This social contract exists under the contingency of the collective belief in its existence, just like the legitimacy of the authority of the state or the law is contingent on the very same agreement. In 1960 the Greensboro sit-in took place at Woolworth’s lunch counter in North Carolina. A group of young African Americans exercised their right to civil disobedience under the US constitution, and in turn, challenged the legitimacy of an unjust law, that of racial segregation.8 It is clear that political influence places pressure on the judicial system, and while at times this may end in a witch hunt, at other times it challenges oppression. Civil disobedience as the threat of the dissolution of this social fabric is just as much a contention against the legitimacy of the law as is it is a threat of reverting to a state of nature. The law is rigid and absolute, while politics is adaptable and penetrating. Alone these two forces would diverge rampantly, but true justice lies in their coalescence, at the point of balance. This exploration of civil disobedience as a positive force on the law underscores an important aspect of the law, its contingency on the collective’s perceived legitimacy of it. I submit that the accountability of the legal system to the citizens it serves exists by virtue of the mechanism of political legitimacy. As identified in the previous discussions, it is often difficult to separate one’s legal identity from his socio-political identity, and thus political resurgence can aim to shift judicial injustices and political biases. In the United Kingdom,

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the Labouchere Amendment of 1885 references the criminality of “gross indecency,” a notion that had been contextualized in reference to homosexuality.9 Alan Turing was famously prosecuted in 1952 under this exact clause and was mandated to chemical castration treatment. If these gross transgressions of the law were not challenged by civil societies and humanitarian groups who built political pressure to amend these laws, we would be living in a dystopian reality of judicial overstep. In Wade Mansell’s book, A Critical Introduction to Law, he states that the “law is inherently political, and reflects the interest of the few while presenting itself as neutral.”10 Whether the law “reflects the interest of the few” is not so much a function of the law itself, but the political structures which machinate it. In western democratic societies, it would be intuitive to assume that the law must reflect the interests of the many, or contrastingly in communist unions and dictatorships that the law would reflect the interest of the elite few. An air of morality seems to arise, a normative dimension to this discussion. On one extreme we’re face with a law that reflect the interests of the many and remains largely susceptible to societal political forces, and on the other end, we see a law that conserve its rigidity in reflecting the interests of the elite few. Political influences will exist irrespective of their sources, our political identities are intertwined with our legal identities after all, and thus the question remains. If the many provide the law with direction then the law is naturally exposed to more political influences, be it from civil societies, corporations, or even the personal biases of judges. If the few provide the law direction, however, the number of political agents influencing the law drops considerably. Under systems where the law is determined by a centralized body of power, it will thus retain the rigidity and resistance to change which political influences would have otherwise softened. After the 1917 Russian Revolution, the Leninist party afforded itself absolute rule over the law, and laws were often passed that directly served the party’s polit-

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ical interests. Amongst those laws was the right to eliminate individuals opposing the regime without trial, and expropriate “land, banks, insurance companies, and large factories.”11 The moral hazard of the law representing the few is clear, but what is less clear is whether western democratic judicial systems are impervious to such moral failings. Ahmaud Arbery was jogging when he was shot down by Gregory McMichael and his son Travis McMichael. It’s a story as old as America itself, one of colonial institutionalized slavery, of segregation laws, a story of redlining and affirmative action, police shootings, and lasting residual racism. It is important to note that a crucial assumption of the written law is its neutrality, and while that may conflict with our convictions as observers of legal injustices, it remains intently neutral. The prosecutor in the Arbery case stated “It appears their [the assailants’] intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia law, this is perfectly legal.”12 This law aimed to protect enforcers’ right to citizens’ arrest. However, while the law might have been conceived with rational intent, its interpretation is subject to political distortion. Therefore, whether the assailants were justified in slaughtering Arbery becomes a much more ambiguous legal question contingent on whether Arbery presented a credible threat to the social order or the assailants themselves. Yet, it is important to note, that to separate the political motivations from the legality of the assailants’ actions is to be disillusioned to centuries of racially charged distortions of the law. In Roberts v City of Boston (1850) for instance, the chief justice ruled that segregation of schools posed no constitutional breaches, a ruling that wasn’t overturned by the Supreme Court until the historical Brown v. Board of Education (1954).13,14 While Supreme courts aren’t impervious from political distortions of the law, lower court precedents accentuate the grassroots effects of these political biases. Just as these rulings can act as impediments to social change, they can also

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act in support of it. Monroe v. Pape (1961) opened up avenues for agents to sue government actors over violations of civil rights, consequently placing the judicial branch in between the civil struggle between citizens and an oppressive government. By doing so, the responsibility of judges, including those presiding in lower courts, expands into the mediation of racial struggles. As an intermediary of what can be characterized fundamentally as political unrest, the political role of the law becomes more brazen. The normative question of political interjection into the law becomes a question that can only be answered by the “rightness or wrongness” of the trajectory of the political sphere. A sinister part of US legal history shook our conception of neutrality of justice to its core in the 1950s. U.S. Senator McCarthy launched a series of investigations and hearings aimed at uncovering communist ploys and threats to national security. These proceedings morphed into rampant and gross transgressions of the law, public shaming, unsubstantiated allegations, and drumhead trials.15 Political fears and paranoia created social pressures on the judicial branch to prioritize a seemingly threatened national security over the political freedoms and fundamental principles of justice on which the legal system was grounded. The relationship between politics and the law can be a volatile one, and while it serves to ensure justice adapts to what we deem moral, it opens the legal system to the fearful side of the warlike man. Nietzche once stated that “under peaceful conditions a warlike man sets upon himself,” in times of peace a soldier will cling onto his survivalistic fears and attack himself. When a state instumentalizes the law to reflect its need to maintain its perceived legitimacy under the mantle of protector from a war it has launched on itself, the law must be ready to step in and utilize its own sway over political affairs. Thus, not only must the law adapt to the times of peace just as the times of war, it must also protect against the times the warlike man goes to war with himself.

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Notes 1

Wilson Center, “Can the U.S. Solve Gerrymandering?” (Wilson Center 2015).

James B. Kelly and Christopher Manfredi, Contested Constitutionalism Reflections on the Canadian Charter of Rights and Freedoms (The Oxford Handbook of Canadian Politics 2009). 3

Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83. 4

Hiebert, Janet L.. “Parliamentary Engagement with the Charter: Rethinking the Idea of Legislative Rights Review.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 58. (2012). 5

R. v. Lyons, [1987] 2 S.C.R. 309.

R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25.

Ibid (148).

Michael Ray, “Greensboro sit-in” (Encyclopædia Britannica, inc. 2019).

The Criminal Law Amendment Act 1885 (Labouchere Amendment) s 11.

Wade Mansell, Belinda Meteyard, and Alan Thomson, A Critical Introduction to Law, 3rd edition (London; Cavendish, 2004, back cover). 11

Peter B. Maggs, “Soviet Law” (Encyclopædia Britannica, inc. 2017).

Jenny Jarvie, “Two arrested in Georgia as anger builds over shooting of Ahmaud Arbery,” 2020. 13

Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850).

U.S. Reports: Brown v. Board of Education, 347 U.S. 483 (1954).

Paul J. Achter, “McCarthyism” (Encyclopædia Britannica, inc. 2020).

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Bibliography Achter, Paul J.. “McCarthyism” (Encyclopædia Britannica, inc. 2020). Charter of Rights and Freedoms 1982 Hiebert, Janet L.. “Parliamentary Engagement with the Charter: Rethinking the Idea of Legislative Rights Review.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 58. (2012). Jarvie, Jenny, “Two arrested in Georgia as anger builds over shooting of Ahmaud Arbery,” 2020. Kelly, James B., and Christopher Manfredi, Contested Constitutionalism Reflections on the Canadian Charter of Rights and Freedoms (The Oxford Handbook of Canadian Politics 2009). Maggs, Peter B.. “Soviet Law” (Encyclopædia Britannica, inc. 2017). Mansell, Wade, Belinda Meteyard, and Alan Thomson. A Critical Introduction to Law, 3rd edition (London; Cavendish, 2004, back cover). Monroe v. Pape, 365 U.S. 167 (1961) Ray, Michael, “Greensboro sit-in” (Encyclopædia Britannica, inc. 2019). Wilson Center, “Can the U.S. Solve Gerrymandering?” (Wilson Center 2015). Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850). R. v. Lyons, [1987] 2 S.C.R. 309 R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25 The Criminal Law Amendment Act 1885 (Labouchere Amendment) s 11 U.S. Reports: Brown v. Board of Education, 347 U.S. 483 (1954). Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83

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Technologizing Society

A Review Essay on Ronald Niezen’s Human Rights 3.0

Mackenzie Birbrager

Edited by: Sophie Sklar Artwork by: Tristan Sito

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uman rights compliance is multifaceted, requiring robust infrastructure and a value system that accepts the principles of human rights. In his book, #HumanRights: The Technologies and

Politics of Justice Claims in Action, Ronald Niezen outlines the concept of Human Rights 3.0, which features the emergence of a new era of human rights and digital governance, casting technologies as agents of grassroots justice and human rights compliance. Through the emergence of social media, big data, cloud computing and artificial intelligence, there is currently a transition in how justice-orientated activism interacts with society.1 Technology has become as important as traditional legal mechanisms for human rights claimants. The challenge becomes leveraging technology effectively to further the success of human rights compliance. Niezen focuses on highlighting the pros and cons of technology being utilized as tools of justice advocacy and detailing the parameters of tech corporations’ role in human rights. While Niezen tactfully displays many central debates fundamental to Human Rights 3.0, the most compelling is how to influence profit-motivated companies to embrace and adhere to an ethics mandate. Which burden of responsibility bears greater weight: shareholders or justice claimants? While Niezen does not provide a definitive answer for these challenges, his discussion of these dilemmas states that while technology can be an advantageous tool for the implementation of human rights itself, tech companies cannot be the sole custodian of human rights. The prevalence of social media platforms, the mass availability of smartphones, expansive possibilities in data processing and artificial intelligence have proven to be unprecedented agents in raising awareness for justice movements. Technology is instrumental in broadening the reach of advocacy movements to occupy the everyday tech user as an activist in their own right.2 In this manner, Niezen does a tremendous job showcasing his intended audience for the piece, any technology user. The heightened accessibility of public outreach and information has emphasized the pri-

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macy of public opinion in contemporary displays of justice campaigning. Consequently, the court of public opinion becomes instrumental in guiding what is tried in court rooms, discussed in UN meetings and publicized in mainstream media. The capacities for technology to investigate, document and publicize human rights violations are remarkable. However, technological development has also been weaponized as a tool of the state to induce political repression, invoke legitimacy of authoritarianism and propagate human rights violations.3 New forms of technologically-facilitated activism juxtapose technologically-facilitated rights violations, which include the invasion of privacy, the instigation of censorship and the dissemination of inaccurate information. In her book, Human Rights and Gender Violence: Translating International Law into Local Justice, the Silver Professor of Anthropology and former director of the Center for Human Rights and Global Justice at NYU, Sally Engle Merry, discusses the commensurability of human rights, when human rights and social practices can be translated out of their context and be understood in alternative settings, such as local Indigenous communities. The process of translation is integral to facilitate commensurability across differing conditions of class, ethnicity, education and mobility. In the chapter, “Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular,” Merry explains this concept further, “Intermediaries who translate global ideas into local situations and retranslate local ideas into global frameworks play a critical role in the process.”5 Through translation, a local rights consciousness is able to be fostered within grassroot communities, as global human rights frameworks are learned to fit local contexts. In accordance with Merry’s propositions, technology serves as an intermediary in the global framework of human rights, facilitating the translation of human rights principles into local communities. However, Niezen’s discussion of China’s use of technology as a tool of state repression demonstrates the obstacles to

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translation. China employs technology as mechanisms to eavesdrop, censor and coerce its citizens. Illegal uses of the internet, as dictated by Chinese state law carry severe punishments including jail sentencing.6 In this regard, the commensurability of human rights is infringed upon because technology can only be as much of an agent for human rights compliance when governments allow it to be. Therefore, in environments such as China, the effectiveness of technology becomes distorted as the incommensurability of human rights becomes realized. While Niezen’s account of the shortcomings of Human Rights 3.0 is nuanced, he omits to discuss how the criminalization of technology by individuals infringes on the efficacy of its use for human rights compliance. Niezen considers the use of surveillance technologies to introduce e-carceration which could present a more data-centric justice system reducing the number of falsely accused criminals.7 While technological capacities prove beneficial in this regard, these abilities can also be subject to manipulation for terrorist and human trafficking activities. For example, the Hawala system is a cash-transfer network that allows for the untraceable path of finances in the Arab world.8 A Hawala broker receives money in-person to contact a broker in another region who facilitates through WhatsApp a plan to pick up the money. This exchange is beneficial for terrorist organizations, as it is not only untraceable but also comes with lower fees than those at banks or credit unions.9 This use of technology to promote criminality poses grave threats for global security and juxtaposes the intentions of technology being used to improve the criminal justice system. The potential for criminal manipulation symbolizes a greater picture that the piece is missing: the threatening consequences of the mass availability of technology when it is put in the hands of individuals who have terrorist or criminal motivations. With the absence of formal standards of corporate social responsibility for human rights, incentivizing corporations to put aside profits

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in favour of potential human progress proves to be counterintuitive to business mandates. In such consideration, human rights are subjected to the politics of corporate culture.10 Sally Falk Moore discusses the various interpretations of law, particularly ‘law as domination,’ in which law is perceived as a propagator for the interests of powerful capitalists. In this regard, law is “a mask for elite interests globally” perpetuating systems of oppression.11 Niezen explains that the inscrutability of algorithms and proprietary matters creates issues of transparency.12 For instance, if technology corporations safeguard their intellectual property over human rights objectives, these companies become microcosms for ‘law as domination,’ in turn abusing the systems of law to adhere to capitalist interests. Lack of transparency by technology creators creates complexities for law enforcement, as capitalists now carry an unprecedented global responsibility.13 By analyzing this piece through a legal anthropological lens, readers are able to investigate the intersection of law and culture as it pertains to the ways in which human rights frameworks and legal landscapes are being impacted by technologizing society. Through the discussion of everyday social media users assuming new roles as activists and the weaponization of technology by state actors, Niezen was able to demonstrate how technology has simultaneously enhanced and hindered the discipline of human rights law and compliance. While the role of tech corporations within legal spheres has been enhanced, so has the role of the ordinary citizen. This evolution of legal pluralism will prove instrumental in the strength of human rights compliance moving forward, since grassroots-driven rights claims and advocacy movements will hopefully translate to heightened opportunities for the marginalized to find their voice and fight against their oppressors.14

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Notes 1 Ronald Niezen, “Human Rights 3.0,” in #Human Rights: The Technologies and Politics of Justice Claims in Action (Stanford CA: Stanford University Press, 2020), 81. 2

Niezen, “Human Rights 3.0,” 92.

Niezen, “Human Rights 3.0,” 82.

Niezen, “Human Rights 3.0,” 100.

Sally Engle Merry,” Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular,” in Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago and London: The University Chicago Press, 2006), 134. 6

Niezen, “Human Rights 3.0,”109.

Niezen, “Human Rights 3.0,” 114.

Mohammed Qorchi, Samuel Malmbo, and John Wilson, “Informal Funds Transfer Systems: An Analysis of the Informal Hawala System,” International Monetary Fund (August 2003): 1. 9

Qorchi, Malmbo and Wilson, “Informal Funds Transfer,” 8.

Niezen, “Human Rights 3.0,” 114.

Sally Falk Moore, “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999,” The Journal of the Royal Anthropological Institute (2001): 96. 12

Niezen, “Human Rights 3.0,” 127.

Niezen, “Human Rights 3.0,” 125.

Niezen, “Human Rights 3.0,” 99.

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Bibliography Merry, Sally Engle. “ Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular.” In Human Rights and Gender Violence: Translating International Law into Local Justice, 134-178. Chicago and London: The University Chicago Press, 2006. Qorchi, Mohammed, Samuel Malmbo, and John Wilson. “Informal Funds Transfer Systems: An Analysis of the Informal Hawala System.” International Monetary Fund (August 2003): 1-28, dx.doi. org/10.5089/9781589062269.084. Moore, Sally Falk. “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999.” The Journal of the Royal Anthropological Institute. 2001. JSTOR Ebrary. Niezen, Ronald. “Human Rights 3.0.” In #Human Rights: The Technologies and Politics of Justice Claims in Action, 78-130. Stanford CA: Stanford University Press, 2020.

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Free Love, Postcard Divorces, and the Early Soviet Government’s Legal Regulation of the Family John Jakob Etter

Edited by: Maya Ibbitson Artwork by: Tasmin Chu

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arly Soviet family policy, championed by advocates such as Aleksandra Kollontai, was considered one of the most progressive family policies in the world in the 1910s and 20s, as it took ‘radi-

cal’ positions on many issues. For example, the stigma surrounding illegitimacy was eliminated in the 1918 code; descent was declared to be founded on the basis of blood, without regards to the nature of the relationship, be it a legal marriage, civil marriage, or outside of marriage altogether. As Lauren Kaminsky explains, the “1918 Family Code disassociated childbirth and marriage... giving unprecedented legal rights to women.”1 Additionally, divorce was facilitated in 1918, and when the 1926 family code went as far as to define marriages by cohabitation or ‘common law’ as legitimate, the infamous ‘postcard divorce’ was made possible. This meant that getting a divorce required one to simply inform their partner of their wish to terminate the relationship. However, by the 1930s and 40s, the Soviet government enacted measures that reversed many of these ideas of the immediate post-revolutionary period. The 1936 constitution tightened regulations on divorce and made it much more difficult to separate from one’s partner. Both spouses had to formally appear for divorce proceedings and pay a sizable fee to the court. In 1918, a person’s first divorce cost three rubles; in 1936, it cost fifty.2 The 1944 decrees carried the spirit of the 1936 constitution even further by returning to the stance of considering legal marriage as the sole source of recognized family relationships. This completely ended the Soviet experiment with unregistered marriage.3 Furthermore, tightening regulations on divorce was not the only way the concept of family was strengthened. Abortion, which had been legalized in 1920, was recriminalized under the 1936 constitution, and new family laws in 1944 encouraged women to have more children by offering financial incentives. There was a surge in propaganda about motherhood, proclaiming how important children were for a woman’s life and insisting that childbirth was not too painful to bear.4

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Paternal obligations to the family were also increased. For example, regulations concerning alimony and child support were tightened and the penalty for nonpayment of these dues rose to a maximum of two years in prison.5 All of these reversals on the ideas of early family policy were not isolated events in the 30s and 40s, but rather part of the broader swing to conservatism and push-back on revolutionary Bolshevik ideals that occurred under Stalin in the Great Retreat. After Stalin declared that socialism as achieved in 1934, both governmental and popular desire for a sense of stability began to grow. The massive disruptions that had been caused by industrialization, urbanization, and the collectivization of agriculture greatly contributed to this desire for stability. These factors combined to explain the shift away from the early Soviet period’s revolutionary family ideology towards strengthening the family as an institution. In addition to the desire for stability, there were two other leading causes of this reversal: a response to popular discontentment surrounding the family policy of the early 20s, and the Stalinist government’s drive to increase the Union’s birthrate. In theory, early family policies were meant to encourage relationships based on ‘free love’ (allowing more choice in sexual and romantic relationships), the promotion of equality between the sexes, and the allowance of more autonomy for women in general. However, in practice, many goals of family policy failed to materialize, and instead caused the emergence of some new problems for women. Without marriage binding parents together, women were often left to raise children on their own, while state resources for childcare were lacking. This meant that women were often left with the double burden of working in factories to contribute to industrialization, while also raising children as single mothers. The 1926 family code attempted to solve this problem by enacting alimony measures for women who had children outside of a registered marriage. However,

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this was an imperfect measure, as it placed financial strain on registered marriages, where the husband was being sued for alimony by mothers of their other illegitimate children. There were also moral complaints from those who felt that the 1926 code inappropriately promoted polygamy by removing sanctions for promiscuity.6 Lastly, relationships based on ‘free love’ contributed to the massive numbers of homeless and orphaned youth. This occurred in large part due to the inadequacy of state childcare systems, meaning women raising children on their own often did not have enough resources to take care of their children. The number of homeless children was only worsened by casualties from the First World War and the Civil War.7 These grievances rising from the early family policies had a strong influence on both the public’s and the government’s opinion of the family code. Before enacting the 1936 constitution, the government surveyed opinions on the family as an institution and found that many people, including women, supported strengthening the traditional concept of the family. The government was also acutely aware of problems stemming from the 1918 and 1926 family codes. For example, the crime rate amongst the considerable population of homeless children was attributed to “family disintegration,” so strengthening the family was a possible solution to the issue of petty crime.8 In addition to repairing problems caused by the early family code, the government was also inclined to strengthen the family as an institution because of accumulating concerns around the Soviet Union’s birthrate. There was a growing opinion that the Union needed to increase its birthrate in order to hasten industrial growth and maintain relevance on the world stage. As David Hoffmann argues, “in an age of industrial labor and mass warfare, a large and disciplined population was seen as essential for national power.”9 Additionally, the larger the population was, the quicker industrial and economic growth could occur, and therefore the sooner socialism and communism could be achieved. Rather than occurring in re-

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sponse to a rapidly growing population, the pronatalist movement was born out of declines in birthrate. The Soviet birthrate had dropped from 42.2 to 31.0 births per thousand people from 1928 to 1932, triggering worries about population size and causing the government to enact pronatalist policies.10 For example, when the state took control of the economy in the 1930s, the government stopped producing contraceptives in a calculated attempt to increase pregnancies. The government’s fixation on increasing growth rate was exemplified by the Politburo’s decision to re-criminalize abortion in 1936. Records reveal that discussions about the bill before it was passed were largely linked to maximizing the birth rate, instead of new moral or ethical objections to abortion. Interestingly, while the real decision was based on considerations of population growth, it was propagated to the public as caused by the dangers of abortion to women’s health.11 Increasing the birthrate was tied to strengthening the family as an institution, because merely increasing the number of children without taking measures to ensure their upbringing could aggravate the problem of homeless youth. The 1936 code standardized alimony payments to address this issue by providing more support to mothers.12 Massive casualties caused by World War II only served to contribute to the pronatalist movement, triggering a decision to provide monetary incentives for women to have multiple children in the 1944 decrees. In addition to solving problems of the previous family codes and promoting population growth, the family was strengthened as a way to bring a sense of stability that was desperately needed in Soviet society. Turning away from upheaval in favor of stability was not a novel idea. For example, Stalin acknowledged the need to pull back on collectivization, and re-established hierarchies in workplaces and universities during the 1930s. Vera Dunham argues that by the post-World War II period, “neither the regime nor the middle class was interested in ideology or further revo-

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lutionary upheavals.”13 As such, returning to the traditional idea of the family as a social institution provided a relatively uncontroversial way to offer some societal stability. Therefore, in contrast to the revolutionary ideals of the early government, the Stalinist government came to see the concept of family as a tool to help build communism, rather than something that was hindering communism’s progression. In addition to the government’s determination to raise the birth rate, the desire for stability and the need to address social problems caused by early family policies account for the major reasons the government began to strengthen the family as an institution from the 1920s onwards.

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Notes 1 Lauren Kaminsky, “’No Rituals and Formalities!’ Free Love, Unregistered Marriage and Alimony in Early Soviet Law and Family Life,” Gender & History 29, no. 3 (November 2017): 718-19. 2 David L. Hoffmann, “Mothers in the Motherland: Stalinist Pronatalism in its Pan-European Context,” Journal of Social History 34, no. 1 (2000): 44. 3

Kaminsky, “No Rituals and Formalities!” 726.

Hoffman, “Mothers in the Motherland,” 39, 42.

Hoffman, “Mothers in the Motherland,” 44.

Kaminsky, “No Rituals and Formalities!” 723-24.

Hoffman, “Mothers in the Motherland,” 44.

Hoffman, “Mothers in the Motherland,” 35.

Hoffman, “Mothers in the Motherland,” 37.

Hoffman, “Mothers in the Motherland,” 39-40.

Kaminsky, “’No Rituals and Formalities!” 725.

Vera S. Dunham, “The Big Deal,” in The Structure

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Bibliography Dunham, Vera S. “The Big Deal.” In The Structure of Soviet History, edited by Ronald Grigor Suny, 218-230. Oxford: Oxford University Press, 2003. Hoffman, David L, “Mothers in the Motherland: Stalinist Pronatalism in its Pan-European Context.” Journal of Social History 34, no. 1 (2000): 35-54. Kaminsky, Lauren, “’No Rituals and Formalities!’ Free Love, Unregistered Marriage and Alimony in Early Soviet Law and Family Life.” Gender & History 29, no. 3 (November 2017): 716-731.

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Speaking in Turn

An Analysis on Proportionality’s Place in Charter Dialogue Theory

Emily Vaillancourt

Edited by: Dia Mukherjee Artwork by: Fo Wu

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magining a coherent, calm discussion between a group of politicians, judges, and lawyers about Charter rights and their limitations seems like an impossibility. How could a group of such opinionated people

ever manage to establish an effective dialogue? Nonetheless, there is evidence to suggest that beyond the individual actors, the broader institutions themselves, the judiciary and the legislature, engage in a form of dialogue regarding the limitation and scope of rights. Canadian constitutional theorists Peter Hogg and Allison Bushell articulated the Charter Dialogue thesis in their 1997 article aptly titled “Charter Dialogue.” The initial thesis suggests that the structure of the Charter, particularly section 1, generally leaves room for the legislature to respond to a court’s decision to strike down a law on the grounds of a Charter infringement by enacting a new law that accomplishes the same legislative purpose but through different means.1 In this paper I will introduce the role that proportionality plays in Canadian Charter dialogue. Proportionality refers to a balancing between the detrimental and advantageous effects of a given law. While the extent to which the legislature uses its ability to reply to court decisions regarding rights infringements is subject to debate, by closely analyzing the structure of the Charter it becomes clear that the Charter is specifically designed to avoid judicial supremacism.2 The majority of my analysis will involve a close reading of section 1, the reasonable limits clause, and its ability to encourage dialogue through the use of proportionality analysis. Additionally, I will include a brief discussion of Section 33, the notwithstanding clause, and the effects of its limited use. Once I have clearly outlined my theory of proportionality-based dialogue, I will demonstrate how it fits into the broader metaphor of dialogic relations between the judiciary and the legislature. It is important to consider that dialogue as a principle is not easily defined, and what exactly qualifies as dialogue can be disputed depending on which

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definition one accepts. For this reason, I will also explore and evaluate various types of dialogue interpretations. Ultimately, I will conclude with the idea that dialogue that is structured through proportionality analysis and ensures a strong judicial presence is most effective in Canada. By allowing for consideration of all perspectives while simultaneously ensuring the protection of the core rights and freedoms that serve as the foundational principles of constitutional democracy, proportionality analysis establishes an ideal framework for dialogue. Additionally, proportionality-based dialogue occupies an ideal middle-ground between extreme, expansive approaches to dialogue and narrow, constructive approaches. Consider this: partaking in conversations that involve a back and forth contestation of viewpoints, and lack moderation, will leave one going in circles. By analyzing the way that proportionality analysis facilitates dialogue between the judicial branch and the legislature, I will demonstrate the essential role it plays in the relationship between these institutions. Before exploring the function of proportionality analysis, a brief explanation of its history in Canada’s constitutional system is in order. The Charter was ratified in 1982 with a significant opening clause: Section 1, the reasonable limits clause. Specifically, Section 1 states that the rights in the Charter are subject to reasonable limitations as prescribed by law and deemed justifiable in a free and democratic society.3 The test to determine if a limitation is justifiable was developed in R. v. Oakes in 1986. By using this test, it is possible to justify placing a limit on one’s rights to autonomy if the objective is rationally connected to the means, the means are minimally impairing, and the proportionality between the effects and the objective are considered.4 The inclusion of the reasonable limits clause and proportionality analysis in the Charter is significant because, as a result of this clause, rights are defined in relative, not absolute terms. Therefore, it is possible for the legislative branch to place limits on rights, so long as these limits are deemed to be proportionate within the intent of the legislation.

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Proportionality analysis sets out clear roles for both the judiciary and the legislature. In the 1995 case regarding placing limitations on tobacco advertising, McLachlin J commented on the way that proportionality should be addressed within the case. She identified the role of Parliament as choosing appropriate responses to social problems within the limiting framework of the Constitution, while the courts are responsible to determine, objectively and impartially, whether Parliament’s choice is consistent with the Constitution.5 With both institutions fulfilling their role, a space is opened up for a form of dialogue in which it is possible to evaluate alternative viewpoints on legislation and the scope of rights through a stringent legal framework.6 The judiciary’s role involves an evaluation of decisions made by legislatures as part of the unique virtue of their position: judges are seen as the impartial, non-partisan branch of government. Proportionality analysis aims to place the judiciary in the role of impartial moderator, without denying the objectivity of the claimant’s position.7 A central aspect of proportionality analysis involves the consideration of context, and this is also an important aspect of dialogue. Vlad Perju, in his essay entitled Proportionality and Freedom, outlines three different forms of constitutional styles and addresses the role of proportionality within the Corinthian constitutional style. He explains that “the method frames a non-deontological conception of rights within a categorical structure of formal analysis.”8 He expands on his explanation of the method by explaining how the judicial standpoint is enlarged through the integration of different perspectives, creating a constitutional space that is neither absolute or relative, but relational.9 In this way, proportionality encourages dialogue through the understanding that any of the rights subject to limitation by Section 1 of the Charter are up for debate. The legislature has the ability to participate in defining the scope of these non-absolute rights by explaining their intent to the court, and the judiciary participates by ensuring the protection of basic constitutional principles.

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I will concede that judges’ demanding that legislators defend the purpose of their legislation is a significant challenge to the legislative prerogative. The suggestion that further justification is required to support a legislation’s validity beyond the fact that it was enacted by people’s elected representatives may seem to be emboldening the judiciary beyond what is reasonable.10 To that point, I think it is important to consider that in our present legal culture, the law and courts are largely intertwined. Judicial judgements are treated as resulting from deliberations based on principle, while policy choices determined by the legislature are often viewed as decisions made out of expediency.11 It is the very insulation of the judiciary from the partisan war-zone of the democratic election process that makes the judicial institution the ideal neutral moderator. Additionally, legislation is almost never invalidated at the first stage of the proportionality test. Typically, the judiciary agrees that the purpose of the legislation is pressing and substantial.12 This stage of analysis allows for a point of recognition where the courts acknowledge the purpose of the legislation and the ends that the legislature is hoping to achieve. Proportionality is a back-loaded process where the tests become more stringent as the contested legislation progresses through the steps. Here lies what Perju considers to be one of the most appealing features of proportionality analysis: the more stages of analysis the challenged regulation passes, the stronger the recognition of the underlying public interest becomes.13 This process contributes to an essential feature of dialogue, that each side is heard and respected. Ultimately, however, as Justice McLachlin stated in the tobacco advertising decision, the court has a role to play. In a system of assertive judicial review, proportionality treats legislation with all of the deference possible.14 Ming-Sung Kuo describes two different interpretations of judicial review endorsing legislative sequels: the public could perceive this endorsement as judicial deference to legislative reconsideration of constitutional principles, or as an exercise of judicial supremacy through

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an approval of legislative concretization of constitutional rights by judicial review.15 I propose that proportionality analysis prevents Canada from being dominated by strong-form judicial review because all perspectives are respected and balanced. The judiciary serves as a protector of constitutional rights, but the institution is also able to assume the role of neutral moderator in order to fairly balance rights and intentions. In fact, Kuo supports this point later in his paper when he is referring to the role of proportionality analysis in continental Europe. He states that proportionality analysis enables courts to pivot their constitutional judgement more on the context of particular cases than on the strict definition of the constitutional text and the underlying principles.16 By allowing for the consideration of context, the courts open up the discussion of the scope and limitations of rights to the legislation. Through consideration of parliamentary intent, the judiciary acknowledges what legislatures have to say regarding the protection of certain rights. As I mentioned previously, legislation is rarely invalidated in the first stage of the Oakes test, which involves looking at the intent of the legislation. If we accept that most invalidated legislation fails to pass the minimal impairment test, it is possible to see another way proportionality analysis enhances dialogue: through the encouragement of legislative sequels. In a decision where a piece of legislation is not deemed to be minimally impairing, the court typically provides specific points as to where the legislation needs to be tailored. These suggestions encourage the legislature to re-work the legislation in a way that retains the original purpose, while simultaneously satisfiying the minimal impairment requirement of the Oakes test. Consider, for example, the tobacco advertising case mentioned earlier, RJR-McDonald. The Supreme Court agreed with Parliament that protecting the health of citizens and preventing misleading advertising are important objectives that were behind the contested Tobacco Products Con-

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trol Act. Despite this recognition, the court struck down provisions of the act that prohibited all advertising and promotion of tobacco products on the basis that the provisions limited tobacco manufacturers’ right to freedom of expression guaranteed under section 2(b) of the Charter and were too broad to be considered minimally impairing and thus a reasonable limit under section 1.17 In the discussion of the minimal impairment test, the Supreme Court indicated that it would have upheld restrictions on advertising which were limited to “lifestyle” advertising or advertising directed at children, and as a result, Parliament passed the Tobacco Act which prohibits “lifestyle” and misleading advertising while permitting informational and brand-preference advertising.18 The new legislation enacted by Parliament was a direct response to the judiciary’s decision in the first look case, and accomplished the intent of the original legislation while meeting the minimal impairment requirement of the Oakes test. Consequently, RJR-McDonald and its sequel, JTI-McDonald, serve as a prime example of both the legislature and the judiciary performing their dialogic roles. Parliament formulated an appropriate response to a pressing social concern, and the judiciary ensured the choice fell within the limiting framework of the Constitution. Importantly, a failure to satisfy the minimal impairment test should only be found if a clearly superior measure to accomplish the same legislative goals can be realistically enacted.19 As is clearly identified in the division of the legislature’s and judiciary’s specific roles, the legislature is the one and only specialist in the realm of policy-making. The role of the court is restricted to ensuring the means chosen by the legislature are reasonable, and legislative sequels (guided by the observations made through the process of proportionality analysis) provide an opportunity for legislatures to respond to court decisions with legislation that meets the requirements outlined in the Oakes test. Now, let us turn to a case that did not result in the same level of success for the legislature. Sauve 2, parliament’s second attempt to intro-

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duce legislation to disenfranchise prisoners, did not result in deference to parliament upon the second look. Instead, the judiciary found that there was no rational connection between Section 51(e) of the Canada Elections Act, which had been amended to deny prisoners serving a sentence of two or more years the right to vote, and the objectives of promoting civic responsibility and respect for the law, as well as imposing appropriate punishment.20 Despite the fact that Parliament had amended the legislation to allow prisoners serving less than two years to retain the right to vote, the Court did not defer to the legislature and struck down the legislation for a second time. The results of this case inspired Christopher Manfredi’s claim that dialogue died in Canada, and the metaphor was no longer a useful guide to judicial decision-making.21 This claim, however, grossly misinterprets what is meant by dialogue. Hogg and Bushell never argued that dialogue metaphor was a useful guide to judicial decision making.22 The argument that I am making is that dialogue occurs when the judiciary and the legislature properly accomplish their individual roles. These roles are brought together and intertwined throughout the process of proportionality analysis, which allows for a determination of the limitations of rights that has received input from both of the branches. With this understanding in mind, it does not follow that dialogue is no longer present simply because the court did not defer to the legislature in Sauve 2. As Hogg et al. explain, the right to vote was deliberately made exceptionally strong by the framers of the Charter, which makes it difficult to determine a rational basis for denying prisoners the right to vote, and a way to implement that restriction in a way that is minimally impairing.23 However, this one specific case does not change the fact that usually the legislature will be successful in finding a way to enact a new law that is consistent with the original intent.24 The support for this possibility of flexibility goes back to the consideration of context and relative as opposed to absolute rights that is inherent in proportionality analysis.

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These elements provide courts some flexibility to defer to the legislature when balancing rights. Evidently, the reasonable limits clause provides a conducive structure for productive dialogue by facilitating specific roles for courts and legislatures, placing an emphasis on the consideration of context, and encouraging appropriate legislative sequels. Now I will turn to an analysis of the function of section 33 of the Charter. Section 33, the notwithstanding clause, provides legislatures with an ability to override the court’s decision regarding contested legislation. Specifically, Parliament or the legislature of a province may expressly declare that the legislation will operate notwithstanding its limitation upon the rights protected in section 2 or sections 7 to 15 of the Charter.25 On paper, this section of the Charter appears to be a powerful limit on the judiciary. In practice, however, the notwithstanding clause plays primarily a background role in the practice of constitutional dialogue. The main reason for this reality is that, by convention, the clause has been lying in dormancy, rarely ever used. The clause has been left to wither away largely because of its strong association with the Quebec sovereignty movement. Quebec’s initial response to the Charter was to enact blanket legislation which added a provision to every provincial statute which overrode the effect of the Charter.26 Additionally, as stated in section 33(1), use of the notwithstanding clause requires an express declaration that the declaration is being enacted despite the court’s viewpoint that the legislation limits certain fundamental rights. A declaration of this kind would likely not be looked upon favourably by the public. As mentioned previously, the legal culture in Canada views the courts as being guided by principle, and politicians as being guided by expediency.27 Bypassing judicial concerns about the limitation of rights could generate mistrust in the public about Parliament’s true intentions. Hogg et al., however, insist upon the importance of section 33

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when considering dialogue in Canada. Their argument is that section 33 was included in the Charter for the very purpose of preserving parliamentary sovereignty, and there is no reason to assume that the current convention against the use of the clause will be a permanent feature of the Canadian legal system.28 In fact, they argue that the use of the override by Quebec to protect its French language policy is a prime example of how the clause could be used to protect a cherished policy threatened by a court decision elsewhere in Canada.29 While the potential for increased use of the notwithstanding clause is not an impossibility, it does not seem likely to occur in the near future. Convention has a strong role to play in the Canadian political and legal culture, and with every passing year that the clause is not used, it seems less and less likely that it will serve as a real threat to the court when they are formulating their decisions. I am also not entirely convinced that section 33 would ever have a strong role to play in regards to the metaphor of dialogue. To me, it seems to be equivalent to a teenager slamming their bedroom door after a fight with their parent, and just further delaying the inevitable, as the decision has to be reviewed every five years.30 In both cases of Quebec enacting the override clause, both the blanket legislation and the law banning the use of languages other than French on outdoor signs, the province allowed the override to expire after five years. Consequently, it appears evident that proportionality analysis plays a much more active role in Canadian institutional dialogue, and section 33, at least for now, remains in the shadows. As I mentioned in my introduction, dialogue is an abstract concept that can be defined in numerous ways. For that reason, it is essential to analyze various interpretations of dialogue and determine exactly where my proportionality-based conception of dialogue should be situated. To begin, I will discuss various interpretations of the principle of dialogue theory. I think it would be beneficial to consider the various definitions of dialogue as a sliding scale between the expansive approach

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undertaken by Kent Roach, and the more limited view of Geoffrey Sigalet, while also acknowledging Rosalind Dixon, who lies in between. Of course, these three scholars will not provide an all-inclusive look into dialogue theory, however, they will allow us to situate my view of proportionality-based analysis among them. To begin with Roach’s view on dialogue: he believes it to be extraordinarily widespread in Canadian Charter debates. He is able to establish its prevalence by defining it as occurring wherever ordinary legislation that is deemed to violate rights is interpreted by the judiciary in a wider context.31 He believes that dialogue is rooted in contextualism, and one of the main features is that it exposes the government’s true interests and intent behind legislation.32 In some ways, his take on dialogue seems to be more in line with a form of lecture: where the judiciary spells out a lesson for the legislature, and the legislature is confined to sitting and nodding while taking notes. Sigalet reinforces my interpretation of Roach’s description with his classification of “interrogative dialogue,” a form of dialogue that he sees as leaving the legislature as “suspects rather than equal partners in specifying the meaning of indeterminate rights.”33 Sigalet dismisses this form of dialogue in favour of what he refers to as “constructive dialogue.” In this definition of dialogue, courts and legislatures are both capable of employing their legal functions to construct underspecified meaning of the law, including correcting and contesting the opposing branch’s construction.34 As a result, this definition is incompatible with the idea that legislatures can justifiably infringe rights, instead it is about developing a back and forth dialogue about conflicting viewpoints on the bounds of indeterminate rights. Dixon’s middle-ground viewpoint would be characterized by Sigalet as “interruptive dialogue.” In her New Dialogue Theory, she believes that courts should be aggressive in their interpretation of Charter disputes

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upon the first look, yet defer to the legislature’s interpretation in second-look cases.35 She argues that section 1 of the Charter grants Canadian courts greater flexibility for legislative sequels than the American Bill of Rights, which lacks a limitation clause and relies upon the tiers of scrutiny, which are more arbitrary.36 It is Dixon’s approach to the proportionality test created out of an interpretation of the limitations clause that will guide the formation of my own view of dialogue in Canada. Together, section 1 and section 33 create an environment for dialogue that may not be quite as equally constructive as Sigalet imagines, but nonetheless is illustrative of a joint effort between courts and legislatures regarding the interpretation of rights and justifiable limitations on these rights. Proportionality analysis is the central piece here: it provides the judiciary with an analytic framework within which it can work, defining the perimeters of constitutional provisions and the underlying values while still leaving some room for interpretation.37 The proportionality analysis allows for the consideration of context that is so important in Roach’s expansive approach, as the three stages of the proportionality analysis in Canada focus more on the context of cases than on the definition of constitutional text and the underlying principles.38 Therefore, decisions made using the proportionality analysis are not directly about the construction of rights, rather, it is about considering the unique context of each case and then indirectly determining the scope of rights. Through this interpretation of rights analysis, there is plenty of room for legislative response, as they could always reenact an invalidated statute with a bolstered justification that could pass the proportionality test.39 This does not mean that I am in favour of automatic second-look deference, and I think Dixon would agree with me: second-look deference requires that the legislation has been amended appropriately, to ensure that the judiciary is fulfilling its role as a protector of rights. Overall, I think that my interpretation of proportionality analy-

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sis-based dialogue could be categorized similarly to Dixon as interruptive dialogue. The reasoning for this classification is that it supports the concept of the judiciary’s role in dialogue. Sigalet describes interruptive dialogue as courts interrupting the application of statutes in order to protect against unjustifiable infringements of rights.40 Sigalet finds that this approach to dialogue is inferior to the constructive approach as it increases the risk for political injustice by encouraging an aggressive first-look at legislation that diminishes the likelihood of legislative reply.41 This assumption does not seem entirely fair. In the first norm of interruptive dialogue, Sigalet proposes that legislatures will be discouraged from developing legislative sequels on the grounds that they would appear to be challenging the judicial evaluation of the unjustified infringement of rights, rather than the conflict being centred around an alternative interpretation with rights.42 However, as has been discussed, part of my approach involves defining two separate roles for the judiciary and the legislature, that when in operation with each other, produce a dialogue surrounding the limitations and scope of rights. Therefore, part of what the judiciary is doing in the proportionality analysis is acknowledging the difficult job the legislature has in attempting to develop solutions to pressing social issues by acknowledging that the important intent behind legislation in the first stages of the proportionality analysis. If the legislation is struck down in a later prong of the test, it is a result of the judiciary fulfilling their duty to safeguard the integrity of the rights protected in the Constitution. Therefore, it seems unlikely that this would diminish the likelihood of legislative reply, as this would simply be them continuing to fulfill their role within dialogue. Additionally, it is important to consider the impact of suspended declarations of invalidity. When the court strikes down legislation for unjustifiably limiting Charter rights, they can choose to suspend the declaration of invalidity in order to give time for the legislature to draft new legislation that meets the requirements of proportionality. An example of

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this is Carter v. Canada (AG), where section 241(b) and section 14 of the Criminal Code, which prohibited assisted suicide, were struck down as a disproportionate limitation on section 7 Charter rights.43 The court suspended their declaration of invalidity for twelve months in order to give parliament time to draft legislation to regulate physician-assisted suicide.44 As a result, it does not seem to follow that the judiciary striking down legislation discourages legislative replies. In fact, proportionality analysis can help guide legislative responses by pinpointing exact areas for improvement. Therefore, interruptive dialogue through the format of a proportionality-based analysis is an appropriate way to ensure both the judiciary and the legislature are fulfilling their expected roles without involving the potential negative effect of discouraging legislative replies. No aspect of this model is suggesting that the judiciary should become directly involved in policy-making. Rather, the judiciary is serving as a check on the legislature to ensure the foundational principles of constitutional democracy are upheld. McLachlin J describes the flexibility with which deference should be applied in the RJR-MacDonald decision: [...] some deference must be paid to the legislators and the difficulties inherent in the process of drafting rules of general application. A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive.45 Not only does this comment remind the Court that not all possible less restrictive alternatives may be conceivably realistic, but also illustrates the necessity of mutual respect for each other’s challenging roles in this dialogue. After all, are not the best conversations held between two respectful parties who can appreciate each other’s point of view while effectively articulating their own? To conclude, proportionality analysis is an essential component of the dialogue metaphor in action in Canada. The framework of the Oakes

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Test facilitates the unique roles of the judicial and legislative branches, ensures respect for conflicting points of view, and encourages legislatives sequels. The interruptive conception of dialogue allows the judiciary to fulfill its role as a protector of rights while deferring to Parliament on the precise grounds of policy-making. Proportionality analysis-based dialogue is centred around mutual respect and understanding for the distinct roles each branch plays in determining the limitation and scope of individual rights and the broader principles of constitutional democracy. And who wouldn’t want to be a part of that conversation?

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Notes 1 Peter W. Hogg et al., “A Reply on “Charter Dialogue Revisited,” Osgoode Hall Law Journal 45, no. 1 (2007): 193 at 193-194. 2

Richard Clayton, “Principles for Judicial Deference,” Judicial Review 11, no. 2 (2006): 109 at 119. 3

Canadian Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 4

R. v. Oakes, [1986] 1 SCR 33 [Oakes] (Lexum).

RJR-McDonald v. AG of Canada [1995] SCR 199 (Lexum)

Vlad Perju, “Proportionality and Freedom,” Global Constitutionalism 1, no 2 (2012): 334 at 366. 7

Perju, “Proportionality and Freedom,” 359.

Perju, “Proportionality and Freedom,” 334 at 350.

Perju, “Proportionality and Freedom,” 351.

Perju, “Proportionality and Freedom,” 352.

Ming-Sung Kuo “In the Shadow of Judicial Supremacy” Ratio Juris vol 29 no 1 (2016) 83 at 100. 12

Perju “Proportionality and Freedom,” 334 at 352.

Perju “Proportionality and Freedom,” 334 at 353.

Perju “Proportionality and Freedom,” 359.

Kuo “In the Shadow of Judicial Supremacy,” 83 at 100.

Kuo “In the Shadow of Judicial Supremacy,” 97.

Canada (AG) v. JTI-MacDonald Corp [2007] SCC 30 (Lexum)

Clayton, “Principles for Judicial Deference,” 109 at 134.

Sauve v. Canada [2002] SCC 68 (Lexum)

Hogg et al., “A Reply on “Charter Dialogue Revisited,” 193 at 197.

Hogg et al., “A Reply on “Charter Dialogue Revisited,” 198.

Canadian Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 26

Clayton, “Principles for Judicial Deference,” 109 at 129.

Kuo “In the Shadow of Judicial Supremacy,” 83 at 100.

Peter W. Hogg et al “A Reply on “Charter Dialogue Revisited” in Osgoode Hall Law Journal vol 45 no. 1 (2007) 193 at 201. 29

Ibid.

93 30

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Hogg et al., “A Reply on “Charter Dialogue Revisited,” 109 at 123.

Kent Roach, “Dialogue in Canada and the Dangers of Simplified Comparative Law and Populism,” in Geoffrey Sigalet et al. Constitutional Dialogue: Rights, Democracy, Institutions (2019): 267 at 272. 32

Roach, “Dialogue in Canada,” 276.

Geoffrey Sigalet “On Dialogue and Domination” in Geoffrey Sigalet et al. Constitutional Dialogue: Rights, Democracy, Institutions (2019) 85 at 88. 34

Sigalet, “On Dialogue and Domination,” 117.

Rosalind Dixon, “The Supreme Court of Canada, Charter Dialogue, and Deference,” Osgoode Hall Law Journal 47 (2009): 235 at 240. 36

Dixon, “The Supreme Court of Canada, Charter Dialogue, and Deference,” 250.

Kuo, “In the Shadow of Judicial Supremacy,” 83 at 97.

Kuo, “In the Shadow of Judicial Supremacy,” 85.

Sigalet “On Dialogue and Domination,” 85 at 86.

Sigalet “On Dialogue and Domination,” 111.

Carter v. Canada (AG) [2015] SCC 5 (Lexum).

RJR-McDonald v. Canada (AG) [1995] SCR 199 (Lexum).

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Bibliography Canadian Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11. Canada (AG) v. JTI-MacDonald Corp [2007] 2 SCC 610 (QCCA). Carter v. Canada (AG) [2015] 1 SCC 331 (SCC) Clayton, Richard. “Principles for Judicial Deference.” Judicial Review 11, no. 2 (2006): 109-119. doi.org/10.1080/10854681.200 6.11426468. Dixon, Rosalind. “The Supreme Court of Canada, Charter Dialogue, and Deference.” Osgoode Hall Law Journal 47.2 (2009) 235-240. digitalcommons.osgoode.yorku.ca/ohlj/vol47/iss2/2. Hogg, Peter W.; Thornton, Allison A. Bushell; and Wright, Wade K.. “A Reply on ‘Charter Dialogue Revisited.’” Osgoode Hall Law Journal 45, no. 1 (2007) : 193-202. digitalcommons.osgoode. yorku.ca/ohlj/vol45/iss1/9. Kuo, Ming-Sung. “In the Shadow of Judicial Supremacy.” Ratio Juris 29.1 (2016): 83-100. dx.doi.org/10.1111/raju.12093. Perju, Vlad. “Proportionality and Freedom.” Global Constitutionalism 1, no. 2 (2012): 334-366. doi.org/10.1017/S2045381712000044. R. v. Oakes, [1986] 1 SCR 103 (ONCA). RJR-McDonald v. AG of Canada [1995] 3 SCR 199 (QCCA) Roach, Kent. “Dialogue in Canada and the Dangers of Simplified Comparative Law and Populism.” In Constitutional Dialogue: Rights, Democracy, Institutions, edited by Geoffrey Sigalet, Grégoire Webber, and Rosalind Dixon, 267–307. Cambridge, GB: Cambridge University Press, 2019. doi. org/10.1017/9781108277938.011. Sauvé v. Canada, [2002] 3 SCC 519 (FCC)

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Transitions of Moral Labor New Models of Shareholder Theory in A Digital Age

Philippe Miller

Edited by: Brianna Morrison Artwork by: Emilienne Hamel

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n his article “Business Ethics Without Stakeholders,” Joseph Heath (2014) raises a valuable idea on the division of “moral labor.” He cited Friedman’s Shareholder theory, which suggests that corporations hold

no moral obligations other than to maximize shareholder value (Friedman, 1970). Consequently, this places the government in a position where they must accept the bulk of the “moral labor” in protecting all stakeholders’ interests, including consumers. In contrast, Stakeholder Theory suggests the corporations are responsible for considering all stakeholder interests and not just those of shareholders (Freeman, 2004). The competing distinction between the two theories is that “Stakeholders” encompasses all parties affected by the corporations decisions, whereas “Shareholders” refers exclusively to the owners of the corporations. According to Friedman’s Shareholder theory, the corporation’s moral obligation is limited, and the responsibility is thus shifted onto the government to protect Stakeholders. I suggest that the division of moral labor has dramatically shifted; Governments have failed to protect stakeholder interests in the technology industry due in part to significant knowledge asymmetries and a lack of legal precedent. As a result, consumers have taken action in protecting their interests, thereby shifting the moral labor directly onto the corporations. Moreover, the corporations must now accept the responsibility of moral labor by increasingly “self-regulating.” Consumers shift the moral labor by impeding the corporation’s primary obligation of maximizing shareholder value. By altering their consumption, consumers threaten the corporation’s objective to maximize value and in doing so, ultimately highlight potential market failures. Under Friedman’s Shareholder theory, a corporation imposing internal regulations above their lawful duties – potentially at the short-term expense of profits – presents an inconsistency to traditional Shareholder Theory. Heath’s Market Failure Approach provides a potential explanation for this phenomenon: He states,

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“the market failures approach takes its guidance from the policy objectives that underlie the regulatory environment in which firms compete, and more generally, from the conditions that must be satisfied in order for the market economy as a whole to achieve efficiency in the production and allocation of goods and services” (Heath, 2014) Ultimately, Heath’s market failure approach implies that a corporation should seek profit maximization because of the positive externalities derived from competitive markets (Heath, 2014). However, they should do so without “exploitation of market imperfections” in the absence of a sufficient legal framework (Heath 2014). A fundamental condition for the market economy to achieve efficiency is relatively symmetric knowledge, allowing governments to regulate corporations, amongst other things, effectively. However, there is currently an asymmetry of knowledge forming between governments and high technology corporations, consequently giving rise to profound market imperfection. The asymmetry stems from the government’s inability to have in-depth, high-quality domain knowledge on complex technological processes. The considerable knowledge asymmetry in the tech industry has inhibited the government’s ability to govern technology companies. I argue that the exponential speed of technological development has given rise to a higher degree of self-regulation by corporations whereby consumers act as a siren for specific market failures in place of government regulation. Moreover, the Market Failure Approach provides a valuable framework to understand the ethical and moral considerations that future regulatory measures for high-tech corporations should be founded upon. Large technology companies such as Google, Facebook, and Microsoft are pioneering entirely new industries that require in-depth technical knowledge that few possess. With global scientific leaders on their teams – such as Geoffrey Hinton at Google or Yann LeCun at Facebook – the knowledge asymmetry between corporations and governments continues to grow. Several ethical concerns develop with radical new technological

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development that regulators are ill-equipped to understand. For instance, how can a government be expected to prevent the development of a maligned General Artificial Intelligence if they do not understand the technology? The same argument can be applied to many technologies, such as the cybersecurity risks of quantum computing or the ethics of future genetic enhancements. Although the ethical threats of these technologies seem distant, we have already begun to see self-regulation by tech corporations to manage ethical concerns in three new areas of technology: Algorithm Design, Data Privacy, and Online Freedom of Expression. Over the past several years, there have been unprecedented advancements in artificial intelligence and algorithmic design. As these fields evolve, they become increasingly complex and opaque in the ways they operate. The limits to the potential impact of Artificial Intelligence on our lives have no bounds, and we will continue to see it embedded further into many industries. The complexity of these advanced algorithms have prevented regulators from adequately addressing their potential risks. Subsequently, high-tech companies have begun to self-regulate and determine their internal guidelines on mitigating the dangers to society posed by their technology. DJ Patil, the United States’ Chief Data Scientist during the Obama administration, said: “We do not know technically how to take the tech box and verify it” (Hempel, 2018), implying that the government is unable to regulate and monitor emerging technology companies effectively. Consequently, this has given rise to a new industry of algorithmic auditors, who provide external validation of the ethics and bias of a company’s algorithms. Tech companies are experiencing mounting pressure by consumers for transparency and ethics in algorithmic design, and “having a third-party seal of approval is good marketing, like the organic sticker on milk, suggesting to potential customers that they can trust that a company is being thoughtful in its approach” (Hempel, 2018). Corporations seeking out validation from algorithmic auditors indicate that consumers

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are hyper-aware of the potential for exploiting market imperfections and consequently value ethical algorithm design. Moreover, there has been an emergence of many supposed multi-stakeholder initiatives (MSI’s) concerned with ethical AI development. MSI’s, in this instance, can pessimistically be seen as a method for corporations to subvert current legal frameworks and influence future legislation in a way that benefits their corporate incentives. Partnership AI is an example of such an initiative, where all of the most prominent tech companies and nonprofits signed on to agree to 6 AI development pillars. The pillars are 1) Safety and Critical AI, 2) Fair, Transparent and Accountable AI, 3) AI, Labour and the Economy, 4) Collaborations between AI and People, 5) Social and Societal Influences of AI 6) AI and Social Good. Partnership AI seemingly supports stakeholder theory by proposing a multistakeholder initiative to ensure the safe development of AI for everyone. Under Heath’s Market Failure approach, the MSI can equally be justified as corporations attempting to correct a market failure that a government is failing to regulate. More generally, it is a way for corporations to signal to consumers and legislators that they have it under control. A potential malicious or dangerous AI could have negative consequences on all corporations developing AI. The Partnership AI initiative is attempting to establish the conditions that must be satisfied for the industry to achieve efficiency in producing its future goods and services. The extraction and analysis of consumer data is arguably an aspect of big tech companies that warrants the most regulation. Data breaches have regularly occurred throughout the industry, and consumers have lost control of their privacy. The government’s primary regulation method for data privacy has been to apply hefty fines to corporations retroactively rather than focus on development procedures. Legislation has mostly failed to develop a robust framework for how companies handle consumer data. The most significant attempt at regulating data handling practices

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is the GDPR act in the European Union. The GDPR’s objectives are to (1) establish the rules relating to natural persons’ protection concerning processing personal data and practices relating to the free movement of it, (2) protect fundamental rights and freedoms, and (3) guarantee the free movement of personal data within the Union (GDPR, 2019). Many argue that the GDPR has failed to protect consumer data adequately. It has allowed for widespread use of facial recognition technology, ambiguity on breach disclosures, insignificant financial penalties and is exclusive to companies operating within the European Union (Leetaru, 2019). Moreover, consumer sentiment is shifting, and users are beginning to value their data privacy. Following its Cambridge Analytica data breach, Facebook announced that user growth had slowed, and consequently, their market cap fell by over $119bn. Facebook’s market cap loss, albeit temporary, was nearly 24 times greater than the $5bn fine imposed by regulators (Davies, 2019). The dynamic relationship between consumers and their data is in a disequilibrium state – as users attempt to gain back more control of their privacy – and signal the market failure. Facebook and Google’s current data practices can be considered unethical under the Market Failure approach as they actively exploit market imperfections through their market power and dominance against consumer interests in order to maximize shareholder value. Nonetheless, large tech companies have begun to rectify inefficiency in the allocation and distribution of data privacy. Facebook has since updated its data privacy practice to offer greater user control over data and encourage transparency. Namely, they have done so by “including a tool at the top of the News Feed to show users what apps have access to the data, restricting developers’ access to data and other initiatives.” (Kharpal, 2018) In terms of data privacy, companies such as Facebook, Google, and Amazon still are widely exploiting an apparent market imperfection and, in this instance, can be deemed to be acting unethically.

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Protection of our Freedom of Expression and the definition of restricted speech has historically always been a fundamental responsibility of government. The challenge of striking a balance between Hate Speech and Freedom of Expression has always been an immensely complex and contentious judicial issue. Nonetheless, the advent of Information and Communication Technologies (ICT’s) such as social media, blogs, forums, and the like have increasingly transferred this responsibility to private tech corporations. Social media tech companies initially positioned themselves as “the town square — passive conduits for the actions of others, facilitating a variety of activities and thoughts, but not responsible for any of them” (Foroohar, 2017). These social media platforms have grown globally, allowing for the Town Square Philosophy to mostly disappear. Facebook and Twitter are regularly trying to balance hate speech with free speech; they are responsible for protecting our freedom of expression and taking down restricted speech with limited legal accountability. Their lack of accountability stems from “Section 230 of the Communications and Decency Act (CDA), which was crafted in 1996 to allow tech firms exemption from liability for nearly all kinds of illegal content or actions perpetrated by their users” (Foroohar, 2017). Regulation on content moderation has failed to foster healthy and productive public discourse. With the proliferation of hate speech, fake news and biased censorship online, it is evident that tech companies are struggling to maintain the Town Square Model. Many argue that this responsibility should be limited to the government, and Facebook and Twitter are biased in their approach; that being, they are more likely to ban far-right and conservative figures. Furthermore, the debate surrounding the censorship of ICT’s has become a highly partisan issue, further impeding the regulatory bodies’ ability to enact adequate controls. Government parties both seek to enforce censorship policies favourable to their respective parties’ chances at reelection, generally appealing to their respective political bases. For

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example, when Facebook banned a group of far-right users including Alex Jones, Milo Yiannopolis, Laura Loomer, and Twitter banned James Woods along with several others, Senator Ted Cruz tweeted “How is it that @RealJamesWoods is currently being banned on Twitter, but @JimCarrey is not? It’s certainly not any standard based on “hate.” Carrey’s latest Twitter “art” shows Bill Barr drowning in a sea of vomit. @Jack - how ‘bout we let everybody speak and the People decide?” (Coaston, 2019) Consumer outrage against these platforms for their selective censorship indicated to the corporations the presence of a market failure. The lack of government insight forced the platforms to independently develop frameworks and guidelines for managing a healthy conversation on the platform through trial and error. Twitter has been accused of “shadow-banning” individual Republican senators, meaning that these political figures’ tweets were hidden. Jack Dorsey, Twitter CEO, explained: “that the algorithm had acted on the behavior of people following accounts - so some politicians were punished for the behavior of their followers.” (Fox, 2018) He later admitted, “It was unfair, We corrected it.” (Fox, 2018). The amendment to Twitter’s algorithm was not instigated by regulation but rather by consumers expressing concerns to the corporation. The nature of current technological development causes it to be increasingly difficult for governments to provide the industry with adequate oversight, a problem that is expected only to worsen. The division of moral labor is radically redistributed as a consequence. The government can no longer be held responsible for weighing the morality and ethical concerns of all technological developments. Moreover, an innovative technology company’s single focus can no longer be exclusively profit maximization, as their technologies continue to have drastic ramifications on societal structures. The elegance and simplicity of traditional Shareholder Theory have been a guiding principle for modern corporate legislation; however, in an

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era of unprecedented technological development, new frameworks are required to ensure that corporations continue to act in a way that benefits society. On the other hand, the subsequent alternative Stakeholder Theory has failed to provide any useful framework for the way current markets operate. The expectation that a corporation must balance all stakeholders’ interests does not allow for practical measures of performance or accountability for managers. It does not guide legislators on how to manage conflicting stakeholder interests. Furthermore, Strategic Stakeholder Theory (Heath, 2014) seemingly presents inconsistencies about tech companies selectively self-regulating while continuing to fail consumers on issues like data privacy. Ultimately, Heath’s Market Failure Approach provides a sufficient framework to understand the current transition of moral labour from the government to high-tech corporations. It acts as a guiding path forward for legislators to develop robust legal frameworks to limit market imperfections where possible. Heath highlights that “what so often upsets people about corporate behaviour - and what gives profit-seeking a bad name - is the exploitation of one or another form of market imperfection” (Heath, 2014). Although Heath’s framework is not easily converted into a legal one, it provides direction for the type of market conditions future corporate legislatures should strive to achieve, particularly concerning high-tech corporations. He outlines a set of ten fundamental “efficiency imperatives” that a firm operating in perfect market conditions should aim to adhere by: • Minimize Negative Externalities. • Compete only through price and quality. • Reduce information asymmetries between firms and customers. • Do not exploit the diffusion of ownership. • Avoid erecting barriers to entry. • Do not use cross-subsidization to eliminate competitors. • Do not oppose regulation aimed at correcting market imperfections. • Do not seek tariffs or other protectionist measures.

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• Treat price levels as exogenously determined. • Do not engage in opportunistic behaviour towards customers or other firms. The context through which he outlines these “efficiency imperatives” is a guiding objective for a manager of a socially responsible corporation. It is equally a responsibility of the government to use these broad objectives as a map to seek out areas in high-tech legislation that can reduce the onerousness on the manager to adhere to these imperatives. The legal framework should use these principles to create market conditions that will protect its constituents best interests. In short, as corporations begin to accept an increasing proportion of the moral burden, it continues to be critical for consumers to act as “sirens’’ of market failures and pressure corporations to self-regulate. In the meantime, it is equally essential for governments to use relevant ethical frameworks to design effective legislation to create market conditions that are conducive to technological developments that benefit society.

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Bibliography Coaston, Jane. “The Facebook Free Speech Battle, Explained.” vox, May 14, 2019. www.vox.com/technology/2019/5/6/18528250/facebook-speech-conservatives-t Mp-platform-publisher. Davies, Rob, and Dominic Rushe. “Facebook to pay $5bn fine as regulator settles Cambridge Analytica complaint.” The Guardian, July 24, 2019. www.theguardian.com/technology/2019/jul/24/facebook-to-pay-5bn-fine-as-regulator-files-cambridge-analytica-complaint. Fox, Chris. “Twitter: Algorithms were not always impartial.” BBC, September 6, 2018. www.bbc.com/news/technology-45426407. Foroohar, Rana. “Big Tech Can No Longer Be Allowed to Police Itself,” Financial Times, August 27, 2017. www.ft.com/content/ce1d6a0089a0-11e7-bf50-e1c239b45787. Freeman, Edward R., Andrew C. Wicks, and Bidhan Parmar. “Stakeholder Theory and “The Corporate Objective Revisited.”” Organization Science, 15(3): 364-369. Friedman, Milton. “The Social Responsibility of Business Is to Increase Its Profits.” The New York Times, September 13, 1970. link.springer. com/chapter/10.1007%2F978-3-540- 70818-6_14#page-1. Heath, Joseph. “Business Ethics without Stakeholders.” In Morality, Competition, and the Firm: The Market Failures Approach to Business Ethics, 68-92. Oxford: Oxford Scholarship Online, 2014, doi. org/10.1093/acprof:osobl/9780199990481.003.0004. Hempel, Jessi. “Want to Prove Your Business Is Fair? Audit Your Algorithm.” Wired, May 09, 2018. www.wired.com/story/want-toprove-your-business-is-fair-audit-your-algorithm/. Intersoft Consulting. “Art. 5 GDPR: Principles relating to processing of personal data.” Accessed April 11, 2020. gdpr-info.eu/art-5-gdpr/.

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Kharpal, Arjun. “Facebook Rolled out Privacy Changes - but It’s Being Forced to Do It Anyway by Regulators,. CNBC, March 29, 2018. www.cnbc.com/2018/03/29/facebook-has-rolled-out-privacy-changes--but-its-doing-it-for-gdpr.html. Leetaru, Kalev. “As GDPR Turns One Is It A Success Or A Failure?.” Forbes, May 6, 2019. www.forbes.com/sites/kalevleetaru/2019/05/06/as-gdpr-turns-one-is-it-a-success-or-a-failure/?sh=3d454e9746ae. Partnership on AI. “About Us.”Accessed April 11, 2020. www.partnershi ponai.org/about/.

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Youth Street Gang Membership

A review of the risk factors and current interventions across North America

Lauren McAuley

Edited by: Meredyth Dwyer Artwork by: Dana Mastrangelo

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cholars have estimated that as of 2015 there were over 30,000 youth gangs in the United States and over 850,000 gang members (Egley et al. 2014; National Youth Gang Survey, 2015). street gangs

represent a large portion of the criminal activity in the United States of America, accounting for 68 percent of all violent behaviour committed by youth and 85 percent of all adolescent robberies (Rochester Youth Development Survey; Seattle Youth Survey). Street gangs are not an issue unique to the United States. In fact, they are becoming more recognized on the global stage with a great number of countries reporting street gang activity (Hazen & Rodgers, 2014, Hagedorn, 2005, Clements & Akiyama, 2011). As the fear of crime has grown throughout the past decade, so too has the prevalence of media attention on gang activity. The issue of street gangs receives significant attention: it is the topic of discussion in news broadcasts, is portrayed in movies and television, and has taken center stage in certain political debates (Esbensen & Tusinski, 2007; Fujioka, 1999; Thomson, Young & Burns, 2000). North American cultural dialogue is constantly flooded with information and news concerning street gangs, yet there is little discussion of the root causes of gang activity. This review will discuss the risk factors for youth street gang membership, as well as the current interventions being implemented across North America to prevent membership and rehabilitate gang members.

Offending Throughout this paper, I will be using Klein and Maxson’s (2006) definition of street gangs as “any durable, street-oriented youth group whose involvement in illegal activity is part of its group identity.” For the purposes of this paper, street gangs and gangs will be used interchangeably. A key facet of street gangs according to Klein & Maxson’s (2006) is the illegal activity. A review of the Gang Resistance Education and Training program (G.R.E.A.T) found that gang members are nine times more

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likely to have reported committing a robbery and fifteen times more likely to have reported having shot at someone compared to non-gang youth (Esbensen et al. 2010). Despite the importance of law breaking activity to the operation of a street gang, the true nature of the relationship between gang membership and offending remains unclear. Control theorists such as Gottfredson and Hirshi (1990) argue that the association between crime and gang membership originates in the absence of self-control. According to their theory, a juvenile’s delinquency level is wholly determined by the time they transition from childhood to adulthood. As a result, gangs simply attract individuals with a pre-determined propensity for violence and crime. To test this theory, it is important to determine whether street gang membership has a unique influence on an adolescents propensity to commit crime. When studying the effects of gang membership on an individual, it is necessary to collect longitudinal data to ensure that information before, during and after a member’s gang career to determine whether changes in the odds of participating in criminal activity are systematically associated with changes in gang membership (Melde & Esbensen, 2012). To determine whether the odds of participating in criminal activity are systematically associated with changes in a gang member’s status, Melde and Esbensen (2012) collected longitudinal data from 3,820 students across the United States. Through five waves of self-reported data collection, the researchers found that students who reported gang membership, were associated with a “ 21 percent increase in the odds of involvement in violent incidents” at the time of their reported active gang membership (p.143). Additionally, the researchers found that gang membership had a lasting effect on an individual’s chances of offending, even after leaving the gang. The results showed that post-gang levels offence rates remained higher in prior gang members than in non-gang youth, as well as the respondents’ own pregang levels.

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While Melde and Esbensen’s (2012) singular study shows a drastic increase in violent criminal behaviour among gang members, a larger study is required to fully understand the scope of the effect. Pyrooz et al. (2015) conducted a meta-analysis to uncover the findings from the field on the extent of the relationship between gang membership and offending. Through their analysis of 179 empirical studies, they found that “gang membership results in a .227 standard deviation increase in offending” (Pyrooz et al., 2015). These results clarify that a .227 standard deviation in criminal behaviour can be attributed to gang membership alone. Not only has gang membership been found to increase rates of offending but theorists have also found that after controlling for the effects of gang membership on general offending frequency, gang membership increased the likelihood of violent crimes by an additional 21 percent (Pyrooz et al., 2015; Melde & Esbensen, 2012). When examining the results above, it is important to consider the possibility that gang membership may solely act as a means of interacting with deviant peers. As Akers and Sellers (2009) discuss in their book Criminological Theories, according to Social Learning Theory, all deviant behaviour is the result of differential association with deviant or criminal peers. Once you have been exposed to deviant peers, new definitions for criminal behaviour are established. These definitions lead to imitation of observed deviant behaviour which is then reinforced by said deviant peers. As a result, the offending apparent in gang membership could be the result of higher exposure to deviant peers rather than an innate characteristic of street gangs. In an effort to distinguish gang membership from simply acting as a mediator for interaction with deviant peers, Battin et al. (1998) analyzed data from the Seattle Social Development Project. Their research sought to determine whether gang membership had a unique effect on offending patterns. Through the use of longitudinal data, the researchers

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were able to compare data collected yearly from age 13 to age 15 in which adolescents reported their gang membership; the proportion of delinquent friends they had; and, their levels of delinquency. The researchers were also able to collect court records of participant’s delinquency to ensure accurate descriptions of offending behaviour were obtained. Battin et al. (1998) analyzed the unique contribution of gang membership at age 14 and 15 to predict both court- and self-reported delinquency at age 15, while controlling for general delinquency at age 13 and 14 and the proportion of delinquent friends each responded reported at age 14 and 15. “Gang membership was found to independently predict both self-reported and court recorded delinquency beyond the effects of having delinquent friends and prior delinquency” (Battin et al., 1998, p.93). They found that self-reported gang members at age 15 committed an average of over twenty-five self-reported delinquency acts in the past year while non-gang youth with delinquent friends committed approximately thirteen delinquent acts. This research reinforces the notion that there is a unique aspect of street gang membership that disproportionately accounts for levels of delinquency. This information reinforces the use of Klein and Maxson’s 2006 definition of street gangs in which includes illegal activity as a key aspect of the gang construct. The disproportionate effects of gang membership on offending behaviour are rarely felt equally by all adolescents as there are unique characteristics that often put a small subset of youth at higher risk of joining street gangs.

Ethnicity Street gangs are seen as a major social problem despite the fact that very few members of society will ever interact with gangs in their lifetimes. One survey of Toronto youth found that 75 percent of youth reported that they strongly believed that gang activity is a serious social issue

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while only 11.1 percent of respondents reported gang affiliation (Wortley & Tanner, 2006). This juxtaposition between the percent of respondent who feel that gang activity is a serious social issue compared to the percent with lived experience can be attributed to the fact that gangs disproportionately target and consist of a small subsection of youth – primarily youth belonging to ethnic minorities (National Youth Gang Survey, 2015). In 2011, 46 percent of gang members in the US were Latino, 35 percent were African American and 12 percent were White, with 7 percent belonging to other racial groups (National Youth Gang Survey, 2015). This same phenomenon also occurs in Canada, with gang membership varying by ethnic group. Police have estimated that gang membership in Canada consists of 25 percent African Canadian, 22 percent First Nations, 18 percent Caucasian, 12 percent Asian, 14 percent East Indian, 6 percent Latino, and 3 percent Middle Eastern members (note: estimates vary across provinces due the different ethnic populations) (Chettleburgh, 2002). It should be noted that Chettleburgh’s (2002) findings are the result of police estimates which are subject to institutional bias. In an attempt to explain the large racial discrepancy in youth gang membership, scholars have pointed to minority and immigrant status as contributing to youth’s attraction to the gang structure (Wortley & Tanner, 2006; Franzese et al, 2016).

Immigration Status Reflecting on the history of gangs helps one understand the ethnic differences seen in street gangs today. When examining the history of street gangs apparition in North America, research reveals that it is closely linked with immigration in the early 1900s with a large portion of the first American gangs consisting of ethnically marginalized groups such as Irish, Italian and Jewish immigrants (Wortley & Tanner, 2006; Franzese et al, 2016). More recently however, gang membership has shifted to be primar-

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ily comprised of youth from certain ethnic minority groups – particularly African American and Hispanic youth (National Youth Gang Survey, 2015; Wortley & Tanner, 2006; Brown et al., 2012). While history has shown that immigration is a factor in gang creation, it remains unclear what role immigration currently plays in the recruitment and perpetuation of street gangs. In order to test the importance of immigration status on youth gang membership, Wortley and Tanner (2006) conducted a two-part study comprised of first small group discussions with high school students and street youth followed by an extensive survey which was issued to Toronto high school students (sampled from 30 randomly selected Toronto high schools) and over 350 street youth. They found that 5 percent of Toronto youth born outside of Canada reported gang membership compared to 7 percent of Canadian born youth. In addition, their research indicated that “among immigrants, gang activity actually increases with time spent in Canada” (Wortley & Tanner, 2006, 30). These findings indicate that rather than country of origin affecting gang membership, other facets of immigration and minority status may be the underlying risk factor for gang membership among minority youth. Despite the historical roots of gang membership in immigration, scholars have argued that the factors which “affect children in the aftermath of the migration of ethnically distinct populations,’’ such as marginalization, urban poverty, and a lack of adequate services, can promote the rise of ethnic gangs, rather than factors innate to the migration process (Brown et al. 2012, p.210; Howell & Griffiths, 2018; Howell, 2015; Inciardi, 1978). These more general risk factors associated with minority status and later generations of immigrants, more accurately align with risk factors for gang membership as stated by Indigenous gang members in Canada. In a interview series conducted by Grekul and LaBoucane-Benson (2008), Indigenous ex-gang members reported labelling and discrimination as a large causal factor in their gang involvement. The interviewees recounted

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that as Indigenous youth, they turned to gangs for a sense of identity and purpose in response to the systematic lack of opportunity and structural inequality that resulted from living as a marginalized population in Canada. These qualitative testimonies not only exemplify the difficulties faced by Indigneous youth in Canada, but they also clarify the risk factors for street gang membership among marginalized youth. Although immigration may be seen to act as a larger risk factor, it is the more general effects of living as a minority in a colonial society that may pose a risk for gang membership among minority youth. Wortley and Tanner (2008) tested this theory in their 2008 study of ‘known gang members’ where they found further evidence for the later effects of marginalization post-immigration on gang membership. The researchers conducted 125 face-to-face interviews with ‘known gang members,’ defined as belonging to a gang consisting of five members or more, having been members for at least six months, and criminal activity being the primary focus of the gang. The participants were recruited through multiple sites, including: community centres, probation officers, gang exiting programs, and youth centres to ensure that the sample included members belonging to a large array of Toronto street gangs. They found that the majority interviewed self-identified as belonging to a racial minority: 63 percent minority respondents compared to 37 percent White respondents. Moreover, that the minority respondents were more likely to be born in Canada than White respondents. The researchers found six overarching themes for joining a street gang when analyzing the interviews, they included: one, neighborhood, peer and family influences; two, protection; three, support and companionship; four, status and respect; five, money; six, racial injustice. All six themes, with the exception of racial injustice, applied equally to all racial groups. Racial injustice was found to explain gang involvement solely in minority respondents (Wortley & Tanner, 2008). Both of these findings align with Agnew’s strain theory of crime whereas crime is com-

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mitted due to the accumulation of stress within a person due to their own inability to achieve the valued goals of society due to various mechanisms such as inequality and lack of opportunity (Agnew & DeLisi, 2012). However, minority youth experience the unique strain of racial discrimination which plays a substantial role in their choice of becoming a gang member. The impact of racial injustice on gang membership was also found in Barret, Kuperminc and Lewis (2013) research on the effect of immigration on gang involvement among foreign-born and U.S-born Latino middle schoolers. The data was taken from a sample which consisted of 199 youth who completed questionnaires featuring both quantitative and short-answer qualitative questions regarding their perception of similarities and differences between Latinos and “Americans.” Questions regarding street gang activity and Immigration status were included. Through their analysis, the authors found that US-born youths were more likely to be gang involved if they experienced discriminatory stress however, this stress did not predict gang membership for immigrant youth (Barrett, Kuperminc & Lewis, 2013). These three studies demonstrate that immigration is associated with gang membership however these effects do not take place until an immigrant group has settled into their new country of residence where they must then fight against racism and discriminatory stress which has been found to direct some minority youth into street gangs (Barrett, Kuperminc & Lewis, 2013; Wortley & Tanner, 2006; Wortley & Tanner, 2008). The effects of marginalization are rarely felt in isolation, as a result, the pull towards gang membership can affect entire families and generations of minorities.

Intergenerational Gang Membership Family structure and familial belief systems are consistently cited as risk factors for youth street gang membership (Howell & Egley, 2005; Bliss-Holtz, 2011; Wortley & Tanner, 2008; van Gemert et al., 2008). In a

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2015 article, Pyrooz and Sweeten used longitudinal data from The National Longitudinal Study of Youth (1997) to identify key familial risk factors for youth in street gangs. Pyrooz and Sweeten (2015) defined gangs as a “group that hangs out together, wears gang colours and clothing, has clear set boundaries of its territories or turf, and protects its members and turf against rivals” (Pyrooz & Sweeten, 2015, 415). The researchers found that gang members were disproportionately male, Black or Hispanic and grew up in a single-family household. While their findings further confirm the racial differences among gang members discussed earlier in this paper, Pyrooz and Sweeten (2015) also provide interesting information on the family structure from which gang membership most likely arises. Additional studies have found that single-family households were not the only family structure that acted as a risk factor for gang membership. Hill et al. (1999) found that youth in homes with one or fewer parents/adults are significantly more likely to join a gang than youth living in a two parent household. Interestingly these results did not differ dependent on the status of the two parent household; youth living with a parent and a step-parent were not more likely to join a gang than those living with two parents (biological or adopted). Lack of supervision, lack of family income and increased childhood neglect have all been hypothesized as the key distinguishing factor between two parent households and single adult households however no conclusive evidence has been presented (Lahey et al., 1999; Cepeda, Valdez & Nowotny, 2016). Family structure has been found to have significant effects on an adolescent’s likelihood of joining a gang however the specific structural factors associated with one adult household remain unclear. Another key aspect of familial relationships and their impact on gang membership is the degree to which youth are exposed to street gangs. Prior research has shown that crime is transmitted through families, with many theories such as social learning theory and self-control theory resting upon the importance of parenting and modelling for a child’s

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criminal future (Giordano, 2010; Besemer, 2012; Hjalmarsson & Lindquist, 2012; Gottfredson & Hirshi, 1990; Akers & Sellers, 2009). A recent study by Junger et al. (2013) found that there is a significant relationship between the criminal arrest records of a child’s grandparents and parents and the likelihood of that child’s arrest in a birth cohort study performed in the Netherlands. These results and the impact of shared marginalization within a family indicate that there may be a relationship between familial gang membership and the likelihood and recruitment of youth into a street gang. If a youth’s parents or siblings have a connection with a gang, that adolescent may be at greater risk of becoming a gang member. Garduno and Brancale (2017) in their article found that among 936 Hispanic youth living in Maryland, adolescents who had siblings in gangs were significantly more likely to become gang members. These results are corroborated by Winkle and Decker (1996) as well as Bourgois (1995) all of whom found that adolescents were more likely to join street gangs if they had family members, such as cousins or siblings, who were already gang affiliates. All of these studies were conducted in the United States with many centering on Hispanic youth gangs however, these results can also be found in youth gang studies conducted in Canada. In their 2013 report, Butura found that gang membership may be perpetuated by family members, who were reported to often encourage the adolescents to continue on the path of gang membership. Many respondents reported feelings of obligation to continue in their sibling’s path, a normalization of gang lifestyle at home and a desire to model older siblings as their reasons for following their siblings path to gang membership (Butura, 2013). These results align with social learning theory, introduced earlier, as the differential reinforcement of new definitions (Akers & Sellers, 2009). Siblings and family with gang experience are able to teach new definitions of gang membership to siblings which in turn provides the opportunity for the gang to differentially reinforce these new beliefs. Winfree,

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Mays and Vigil-Backstrom (1994) attempted to test social learning theory’s strength in the prediction of gang membership among youth in custody of the New Mexico Youth Authority. The authors note that while they utilize a large sample of gang and non-gang members, due to the location of the research, the sample provided data solely representative of the Latino and White community. Further research must be conducted to generalize these findings to alternative minority groups. Through the use of survey data, the researchers were able to measure differential associations: survey questions regarding peer gang membership, general peer disapproval regarding gangs, and significant general adult disapproval regarding gangs; differential reinforcers: by measuring peers’ reactions and parents’ reactions upon hearing the news that the respondent had joined a gang; differential definitions: through collecting information on pro-gang attitudes and gang membership; and finally, personal characteristics such as race, age and gender, were asked of each respondent. Gang membership was also established for each respondent. The researchers attempted to use the factors of social learning theory to statistically predict which respondents were gang members. They found that “gang members had acquired more pro-gang attitudes than non-gang members and were more favorably inclined toward gang activities” (Winfree, Mays & Vigil-Backstrom, 1994, p.229). They found that personal progang definitions as well as differential associations enabled the model to correctly classify a significant number of the sample as gang members or as non-gang members. This research shows positive evidence for social learning theory as a possible explanation of gang membership especially within the Latino community. As per social learning theory, familial experience with gang membership is proven to have a significant impact on the risk of gang membership among juvenile’s. In addition to the positive reinforcement that youth may receive upon joining a gang, street gangs in themselves may offer

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unique benefits to youth.

Ethnic Identity As previously discussed, Wortley and Tanner (2008) found that minority gang members were likely to cite discrimination as a factor that propelled them to seek out gang membership. In addition to Wortley and Tanner’s (2008) findings, a similar qualitative study was conducted to compare the attraction features for members of three different levels of gang organization– Organized crime gangs, street gangs and Wannabe groups (Gordan, 2000). Through the comparison of interviews with various gang members belonging to a variety of gangs, Gordan (2000) was able to distinguish the differences in attraction for the members of each varying gang organization. Gordan (2000) defines a street gang as a youth group with a semi-structured organization created to engage in planned criminal activity whose members self- identify as belonging to a gang. When compared to members of organized crime gangs and wannabe groups, street gang members were attracted to their gang as a result of their need for a peer group. They wanted to “belong to a friendly, supportive group that included their friends and close relatives and this included a desire to be with individuals from the same cultural and ethnic group; gang members felt ethnically marginalized” (Gordon, 2000, 51). These reasons differed from the attractive features of organized crime gangs, where financial gain was the most cited reason for joining. The repetitive theme of ethnic marginalization as well as peer and family influence from Wortley and Tanner’s (2008) work continues in Gordan’s (2000) research for street gang members. Similar qualitative findings were found more recently in a sample of thirty gang-involved youth from immigrant families in Calgary, AB. Van Ngo et al. (2017) found that “youth experienced crises of identity and belonging, which propelled them towards membership in high risk social cliques and criminal gangs’’ (67).

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The importance of ethnic identity in gang membership is clear in the difference between Mexican American street gang membership, data shows that Mexican American youth are twice as likely to have ties to gangs (ie. Friend or family member involvement) compared with non-Mexican Hispanic youth (Pew Hispanic Center, 2009). Further, ethnic identity within marginalized youth plays an important role in an adolescent’s maturation. Scholars have found that an adolescent’s awareness of ethnic identity aligns with brain development period and the psychosocial maturation of the mid- to late-adolescence (Umana-Taylor, Gonzales-Backen, & Guimond, 2009). Exploring personal identity (including ethnic identity) is the cornerstone of the transition between childhood and adulthood, as adolescents develop more complex brain development and mature, their personal identity expands and begins to take shape (Erikson, 1968). The developmental course of personal identity can be seen to follow the same arc found in criminal behaviour, known as the age-crime curve, both of which increase throughout adolescence (Agnew, 2003; Knight et al., 2012). The correlation between developing ethnic and personal identity as well as youth crime can potentially inform additional risk factors for gang membership among ethnic minority youth. It is possible that gangs may act as an ethnic socialization unit. Knight et al. (2012) conducted a study to examine the association between self-reported offending and the maturation of ethnic identity in order to test the association between offending and development of ethnic identity. The researchers collected survey data from male, Mexican American juvenile offenders, recruited from Phoenix and Arizona, every six months over a 3-year period and annually for an additional four years. The sample consisted of youth reporting a variety of immigration status,’ the majority of the youth were classified as third generation (ie. at least one grand-parent was born in Mexico). The researchers found four distinct categories of youth offenders: two low offending groups, one of

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which was the highest in ethnic identity, and the other was lowest in ethnic identity. A third group characterized by declining offending behaviour and moderately stable ethnic identity, and a fourth group which provided the majority of the insight for the research, displayed high-offending behaviour and moderate but increasing levels of ethnic identity. Youth from the fourth group was composed of the highest number of self-reported gang members, demonstrating that youth who reported gang membership were more likely to report increasing ethnic identity as well as increasing offending behaviour as they aged. The authors conclude that after joining a gang, youth are likely informed by ethnically homogenous gangs on what it means to be a part of the ethnic minority to which they belong and that gang membership encourages an increase in offending behaviour (Knight et al., 2012). These results offer an interesting perspective, in combination with Gordon’s (2000) qualitative findings, that gang members reported a pull towards gang membership due to marginalization and a desire to associate and be close with a group of ethnically similar youth.

Treatment Programs As it has been established that gang membership uniquely contributes to an adolescents offending behaviour, there have been strong, prolonged measures taken by policy makers and police forces to try to curb the effects of gang membership throughout North America (Totten, 2009; Nafekh & Stys, 2004). The get – tough response by way of high incarceration rates for street gang members was implemented during the late 1980s as a means of gang control in both Canada and the United States (Totten, 2009). This high incarceration strategy was found to actually increase the chance of re-offending and remaining loyal to the gang, contrary to it’s goals and intended purpose (Nafekh & Stys, 2004; Olson, Dooley, & Kane, 2004). At the same time as the get-tough policies were being implemented throughout the criminal justice system, curriculum based prevention

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programs were being promoted in schools across America. These schoolbased interventions targeted at risk-youth at school through education, examples of the programs include the American Gang Resistance Education and Training program (G.R.E.A.T) and the D.A.R.E program (Totten, 2009). There was a large wave of support for these programs however, they were ultimately found ineffective in the long term, with program participants to be as likely as non-participants to become gang members (Esbensen, Osgood, Taylor, Peterson, & Freng, 2001). Both curriculum and get-tough responses act as good examples of non-evidence based program implementation, which Klein (2011) discusses in his article on gang and violence reduction programs. He claims that a large gap exists between gang reduction program implementation and demonstrated program success (by means of scientific research). As a result, many of the “promising” programs presented in governmental reports may in turn actually increase levels of violence among youth offenders (Wilson & Chermak, 2011). As previously discussed, the literature on youth gang membership states that a juvenile’s ethnicity, experience of marginalization, and family ties to gangs present unique risk factors for gang membership. While these risk factors provide a framework on which interventions are based, very few models actually implement the scientific findings on gang membership into their treatment model (Klein, 2011). For example, The Good Lives Model (GLM) was first introduced with the goal of improving life capacities by teaching life skills which also target external capabilities (such as opportunities, resources, and support) in general offenders. The program has been successfully implemented in a variety of settings, including prisons, community organizations and mental health units with the majority of participants engaging in past sexual offenses (Barnao, Robertson, & Ward, 2010; Gannon et al., 2011). In an attempt to apply an empirically proven effective treatment to the field of gang membership rehabilitation, Mallion and Wood (2020) conducted a review of the Good Lives Model and

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argued for its efficacy in ex-gang member populations. The scholars argue that as the Good Lives Model’s etiological assumptions, namely that “offending is a product of obstacles that limit an individual’s ability to achieve primary goods in prosocial ways,” closely resembles Strain Theory, which argues gangs forms due to the fact that youth feel disenfranchised with society and their inability to achieve mainstream goals due to the structural inequality they encounter, which many scholars use to explain gang membership. As a result, the Good Lives Model may provide similar rehabilitative effects for ex-gang members as those seen in ex-sex offenders (Agnew, 2003; Mallion & Wood, 2020). While these theorists offer an interesting recommendation by packaging the Good Lives Models as a potential rehabilitation framework for gang members, the paper exemplifies Wilson and Chermak’s (2011) earlier assertion on the current state of literature on gang membership rehabilitative programs, there lacks empirical support and programming which is required in order to fully test a youth gang member intervention program. Despite the clear lack of large scale intervention studies, Canadian scholars have demonstrated some promising small scale programs focused on Indigenous street gang youth (Totten, 2009; Deane, Bracken & Morrissette, 2007). The Ogihiita Pimatiswin Kinamatwin (OPK) program has found the highest levels of empirical success in gang members desistance with the 34 members of the pilot program experiencing zero arrests during the four and a half years of program operation (up to the time of the research) (Deane, Bracken & Morrissette, 2007). The program focuses on providing stable employment through carpentry services for urban housing renovation projects in Winnipeg, MB. The program is run through the teaching of pro-social values through traditional Indigenous cultural teachings. Participants are encouraged to desist from illegal activity while remaining a member of the gang – of which many members were attracted to for the social and ethnic support gang life provides (Deane, Bracken &

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Morrissette, 2007). The model of OPK implements the evidence-based approach guidelines as found by the National Working Group on Crime Prevention (2007). As a result it focused on “collaboration and problem-solving partnerships, concentrating investments on highest needs, developing and sustaining community capacity, adequate and sustained support and resources, and public engagement” (Totten, 2009, 144). A unique feature of Indigenous, community gang desistance programs such as OPQ, as well as the Warrior Spirit Walking Project and the Regina Anti-Gang Service project, is that each is staffed by mainly Indigenous peoples. Further, most of these staff members have lived experience in street life or the sex trade, and offer services 24 hours a day, year round. These programs are uniquely designed to target risk factors such as ethnic marginalization, identity and familial gang ties which have been described as risk factors for youth gang membership. From the small amount of Canadian research on the efficacy of community-based gang membership intervention programs, it may be a suggestion to the wider field to consider the effect of community-based interventions which focus on maintaining ethnic values and practices.,

Conclusion Street gang membership disproportionately affects young men of colour in North America. As the history of street gangs in North America has shifted from predominantly European immigrants to second and third generation immigrants today, the underlying risk factors remain the same. Marginalization during the assimilation of new immigrants or Indigenous peoples acts as a large risk factor for juvenile gang membership. Ex-gang members have reported racial discrimination and familial ties to gangs as precipitating factors in their own gang membership (Barrett, Kuperminc & Lewis, 2013; Wortley & Tanner, 2006; Wortley & Tanner, 2008). The attractive features of gangs as reported by current gang members is their supportive, intra-ethnic peer network, which offers belonging and identity

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to marginalized youth (Gordon, 2000). The marginalization is perceived across generations with inter-generation gang membership and association being common factors in the lives of young men today. This generational maladjustment to mainly colonial society has lasting effects on an adolescent’s life course (Knight et al., 2012). Gang membership increases offending behaviour, despite the fact that street gang membership is affecting an estimated 850,000 youth across America, scholars have yet to find a comprehensive, successful, and large-scale prevention program for at-risk youth (Egley et al. 2014; National Youth Gang Survey, 2015). There has been a second wave of gang-centered literature in recent years, yet a lack of empirical-based assertions regarding gang membership and its risk factors remains (Wilson & Chermak, 2011). The field must continue to uncover the mechanisms that promote and perpetuate gang membership among minority youth and work with minority communities to create community-based intervention programs.

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Bibliography Agnew, R. (2003). “An integrated theory of the adolescent peak in offending.” Youth & Society 34(3): 263-299. Agnew, R. and M. DeLisi (2012). “General strain theory, the criminal justice system and beyond: Introduction to the special issue.” Journal of Criminal Justice 40(3): 174-175. Akers, R. L. and C. S. Sellers (2009). Criminological theories : introduction, evaluation, and application. New York, Oxford University Press. and, B. C. C. and S. A. Venkatesh (2003). “The Urban street gang after 1970.” Annual Review of Sociology 29(1): 41-64. Barnao, M., et al. (2010). “Good lives model applied to a forensic population.” Psychiatry, psychology and law 17(2): 202-217. Barrett, A. N., et al. (2013). “Acculturative Stress and Gang Involvement Among Latinos: U.S.-Born Versus Immigrant Youth.” Hispanic Journal of Behavioral Sciences 35(3): 370-389. Battin, S. R., et al. (1998). “THE CONTRIBUTION OF GANG MEMBER SHIP TO DELINQUENCY BEYOND DELINQUENT FRIENDS*.” Criminology 36(1): 93-116. Besemer, S. (2012). Intergenerational transmission of criminal and violent behaviour. Leiden, NETHERLANDS, THE, Sidestone Press. Blanc, C. S. (1994). Urban children in distress: Global predicaments and innovative strategies, Psychology Press. Bliss-Holtz, J. (2011). “Broken Schools + Broken Homes + Broken Neighborhoods = street gangs?” Issues in Comprehensive Pediatric Nursing 34(1): 1-3. Bourgois, P. I. (2003). In search of respect : selling crack in El Barrio. Cambridge, Cambridge University Press. Brown, G. C., et al. (2012). “The Ghettoization of Blacks in Los Angeles: The Emergence of street gangs.” Journal of African American Studies 16(2): 209-225.

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Butera, J.-A. and O. Crime Prevention (2013). Younger siblings of gang members : risk factors and best practices. Ottawa [Ontario], Crime Prevention Ottawa. Carol Y. Thompson, R. L. Y. R. B. (2000). “REPRESENTING GANGS IN THE NEWS: MEDIA CONSTRUCTIONS OF CRIMINAL GANGS.” Sociological Spectrum 20(4): 409-432. Center, P. H. (2009). “Between two worlds: How young Latinos come of age in America.” Cepeda, A., et al. (2016). “Childhood Trauma among Mexican American Gang Members and Delinquent Youth: A Comparative Exploratory Study.” Child Abuse Review 25(3): 205-217. Chettleburgh, M. (2002). Canadian police survey on youth gangs. Ottawa, ON: Astwood Strategy Corporation. Clements, P. T. and C. Akiyama (2011). “Youth Gangs: Reason for Concern.” Journal of Forensic Nursing 7(3): 105-107. Collins, K. E. (1980). Black Los Angeles: The maturing of the ghetto, 19401950, Century Twenty One Pub. De Graaf, L. B. (1970). “The City of Black Angels: Emergence of the Los Angeles Ghetto, 1890-1930.” Pacific Historical Review 39(3): 323-352. Deane, L., et al. (2007). “Desistance within an urban Aboriginal gang.” Probation Journal 54(2): 125-141. Decker, S., et al. (1996). Life in the gang: Family, friends, and violence, Cambridge, Cambridge University Press. Decker, S. H. and B. Van Winkle (1996). Life in the gang : family, friends and violence. Cambridge, Cambridge University Press. Erikson, E. H. (1968). Identity: Youth and crisis, WW Norton & Company. Esbensen, F.-A. (2010). Youth violence : sex and race differences in offending, victimization, and gang membership. Philadelphia, Temple University Press. Esbensen, F.-A., et al. (2001). “HOW GREAT IS G.R.E.A.T.? RESULTS FROM

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A LONGITUDINAL QUASI-EXPERIMENTAL DESIGN*.” Criminology & Public Policy 1(1): 87-118. Esbensen, F.-A. and K. E. Tusinski (2007). “Youth gangs in the print media.” Journal of Criminal Justice and Popular Culture 14(1): 21-38. Franzese, R. J., et al. (2016). Youth gangs. Springfield, Illinois, Charles C Thomas, Publisher, Ltd. Fujioka, Y. (1999). “Television portrayals and African-American stereotypes: Examination of television effects when direct contact is lacking.” Journalism & Mass Communication Quarterly 76(1): 52-75. Gannon, T. A., et al. (2011). “Good lives sexual offender treatment for mentally disordered offenders.” The British Journal of Forensic Practice. Garduno, L. S. and J. M. Brancale (2017). “Examining the risk and protective factors of gang involvement among Hispanic youth in Maryland.” Journal of Community Psychology 45(6): 765-782. Giordano, P. C. (2010). Legacies of crime : a follow-up of the children of highly delinquent girls and boys. Cambridge, Cambridge University Press. Gordon, R. M. (2000). “Criminal business organizations, street gangs and ‘wanna be’ groups: A Vancouver perspective.” Canadian journal of criminology. Revue canadienne de criminologie. 42(1): 39. Grekul, J. and P. LaBoucane-Benson. (2008). “Aboriginal Gangs and Their (Dis)placement: Contextualizing Recruitment, Membership, and Status.” Canadian Journal of Criminology and Criminal Justice/La Revue canadienne de criminologie et de justice pénale 50, 59-82. doi. org/10.3138/cjccj.50.1.59. Hagedorn, J. (2005). “The Global Impact of Gangs.” Journal of Contemporary Criminal Justice 21(2): 153-169. Hazen, J. M. and D. Rodgers (2014). Global gangs : street violence across the world. Minneapolis, University of Minnesota Press.

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Hazlehurst, K. (2018). Gangs and youth subcultures: International explorations, Routledge. Hill, K. G., et al. (1999). “Childhood Risk Factors For Adolescent Gang Membership: Results From The Seattle Social Development Project.” Journal of Research in Crime and Delinquency 36(3): 300-322. Hjalmarsson, R. and M. J. Lindquist (2012). “Like Godfather, Like Son: Exploring the Intergenerational Nature of Crime.” The Journal of Human Resources 47(2): 550-582. Howell, J. C. (2015). The history of street gangs in the United States: Their origins and transformations, Lexington Books. Howell, J. C. and A. Egley (2005). “Moving Risk Factors into Developmental Theories of Gang Membership.” Youth Violence and Juvenile Justice 3(4): 334-354. Howell, J. C. and E. Griffiths (2018). Gangs in America’s communities, Sage Publications. Inciardi, J. A. (1978). Reflections on crime: An introduction to criminology and criminal justice, Holt, Rinehart and Winston. Kennedy, D. M. (2009). “Gangs and public policy.” Criminology & Public Policy 8(4): 711-716. Klein, M. W. (2011). “Comprehensive gang and violence reduction programs: Reinventing the square wheel.” Criminology & Pub. Pol’y 10: 1037. Klein, M. W. and C. L. Maxson (2006). Street gang patterns and policies. Oxford, Oxford University Press. Knight, G. P., et al. (2012). “Ethnic Identity and Offending Trajectories among Mexican American Juvenile Offenders: Gang Membership and Psychosocial Maturity.” Journal of Research on Adolescence 22(4): 782-796. Lahey, B. B., et al. (1999). “Boys who join gangs: A prospective study of predictors of first gang entry.” Journal of Abnormal Child Psycholo-

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gy 27(4): 261-276. Mallion, J. S. and J. L. Wood (2020). “Good Lives Model and street gang membership: A review and application.” Aggression and Violent Behavior 52. Melde, C. and F.-A. Esbensen (2013). “Gangs and Violence: Disentangling the Impact of Gang Membership on the Level and Nature of Offending.” Journal of Quantitative Criminology 29(2): 143-166. Nafekh, M. and Y. Stys (2004). A profile and examination of gang affiliation within the federally sentenced offender population, Research Branch, Correctional Service of Canada. Olson, D. E., et al. (2004). The relationship between gang membership and inmate recidivism, Illinois Criminal Justice Information Authority Chicago, IL. Pyrooz, D. C., et al. (2016). “Taking Stock of the Relationship Between Gang Membership and Offending:A Meta-Analysis.” Criminal Justice and Behavior 43(3): 365-397. Pyrooz, D. C. P. D. and G. P. D. Sweeten (2015). “Gang Membership Between Ages 5 and 17 Years in the United States.” Journal of Adolescent Health 56(4): 414-419 Sullivan, M. L. (2005). “Maybe We Shouldn’t Study “Gangs”:Does Reification Obscure Youth Violence?” Journal of Contemporary Criminal Justice 21(2): 170-190. Totten, M. (2009). “Aboriginal youth and violent gang involvement in Canada: Quality prevention strategies.” IPC Review 3(March): 135156. Umaña‐Taylor, A. J., et al. (2009). “Latino adolescents’ ethnic identity: Is there a developmental progression and does growth in ethnic identity predict growth in self‐esteem?” Child Development 80(2): 391405. van Gemert, F., et al. (2008). street gangs, Migration and Ethnicity.

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Cullompton, UNITED KINGDOM, Willan Publishing. Van Ngo, H., et al. (2017). “The Unravelling of Identities and Belonging: Criminal Gang Involvement of Youth from Immigrant Families.” Journal of International Migration and Integration 18(1): 63-84. Wilson, J. M. and S. Chermak (2011). “Community‐driven violence reduction programs: Examining Pittsburgh’s One Vision One Life.” Criminology & Public Policy 10(4): 993-1027. Winfree, L. T., et al. (1994). “Youth gangs and incarcerated delinquents: Exploring the ties between gang membership, delinquency, and social learning theory.” Justice Quarterly 11(2): 229-256. Wortley, S. and J. Tanner (2006). “Immigration, Social Disadvantage and Urban Youth Gangs Results of a Toronto-Area Survey.” Canadian Journal of Urban Research 15(2): 18-37. Wortley, S. and J. Tanner (2008). “Respect, friendship and racial injustice: Justifying gang membership in a Canadian city.” street gangs, migration and ethnicity: 192-209.

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The Diminished Citizenship of Ex-Felons in the United States

The Strategy of Felon Disenfranchisement and the Lifelong Punishment of a Criminal Record

Hannah Downard

Edited by: Lillian Huang Artwork by: Tristan Sito

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n January 14, 20111 over 25,000 citizens lost the right to vote in Iowa.2 Four years later, over 200,000 citizens lost the right to vote in Kentucky.3 The commonalities between these groups

of disenfranchised individuals are straightforward: a criminal record and the replacement of their states’ Democratic governor with a Republican one. The United States’ lack of a constitutionally enshrined right to vote leaves the enfranchisement of both imprisoned felons and those who have formally completed their sentences within the domain of the state constitution and consequently to the inclusive or exclusive policies of a state’s governor. In modern America, this legal reality thus empowers state governors to act as gatekeepers for a great proportion of African Americans’ and minorities’ voting rights. In the context of the post-2000 era of ‘voting wars,’ in which the expression of the American people’s democratic voice amounts to partisan fodder for electoral litigation,4 this power is of great benefit to the Republican party. It provides the legal mechanism to suppress the primary electorate which most often fails to check their box on election night. The stripping of the right to vote, however, is hardly the only enduring sanction on felons who have completed their sentence. Instead, the ‘collateral consequences’ of incarceration, manifesting in restrictions on housing, employment, welfare, and the fundamental duties of citizenship, perpetuate a felon’s punishment far beyond prison walls. By first examining the reimplementation of felon disenfranchisement in Iowa and Kentucky– the only two states in the nation which currently “impose lifetime disenfranchisement for all people with felony convictions”5 – this paper will argue that these states’ recent barring of ex-felons from the election booths functions as part of the Republican party’s broader strategy of voter suppression in a relentless effort to critically weaken the Democratic-leaning African American and minority electorate. It will further be argued that the stripping of ex-felons’ right to vote in Kentucky and Iowa marks only one facet of a racialized, enduring punishment of formerly in-

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carcerated individuals. By examining Kentucky and Iowa’s strategic stripping of ex-felons’ voting rights and the myriad of civil penalties subjected to ex-felons, this paper will attempt to demonstrate that being an ex-felon in the United States constitutes a status of diminished citizenship.

The Colouring of Felon Disenfranchisement To understand how felon disenfranchisement serves as a ripe tactic to effectively silence the political voices of a great share of African American and other minority voters, it is imperative to first understand its discriminatory roots. Prior to the Civil War, felon disenfranchisement laws were not enmeshed with race. Instead, with African Americans’ being denied the vote altogether in most states, the law sunk its teeth into the political voice of poor whites.6 Only after the Civil War, and the passing of the Fifteenth Amendment barring discrimination from the right to vote “on account of race,”7 did felon disenfranchisement–along with the Mississippi Plan’s polls taxes and literacy tests, among other dizzying registration hurdles characteristic of the Jim Crow South–serve as an effective measure for white Southern states to combat the enfranchisement of African Americans with precision.8 Intentionally discriminatory but “dressed up in the genteel garb of bringing ‘integrity’ to the voting booth,”9 felon disenfranchisement was presented as a “race neutral” law in the 19th century.10 However, with Southern states’ careful expansion of disenfranchising crimes to include offences such as “moral turpitude” and larceny, in practice felon disenfranchisement resulted in a near catchall provision for the legal stripping of African Americans’ voting rights in the Jim Crow South.11 At its heart, felon disenfranchisement laws represented white lawmakers’ discriminatory attempt to weed out “undesirable voters”12 from the electorate, and preserve the moral and racial “purity of the ballot box.”13 This intent powerfully endures in modern America’s laws. The momentum behind this pervasion can in part be explained by the seismic proportion

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of African American, Latino and minority populations incarcerated in the United States. The contemporary racialization of the United States prison population, and the primary mechanism which has prevailed in disenfranchising one in every 13 voting-age African Americans as of 2016,14 can largely be accredited to the ‘War on Drugs.’ Incited by the Nixon administrations’ “tough on crime” policies,15 the Reagan administrations’ formal deployment of the War on Drugs in the 1980s and President Clinton’s firm prioritization of crime successfully engulfed millions of African Americans and minority groups into the criminal justice system in the latter half of the 20th century. Harsh sentencing laws and “hyper-policing”16 in racial and ethnic minority communities caused African Americans to be imprisoned for drug offences “at almost six times the rate of whites.”17 This persists even though statistically, African Americans do not use illegal drugs more often “than any other racial or ethnic group.”18 In its entirety, Clinton’s steely championing of tougher sentencing and the War on Drugs resulted in the African Americans, Latinos and minority groups being “overrepresented among those arrested, convicted, and incarcerated” in the nearly 6.9 million adults on parole, probation, or incarcerated, by 2003.19 The recent history of African Americans, Latino, and other minority groups’ disproportionate and systemic contact with the criminal justice system, thereby makes them the majority population in “the only class of citizens” in the United States consistently vulnerable to restrictions on their voting rights: felons.20 Republican politicians are acutely aware of this fact. The Ultimate Form of Voter Suppression: Felon Disenfranchisement The power of Kentucky and Iowa’s Governors to control the political voice of their states’ currently imprisoned and former felons is a hand conveniently dealt by the Founding Fathers’ failure to enshrine a right to

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vote in the federal Constitution.21 In the face of the United States’ powerful demographic change, causing the Republican Party’s “overwhelmingly white constituency to become an ever smaller share of the electorate,” this gubernatorial power aligns nicely with the G.O.P’s modern-day strategy of “constricting rather than convincing the electorate.”22 Iowa and Kentucky’s reversals of their states’ enfranchisement of ex-felons via Executive Order in 2011 and 2015, respectively, exemplifies the G.O.P’s larger tactic of voter suppression to maintain office. The Case of Iowa Iowa’s African American population is only 3.4 percent, but the state has one of the nation’s largest African American prison populations, at 26.2 percent as of 2016,23 ranking third in the country for the “over-incarceration of African American men between the ages of 18 and 24.”24 This reality consequently infuses the state with more than 5,000 ex-felons each year, of which a disproportionate amount are non-white.25 Despite Iowa’s state constitution “broadly [guaranteeing] the right to vote,”26 Article 2, Section 5 authorizes the state to deny the “privilege of an elector” to persons convicted of “any infamous crime.”27 The Iowa Constitution also fails to define an ‘infamous crime,’ while granting the Governor great autonomy in determining the circumstances in which to “restore the rights of citizenship, including the right […] to vote.”28 Prior to 2005, Iowa’s Governors – dating back to 1846 – held fast to a strict interpretation of the Section 5 provision, upholding its permanent disenfranchisement of any person with past criminal convictions.29 Democratic Governor Thomas Vilsack’s issuing of Executive Order 42 in 2005, breaking this stringent regime, enfranchised over 115,000 citizens by automatically restoring the right to vote for felons who had fully served their sentences.30 The impact of Vilsack’s inclusivity had a profound impact on the racial disparities of Iowa’s electorate, decreasing the rate of African American disenfranchise-

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ment in Iowa from 24.87 percent – the highest in the country – to a mere 6.9 percent.31 This reality is crucial. With the understanding that felons and “African Americans are overwhelmingly Democratic Party voters,”32 the impact of Executive Order 42 on Iowa’s electorate is tangible. Although two consecutive Republican Governors preceded Vilsack’s election, in 2006 – one year after ex-felons’ enfranchisement – a Democrat, Chet Culver, was elected to succeed Vilsack by approximately 99,000 votes – a margin close to the number of felons newly enfranchised.33 While it cannot be said that the electoral result may be conclusively accredited to the enfranchisement of Iowa’s ex-felons, it presents strong evidence of their voting power. Republican Terry Branstad’s immediate reversal of Executive Order 42 on the day he took office in 2011 is no coincidence. Issuing his own Executive Order 70 reinstating an onerous application process for felons’ vote restoration within hours of his swearing-in, Branstad redefined the state once more “as a national outlier on disenfranchisement,” making it one of the two “most restrictive states for voting for citizens with criminal records.”34 Despite his claim that “[the] act of filing an application for restoration of the rights of citizenship is an important and necessary aspect of an offender’s process of reintegration into society,”35 Branstad has demonstrated a minimal inclination to actually enfranchise those who submit an application. Since 2011, of the 25,000 Iowans who have completed their sentence, only 40 have regained their voting rights.36 The power of Branstad’s decision to provide meaningful gains for the Republican party is excruciatingly evident in Iowa’s 2018 gubernatorial election. Republican Kelly Reynolds’ margin of victory over her Democratic opponent was only 2.8 percent37 - a difference of only 36, 289 votes.38 Branstad’s strategic removal of the ex-felons’ voting rights worked to ensure his party’s victory in a tight race. How this reality fits into the Republicans’ broader scheme of voter suppression is best described by

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then-Republican Party Chairman Marty Conors, when explaining G.O.P opposition to a 2003 bill restoring ex-felons voting rights: “As frank as I can be, we’re opposed to it because felons don’t vote Republican.”39 The Case of Kentucky Kentucky sings an all too familiar tune. Governor Bevin’s 2015 reversal of his Democratic predecessor Steve Beshear’s enfranchisement of ex-felons via Executive Order 871 has produced stunningly similar results to those in Iowa. With 21 percent of its prison population being African American, Kentucky’s incarceration rate of African Americans is more than three times the incarceration of whites.40 Bevin’s immediate disenfranchisement of ex-felons worked to increase Kentucky’s disenfranchisement rate to 67 percent, translating to over 200,000 voters being barred from the polls due to previous criminal convictions.41 As a result, the state currently prohibits on one in four African Americans from the voting booth.42 Echoing Branstad’s minimal restoration of voting rights via application, Bevin has only restored 1 percent of ex-felons’ voting rights.43 While the impact of ex-felons’ disenfranchisement on the margin of victory in Kentucky’s November 2019 gubernatorial election remains to be seen, Bevin’s removal of former felons’ voting rights operates along the same fundamental logic as in Iowa: less former felons in the electorate produces less African American, minority, and generally, Democratic voters. The fruits of this strategy can be seen in the election of Kentucky’s Republican Senators by minute margins. Felon disenfranchisement was a crucial factor in aiding the election of Mitch McConnell in 1984. Winning by the narrow margin of 5,269 votes, at the time there were over 75,000 Kentuckians barred from the voting booth based on a past criminal conviction. Uggen and Manza unearthed the reality of McConnell’s benefit in determining that approximately 70 percent of those voters would have cast their ballot for the Democratic candidate.44 It is no surprise that con-

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sequently McConnell champions felon disenfranchisement in Kentucky, under the argument that “[t]hose who break our laws, should not dilute the vote of law-abiding citizens.”45 The Larger Picture: The Impact of the Cases of Iowa and Kentucky Both Kentucky’s and Iowa’s swift removal of ex-felons’ voting rights represents the Republicans’ deployment of a beneficial model, learned 19 years ago, to systematically combat the United States’ demographics slipping out of their favour. The dramatic Florida 2000 election revealed the merits of systematically purging voter rolls in the name of barring those with a criminal record, manipulating election machinery, and contesting with litigation.46 As a blueprint for a fruitful mechanism to gain office without actually winning the election, this reality gave birth to the G.O.P’s “nationwide voter suppression effort.”47 Felon disenfranchisement represents the perfect ebb and flow of a highly non-white electorate capable of immense Democratic voting power. Disenfranchising felons fits perfectly with the G.O.P’s contemporary strategic championing of voter-ID laws in Crawford v. Marion County Election Board in the name of preventing voter fraud,48 gerrymandering bolstered by Shaw v. Reno,49 phone-jamming Democratic party offices,50 or even mandating that voter registration forms be submitted on 80-pound thickness cardstock; amongst a myriad of other clever tactics.51 The Conservative activist and founder of the American Legislative Exchange Council, Paul Weyrich, exemplified the driving force behind the G.O.P’s cancerous – but fruitful – tactic: “I don’t want everybody to vote. [The Republican Party’s] leverage in elections quite candidly goes up as voting populace goes down.”52 This manipulation of ex-felons’ political voice for partisan gain is not only unjust, but deeply erodes the citizenship of ex-felons by stripping them of its fundamental facet: political voice. Upon release, ex-felons are consistently held to the expectation that they will become functioning

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dutiful citizens and members of their communities. Voting represents a concrete mechanism not only to engage in their communities affairs, but to proudly exercise the duties of citizenship, as “[t]hrough voting […] an individual with a conviction reinforces an identity as a responsible citizen.”53 Prohibiting former felons from the ballot box in Iowa and Kentucky is a consistent “tangible and symbolic reminder” that citizens with a criminal record are “prohibited from attaining the full benefits and protections of the law or of shaping that law.”54 The testimony of one ex-offender details the profound impact of having this right removed: “I have no right to vote on how my taxes is going to be spent or used, which I have to pay whether I’m a felon or not […] I’ve lost my voice or control over my government […] I can’t say anything because I don’t have a voice.”55 Further, the inability to vote ostracizes former felons from the very community they attempt to reintegrate into. Disenfranchised felons “are not entitled to a right that every other American citizen of age is able to enjoy.”56 Susan, a former felon, voices this hardship in describing how “not being able to vote kind of says you don’t matter, and you’re not really a part of this community.”57 In total, felon disenfranchisement represents a demeaning paradox, as described by an ex-offender: “[h]ow can you feel that you’re giving back to a community that you’re a part of when you’re exiled from it by not being able to vote and have a voice in it?.”58 Iowa’s and Kentucky’s recent disenfranchisement of felons diminishes the citizenship of former felons by fundamentally deeming those with a criminal record unfit to cast a ballot, while impeding their reintegration and rehabilitation by placing a tangible barrier between themselves and the community in which they desire to belong. The Collateral Consequences of a Criminal Conviction The removal of voting rights and the consequent ostracism are not the only enduring factors for individuals attempting to push on through

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life with “the big F.”59 The United States possesses systematic barriers for felons’ re-entry, deeming those with a criminal record unworthy of public housing, welfare, and jury duty while reinforcing the stigma of criminality. These interlocking sanctions impose a profound and life-long “invisible punishment,”60 further relegating persons with a past criminal conviction to a state of second-class citizenship. Despite newly released felons representing the “Americans with the most dire housing needs,” the nation severely restricts anyone with a criminal record from gaining access to federally supported public housing–often the only realistic, safe option for living.61 Bill Clinton’s enactment of his “tough on crime” stance permitted public housing agencies and providers of Section 8 housing to systematically deny federally subsidized public housing to those who have “engaged in any drug-related or violent criminal activity or other criminal activity which would adversely affect the health, safety of right to peaceful enjoyment of the premises.”62 After a mandated ban of three years, ex-felons convicted of drug crimes may re-apply, but only with concrete proof of their rehabilitation.63 The consequences of this restriction are devastating, and can often impede former felons’ ability to keep possession of their children. Alexander details the testimony of an African American man who applied for public housing for his family of three children. After being systemically denied housing on basis of having a former drug possession charge, he lost custody of his children and simultaneously became homeless.64 The reality of inaccessible affordable public housing is matched by an iron-fist restriction on welfare. President Bill Clinton’s 1996 Personal Responsibility and Work Opportunity Act, ending the nations’ previous individual entitlement structure to welfare and instead providing grants to states has produced devastating consequences for the livelihood of former felons and their families. The Temporary Assistance to Needy Families (TANF), included in the Act, limits the window for welfare-benefits to only

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five years, while mandating that states permanently bar “individuals with drug-related felony convictions” from obtaining federally funded public assistance and food stamps in their lifetime.65 While providing an ‘opt-out’ clause, in which states may reject or narrow the scope of the ban, as of 2010 only the District of Columbia and 13 states have opted out entirely.66 This reality disproportionately targets women of color and their children, as the U.S Department of Health and Family Services reported that of the 92,000 women who face collateral welfare restrictions on account of their criminal record, 39 percent of which are African American.67 A lack of housing or viable source of food, creates a nearly impenetrable barrier for access to employment. Fundamentally, despite the U.S Equal Employment Opportunities Commission’s ruling that an “absolute bar of employment based on conviction alone violates Title VII of the Civil Rights Act of 1964,”68 there is no federal law which prohibits an employer from rejecting an applicant based on a criminal record. Consequently, as Alexander writes, “virtually every job application whether for dog-catcher, bus driver, Burger King cashier, or accountant” asks felons’ to indicate whether they have a criminal record.69 This significantly decreases the chance of employment, as a national survey found that 40 percent of employers revealed that they are unwilling to employ former felons.70 The harm of a criminal record, “is not equally felt,” however. Instead, African American men with a criminal conviction are the “least likely” to receive offers of employment, compared to every other demographic within the U.S.71 In tandem with the loss of voting rights in Iowa and Kentucky, former felons are barred from another crucial facet of citizenship: the right to sit on a jury. Representing an “amalgam of a right, a duty, and a badge of community membership,” the barring of felons from jury duty consequently deprives them of these crucial benefits. In combination with voting, jury duty represents a concrete enactment of citizenship exemplifying

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democratic participation. Simultaneously, due to a tremendously high nonwhite prison population in the United States, felons’ exclusion reduces the “pool of racial minorities” on jury source lists, making juries not fundamentally unrepresentative of their communities.72 In sum, this multitude of civil penalties and restrictions effectively denies individuals the rights of citizenship while making increasingly difficult the performance of fundamental duties such as the gaining employment, housing, and above all food. Collectively, these interconnected restrictions diminish the citizenship of former felons.

Conclusion This paper has argued that Republicans’ recent disenfranchisement of ex-felons in Iowa and Kentucky exemplifies the party’s broader tactic of voter suppression to relentlessly weaken a heavily African American and democratic electorate. Furthermore, this essay has examined the array of punishing civil penalties subjected to those with a past criminal record, which collectively dismantle the fundamental rights of citizenship in the United States. By stripping felons of their voting rights, barring them from public housing, welfare, and employment opportunities, the United States not only renders an ex-felon’s political voice unworthy but inherently isolates them from the community they strive to integrate. In this way, the United States’ systematically deteriorates the citizenship of those who have completed their sentence. In the United States, one’s debt to society is never paid.

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Notes 1 “Criminal Disenfranchisement Laws Across the United States,” Brennan Centre for Justice, last modified December 7, 2018, www.brennancenter.org/criminal-disenfranchisement-laws-across-united-states. 2 John Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc. as Amicus Curiae,” Griffin v. Pate, 15-1661(2016): 22. 3

Christopher Uggen et al., “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016,” The Sentencing Project: 15. www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/. 4 Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown (New Haven: Yale University Press, 2012): 5. 5

“Criminal Disenfranchisement Laws Across the United States.”

Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford Scholarship Online, 2012): 54. 7 Carol Anderson, One Person, No Vote: How Voter Suppression is Destroying our Democracy (Bloomsbury Publishing: 2018): 1. 8

Manza and Uggen, Locked Out, 68.

Anderson, One Person, No Vote, 3.

Bridgett A. King and Laura Erickson, “Disenfranchising the Enfranchised: Exploring the Relationship between Felony Disenfranchisement and African American Voter Turnout,” Journal of Black Studies 47, no.8 (2016): 815. 11

Manza and Uggen, Locked Out, 58.

Manza and Uggen, Locked Out, 53.

Guy Goodwin-Gill, “The Disenfranchisement of ex-felons: Citizenship, Criminality, and ‘The Purity of the Ballot Box,’” Harvard Law Review 102 no. 6 (1989): 1308. www.jstor.org/ stable/1341296. 14

Uggen et al.,“6 Million Lost Voters.”

Hadar Aviram et al, “Felon Disenfranchisement” Annual Review of Law and Social Science 13 (2017): 296. 16

Anderson, One Person, No Vote, 93.

“Criminal Justice Fact Sheet: Drug Sentencing Disparities” NAACP, www.naacp.org/ criminal-justice-fact-sheet/. 18

Anderson, One Person, No Vote, 93

Human Rights Watch, No Second Chance: People with Criminal Records Denied Access to Public Housing (New York: Human Rights Watch, 2006), 10. 20 21

Meredith and Morse, “The Politics of the Restoration of Ex-Felons Voting Rights,” 42.

Allan J. Lichtmann, The Embattled Vote in America: From the Founding to the Present (Cambridge: Harvard University Press, 2018): 2.

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Anderson, One Person, No Vote, 1 – 2.

Whiston,“Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 26.

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Mark McCormick, “Brief for the League of Women Voters as Amicus Curiae,” Griffin v. Pate 15-1661. (2016): 11. www.brennancenter.org/sites/default/files/legalwork/Griffin%20 v%20Pate%20LWV%20Amicus.pdf. 26

Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 18.

Iowa Const. of 1844, Art. III §§, 2, 5.

Meredith and Morse, “The Politics of the Restoration of Ex-Felons Voting Rights,” 67.

Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 19.

Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 27.

Christopher Uggen and Jeff Manza, “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States” American Sociological Review 67, no. 6(2002): 780. doi.org/10.2307/3088970. 33

“America Votes 2006,” CNN Online, www.cnn.com/ELECTION/2006/pages/results/governor/. 34

McCormick, “Brief for the League of Women Voters,” 8.

Terry E. Branstad, “Executive Order Number 70.” State of Iowa Executive Department. January 14, 2011. governor.iowa.gov/sites/default/files/documents/Exec_Order_70.pdf. 36

Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 40.

“Iowa Governor Election Results,” The New York Times, last modified January 28, 2018, www.nytimes.com/elections/results/iowa-governor. 38

“Iowa Governor Election Results.”

“Felons’ Rights More About Partisan Politics,” Tuscaloosa News, last modified July 1, 2003, www.tuscaloosanews.com/news/20030701/felons-rights-more-about-partisan-politics. 40 “Felony Disenfranchisement in the Commonwealth of Kentucky: A Report of the League of Women Voters of Kentucky,” The League of Women Voters of Kentucky, January 29, 2019. lwvky.org/?s=felon+disenfranchisement. 41

“Felony Disenfranchisement in the Commonwealth of Kentucky.”

Uggen and Manza, “Democratic Contraction?,” 789.

Angela Behrens et al.,“Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002,” American Journal of Sociology 109 no.3 (2003): 571. 46

Hasen, The Voting Wars, 5.

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Anderson, One Person, No Vote, 1.

Hasen, The Voting Wars, 81.

Lichtmann, The Embattled Vote in America, 216.

Hasen, The Voting Wars, 91.

Hasen, The Voting Wars, 120.

Carol Anderson, White Rage: The Unspoken Truth of Our Racial Divide (New York: Bloomsbury, 2016), 139 – 40. 53

McCormick, “Brief for the League of Women Voters,” 12.

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010), 161. 56

Aviram et al, “Felon Disenfranchisement,” 307.

Manza and Uggen, Locked Out.

Whiston, “Brief for the NAACP, Legal Defense & Educational Fund Inc.,” 30.

Human Rights Watch, No Second Chance, 71.

Marc Mauer and Meda Chesney-Lind, Invisible Punishment: Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002), 16. 61

Human Rights Watch, No Second Chance, 16.

Mauer and Chesney-Lind, Invisible Punishment, 24.

Michelle Alexander, The New Jim Crow, 146.

Mauer and Chesney-Lind, Invisible Punishment, 23.

Michelle Alexander, The New Jim Crow, 158.

Darren Wheelock, “Collateral Consequences and Racial Inequality: Felon Status Restrictions as a System of Disadvantage, ” Journal of Contemporary Criminal Justice 21, no.1(2005): 85. doi.org/10.1177/1043986204271702. 68 Alec C. Ewald, “Collateral Consequences in the American States,” Social Science Quarterly 93 no.1 (2012): 225. doi.org/10.1111/j.1540-6237.2011.00831. 69

Michelle Alexander, The New Jim Crow, 149.

Harry Holzer et al.,“Will Employers Hire Ex-Offenders? Employer Preferences, Background Checks and Their Determinants,” in The Impact of Incarceration on Families and Communities, ed. Mary Patilla, David Wilman, and Burce Western (New York: Russell Sage Foundation, 2002). 71

Michelle Alexander, The New Jim Crow, 151.

Wheelock, “Collateral Consequences and Racial Inequality,” 84.

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Amicus .pdf. Meredith, Marc and Michael Morse. “The Politics of the Restoration of Ex-Felons Voting Rights: The Case of Iowa.” Quarterly Journal of Political Science 10 (2015): 41 – 100. doi.org/10.1561/100.00013026. Uggen, Christopher and Jeff Manza, “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States.” American Sociological Review 67, no. 6(2002): 281 – 310. www.jstor. org/stable/3088970. Uggen Christopher and Jeff Manza, “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States.” American Sociological Review 67, no. 6(2002): 777-803. www.jstor. org/stable/3088970. Uggen, Christopher, Ryan Larson, Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. Washington: The Sentencing Project, 2016. www. sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/. Wheelock, Darren “Collateral Consequences and Racial Inequality: Felon Status Restrictions as a System of Disadvantage,” Journal of Contemporary Criminal Justice 21, no.1 (2005): 82 – 90. doi. org/10.1177/1043986204271702. Whiston, John. “Brief for the NAACP, Legal Defense & Educational Fund Inc. as Amicus Curiae.” Griffin v. Pate 15-1661(2016): 1 – 35. www. brennancenter.org/sites/ default/files/legalwork/Griffin%20v%20Pate%20NAACP%20Amic us.pdf.

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