Seriaitm volume3 issue2 spring2016 by Ian Robertson

Seriatim Journal of American Politics

ISSUE 3 / VOLUME 2 spring 2016

THE HARD WORK * * * * * * * * * * * * of GOVERNING * * * * * * * * * * * * *

Seriatim Journal of American Politics

ISSUE 3 / VOLUME 2 spring 2016

THE HARD WORK * * * * * * * * * * * * * of GOVERNING * * * * * * * * * * * *

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

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“The ultimate good desired is better reached by free trade in ideas...” - JUSTICE OLIVER WENDELL HOLMES, JR.

Seriatim Mission

Our mission is to serve the University of Virginia community and support an engaged citizenry by fostering an open marketplace of ideas and encouraging the productive exchange of political speech.

Content

We are dedicated to publishing the highest quality undergraduate work on American politics. Work is selected for its depth of scholarship, originality, and ability to advance our understanding of the American political tradition. We select pieces with the aim to enrich and diversify the political marketplace of ideas.

Statement of Ownership

Seriatim and its print and online publications are independent, privately-funded entities. All content decisions rest at the sole discretion of the Executive Editorial Board.

Editor-In-Chief John Brake

Managing Editor Austin Owen

Design Editor Magdalene Beck

Outreach Editors Lucas Pulliza Eli Weiner

Events Editors Jack Hall Gaven Wessel

Staff

Peter Brodzick Alex Drunkenburger John Graham Nick Kumleben William Leas Sofie Niziak Benjamin Winter Nathaniel Wolf

Online Readership

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

Journal of American Politics

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09 15 16

LETTER FROM THE EDITOR

THEMATIC NOTE ACADEMIC ESSAYS

19 Partisan gerrymandering power of corporate interest: 27 TheThe New York Times vs. NBC News critical analysis of the 33 AMoynihan Report and its popularity institutionalism and the politics 41 New of Medicare hydraulic fracturing an 51 Isenvironmental injustice? 59 The contested state - Jessica Hirsch

- Christopher Benos

- Abraham Axler

- Lina Zimmerman

- Chantal Madray - Eli Weiner

ARTICLES, ET AL.

67 Earth to Uncle Sam Examining the role of social democracy 71 in modern America reflections on some questions of distributive justice 75 Brief - Jack Brake

- Eli Weiner

- Travis Quigley, Sam Tobin, & Jack Brake

PUBLIUS

89 The Court's most polarizing Justice - Avery Rasmussen

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* * * LETTER FROM THE EDITOR * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Dear Readers,

his issue marks a seminal moment for Seriatim. Last spring, Ian Robertson and Russell Bogue—the graduating Executive Editors who founded Seriatim in 2012— passed the torch to a new Editorial Board. In putting together this latest issue, we have gained renewed appreciation for Ian and Russell’s great service to the University community. As Editor-In-Chief, I am committed to preserving their vision of Seriatim as a unique outlet for political discourse on Grounds. The new Editorial Board has taken charge of Seriatim during a time of intense debate about politics in the United States and abroad. From the nomination of Donald Trump that defies conventional wisdom and punditry; to the resurgence of populism in Britain and Europe that threatens the status quo of liberal internationalism; to the emergence of lone-wolf, home-grown terrorism that upsets the post-9/11 consensus on how to keep us safe—many of the core beliefs that undergird our political discourse find themselves under increasing pressure. As educated citizens of a free and

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Seriatim | Journal of American Politics

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democratic society, it is up to us to make sense of the disorder. As we articulate our visions for a harmonious and safe society, we contribute to the “marketplace of ideas” in which competition yields consensus. When Justice Holmes first wrote in support of the “free trade in ideas” within “the competition of the market,” he did not mean that discourse is a death-struggle between winners and losers. The echo comes from Mill: all ideas are sharpened, and ultimately improved, when they are challenged. The free exchange of ideas, like all exchange in the market, is not a zero-sum game. Yet so many of today’s politicians and partisans seem to approach discourse as a gladiatorial game on which they have personally placed a large bet. The focus is on the outcome, on winning, rather than on the discursive process itself. The world is easier to manage when, stripped of its complexity, it appears as a series of binary choices and soundbites. Do we want law and order, or social unrest? Equality and fairness, or religious bigotry? These are not helpful questions. And political discourse should be helpful. It should help us decide what we think about the whole raft of issues that we are periodically asked to weigh at the polls. Publications like Seriatim provide a platform for more thoughtful and provocative discourse. The essays that we publish are meant to challenge readers’ assumptions and make them feel less intel-

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Letter from the Editor

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lectually secure. This is not a comfortable feeling, but it is one we must embrace if we are to develop the open-minded habits required of democratic citizens. In their inaugural editorial Letter, Ian and Russell wrote, “we hope to provide an avenue through which the thoughtful written and spoken word of a diverse student body—of whom the academic world requires and expects much—may be better heard by all. Let the reasoned work of this University’s nascent scholars be shared, and we will inspire anew the tenor of political speech that marked our nation’s bright past.” This call to action made reference to an American political tradition that both relied on and provided an outlet for the “illimitable freedom of the human mind.” Thus even in an age when the forces of petty pessimism and callow closemindedness discourage participation in the marketplace of ideas, we find at the University of Virginia a wealth of engaged and engaging scholarship. We hope that you will grapple with the selections published in this edition of Seriatim. We encourage you to further explore the marketplace of ideas on our website, www.seriatimjournal.com. And we invite you to submit your own work for consideration. Essays on topics germane to American politics and political theory should be emailed to seriatimjournal@gmail.com. Seriatim also hosts events on Grounds each semester

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Seriatim | Journal of American Politics

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that bring together members of the University community—faculty and students—in dialogue about pressing issues of politics and public policy. Past events have included a forum on sexual assault prevention and a panel discussion on the future of the Gay Rights movement “post-Obergefell.” All of these events are free and open to the public. To get on our mailing list, please query seraitimjournal@gmail.com. Finally, we invite you to get involved with the journal directly by applying for a position on the staff or Editorial Board. Staff members are involved in the selection and editing of essays, and in the planning of events and our occasional essay contests. If you enjoy writing and politics, Seriatim is for you! Your involvement is critical to the continued success of the journal. It is up to each of us to preserve the free exchange of ideas that has made this nation’s experiment in democratic government endure for two-and-a-half centuries. The Seriatim Editorial Board pledges to provide a professional, aesthetic, accessible platform for students of the University to share their written work. We hope you will join us in this endeavor.

John B. Brake Editor-In-Chief

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Article title

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* * * THEMATIC NOTE * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

he theme of this issue is “the hard work of governing.” Politicians often employ this phrase on the stump to tout their preparation for office and denigrate their opponents’ fitness for the job. The phrase may seem banal or boilerplate. But the glibness with which politicians reference the “hard work of governing” belies the immense complexity of democratic institutions. The essays in this issue explore the nuts and bolts of government from both practical and theoretical perspectives. Essays on the Moynihan Report and the Medicare Act of 1965 explore the politics of policy formation. Essays on gerrymandering and hydraulic fracturing analyze how ethical considerations affect legislation. A shorter piece examines the media’s role in shaping public opinion with respect to net neutrality. And a more theoretical essay explores the ongoing debate about the function of states. Election Day approaches and we will soon be called upon to select our next president. The essays in this issue provide important insight into “the hard work of governing” with which the executive is charged, and impress the importance of electing leaders who are equipped to carry it out.

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academic essays

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he following pieces consist of academic work by undergraduates at the University of Virginia. From political theory to public policy, these essays represent a variety of scholarly fields and a diversity of thought on the American political tradition.

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Partisan gerrymandering Undeserved blame

by Jessica Hirsch

College of Arts and Sciences (2016)

any political scientists and members of the media argue that partisan gerrymandering is at the root of the increased polarization in the United States. According to the Merriam Webster dictionary, to gerrymander is â&#x20AC;&#x153;to divide (a territorial unit) into election districts to give one political party an electoral majority in a large number of districts while concentrating the voting strength of the opposition in as few districts as possible.â&#x20AC;? There are several common arguments as to why and how gerrymandering or partisan redistricting can lead to increased elite polarization within the U.S. Congress. One underlying theory behind this proposition suggests that gerrymandering leads to decreased levels of competition within districts and safe seats, in which candidates are more easily elected with little contestation. According to advocates of this theory, congressional redistricting contributes to polarization by creating districts that are more ideologically extreme, usually for the purpose of protecting incumbents. The second main source of support for this hypothesis highlights the extremely partisan nature of the U.S. House of Representatives as evidence that gerrymandered congressional districts have widened the gap between legislators. This viewpoint fails, however, to account for the similar levels of polarization within the Senate, a body in which boundaries are fixed. Finally, polarization is a vast and complicated issue. To claim that gerrymandering is its main cause is to ignore the significance of other probable factors and their potentially synergistic effects. _______________________________________________________________________ See Notes (pg. 115) for link to referenced Graphs & Tables.

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Seriatim | Journal of American Politics BACKGROUND

To begin, a description of the redistricting process may help explore how redistricting contributes to the makeup of the U.S. legislature. As outlined in political scientist James DeVault’s 2013 study regarding the effects of redistricting on the polarization of trade issues, after the completion of the decennial census, the 435 seats in the U.S. House of Representatives are reapportioned among the states on the basis of its new population count relative to the other states. Once reapportionment is completed, states begin the process of redistricting which determines the geographic boundaries of each congressional district. In the majority of cases, the state’s governor or legislature decides how the state redistricts, but the specifics of the process vary by state. While states have the right to determine who is responsible for redistricting, the nature of redistricting itself is constrained by a variety of national rules. For decades, the U.S. Supreme Court has considered the issue of redistricting. One of the most significant restraints on redistricting comes from the results of two Supreme Court rulings, Gray v. Sanders and Karcher v. Daggett. According to these decisions, states must attempt to make the populations “According to [Supreme Court] of congressional districts as equal as possible, decisions, states must attempt adhering to a one-person, one-vote standard. The potential outcomes of redistricting into make the populations of cluding various types of districts are presented congressional districts as in Figure 1 (see endnotes at page 115 for more equal as possible, adhering to details). Furthermore, redistricting must pay a one-person, one-vote stan- attention to factors such as compactness, contiguity and respect for existing communities dard.” of interest in the makeup of districts. Intradecade restrictions also pertain, often when courts declare districts unconstitutional based on specific legal criteria. Supporters of the gerrymandering hypothesis emphasize two recent changes in the system of redistricting as further evidence for their conclusions. First, they draw attention to the regulations created and enacted by the Voting Rights Act of 1965, which aimed to overcome legal barriers at the state and local levels that had prevented African Americans from exercising their right to vote. Advocates of the gerrymandering theory assert that these new procedures led to the proliferation of majority-minority districts in which racial or ethnic minorities represent the majority of constituents as well as accompanying “bleached” or mainly white districts with decreased competitiveness and safe seats for legislators. Yet, leading scholarship finds little evidence to this effect. Political scientists Nolan McCarty, Keith Poole and Howard Rosenthal conducted research into this assessment. They find that “more than two-thirds of the majority-minority districts are located in just five states: California, Florida, Illinois, New York, and Texas. In many of these cases, minority voters are sufficiently concentrated so that majority-minority districts can be formed with minimal effects on the boundaries of other districts.”1 Other studies corroborate these results which attest that “while

gerrymandering: undeserved blame APartisan rticle title

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most districts in the House represented by minorities are overwhelmingly safe, this is as much a result of the social and political homogeneity of urban centers as it is of redistricting.”2

“The advent of technology seems to have little tangible effect on the success of partisan gerrymandering because those who draw districts are limited in their capabilities.” Second, gerrymandering hypothesis advocates claim that recent technological advances have allowed redistricting to become more precise. They propose that improved computer technology and software have increased the ability to accurately map a state’s political environment with precinct-level data about the electorate, generate customized maps to meet particular needs, and precisely take voter trends into consideration. A major concern is that “the computers have enabled the crafting of finely drawn redistricting plans that promote partisan and career goals to the detriment of electoral competition, ultimately thwarting voters’ ability to express their will through the ballot box.”3 Yet, the advent of technology appears to have little tangible effect on the success of partisan gerrymandering because those who draw districts are limited in their capabilities. Micah Altman, Karin MacDonald, Michael McDonald researched state redistricting authorities in 1991 and 2001 and described the key patterns of computer use and the fundamental capabilities of computer redistricting systems. Their data demonstrated that although the speed of mapping had improved by 2001, the fundamental capabilities of the programs had not changed dramatically. Thus, they conclude that “the timing of the almost universal adoption of computers and the relative continuity of computer capabilities suggest that much of the blame assigned to computers for modern redistricting excesses has been misplaced.”4 Other scholars have determined similar results. McCarty, Poole, and Howard find that “despite the increased ingenuity and sophistication of gerrymanders, numerous constraints and obstacles impede using redistricting as an ‘incumbency protection’ plan. The requirements of equal population, compactness, and continuity reduce the scope of such manipulation.”5 Neither of these two recent procedural changes has had a profound effect on gerrymandering and its abilities to manipulate districts for political gain.

DECLINE IN COMPETITIVENESS WITHIN DISTRICTS Initially, one of the most popular assertions about the causal relationship between gerrymandering and polarization suggests that redistricting leads to decreased competitiveness in districts. Proponents of this hypothesis claim that partisan redistricting allows parties and interest groups to create safe districts in which candidates can gain sustained control over the legislative seat more easily. A supposed consequence of the increase of safe seats is that candidates have fewer incentives to moderate themselves and appeal to swing voters, in effect producing more partisan candidates. There is, however, little evidence that partisan redistricting has cre-

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Seriatim | Journal of American Politics

ated lower levels of competitiveness. Leading scholarship suggests that the decreased competitiveness of seats in the U.S. House of Representatives began long before the spike in polarization and can be explained by factors other than partisan redistricting. Additionally, research revealed that in some cases, redistricting actually can increase the competitiveness within the district. First, a wealth of research demonstrates that the level of House competitiveness has been steadily declining for a great part of the 20th century, long before the recent increase in polarization. According to the data in Figure 2, the number of marginal house seats has been in steady decline from 1876 to 2004.6 However, extreme polarization only began to take shape in the second half of the 20th century. Additional analysis evaluated flaws in the timeline of the decreased competition theory. Political scientists Joseph M. Parent, Joseph Bafumi, Charles A. Kupchan and Peter L. Trubowitz performed research and conclude that “although the number of competitive congressional districts declined in the mid-1960s and generally stayed low in the 1970s and 1980s, this number actually increased in the 1990s, an era of pronounced partisanship.”7 Accordingly, temporal data contradicts the supposed link between the increase of partisan gerrymandering and the decrease in competitiveness in U.S. House of Representatives districts. Other factors may contribute to the decreasing competitiveness and explain it better than the gerrymandering hypothesis. For instance, “[T]emporal data contradicts many political scientists have suggested that the supposed link between the advantage from personal incumbency the increase of partisan gery- may produce an increase in legislative seat mandering and the decrease safety. According to prominent political sciin [district] competitiveness...” entist Thomas E. Mann’s research in 2007, “the growth of candidate-centered campaigns and the accumulation of ‘personal vote’ dwarfed redistricting as a cause of declining competition during this period.”8 Mann conducted further research into the competition of U.S. House of Representative districts from 1970-2002. In accordance with Table 1, Mann asserts that “it is clear from the data that redistricting has not had a uniform net national effect on the competitiveness of House districts.”9 He further notes that “the commonsensical notion that higher levels of competition push politicians toward policy moderation, and lower levels of competition toward policy extremism, has not withstood empirical scrutiny over the years.10 Furthermore, political scientists McCarty, Poole and Howard Rosenthal’s research in 2009 suggested that scholars have been unable to establish a compelling causal relationship between increased polarization and declining competition. According to their findings, “gerrymandering does not necessarily generate safe seats… consequently partisan gerrymandering leads to more competitive districts than noncompetitive districts and has an ambiguous effect on polarization.”11 Other data has indicated comparable results. Seth E. Masket, Jonathan Winburn, and Gerald C.Wright conducted research in 2012 regarding the effect of gerrymandering on state legislatures. Similarly, they find that “all of the coefficients for the variables measuring who draws districts are negative, suggesting that when legislators in unified partisan control states draw their own districts, they produce more competitive districts, all else being equal.”12 Masket, Winburn, and Wright examined different types of redistricting methods, including non-partisan, neutral approaches from 2000-2008 and conclude that “competitive

PAartisan gerrymandering: undeserved blame rticle title

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rates look similar across redistricting methods, with no plan producing more than 30% competitive seats during the decade.”13 This data can be seen in Figures 3 and 4 below. Based on the data presented in Figure 3 and in Table 2, “redistricting has extremely modest effects on the modern trends of increasing polarization and declining competition.” This data is consistent with research on other legislative bodies, suggesting that gerrymandering does not have a significant effect on the competitiveness of district seats.

DIFFERENCES IN THE HOUSE AND THE SENATE Those who claim that gerrymandering causes polarization often accentuate statistics about the rapid exacerbation of polarization within the U.S. House of Representatives. But this tenet of gerrymandering hypothesis contradicts the prevalence of similar levels of polarization in both the U.S. House of Representatives and the U.S. Senate, whose members are elected at the statewide level and thus cannot be affected by redistricting. Several advocates of the causal relationship between gerrymandering and polarization have suggested that the increase in polarization in the U.S. Senate is a direct result of the escalation of polarization which occurred in the House. There is, however, little empirical data to support this assertion. It is important to evaluate the data regarding the levels of polarization in the U.S. House of Representatives compared to the U.S. Senate. Figure 5 illustrates the amount of polarization in both the House and Senate from 1960-2010, including the House-weighted score which is the mean partisan difference in the Senate where each senator’s score is weighted by the number of House districts in his or her state. Data indicated that although House polarization is initially higher, the polarization in the Senate followed a nearly identical trajectory as that of the House, especially from the 1960s onward. Essentially, “there is evidence of faster House polarization following 1992, but the gap appears to close after 2002.”15 These more recent results are consistent with McCarty, Poole and Rosenthal’s prior assertion that “the strongest argument against overemphasizing the politics of apportionment is the fact that the United States Senate (which of course is never redistricted) has endured an almost identical history of polarization.”16 Additional research concurs with this suggestion, concluding “signs of a sharp increase in partisan polarization are by no means limited to legislative bodies whose districts are subject to regular redrawing of boundaries.”17 As stated above, proponents of the gerrymandering hypothesis often suggest that because the Senate is never reapportioned or redistricted, polarization in the House must have a causal effect on the high levels of polarization in the Senate. This suggestion, however, has little support. McCarty, Poole, and Rosenthal performed a test of Granger causality to evaluate this claim, as demonstrated in Table 3. The data indicates that “only the contemporary change in House polarization, not its lagged values, is correlated with changes in the Senate series,” producing no evidence of Granger causation.”18 McCarty further demonstrated this claim in 2011, explaining that while some academics argue that gerrymandering polarized the Senate because former House members brought their partisan approaches to politics to the Senate, there is no statistical evidence that House polarization “causes” Senate polarization.

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Seriatim | Journal of American Politics OTHER FACTORS

Subsequently, the vast majority of research indicates that there is little confirmation that redistricting has caused a significant increase in polarization. As noted by various researchers, “the weight of scholarly evidence comes down on the side of those who argue that redistricting is not the sole or even a primary cause of polarization.”19 And, as has been shown over and over, the American political system is incredibly complex and multifaceted so it is particularly limiying and narrow-sighted to blame polarization on one particular factor. Evidence suggests that a large number of other influences explain the growing trend of polarization. Masket, Winburn, and Wright clarify that “the effects of partisan redistricting on competition and polarization are small, considerably more nuanced than reformers would suggest, and overwhelmed by other aspects of the political environment.”20 Other political scholars emphasize the need to explore a multitude of explanatory factors regarding polarization because such an upsurge could occur for various reasons, including increases in partisan voting, realignment, or greater geographic clustering of the like-minded.21 As DeVault notes in his 2013 research, “given the growing importance of national factors, such as party affiliation, and the fact that congressional redistricting is not only subject to constraints but also serves purposes other than incumbent protection, it is not surprising that the relationship between redistricting and political polarization is not as robust as many in the media suggest.”22 Other contributory national factors may include the gradual disappearance of the one-party South following the Civil Rights Movement of the 1960s as well as increased geographical sorting based on political and social attitudes. For instance, “the reapportionments since 1980 have shifted seats from the Northeast where polarization is moderate to more polarized regions, the South and Southwest. Consequently, new congressional districts and those significantly redrawn are not a random sample of all districts but are heavily concentrated in polarized regions.”23 In accordance with these results, Mann claims that the geographic clustering of likeminded citizens “reduces the degrees of freedom available to those drawing the lines, but it contributes naturally and powerfully to more homogenous districts and less competition.”24 More comprehensive research acknowledges these effects suggesting that although the pattern of polarization is not disputed, there are multiple explanations for the underlying factors contributing to the shifts observed both within and between the parties.

OPPOSING RESEARCH Although there is little evidence that redistricting directly increases the levels of polarization, as suggested in the initial theory, redistricting can have other less-observed effects in specific cases. For instance, several academics have presented research highlighting that redistricting can increase polarization in particular districts. Based on a dataset linking congressional districts from 1962 to 2002, Carson et al. find that “members who represent districts that were significantly altered at any time after 1962 are 0.017 more extreme

PAartisan gerrymandering: undeserved blame rticle title

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compared to members representing continuous districts during the entire period.”25 This data is presented in Table 4 below. They conclude that districts that were significantly redrawn were more polarized compared to districts that did not change during the studied time period. While Carson et al. acknowledge that this change is modest, they claim that this evidence is consistent with the argument that redistricting offers a partial explanation for why members of Congress are now ideologically farther apart compared to the 1960s. They further suggest that as more members become more extreme, the consequent effects may contribute to conditions that indirectly exacerbate polarization. Although the majority of literature regarding the causal effect of gerrymandering finds little ground, Carson et al. assert that redistricting can “provide the parties with an opportunity to reshape district preferences to gain partisan advantage above and beyond any national or statewide trends, thus contributing to polarization at the margins.”26 Other scholars support the suggestion that partisan gerrymandering may impact the political margins. Although partisan redistricting is likely not the root cause of polarization, “gerrymandering merits our continued attention if only because it reinforces developments set in motion by other forces, operates at the margin to decrease competitiveness, and fuels further polarization.”27 Carson et al. argue that “although other factors may be driving polarization in the aggregate, it would be premature to rule out redistricting as playing any role in the increased polarization we see in Congress today.”28 Certain data therefore demonstrates a modest effect from partisan gerrymandering on increased polarization.

CONCLUSION The vast majority of evidence reinforces the conclusion that “redistricting is not responsible for the increase in political polarization observed in the House over the last two decades.”29 Although the media and pundits paint a different picture, empirical data fails to support the notion that gerrymandering leads to increased polarization, except in specific cases or conditions. Nevertheless, it is possible that the process of redistricting in general has some effect. As McCarty, Poole and Rosenthal note, “it is still possible that polarization is greater than it would be if the districting process were more politically neutral. In other words, districting might cause polarization even if redistricting does not.”30 Significantly, DeVault emphasizes that the lack of empirical data regarding the effects of redistricting on polarization “does not imply that redistricting is irrelevant, only that its role is likely to vary according to time and circumstance.”31 Based on the available evidence, it may be important to continue to study the effects of redistricting both in individual districts and nationally. Many questions remain to be answered, but at this time, there has not been enough concurring data to establish a causal effect between partisan redistricting and political polarization.

* * * Jessica Hirsch is a fourth year double-majoring in Foreign Affairs and Linguistics. From analyzing political theory to the structure of language, she enjoys examining issues from multiple perspectives and in light of distinctive frameworks.

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The power of corporate interest: The New York Times vs. NBC News A brief look at contrasting coverage of net neutrality

by Christopher Benos

College of Arts and Sciences (2018)

he net neutrality debate centers on how much government regulation is best to ensure a free and open internet. Two articles published in February of 2015, one from NBC News and one from The New York Times, offer strikingly different perspectives on this heated political issue. The Times article seems to favor the net neutrality regulations, while the NBC article does not favor these new policy measures. The main factors that account for such a difference in determining news content are the role of corporate interests, specifically anticipatory self-censorship, as well as political factors, including flywheels and indexing. After months of contested debate on net neutrality, the Federal Communications Commission (FCC) proposed new rules which restrict Internet Service Providers (ISPs) from providing faster access lanes to enterprises willing to pay for faster access. More specifically, new regulations reclassify broadband providers as so-called “common carriers,” allowing for stricter governmental scrutiny and effectively turning the internet into a public utility. Proponents of net neutrality argue that a lack of strict regulation on access lanes could inhibit equal access for companies unable to pay to compete. Opponents express concerns over new taxes on internet services, as well as the increased costs required to comply with new regulations, both of which could stifle industry investment.

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Seriatim | Journal of American Politics

These two sources differ mainly in that the article from The New York Times, titled “In Net Neutrality Push, F.C.C. Is Expected to Propose Regulating Internet Service as a Utility,” offers a favorable perspective on net neutrality, while the article from NBC News, titled “FCC Passes Net Neutrality Rules in Victory for Open-Internet Activists,” offers an unfavorable perspective on the rules. While other domestic sources have covered the net neutrality debate, these two stories demonstrate the influence of specific factors on media choices. Choosing domestic media excludes exogenous factors associated with foreign sources, and limiting the focus of this brief paper to one medium, print media, excludes any possibilities for false correlations between a different medium, such as television or radio, and differences in the news coverage itself.

CORPORATE INTERESTS AND ANTICIPATORY SELF-CENSORSHIP The first major factor which best accounts for the differences in coverage between these two articles is the role of corporate interests in guiding news content. This factor is most evident in the NBC News article because its opposition to net neutrality mirrors that of its parent company, Comcast. Because The New York Times is independently owned and operated, the role of corporate interests is a non-factor; in other words, one reason why The New York Times casts net neutrality in a positive light is precisely because it does not have corporate interests guiding it against the proposals. Indeed, without corporate interests guiding its message, The New York Times feels less pressure from the anticipatory self-censorship, which leads NBC to make certain coverage choices negatively depicting net neutrality. Anticipatory self-censorship means that higher-level interests implicitly shape news. Indeed, “the anticipation that superiors might disapprove … is usually enough to discourage a reporter” from publishing a story or writing it a certain way.1 The interests of NBC’s owner, Comcast, which stands in opposition to net neutrality, likely exert considerable influence on NBC’s coverage. Though Comcast’s influence may not be direct, “it is not what [a corporate executive] will do or will veto, but what “The interests of NBC’s owner, we expect that he will do or veto; that’s his Comcast, which stands in influence.”2 On the whole, an NBC reporter opposition to net neutrality, profiling net neutrality in a negative light relikely exert considerable influ- flects how the understood desires, as Parenti describes, of “those who own or who represent ence on NBC’s coverage.” the ownership interests of the company” implicitly govern news coverage. Aside from the positions for and against new regulations, what the author chooses to exclude from NBC’s article offers another key distinction between these two articles. To paraphrase writer David Armstrong, “the news is slanted not only in what it says but in what it leaves unsaid.”3 Moreover, as if governed by the classical “code of omerta”—described as “the sacred code of silence that both wise guys and news guys live and die by”—NBC’s article

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displays clear implicit gatekeeping.4 Journalist Julianne Pepitone frequently cites viewpoints opposing net neutrality, but excludes counterpoints which argue the other side. The New York Times’s article clearly delineates the positives of net neutrality; however, the article from NBC glosses over affirmative arguments and focuses on the regulations’ negative effects. Specifically, after explaining a brief affirmative argument for net neutrality, the author proceeds to include five paragraphs of unfavorable arguments. These negative arguments range from expressing that new regulations could “stifle innovation in broadband” to harsh characterizations of the government’s efforts as “unprecedented government micromanagement of all aspects of the Internet economy.”5 Overall, the weight given to opposition arguments demonstrates how contrasting viewpoints “are sometimes ignored or given minimal attention by the media,” especially when higher level interests govern coverage.6 Another key example is the author’s choice of sources. Oftentimes, “responsible journalists do try to be fair,” but stories can be skewed to one side “either in content, tone, choice of language or prominence of play.”7 Indeed, who the article cites critically shapes what the public perceives. In much the same way that the use of “wacky” in a famous news article helped decry the flat tax the author’s use of harsh language in her quoted sources casts net neutrality in a negative light.8 In terms of source material, the author draws from only critical viewpoints. She references the opinion of FCC Commissioner Ajit Pai, that Title II reclassification is tantamount to “‘a government solution that creates a real-world problem.’” She also downplays the views of activists by referencing a Wharton professor’s view that “not much will change immediately for the average consumer” as a result of new regulations. Last, she includes AT&T CEO Randall Stephenson’s opinion that “‘there will be litigation’ that could drag on for an extended period” to implicitly suggest that the FCC is overstepping its legal authority.9 Standing in sharp contrast to The New York Times’s depiction of regulations as “light-touch,” Pepitone’s sources and choices convey the opposite. More broadly, NBC’s coverage deeply reflects the effects of corporate ownership.

“More broadly, NBC’s coverage [of net neutrality] deeply reflects the effects of corporate ownership.” POLITICS: THE ROLE OF FLYWHEELS AND INDEXING Just as the sources for and content of NBC journalist Pepitone’s article show Comcast’s prevailing interests, so too does The New York Times article reflect the role of political power in shaping news coverage. Indeed, the article reflects the interests of Washington in subtle ways, including the influence of political flywheels and indexed views. First and most importantly, The New York Times includes references to President Obama, demonstrating the influence of flywheels on news coverage. The term “flywheel” is meant to “indicate the institutional processes that regularize for the press the operations of the government,” and more practically, refers to individuals whose opinion can be used “for major spin operations.”10 Flywheels can implicitly be used to shape the public’s perception of a news is-

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Seriatim | Journal of American Politics

sue – and in this case, to persuade the public to view net neutrality favorably. In the article, the author mentions the President eight times—a number second only to references to Tom Wheeler, which occur nine times—and includes a video in which Obama argues in favor of Net Neutrality.11 This implicit use of flywheels as sources of credibility impacts the message propagated by the article itself. Second, the role of indexing is important, especially with regards to whom the article cites and how it articulates partisanship. Indexing refers to how greater emphasis implicitly goes to stories reflecting the interests of political power, especially elected officials, and/or the views of Washington’s political consensus. News can be “indexed” to the political agenda, with coverage bounded by the range of public debate in Washington power circles.”12 In the article, the author makes use of particularly favorable language and sources that point towards the Democratic consensus in Washington. For example, using language in much the same way as Pepitone frames her opposing arguments for NBC, The New York Times uses language that “frame[s]” and “implicitly favor[s]” one side of the debate, with proponents of regulations quoted “more frequently and characterized more favorably.”13 The author cites the consequences of similar Democratically-supported regulations for the cell

“... The New York Times uses language that ‘frame[s]’ and ‘implicitly favor[s]’ one side of the debate, with proponents of regulations quoted ‘more frequently and characterized more favorably.’” phone industry from 1993 as the application of “the light-touch approach,” going on to say that “the industry has grown and thrived,” as a result.14 Moreover, the caption for President Obama’s video characterizes net neutrality as an effort “to maintain [and protect] an open Internet,” and describes measures as “rules,” not regulations.15 These linguistic choices reflect the President’s opinion as a government flywheel and further demonstrate how the indexed views of the Democratic Party impact the coverage in The New York Times. Another good example of the role of indexing for the Times’s article is Lohr’s choice to utilize Tim Wu, a political actor in many respects, as a main source for generating credibility around a favorable position on net neutrality. Wu, who ran for Lieutenant Governor of New York, has advised the Federal Trade Commission (FTC) and FCC, and coined the term “net neutrality,” represents a major resource for Wheeler and the President. By extension, his views reflect a political position that clearly shines through in Lohr’s article. Overall, Wu’s views reflect the views of the democratic consensus in Washington, and shed light on how such views can be indexed to subtly appear in the press. “Similar to the mechanics of opening and closing the news gates,” the process of indexing, as seen in Lohr’s choice to rely on a politically active Wu, means that powerful circles can shape news coverage.16 This affects how an issue like net neutrality is framed for public consumption.

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CONCLUSIONS AND IMPLICATIONS On the whole, the debate over the reclassification of the internet as a public utility, dubbed net neutrality, has shaped much of Washington’s political debate in recent months. Both sides of the issue continue to contest regulations, and biases are present even in news and media outlets. Specifically, the selected articles from The New York Times and NBC, with The New York Times writing in favor and NBC writing in opposition, highlight a difference in coverage founded on a fundamental bias for and against net neutrality. Moreover, corporate interests and politics best explain this difference, actively shaping how the public perceives internet regulation. More broadly, this paper is important because it shows how news bias can revolve around * * * the ownership of the news media themselves, as well as the role politics plays in coverage. In an era in which corporate interests and political actors often limit media choices in order to shape the public’s perception of news, stakeholders must be concerned about whether the news media can truly remain objectively dedicated to pursuing the truth. For the press to serve as a mechanism to hold government and private institutions accountable, media must be “appropriately skeptical in using terms fed to them.”17 Overall, public and private actors, as well as the public, must be aware of the role bias plays in distorting the news in order to make informed policy decisions.

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Christopher Benos is a second year majoring in Government and Foreign Affairs (Honors) and working on a DMP in French. He is interested in comparative political theory and how cultural differences shape domestic and international policy.

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A critical analysis of the Moynihan Report and its popularity

by Abraham Axler

College of Arts and Sciences (2017)

t is troubling to realize that the Moynihan report, despite its obvious inaccuracies, has become a seminal work of sociology. In 1965, when “The Negro Family: The Case for National Action” was published, Moynihan was working as the Assistant Secretary of Labor in the Johnson administration. The report would soon be immortalized as Moynihan’s most poignant work of sociology. The irony of this is that Moynihan’s doctorate was in International Relations, and he had never worked as, nor claimed to be, a sociologist.1 It was not until after the report’s publishing that he became a lauded sociologist. The report was intended only for internal use by Johnson’s progressively oriented administration. Moynihan never intended to make it “his report,” and the title page on the original document actually lacks his name. This begs the question: “How did a broadly erroneous document by a relatively unknown bureaucrat become among the most referenced works of the 20th century?” It is because the report places the blame not on the failures of the government, or the profound structural disadvantages African-Americans faced, but on women. Moynihan claims that the rise of female-headed households in the black community has created a tangle of pathology. According to Moynihan, this pathology is responsible for all the vicissitudes that black men currently face. Since the dawn of time (at least according to the Bible), humanity’s anguish has been the fault of a woman. Thus, the popularity of the Moynihan report—despite its fallacious nature—can be attributed to the convenience and

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appeal of faulting women. The report is divided into five chapters: “The Negro American Revolution,” “The Negro American Family,” “The Roots of the Problem,” “The Tangle of Pathology,” and “The Case For National Action.” Each section is woven with verbosity, sensationalism, and undue graphs. It is imperative to realize that for Moynihan to capture the attention of the White House’s policy makers he had to instill a sense of drama in the report. Moynihan’s goal for the report was to catalyze action by the White House on the issue of black poverty. Before Johnson became embroiled in Vietnam, he was a domestically focused president as shown by his passing of the 1964 Civil Rights Act and push for a “great society.” In his measured commentary on the report, Freedom Is Not Enough: The Moynihan Report and America’s Struggle over Black Family “By Moynihan's account, the Life—from LBJ to Obama, James Patterson notes, greatest casualty of Negro “[h]e was aiming his report at government offisurvival [in America] has cials so that they would become more aware of the crisis and start thinking seriously about solu- been the growth of a matrifocal society. “ tions.”2 Moynihan’s report was meant as a call to action, but included virtually no proposals. The section most likely to contain any policy or programmatic solutions, “The Case for National Action,” was just a page and a half long. Instead the report ends: “The policy of the United States is to bring the Negro American to full and equal sharing the responsibilities and rewards of citizenship.”3 This is obviously a noble, yet amorphous goal. Much of the report consists of the presentation of charts and graphs about employment rates, marriage rates, income, and other statistics without inherent controversy. It is not the data itself that made the report incendiary; rather, it is Moynihan’s theories as to what the data implies. The most provocative section, “The Tangle of Pathology,” is what this paper will analyze most closely. Moynihan is not one to mince his words; in the introduction to the report, he outlines the two reasons that are hampering the advancement of African Americans. The first being “[t]he racist virus in the American bloodstream still afflicts us… Second, three centuries of sometimes unimaginable mistreatment have taken their toll on the Negro people.”4 It is not, however, until “The Tangle of Pathology” that Moynihan outlines his particularly controversial theory as to why African Americans are disadvantaged. Moynihan strikes an oddly lionizing tone to begin the section: “That the Negro American has survived at all is extraordinary-a lesser people might simply have died out.”5 He goes on to note more specifically the value of Negros in America, but begins to highlight the costs of Negro survival. By Moynihan’s account, the greatest casualty of Negro survival has been the growth of a matrifocal society. Bluntly he remarks: “The Negro community has been forced into a matriarchal structure which, because it is so out of line with the rest of the American society, seriously retards the progress of the group as a whole, and imposes a crushing burden on the Negro male and, in consequence, on a great many Negro women as well.”6 This is an incredible claim. Moynihan himself was partially raised by a single mother. He notes that it is not that female-headed households are inherently insidious; rather, it is their nonconformity to America’s conjugal

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society that is destructive. This condition of matriarchy is what Moynihan calls the “Tangle of Pathology.” By Moynihan’s logic, matriarchy is the genesis of the debilitating disease that ravages the black men of America. To Moynihan’s credit, he remarks, “There is no one Negro community.”7 Although, he notes shortly thereafter, “nonetheless, at the center of the tangle of pathology is the weakness of the family structure.”8 Moynihan’s argument rests on the assumption that any family that deviates from the husband and wife dyad is fundamentally unstable. This claim has been criticized by a number of scholars, including Herbert J. Gans, a contemporary of Moynihan’s. Gans writes, “Moynihan apparently looked at the poor black population with a belief system which viewed any family form that did not include a two-parent nuclear unit as unstable and pathological.”9 For many black families, a two-parent family structure was an economic luxury. Some circumstances even required men to abandon their families so that they might receive welfare.10 Moynihan’s ideal conception of the stable family was very much one of the breadwinning father and the doting stay-at-home mother. This was a quixotic family dynamic for the vast majority of the families in question. Gans further notes: “poor people lacked many of the material and nonmaterial resources that make a two-parent family possible, and that for poor Blacks, the single parent family was sometimes the only solution.”11 The rise of female-headed households represented not a symptom of pathology, but a feature of adaptability. In many cases, females were best able to provide for their children. The entire philosophy of black parenting, by some accounts, was based on maximizing the survival of their children. In an essay by Jeffers entitled “Mothers and Children in Public Housing,” found within Willie’s The Family Life of Black People, Jeffers describes the mothering skills of Mrs. Todd. The researcher notes, “I came to realize why so many mothers in and outside of the project considered the provision of adequate physical care a major if not the major, aspect of good motherhood. Adequate physical care could not be taken for granted.”12 For many black mothers, pragmatism was the key to survival. They were able to adapt to nearly any family role. Oftentimes this role might be perceived by much of the American public as a traditionally more masculine, dominant role. Robert Hill writes in The Strengths of Black Families:

“The rise of female-headed households represented not a symptom of pathology, but a feature of adaptability. In many cases, females were best able to provide for their children. The entire philosophy of black parenting, by some accounts, was based on maximizing the survival of...children.” “The self-reliance of black women who are the primary breadwinners of their families best exemplifies this adaptability of family roles. The low remarriage rate among these women can partly be explained by the greater self-confidence they have in being able to function as the head of the family, because of many stabilizing factors in families that are headed by women, there is no need to assume a pathological function to these families.”13

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Seriatim | Journal of American Politics

Far more so than the white community, black communities supported each other. Stabilizing factors like surrogate mothers, informal adoptions and the sharing of resources like clothing and food were common. Moynihan, when noting what he perceived to be the plight of illegitimate children, wholly overlooked the cultural differences within the black community. This is a view best articulated by Hortense Spillers in her essay “Mama’s Baby, Papa’s Maybe”: “I certainly do not mean to say that African peoples in the New World did not maintain the powerful ties of sympathy that bind blood-relations in a network of feeling, of continuity. It is precisely that relationship-not customarily recognized by the code of slavery-that historians have long identified as the inviolable ‘Black Family.’”14 The essence of Spiller’s argument is that because of African Americans’ long history of enslavement in America, white social institutions and conventions can never be fully applicable to them. It is likely that the improbable survival of the Negros, to paraphrase Moynihan, is due to their flexible family structures. There is, however, a critical difference between flexibility and instability. The stability of the black family structure comes from its egalitarian nature. In The Strengths of African American Families Twenty Five Years Later, Hill notes the flexibility of family roles. He writes, “In African American families, mothers often perform many traditional roles of fathers, fathers often assume customary female roles, and children perform some parental functions for younger siblings.”15 This is a nuance that could not be captured by Moynihan’s data. It is nearly impossible to quantify the role a brother has had as an active participant in the raising of a sibling. The data merely shows the alarming statistics regarding the ratios of children to parents in low-income black families. A nonwhite female headed household in 1960 had 4.04 children while a white husband and wife household had just 3.66; interestingly, white female headed households had only 2.93 children.16 This larger family size is greatly ameliorated by the greater family network in the black community. A social environment that nurtures and protects children is far more important than the presence of biological parents. As Scanzoni notes in The Black Family in Modern Society, “Theoretically, such a parent-substitute might be able to carry out the same kind of socialization as a blood parent, and thus function in the same way as a role model for the child.”17 Specifically, these parent substitutes might be an aunt, a neighbor, or the milkman, but more broadly the whole black community could be considered a parent substitute. As a work of sociology, the report was inaccurate. Moynihan did not fully utilize the latest studies of his day, nor did he use his position in the government to obtain the superior data that was potentially available. Moynihan can be forgiven on many points if the report is not considered to be a work of sociology. Rainwater and Yancey contended in their 1967 book The Moynihan Report and the Politics of Controversy that “[the report] is a polemic which makes use of social science techniques and findings to convince others.”18 The root of the problem, by Moynihan’s reasoning, is that women instead of men were the dominant economic force. Only 12% of nonwhite women contributed to the family income more than 50%, versus 10% for white woman.19 Such a small difference largely negates Moynihan’s argument. Additionally, a study by the National Urban League Research Department in 1979-80 found “Overall, black single parent families (10 percent) were about as likely to have children in college as

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black two-parent families (13 percent) and if you control for income you might actually have children more likely to go to college.”20 College is an ex-

“Moynihan's data were technically correct... Their invalidity comes from Moynihan's applications and dissections... Scholars agree that the data available to Moynihan at the time would have shown that structural problems like poverty and racial inequality were the cause of the problem, not single parent families, illegitimacy, and matriarchy.” cellent indicator of parental success, and two-parent families that conform to Americans’ standards perform only infinitesimally better than the nonconforming matriarchal families. Moynihan’s data were technically correct. All of the statistics he chose were valid. Their invalidity comes from Moynihan’s applications and dissections. The data he uses to illustrate the dangers of matriarchal families is damned by a number of data points. The report also lacked a longitudinal study to discover the long term effects of single parent families to prove a pathology. Scholars agree that the data available to Moynihan at the time would have shown that structural problems like poverty and racial inequality were the cause of the problem, not single parent families, illegitimacy, and matriarchy.21 Moynihan’s report places the blame explicitly on women. Any theory that can fault women is cross-culturally appealing. In Genesis, Chapter Three, Adam and Eve are enjoying the Garden of Eden until Eve breaks God’s law. God had forbidden Adam and Eve from eating from the tree of knowledge. Eve is tricked by the serpent into eating fruit from the tree. The Bible reads “And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.”22 The Bible continues, “Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.”23 It is not a perfect comparison to Moynihan’s theory of pathology, but there are distinct similarities. These similarities are best illustrated by childrearing during sorrow, in Moynihan’s case economic sorrow, and the need of a husband to rule the family. This does not imply that Moynihan was in anyway alluding to the Bible. It is meant to show how the American people might have been primed to accept this theory as it in some ways mirrors a familiar biblical parable. Furthermore, the story places the central blame on the woman, Eve. Another classic tale is that of “Pandora’s Box.” The story of Pandora was recorded by the ancient Greek poet Hesiod but was translated by Hugh G. Evelyn-White in 1914. According to myth, Pandora was the first woman on Earth. The synopsis of the story is that Pandora was given a jar, from God, containing all of the world’s evil. Predictably, she could not resist and opens the jar, releasing all of the suffering in the world. White’s translation from the Greek illuminates the woman-blaming elements of the story: “But the woman took off the great lid of the jar with her hands and scattered all these and her thought caused sorrow and mischief to men.”24 Much like the story of Eve, Pandora’s actions are noted as causing anguish to all men.

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Moynihan’s argument indicates that women are to blame for black men’s societal suffering. Moynihan lauds the armed forces for its masculine dominance. He goes as far to state “Given the strains of the disorganized and matrifocal family life in which so many Negro youth come of age, the Armed Forces are a dramatic and desperately needed change: a world away from women, a world run by strong men of unquestionable authority.”25 This directly implies that women are creating an undue burden on men, and the dominant woman’s authority should be questioned. This softly echoes the Bible’s call for the husband to rule over their wives as well as reflects the suffering of men, created by a woman, in the story of “Pandora’s Box.” The following Efik fable does not closely resemble the Moynihan report’s argumentation other than that it blames woman. The Efik are a Nigerian people within the larger Ibdio ethnic group. In their mythology, Abassi is the god who creates the Earth. His wife, Atai, convinces him to allow a man and a woman to live on Earth. The story makes it extremely clear that it is against Abassi’s wishes to put the couple on Earth but that he capitulated to his wife. In order to maintain power over these people he forbid them from farming so that he would be their only source of food. Eventually the woman begins to farm, and they lose their devotion to Abassi. Soon the couple has children and Abassi blames his wife for not realizing what a terrible idea it was to put people on Earth. Atai then sends death to Earth to kill the couple.26 While it does not so clearly link suffering to women, the story does blame women. The significance of the story is that Moynihan would have almost certainly regarded these first Nigerians as “negros.” Many of the slaves brought to America who would later become the subjects of Moynihan’s report were taken from West African areas currently in Nigeria. Both white and black cultures have an inescapable history of blaming women. The report may have been intended for a select group of White House policy makers, but it has become massively popular. Staples’s book, The Black Woman in America: Sex, Marriage and the Family, vehemently defends the black matriarch. The struggles of African American males cannot be pinned on an individual white citizen. It is highly unlikely that one person, one agency, or even one era is to blame. If there has been a culprit, however, it likely an ongoing failure of the American government.Staples notes “The masses of white people do not have the power to oppress most Blacks, although they have become willing collaborators with those who do.”27 Only the American government has the power to oppress blacks on a massive scale. It is the individual white citizen who has become the willing collaborator, and subscriber to Moynihan’s theory. These “masses of white people” Staples speaks of are far more comfortable blaming women, than the government that represents them. Robert Cole notes in an interview with a black minister about the Moynihan report that the minister thought that the report was “a call to white people.”28 Thompson, in Sociology of the Black Experience, notes, “[t]he general public, as well as some scholars, concur with the recklessly sweeping, distorted generalization made by Daniel P. Moynihan that ‘at the heart of the deterioration of the fabric of negro society is the deterioration of the Negro family.’”29 Thompson also argues that the white community’s embrace of the Moynihan report is due to absolving their obligation to pay for black welfare. This coupled with our cultural disposition to blame women is a compelling argument for the popularity of the report. In his book

Article title critical analysis of the moynihan report

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Blaming the Victim Ryan remarks, “an ideology like Moynihan’s resonates so perfectly with the mood and purposes of the public and of its intellectual leaders.”30 Moynihan is blaming the victim for “the tangle of pathology.” Moynihan has targeted brilliantly the most easily blamed group in America: black women. No group perhaps other than the hypothetical Native American, homeless, transgender community is less politically powerful and more easily hated. Perhaps the best retort to Moynihan’s report is the anecdotal evidence. In The Strengths of African American Families Twenty Five Years Later, Hill writes, “Interestingly although the American public is ready to blame such mothers for raising the minority of males who become delinquents, criminals, and drug abusers, it is not willing to give them credit for raising the majority of males who complete high school, who graduate from college, who work every day in legitimate occupations, who are responsible fathers, and who are productive citizens of this society.”31 Men like Colin Powell and Barack Obama have risen to be the leaders of our nation. Although Moynihan’s theory will likely be highly celebrated on its upcoming fiftieth anniversary, it should be regarded as a fallible document that blamed black women out of convenience and to appeal to Americans’ well-worn disposition towards blaming women.

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Abraham Axler is a third year studying Government and Foreign Affairs in the Politics Honors Program.

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New institutionalism and the politics of Medicare

by Lina Zimmerman

College of Arts and Sciences (2016)

he evolution of the Medicare Act of 1965 began in the New Deal Era. Faced with significant opposition, particularly from the American Medical Association (AMA), President Franklin Delano Roosevelt abandoned his modest plan to include government-funded health insurance in his social welfare program. He feared that including health insurance in the New Deal would jeopardize Social Security retirement benefits. As a result, the precursor to Medicare became an orphan of the New Deal. For the next three decades, bills were introduced in every Congress, even with no hope for enactment, to keep health insurance financed by social security taxes on the national agenda. This essay applies the theory of new institutionalism to describe the long and contentious fight for federally funded health insurance and to explain how strategic legislative approaches, institutional changes within Congress following the elections of 1958, and the influence of the Johnson Administration finally led to Medicare’s enactment in 1965.

STRATEGIC LEGISLATIVE APPROACHES A sustained interest in government-funded, national health insurance first appeared during the economic security debates of the New Deal Era; yet, the legislation proposed during the 1930s, 1940s, and early 1950s varied significantly from the Medicare legislation that _______________________________________________________________________ See Notes (pg. 115) for link to referenced Graphs & Tables.

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was finally enacted in 1965. Through strategic legislative proposals that embodied a series of compromises, health insurance advocates embraced an incremental approach to build political support for Medicare. This political support was essential to counter the AMA and other powerful institutions that favored the status quo over government intervention in health care. Beginning in 1939, advocates of national health insurance directed their attention to the need for medical care in post-depression America. President Harry Truman, a Democrat who believed that access to health care was a “basic human right,” said in his State of the Union Address in 1948 that his goal was “to enact a comprehensive insurance system which would remove the money barrier between illness and therapy,…[and thus] protect all our people equally… against ill health.”1 By 1949, the introduction of the Murray-Wagner-Dingell Bill—named for its three prominent Democratic sponsors—became an annual attempt to put Truman’s goal into law. Although the Democrats enjoyed majorities in both houses from 1939 to 1946, Truman’s broad proposal faced opposition from the Conservative Coalition, the alliance of conservative Southern Democrats and Republicans, whose influence prevented hearings or any other legislative action on the proposed bills. Furthermore, the AMA, “ignoring the stipulations that doctors would remain free to choose their own patients, and patients to choose their own doctors” sponsored a crusade against “socialized medicine” that not only contributed to the legislation’s downfall, but also led to the defeat of some of the prominent Congressional supporters of the legislation in the 1950 elections.2 After the failure of the Murray-Wagner-Dingell Bill in 1949, it became clear that the prospects of a universal health insurance program were remote.3 A new strategy was necessary to overcome the AMA’s slander and increase support for federally funded health insurance. Despite Truman’s continued advocacy for expansive reforms, his key advisors began working on narrower approaches to federally funded health insurance. Specifically, Wilbur Cohen and I.S. Falk, Federal Security Agency officials, began drafting legislation to limit health insurance to the beneficiaries of the Old Age and Survivors Insurance Program commonly known as Social Security. The head of Social Security, Oscar Ewing, characterized this strategic approach as “terrific” and remarked to reporters, “It is difficult for me to see how anyone with a heart can oppose [this type of program].”4 Thus, what began in the New Deal Era as a movement to provide health insurance for all Americans evolved into a proposal focused on the plight of the elderly, whose comparatively worse health, high medical bills, and fixed incomes and lack of insurance upon retirement appealed to the sympathies of American voters. Not only did this reform win public support from elderly constituents and their families, who often bore the financial burden for their aged loved ones, but it also used an incremental approach to appeal to conservative Democrats, whose values drove them to prefer less government intrusion and private insurance alternatives to national health insurance. Furthermore, “By linking these programs to the payroll tax, the benefits were not stigmatized as welfare.”5 Over time, conservatives would re-shape their preferences due to concerns about the voting power of elderly constituents. This strategic reform marked the beginning of a constructive debate about what would eventually become the Medicare Act of 1965. In another strategic legislative measure, Wilbur Cohen, who preferred comprehensive

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social insurance because of his personal values and position at the Social Security Administration, actively pursued legislation to provide health insurance to disabled Americans over the age of 50. Keeping with the incremental approach, this legislation proposed extending Social Security financing to a relatively small population who needed health care. Importantly, this was the first time that the AMA was defeated, despite its vigorous campaign against the law. The AMA saw the program as government intrusion into the medical practice of physicians who were diagnosing their patients with disabling conditions. With the defeat of the AMA,

“Following the enactment of disability insurance in 1956, four key strategists of the incremental approach to Medicare joined forces. Nelson Cruikshank, head of the AFL-CIO's Department of Social Security, and Robert Ball, a highly respected career official in the Social Security Administration, joined Wilbur Cohen and I.S. Falk. 'Their tactical plan was twofold: to prompt Congressional interest in Medicare by persuading a well-placed congressman to sponsor the bill, and to elicit wide public concern about the health and finances of the aged...' They were successful in both efforts.” proponents of federally funded health insurance for the elderly “were encouraged to hope that the time was ripe for another drive for government health insurance.”6 Following the enactment of disability insurance in 1956, four key strategists of the incremental approach to Medicare joined forces. Nelson Cruikshank, head of the AFL-CIO’s Department of Social Security, and Robert Ball, a highly respected career official in the Social Security Administration, joined Wilbur Cohen and I.S. Falk. “Their tactical plan was twofold: to prompt Congressional interest in Medicare by persuading a well-placed congressman to sponsor the bill, and to elicit wide public concern about the health and finances of the aged through an AFL-CIO propaganda campaign.”7 They were successful in both efforts. Aime Forand, the fourth ranking Democrat of the Ways and Means Committee, agreed to sponsor their legislation and the AFL-CIO raised public awareness to rival the AMA’s propaganda. For the first time in Medicare’s history, hearings were held in the House of Representatives and the Senate Subcommittee on Problems of the Aged and Aging. In addition, the Speaker of the House, Sam Rayburn, and the Senate Majority Leader, Lyndon Johnson, supported the Forand bill. Lobbying intensified, huge public rallies were held, and members of Congress received high volumes of constituent mail supporting the legislation. Consequently, the AMA spent $250 million, a five-fold increase in its lobbying budget, to criticize the bill.8 In response to Forand’s threat to submit a discharge petition, which would have allowed the legislation to leave Ways and Means under an open rule, the committee speedily rejected the legislation in 1958 by a vote of 17 to 8. Despite the defeat of Forand’s bill, the episode marked an important step for the Medi-

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care movement. Following the vote in the Ways and Means Committee, the powerful chairman, conservative Southern Democrat Wilbur Mills, realized that there were not enough votes to pass the existing Medicare legislation in Congress. While his initial preference, driven by his conservative ideals and his concern about the solvency of the Social Security Trust Fund, was to oppose using social security to fund health insurance for the elderly, he recognized that in time public support would lead to the enactment of a national health insurance policy. Therefore, to increase the movement’s congressional support—particularly amongst conservatives— she began devising a method to fund health insurance through welfare. This marked an“Mills worked with the AMA other important step in the strategic passage to expand public assistance of Medicare and foreshadowed Mills’ role in for a new category of people 1965. called medically indigent. Mills worked with the AMA to expand These were elderly Americans public assistance for a new category of people called medically indigent. These were elderly who would only qualify for Americans who would only qualify for welwelfare if their medical bills fare if their medical bills were excessive. This were expensive. This approach approach fell within the preferences of many fell within the preferences of more members of Congress, particularly conmany more members of Con- servative Democrats, who favored medical gress, particularly conservative insurance for the elderly but opposed raisDemocrats who favored medi- ing taxes. Mills’ incremental proposal was less expensive, narrower in scope and had the cal insurance for the elderly backing of the AMA. After quick approval by but opposed raising taxes.” the Ways and Means Committee, the Rules Committee cleared H.R. 12580 and it overwhelmingly passed the House by a vote of 381 to 23. In the Senate, the Finance Committee modified the House bill, renaming it Kerr-Mills after Senator Kerr, a conservative Democrat who sided with the Republicans to defeat Lyndon Johnson’s alternative social security plan by a vote of 51 to 44. Kerr-Mills was passed in the Senate by a vote of 91-2, establishing what is now known as Medicaid. In the final strategic compromise, Wilbur Mills suggested combining the three health insurance bills under consideration in 1965. The three bills were the King-Anderson bill, which offered hospital coverage financed through a higher Social Security tax; “Eldercare,” the AMA sponsored bill that expanded means-tested public assistance financed through general revenues for the medically indigent; and “Bettercare,” a bill proposed by John Byrnes, a Republican who preferred voluntary hospital and doctor coverage financed through a combination of general revenues and premium contributions paid by beneficiaries. Wilbur Cohen reflected on the ingenious plan and concluded that Mills’s compromise was “unassailable politically from any serious Republican attack.”9 He went on, “it was the most brilliant legislative move I’d seen in 30 years. The doctors couldn’t complain, because they had been carping about Medi-

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care’s shortcomings and about it being compulsory. And the Republicans couldn’t complain, because it was their own idea. In effect, Mills has taken the AMA’s ammunition, put it in the Republican’s gun, and blow both of them off the map.”10 Mills’s compromise, which came to be known as the “three layer cake,” gave each key actor and member of Congress his preferred approach to designing Medicare, thus ensuring the legislation’s passage in 1965. In the Senate, the Chairman of the Finance Committee, Russell Long, called for extended hearings that took another month to amend the House passed bill. The Finance Committee addressed operational details such as how physicians should be paid. Unlike the House, the Senate voted on Social Security bills under an open rule, which allowed further amendments and debate on the Senate floor. Under public scrutiny, the Senate raised benefits and increased Medicare’s price tag by almost $1 billion. Ultimately, the House and Senate bills contained more than 500 differences that needed to be resolved in the conference committee. Most of the decision involved compromise about the levels of benefits. To maximize the number of members of Congress who preferred the new Medicare proposal to the status quo, the conference committee used traditional bargaining methods to reach agreement.11 As Medicare proposals evolved and became increasingly popular the AMA and other institutions within the Medical community developed their own proposals to reflect their values and protect their financial interests. For example, the AMA continued to oppose physician payment by the government. In contrast, hospitals saw government funding as in their interest because under the status quo, they bore most of the costs of the elderly who could not afford to pay their bills. Insurers also realized that the aged were an unprofitable market.12

INSTITUTIONAL CHANGES WITHIN CONGRESS Following the 1958 Congressional elections, Democratic majorities in Congress increasingly favored Medicare. While Democrats were the majority party in both houses almost continuously from 1930 through Medicare’s passage in 1965, the party was split geographically with a conservative Southern wing and a more liberal Northern wing. Furthermore, the method for choosing committee chairs, based on seniority, disproportionately placed old Southern Democrats in positions of power. Congressman Dick Bolling compared Speaker Rayburn to “something like a feudal king – he is first in the land; receives elaborate homage and respect; but he is dependent on the powerful lords, usually committee chairmen, who are basically hostile to the objectives of the national Democratic Party.”13 Of the 63 new Democrats who entered Congress in 1958, however, the majority were programmatic liberals from competitive Northern districts. These freshmen liberals were disappointed to find Southern Democrats chairing 13 of the 19 House committees. Consequently, “the class of 1958 swelled the ranks of the Democratic Study Group (DSG), a recently formed organization dedicated to mobilizing votes for liberal legislation and ultimately reforming the House.”14 The Democratic majority increased again in 1964 following President Lyndon Johnson’s landslide re-election. Specifically, the Democrats gained 38 seats in the House for a margin of 295 to 140. Democrats also increased their majority in the Senate from 66 seats to 68 seats.15

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The composition of the Democratic Party shifted significantly from the late 1950s through the elections of 1964. “The proportion of House Democrats from the South (not including Border States), had decreased from 40 percent in the 1953-58 period to 33 percent during 1959-64 and 30 percent during 1956-74.”16 The new Northern Democrats acted quickly to stop the use of delaying tactics that had previously impeded Medicare legislation. The new and increased Democratic majority not only shifted the composition of the House towards the Democratic median, bit also moved the median further left, creating increased party polarization as the new Democratic majority became more liberal and homogenous than the previous majority. Liberal Northern Democrats used their increased numbers to implement institutional change within the House and effectively limit the power of the Conservative Coalition of Republicans and Southern Democrats. One key institutional change was reinstatement of the twenty-one-day rule. This rule made it possible to dislodge bills from the House Rules Committee after a maximum delay of three weeks. Most notably, during the Kennedy administration with public sentiment supporting Medicare, the Ways and Means committee remained deadlocked with the bill bottled up after three weeks of executive sessions. There were two possible legislative actions to circumvent Ways and Means. First, a discharge position signed by 218 members of the House could have dislodged the bill. Medicare supporters, however, did not have this absolute majority to win using this unpopular parliamentary maneuver. Second, Medicare supporters could bypass the House by using a tactic to attach Medicare to a Senate amendment to another piece of legislation passed by the House. This was very risky because it would rely on the House to agree in conference to legislation that clearly was unable to pass the House in the first place, which was especially problematic because under the Constitution only the House can originate tax legislation. Moreover, the House Rules Committee would have to approve the Senate version of Medicare for a conference committee, but it was well known that the Rules Committee was opposed to Medicare and would block floor debate. In addition, while the Conservative Coalition held majorities within the Ways and Means Committee, the many previous versions of Medicare never made it from Ways and Means to the Rules Committee at all. To remedy this, another key institutional reform initiated by liberal Democrats changed the ratio of committee membership. The traditional ratio, which was followed prior to 1965, dictated that for every three members of the majority party on the committee there would be two minority party members. Instead, the new ratio reflected the ratio of the parties in the House as a Whole. Thus, following the election of 1964, the new Ways and Means committee would consist of a two-to-one ratio of Democratic Representatives to Republican Representatives. Specifically, the committee in 1965 had 17 Democrats and 8 Republicans, compared to the prior membership of 15 Democrats and 10 Republicans. This finally limited the power of the Conservative Coalition within the Ways and Means Committee to block Medicare legislation from reaching the floor. In contrast to the liberal shift in 1965, prior Democratic majorities were unable to stop the Conservative Coalition. For instance, in 1954 when the Democrats regained the House, “the partisan majority did not comprise a favorable Medicare majority.” In fact, “legislative

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prospects were so slight that no committee hearings were held until 1958.”17 Similarly, during the Kennedy Administration, five Southern Democrats on the Ways and Means Committee strenuously opposed the King-Anderson Bill. Kennedy assumed that none of the ten Republicans on the committee would vote for the bill, and he needed at least thirteen votes for the bill to be reported to the floor. Therefore, he needed four votes from the five Southern Democrats, but as part of the Conservative Coalition, the Southern Democrats would not support Kennedy’s Medicare proposal.18 The Conservative Coalition during the Kennedy Administration was a predictable result of the way committee members were recruited. For example, new Democratic members of Ways and Means were chosen in deference to the choices of regional party caucuses. Typically, a vacancy created when one member left was filled by another member from the same state. “The effect of this precedent froze the existing geographical distribution favoring Southern representation and thereby inhibited additions to the urban, pro-Labor group among the Democrats.”19 This institutional impediment fell by the wayside in 1965 when Democrats reformed the traditional committee ratios.

THE INFLUENCE OF THE PRESIDENCY ON CONGRESS While institutional changes in Congress were crucial to the passage of Medicare, Johnson’s influence over Congress should not be ignored. Former presidents, while strong advocates of Medicare, were not successful in pressuring Congress to pass legislation. President Truman, for example, refused to compromise and consider the incremental approach of targeting the elderly. President Kennedy placed higher priority on other legislative goals, and in fact, his bill was not even taken up by the Ways and Means or Senate Finance Committees. Kennedy hoped to indirectly pressure legislators by educating constituents rather than directly working with Congressional Actors.20 In stark contrast, Johnson placed top pri “While institutional changes in ority on Medicare and was the consummate negotiator, compromiser, and master of armCongress were crucial to the twisting tactics. Johnson once said, “There is passage of Medicare, Johnbut one way for a President to deal with the son's influence over Congress Congress, and this is continuously, incessantshould not be ignored. Former ly, and without interruption.”21 Johnson acquired much of his legislative expertise and presidents, while strong adknowledge of legislative processes and instivocates of Medicare, were not tutions of Congress as well as the motivations successful in pressuring Con- and preferences of the members of Congress during his years as Senate Majority Leader, gress to pass legislation... In stark contrast, Johnson placed and he used his skills to the utmost advantage top priority on Medicare and in pushing for Medicare. For example, in a conversation with Wilbur Cohen, Johnson was the consummate negotia- made clear that Wilbur Mills was moving too tor...” slowly, and he instructed Cohen to “get him

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[Mills] something… that he can call a Mills bill, if that’s what it amounts to.”22 Johnson’s strategy to ensure Mills’ compliance was to position him to receive full credit for Medicare’s passage. Johnson’s posture as well as his commitment to Medicare showed Mills that he was willing to work with him but insisted that this legislation be passed. He let Mills know that nothing would mean more to the Democratic Party than the Medicare legislation when he told him that “it’ll be a bill that you and your folks will never forget and I will come in and applaud you.”23 Mills worked out a compromise using a three-pronged combination of hospital insurance, which Johnson insisted on, and increased cash benefits and improvements in Kerr-Mills to try to attract Republican support. Johnson disagreed with this approach, reminding Mills that conservatives had never supported any poverty program. In fact, prior to the 1964 elections, which saw the Democratic majority shift to the ideological left, the compromise attempts fell apart largely due to the continuing power of the Southern Democrats and Republicans. The release of White House tapes years after Medicare’s enactment revealed the importance of understanding the interaction of the president with the Congress and not simply understanding the nuances of Congressional operations. Johnson’s unwavering commitment to Medicare, for instance, was apparent in this comment to Hubert Humphrey, his Vice President: “Don’t ever argue with me. I’ll go a hundred million or a billion on health or education. I don’t argue about that any more than I argue about Lady Bird [Mrs. Johnson] buying flour. You got to have flour and coffee in your house and education and health. I’ll spend the goddamn money. I may cut back some tanks. But not on health.”24 Johnson feared no interest groups or lobbies, not even the AMA. On the verge of the defeat of Medicare in the House just before the 1964 election, his strategy was to let Mills “scare the living hell out of the doctors and everybody else and then come up with a compromise.”25 The passage of Medicare also shows several actions that Johnson took to ensure success. As chief executive, he first recruited staff with expertise to work as liaisons to the Congress. Second, he conveyed that Medicare was his highest legislative priority by his arranging the symbolic numbering of the bills as H.R. 1 and S.1. Third, he imparted to his staff that nothing was more important than moving quickly to take advantage of the momentum of the landslide victory in 1964. According to Wilbur Cohen, Johnson was keenly aware of his fragile power when he told his staff, “I’ve just been re-elected by the overwhelming majority. And I just want to tell you that every day while I’m in office, I’m going to lose votes. I’m going to alienate somebody… We’ve got to get this legislation during my honeymoon.”26 Fourth, Johnson was relentless in pressuring his staff and Congressional leaders to move the Great Society forward with Medicare at center stage. He requested and read daily memos about its progress yet carefully kept his involvement out of public sight to allow the Congress to take the vast majority of the credit for the law.273

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CONCLUSION The Medicare Act of 1965, more formally Title 18 of the Social Security Act, provides Americans ages 65 and older federally funded health insurance. As a key component of Johnson’s Great Society, Medicare’s passage can be regarded as a victory for the Democratic members of Congress. However, the extensive legislative revisions and compromises necessary to enact Medicare resulted in a final legislation that received support from both parties. Furthermore, the legislation was significantly weaker than the original health insurance proposals Democrats advocated for under the Truman administration. Examining the three decades of political debate that resulted in Medicare’s enactment in 1965 demonstrates how structures, precedents, and rules within Congress influenced key actors to build coalitions, push for reforms, and form compromises. New institutionalism emphasizes the major compositional shifts within Congress and subsequent institutional reforms championed by the Democratic Study Group as key factors leading to Medicare’s enactment in 1965. Key actors, such as the great compromiser and influential committee chair, Wilbur Mills, and President Johnson, who emphasized the importance of Medicare’s passage to the Democratic Party, utilized legislative processes in forming strategies necessary to enact Medicare. Medicare was finally successful in 1965 because of a combination of many factors. Key actors had to develop both brilliant compromises as well as understand the preferences of members of Congress and the institutional changes within Congress that favored the programmatic liberal Democratic agenda.

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Lina Zimmerman is a fourth year majoring in Psychology and Government with a minor in Bioethics. She is interested in public health, particularly health care policy and economics.

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Is hydraulic fracturing an environmental injustice?

A comparison of state and local government responses in Pennsylvania, Texas, and New York

by Chantal Madray

College of Arts and Sciences (2016)

ydraulic fracturing, or “fracking,” for natural gas has rapidly increased in the United States in recent years. Despite this recent increase, the process of fracking is said to pose several human and environmental health risks. Opponents raise concerns about environmental justice, alleging that fracking operations disproportionately burden the communities closest to them, which are often, but not always, low-income. Others claim, however, that limited evidence exists for such injustice because the same communities have accepted fracking operations in exchange for economic benefits. In order to assess these claims, we must examine cases at the state and local government level as these bodies are the primary regulators of fracking. In this paper, I will address the following questions through case studies of Pennsylvania, Texas, and New York: (1) Is there credible evidence that fracking results in environmental injustice? (2) If there is credible evidence, then how have state and local governments addressed, or not addressed, related concerns? (3) How have conflicts between state and local government regulatory authorities impacted their ability to address related concerns? In order for fracking boom states, like Pennsylvania and Texas, to more effectively respond to environmental injustice concerns, they must enhance the regulatory authority of local governments to address such concerns more directly and promote complementary, rather than contradictory, regulations through “cooperative federalism.”1

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Fracking has increased in recent years partly because natural gas is praised as the cleanest fossil fuel when compared to oil and coal. This increase can also be attributed, however, to a combination of technological improvements, support at the federal government level, and the fact that natural gas has multiple uses. Technological advancements in fracking, in combination with horizontal drilling, have turned this previously “uneconomical” process into one that can more easily extract larger quantities of natural gas from unconventional shale formations at a lower price.2 In addition, natural gas development can help quench our country’s thirst for

“Technological advancements in fracking, in combination with horizontal drilling, have turned this previously 'uneconomical' process into one that can more easily extract larger quantities of natural gas from unconventional shale formations at a lower price.” energy security. In fact, natural gas development is a key aspect of President Obama’s “Blueprint for a Secure Energy Future,” a plan directed at exactly that goal. Lastly, natural gas can be used for a variety of purposes, including car fuel, electricity generation, and household heating.3 But while fracking may result in several benefits from an economic perspective, we must also explore the environmental and social dimensions of the process in order to determine if these benefits outweigh the costs. The known and unknown chemical additives in fracking fluid warrant claims that fracking poses risks to humans and the environment. The fracking process involves extracting natural gas from unconventional shale formations where gas is “trapped” within small fissures in the rock.4 To access this trapped gas, millions of gallons of fracking fluid must be pumped at high pressure into the rock.5 This fracking fluid contains many chemical additives in small concentrations to ease the process. Chemical additives include, but are not limited to, friction-reducing additives, biocides to limit the growth of bacteria, additives to prevent against corroding pipes, and hydrochloric acid to facilitate the fractures in the rock.6 The high pressure required to pump the fracking fluid into the rock creates small fractures, and when this pressure is released, natural gas flows up to the surface. In addition to natural gas, a fluid known as “flowback” rises to the surface, containing water, chemical additives, and naturally occurring chemicals from dissolved rock. In fact, “of the more than 750 known chemicals used in fracking, more than 100 are either known or suspected endocrine disrupters, and others are known or suspected toxins or carcinogens.”7 Several chemical additives are undisclosed to the public because the natural gas industry claims that such “proprietary mixtures” are trade secrets.8 Trade secrets help ensure the confidentiality of information as well as a company’s competitive advantage.9 Although trade secrets muddle the presence of chemical additives in fracking fluid, we must use what we know to explore how fracking poses risks to human and environmental health. Fracking fluid presents a threat to human and environmental health as it can contami-

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nate surface and groundwater supplies, thus compromising the quality of water. In addition to the above-mentioned chemical additives in fracking fluid, the chemicals from dissolved rock in flowback can include radioactive material, salts, chlorides, sodium bromides, and heavy metals like lead and arsenic. Fracking fluid is the most threatening when the containment ponds—where fluid is temporarily stored—are lined inadequately and “overflow” with heavy rain, thus entering into nearby surface water.10 In addition to on-site storage, flowback can also be “injected” into the ground.11 Some states do, however, have laws that mandate the disclosure of chemical additives, but this information is usually kept confidential between natural gas companies and the state oil and gas commission.12 Although people living near fracking wells have reported headaches, stomach pain, and extreme fatigue, this lack of chemical disclosure has made it challenging to link fracking to reported illnesses.13 Since those living near to fracking operations are likely to be the most vulnerable to the health risks associated with the activity, it is necessary to explore how state and local governments have addressed, or failed to address, these risks and related concerns. While federalism divides the regulatory authority over fracking between federal, state, and local governments, fracking is regulated “first and foremost” by the states.14 In The Human and Environmental Impact of Fracking, Madelon Finkel says that “states govern, to differing degrees, virtually every aspect of shale gas development, from exploration through design, location, construction, operation and, ultimately, abandonment.”15 While state responsibilities include the regulation of environmental impacts associated with fracking, this often results in a “patchwork of state laws that vary widely in their scope, stringency, andenforcement.”16Some state governments have supported fracking because it contributes to economic growth, while some local governments, whose constituents are more directly impacted by fracking operations, have opposed the activity by imposing limits or bans. State preemption, referring to the rejection of local regulations or bans that are “more stringent than that of the state,” is often attributed to conflicts over the regulatory “Some state governments have authority of fracking.17 Such conflicts insupported fracking because it hibit the ability of local governments to contributes to economic growth, address environmental injustice concerns while some local governments, if state governments are deemed unresponsive. State and local governments in whose constitutents are more di- fracking boom states, like Pennsylvania rectly impacted by fracking oper- and Texas, should provide local governations, have opposed the activity ments with more authority to address community concerns and work toward by imposing limits or bans. “ “cooperative federalism,” as the case of 18 New York demonstrates. In Pennsylvania, fracking tends to take place in low-income communities, making it ripe for issues of environmental injustice, as well as concerns regarding regulatory failure. The Marcellus formation, which is the “largest unconventional natural gas reserve in the United States” lies beneath Western, and parts of Central Pennsylvania.19 While Pennsylvania has

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experienced a natural gas boom since 2005, due to limited federal regulation and improved technologies, the activity has also increased awareness about the potential human and environmental health risks associated with living near to fracking operations.20 A 2015 distance-based risk analysis used the distances of 1 kilometer, 2 kilometers, and 3 kilometers to group risk levels into high, moderate, and low impact of fracking wells on human and environmental health.21 This spatial analysis only found, however, that risks increase as a function of distance and failed to consider how socioeconomic factors can disproportionately impact communities near fracking operations. Another 2015 study used Geographic Information Systems (GIS) and spatial analysis to correct for the shortcomings of the former study by examining “whether certain vulnerable human populations are unequally exposed to pollution from unconventional gas wells in Pennsylvania,” and select other states.22 This study used “sociodemographic indicators” like age, poverty level, education level, and race at the census tract level.23 Based on the factors listed above, proximity to unconventional gas wells, and the fact that natural gas companies favor rural areas in Pennsylvania, “environmental injustice was observed only in Pennsylvania, particularly with respect to poverty.”24 In addition, the Pennsylvania Department of Environmental Protection (DEP) has issued more Water Supply Determinations (WSDs) to rural low-income counties than others, which happens when they discover that “private water supply has been affected by oil and gas activities.”25 Therefore, there is credible evidence that rural low-income populations in Pennsylvania are unequally impacted by their proximity to fracking operations, emphasizing the need for state and local government action. With credible evidence that fracking presents environmental injustice issues in rural lowincome parts of Pennsylvania, we can investigate how state and local governments have responded to related concerns. According to Barry Yeoman in “The Shale Rebellion,” “few places in the United States are tougher ground for building an environmental justice movement than the Appalachian counties of central Pennsylvania,” whose people tend to be politically conservative and economically dependent on resource extraction.26 This does not mean, however, that fracking occurs without local opposition. “Shale Justice,” a coalition of antifracking groups, is active in the state and has attempted “nonviolent civil disobedience through municipal lawmaking.” Despite these protests, Pennsylvania’s Republican Governor until 2014, Tom Corbett, supported fracking due to its contribution to economic growth. State and local fracking regulations in Pennsylvania reflect these conflicting levels of interest.27 For example, at the state level, the 1984 Pennsylvania Oil and Gas Act (POGA) permits fracking and reflects Pennsylvania’s “pro-mining past.”28 Yet, this conflicts with actions taken at the local level under the Municipal Planning Code (MPC) to limit or ban fracking through zoning ordinances.29 The natural gas industry in Pennsylvania claims that local governments do not have the authority to uphold these zoning ordinances because the state ultimately holds such authority under the POGA. In addition, a 1992 amendment to the Act reduced the “scope of municipal authority under the MPC to regulate oil and gas operations.”30 New amendments to the POGA finally arrived in 2012 when the Pennsylvania Department of Environmental Protection (DEP) had the State Review of Natural Gas Environmental Regulations (STRONGER) review its regulations on fracking.31 The Pennsylvania legislature included several of

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STRONGER’s recommendations into the amendments, which were signed into law in February 2012 as Act 13.32 Act 13 still works, however, to limit local

“There is credible evidence... that fracking operations in Denton [Texas] have resulted in environmental injustice as those communities who are most exposed to its negative human and environmental health risks are those who do not receive compensation.” regulatory authority as it allows “fracking in both industrial and residential areas.”33 In addition, local ordinances “may not impose conditions, requirements or limitations that are more stringent than those imposed on other industrial activities.”34 While all of the rural low-income communities with environmental injustice concerns related to fracking in Pennsylvania cannot be addressed in detail here, it is evident that conflicting interests among state and local governments make addressing such concerns a slow but ongoing process in the state. Now that we have examined the case of Pennsylvania, we can turn to a more specific case in urban Texas. Unlike in Pennsylvania where environmental injustice concerns primarily arise from rural low-income communities, environmental injustice concerns in Texas have come out of the city of Denton. Denton, located in the Dallas-Fort Worth region, has been part of the fracking boom for over a decade as it lies above the Barnett formation and contains 280 active unconventional gas wells.35 The Barnett formation is the largest shale formation in the state and the “oldest and most heavily developed shale deposit” in the nation.36 A 2015 study by Fry et al. utilized an environmental justice framework and mineral property value data to “examine the distribution of costs and benefits of SGD [shale gas development] in Denton.”37 In Texas, “if the mineral and surface estates are separately owned or severed, the Texas Supreme Court holds that the mineral estate is dominant over the surface estate and gives it priority to extract oil and gas.”38 Since Denton was already urbanized prior to its fracking boom, pre-existing residential areas owned mineral rights and received compensation from fracking operations, whereas new residential areas built after the fact neither received mineral rights nor compensation. This means that the majority of fracking operations are now located more closely to “non-mineral owning households.”39 There is credible evidence from Fry et al. that fracking operations in Denton have resulted in environmental injustice as those communities who are most exposed to its negative human and environmental health risks are those who do not receive compensation. Furthermore, the ability of non-mineral owning households to participate in the siting of fracking operations is limited by the “split estate” rule.40 Since Denton’s local government unrealistically tries to manage its “financial self-interest through minimally regulating drilling and acting as the institutional voice of non-mineral owning citizens,” it further complicates conflicts that arise over local and state regulatory authority.41 In Texas, the Railroad Commission (RRC) monitors and regulates oil and gas, similar to

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the DEP in Pennsylvania. Local governments in Texas appear to have more authority than those in Pennsylvania to regulate activities when it comes to safeguarding human health. For example, drilling and production ordinances have attempted to regulate the siting of wells and have been expanded to include “noise, dust, traffic, light, diminishing aesthetics, and proximity to homes, schools, and churches.”42 In November 2014, as a result of community opposition to what they perceived as long-standing distributive environmental injustice, and as an attempt to participate in the decision making process, the residents of Denton voted to ban fracking. This made Denton the first city in Texas to do so. The ban prompted the Texas Oil and Gas Association and Texas General Land Office to sue Denton, claiming that local governments do not have the authority to ban mineral extraction, which is primarily regulated at the state level. Although the RCC is responsible for regulating the oil and natural gas industry, it tends to favor economic development over “community safety and [the] stewardship of natural resources,” which is why the local government was left to respond to citizen concerns.43 Texas is also considered a “pro-drilling” state as evidenced by the lack of state level environmental regulation as it relates to oil and gas drilling.44 It is therefore not surprising that the fracking ban in Denton only lasted until June 2015 as the state “refused to acknowledge the decision.”45 Following this, and the Texas Oil and Gas Association and The Land Office dropped their lawsuits. In April of 2015, the Texas Legislature noted that House Bill 40 preempts local regulation of “below ground oil and gas activities.”46 Pennsylvania and Texas state governments have a tendency to weigh the economic benefits of fracking over the potential costs to human and environmental health. On the other hand, New York has seen less conflict and more cooperation among state and local governments, resulting in complementary actions to address concerns about environmental injustices associated with fracking. In New York, local governments have enacted their own bans and moratoria on fracking through zoning ordinances, similar to Pennsylvania and Texas.47 The New York Court of Appeals, however, recently set a precedent after upholding local zoning ordinances to ban fracking in two separate cases. These decisions were based on findings that the towns involved were not “impliedly preempted,” thus allowing for increased local authority to regulate fracking.48 Implied preemption refers to when “legislation does not explicitly give the state control over a local issue.”49 According to Giller in “Implied Preemption And Its Effect On Local Hydrofracking Bans In New York,” “a municipality’s zoning power is the most effective weapon to protect their community.”50 As in Pennsylvania and Texas, oil and gas companies in New York have claimed that the state government can only regulate fracking under the Oil, Gas and Solution Mining Law (OGSML) and that this law preempts local zoning laws.51 These claims are likely to no longer apply in the future given the precedent set by the Court of Appeals. Additionally, Governor David Paterson imposed a moratorium on fracking in 2008, representing action at the state level to address local concerns more comprehensively.52 This moratorium was supposed to last until the Department of Environmental Conservation (DEC) conducted an environmental impact review, the review went through a public comment period, and the DEC established new fracking regulations.53 The DEC failed to meet this December 2012

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deadline; instead, DEC prompted the Health Department to begin a detailed health assessment on fracking. Then, in December 2014, after the vote to ban fracking in Denton, Texas, New York’s newest Governor, Andrew Cuomo, banned fracking based on scientific findings that the potential human and environmental health risks that could result from fracking outweigh the potential economic benefits.54 Local zoning ordinances in combination with a statewide ban on fracking, not only demonstrates the need for environmental impact assessments to properly weigh the costs and benefits of fracking, but it also demonstrates how cooperation among state and local governments can result in complementary actions to address concerns about environmental injustice. In conclusion, there is credible evidence that fracking results in environmental injustice, as demonstrated through the cases of Pennsylvania and Texas. In both cases, state governments have supported fracking because of its economic benefits. This has left local governments, with comparatively limited regulatory authority, to address the environmental injustice concerns of its citizens. Therefore, local governments deserve more regulatory authority when it comes to fracking because “if residents cannot depend on their state governments, local control is their only chance to prevent fracking’s harms.”55 New York indicates the importance of environmental impact reviews in weighing the costs and benefits associated with fracking as well as cooperation between state and local governments. States should set “minimum requirements for the oil and gas industry,” while local governments “build on those minimum requirements” as those most directly impacted by fracking should be the ones to weigh the costs and benefits for themselves and then determine whether to accept a given operation or reject it.56 If state and local governments work toward such “cooperative federalism,” then they can begin to more effectively address environmental injustice concerns related to fracking in the future.

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Chantal Madray is a fourth year majoring in Environmental Thought and Practice and minoring in Global Sustainability. She is interested in issues of water sustainability, food security, smart growth and development, and environmental justice.

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The contested state

Competing theories of government

by Eli Weiner

College of Arts and Sciences (2018)

heoretical investigations into the nature and function of both nations and states have occupied political philosophers and thinkers for generations; that the dispute remains unsettled provides a testimony to the persuasive power and influence that competing theories hold in the minds of men. All three writers, Johann Gottlieb Fichte, Vladimir I. Lenin, and Michel Foucault, offer competing versions of what constitutes the idea of both nation and state; however, Foucault’s analysis reaches a higher form of abstract conception, seeking to define and determine the essence of the state not as a function or derivative of a body politic, but as an innovative system of governance that has developed along historical lines and without regard to the respective peoples or ideologies that animate the writings of the first two theorists. As such, the ideas and philosophies of both Fichte, who argued in favor of a racially defined and constrained eternal nation, and Lenin, who viewed the state through a Marxist prism, fit within Foucault’s analytical framework, at once demonstrating its theoretical strength while subsuming the concerns of the former into the nuanced, complex theory of the state as an emblem of governmental rationality and an institution for consolidating power. Fichte’s main thesis and animating mode of thought may be found early on, in an anachronism situated prominently within the title of his work, Addresses to the German Nation.

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Seriatim | Journal of American Politics

Written in the year 1807, its ostensible audience, the as of yet unconstituted, ill-defined German “nation,” would have been hard to pin down. The numerous kingdoms, duchies, and principalities that comprised Germanic Europe had yet to formulate themselves into an enduring conception of a single, united nation, and the very idea of a unitary Germanic state was a novel, revolutionary notion. For Fichte, however, questions of territories, sovereignties, and borders have no influence on his understanding and interpretation of the German nation; rather, he grounds his analysis in the idea of an eternal national essence that remains true and unsullied throughout temporal time and space—so long as men are still willing to give up their lives in its name. This conception of the nation as an everlasting entity, “a fatherland [to be] handed down [where] visible and invisible meet and mingle [to] create a true and enduring heaven,” allows Fichte to lay claim to a conception of the nation which appeals solely to a specific ethnoreligious group.1 There is no plurality of identities in Fichte’s Germany, and the notion of a generationally replenished fatherland is inherently limiting, conjuring as it does questions of lineage, descent, and purity, ominously foreshadowing a different Germany at a different time. Indeed, Fichte is explicit in his view of the German nation as a discrete racial entity, declaring freedom to be synonymous with the desire of the German people “to settle their own affairs, independently and in accordance with the original spirit of their race,” unequivocally equating national freedom to ethnic autonomy.2 That conception, in turn, circulates back to one of Fichte’s core arguments regarding the continued revitalization of an enduring German nation, manifested and replenished as it is through the continued will of the German people to sacrifice themselves, to “be ready even to die that [the nation] may live.” The readiness of the German people—as delineated by Fichte—ensures the continued existence of his eternal, amorphous, ahistorical idea of a German nation.3 Writing nearly one hundred years after Fichte’s racialized proto-nationalist polemical, Vladimir Lenin posits an entirely different conception of the state, its origins, and its role in modern society. Infused with the Marxian dialectic of class struggle, Lenin contends that the very existence of the state “is a product and a manifestation of the irreconcilability of class antagonisms,” immediately grounding his exploration of the state within an ideology that recognizes socioeconomic relationships as the primary motivating and determining factor throughout history.4 This emphasis on the state as an instrument of oppression reduces it from an entity existing in and of itself, the state qua state, to a mere tool of class-centric subjugation and persecution, a legitimating body for a given ruling class to dominate those beneath them. This conception, however, carries with it powerful new implications about the nature of the state. By refusing to elevate the institution to that of an eternal, Platonic eidos, and by denying a Whiggish presumption of it as the final progression towards governmental and social perfection, Lenin is able to illustrate the state’s fundamental attribute: that of “a power which arose from society but places itself above it and alienates itself more and more from it.”5 By doing so, Lenin is able to discuss the application of power at an abstract and highly conceptual level; however, this abstraction is only a means to Lenin’s ends—the orthodox

The contested state

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Marxism to which he fully subscribes. His Marxist agenda colors his explication by positioning the state as “the creation of ‘order,’ which legalizes and perpetuates [class] oppression,” adamantly defining the state not as a simple aggregate of authority, but as an institution created with the express goal of modulating class-conflict while maintaining a veneer of impartiality and legitimacy.6 The state, Lenin argues, arises when one class of society seeks control and authority over another, and the sub-institutions of the state—including the police, the judiciary, and the legal order—are all symbols of and tools for the continual repression of class-antagonisms between those in power and those without. It is a notion of the state forged in the fires of revolution and sustained through the intellectual winds of Marx and Engels. Lenin’s fatal flaw, however, lies in his very definition of the state and his refusal to see it outside this prism. The State is only symptomatic of the presence of existing class conflicts, relegated to a role firmly entrenched within the broader social phenomena characteristic of the dogma of Communist thought. While Lenin and Fichte strove to situate their conceptions of the state and the nation within a larger ideological structure, the writing of Michel Foucault dispenses with a predetermined worldview, engaging with the fundamental nature of government and the state in a radically abstract and analytical manner. Foucault does not distinguish between forms While Lenin and Fichte strove of government or different modes of state to situate their conceptions of power; rather, he examines the very idea the state and the nation within of the state and its purposes from a highly a larger ideological structure, theoretical standpoint. He maintains that “the state is the regulatory idea of governthe writing of Michel Foucault dispenses with a predetermined mental reason,” enabling him explore the conception of the state as an instrument worldview, engaging with the not for the oppression of one class by anfundamental nature of govern- other, but as an apparatus designed and ment and the state in a radically instituted in the abstract service of governabstract and analytical manner. mentality.7 The state in this way becomes secondary to the existence and formulation of governmental reason, and it is this governmental reason that Foucault traces through history to demonstrate the fact that the state is not, in and of itself, an end goal. He claims, instead, that the state is what exists “at the end of the process of the rationalization of the art of government,” as the concrete manifestation of raison d’état. Through this analytical lens, Foucault illustrates the nature of the state as a conglomeration of forces, divorced from substantive issues of political philosophy and competing ideologies and defined by its very abstraction.8 The state has no fundamental purpose other than to act as a function and a functionary in the furthering of the goal of governmental reason, a reason which looks to the state as the “principle for reading reality and as [governmental reason’s] objective and imperative.”9 The character a particular state assumes does not diminish the fundamental nature of the state as a

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Seriatim | Journal of American Politics

medium through which power is concentrated and governmental reason delineated, regardless of whether that power is clothed in the sickle and hammer of Soviet Russia or the red, white, and black of Imperial Germany. This apolitical formulation of the state as a mechanism of governmental reason pushes the reader towards one of the principal conclusions of Foucault’s work: dismissing the essentialization of the state, in favor of viewing it as a manifestation of a compendium of forces arrayed in the service of governmentality. In other words, he rejects the teleological conception of the state in favor of situating it within “a more The state, Foucault declares, general history of governmentality [or] in the fields of practices of power,” advancing an is the product of forces that argument which repudiates the 19th century interact discursively and predilection towards historicity in favor of an which happened to coagulate abstract idea of the state based on its funcinto a form of government tion as an agent of power unique to a specific that history labeled the state, historical moment.10 The state, Foucault declares, is the product of forces that interact a label that historians have discursively and which happened to coagugrasped on to as they leap late into a form of government that history back into history, searching has lled the state, a label that historians have for its origin... grasped on to as they leap back into history, searching for its origin; the great conceit, of course, is that it will never be found until viewed from Foucault’s abstractionist perspective. The beauty of placing all three works by all three writers side by side is that it enables one to fully grasp the import of Foucault’s conception of the state while allowing a thorough investigation into the merits of both Fichte’s ethnically pure and consistently replenished eternal Germany and Lenin’s positing of the state as a weapon of class conflict. The competing visions of the first two thinkers find ample space to breathe within Foucault’s framework, and their theories are neither supported nor rejected by the Foucauldian interpretation. Indeed, semblances of Foucault, in discussions of organized power and systems of governance, permeate Lenin’s writings, and he would agree with the French theorist in his dismissal of the state as an entity existing eternal throughout history. However, the historical determinism inherent within Marxism, the belief in “the inevitability of a violent revolution,” is anathema to Foucault’s insistence on refusing to read into history a predetermined outcome or preconceived notion.11 Lenin’s theory of the state does indeed find voice within Foucault’s writings, but only in the minor sense that Communist agitation and Marxist sympathies would simply be illustrations of discursive elements which could in turn induce a change in the form of government employed by a particular society; it does not, however, contradict in any way Foucault’s recognition of the state as an instrument of governmentality, separate from the ideology which might give it animating power. Fichte, too, fits easily into Foucault’s overarching theory. While

Foucault would dismiss out of hand the substantive aspects of Addresses to the German Nation, rejecting it as precisely the romanticized form of history he endeavors to prove false, Fichte himself, much like Lenin, acts as an example of an individual element within society whose writings influence and inhabit the stream of historical thought and the all-encompassing composition and interaction of effects. The very argument that Fichte and Lenin are engaged in is ignored by Foucault in favor of something larger: an understanding of the state not in relation to one civilization or political ideology, but as an episode of governmentality and a structure for control, the systematized ability of a society to govern effectively.

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Eli Weiner is a second year in the History, Distinguished Majors Program. His areas of interest revolve around 19th century European social and intellectual history, focusing on the rise of the nation-state as a historical idea and the construction of national identity.

articles, et al.

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omprised of editorials and other original works, the following short pieces were written by undergraduates at The University of Virginia as commentary on relevant questions in American politics * * * * * * * * * * * * * * * * * and political theory. Some pieces were written exclusively * * * * * for publication in Seriatim. To see all of the work submitted this semester, visit www.seriatimjournal.com.

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Earth to Uncle Sam

A pragmatic solution to government's communication woes

by Jack Brake

College of Arts and Sciences (2018)

decade into the iPhone economy, government has failed to adapt. In contrast, private businesses are racing to abandon costly call centers and direct mail campaigns and instead communicate with consumers over channels that are “mobile, actionable, personal, and secure” (MAPS). If government communicated like the private sector, it could narrow gaping budget deficits, provide its services more effectively, and revitalize its withered connection with citizens. Compare the federal tax agency with an average retail bank. In FY2013 the IRS collected $2.4 trillion in revenue with 90,000 employees and a $12 billion budget. On one hand, the IRS has invested heavily in e-filing, now used by 80 percent of federal taxpayers. According to Professor Rodney Mock of California Polytechnic State University, the agency has subsequently cut processing costs from $2.87 per paper return to $0.35 per online return. Yet on the other hand, the IRS still sends critical communications like delinquency and identity theft notices through the mail, and disputing such notices requires a phone call. The average wait time for a call hovers around 17 minutes. Frustrated taxpayers are not likely to find much solace in the IRS smartphone app, which limits users to checking their refund status and finding free tax help nearby.

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Seriatim | Journal of American Politics

In contrast, most retail banks empower customers to receive and quickly act on critical communications from their smartphones. If a customer’s balance dips below the minimum requirement, she is quickly notified and prompted to transfer or deposit funds, remotely and in seconds. MAPS technology thus forges a valuable business-to-consumer connection. Just how valuable is that connection? Relay Network—a Philadelphia-based pioneer of MAPS technology—has found that customers act on critical communications more quickly and reliably when prompted to do so from their smartphones. That reduces the cost of doing business. Energy companies, insurance agencies, retail banks, and an expanding array of service providers leverage Relay’s MAPS technology to great effect, cutting the “cost to renew” their customers by up to 50 percent while increasing aggregate renewals by up to 400 percent. Incrementally, customer engagement increases by up to 30 percent. This translates into tens of millions of dollars of real, proven, and immediate value. That makes MAPS technologies a perfect fit for the deficit-prone public sector. The Center on Budget and Policy Priorities, a left-leaning think tank, reports that, in response to $425 billion in shortfalls during the Great Recession, states cut funding for critical services like education and elder care by more than 10 percent. Funding for many areas remains well below pre-Recession levels. Leveraging new technology to increase efficiency should be a no-brainer, especially if it also improves citizens’ collective experience with government. MAPS technologies are of course not a panacea. Neither are they a monolith. Mobile apps are the most common sort, but they are increasingly eclipsed by more effective technologies that use text messages to proactively engage customers on an online, two-way, secure channel. Over that channel, customers may pay bills, activate and renew services, set their account preferences, and interact with representatives. In a recent white paper the technology firm Nuance highlighted that 90 percent of text messages are read within three minutes, and most are responded to within an hour. The value of such immediate customer engagement should be clear to any service providers in the private or public sector. Government cannot afford to continue sitting out the Mobile Revolution. As businesses and consumers become more connected than ever, the connection between government and citizens continues to wither. It is telling that voter turnout in municipal elections rarely reaches the 20 percent threshold. Political participation has atrophied since Watergate and Vietnam rocked Americans’ trust in government. According to Pew Research polling, less than a quarter of Americans today trust government “always or most of the time,” down from nearly 75 percent in the post-WWII years. Such metrics help explain the larger trend of “civic disengagement,” which has been studied extensively. What has been largely ignored is the failure of government to keep up with the private sector in terms of connecting with citizens over MAPS channels. Myriad government functions, particularly at the local level, should be consolidated into a single channel that is mobile, actionable, personal, and secure. Those functions include: paying taxes; receiving jury duty notifications and public safety announcements; registering applicable property; contacting emergency services; checking in with parole officers; collecting welfare; and even voting. Voting from a smartphone might seem outlandish, but commenta-

AEarth rticleto title Uncle Sam

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tors have already likened it to routine private sector activities. When the Organization for Security and Co-operation in Europe appraised the world’s most advanced Internet- and mobile phone-based voting system in Estonia, it specifically noted that 88 percent of Estonians participate in mobile and online banking. That parallel illustrates how reliable secure online connection has become in the private sector, even in a nation with less than half the United States’ per capita GDP. It also illustrates the widespread trust that people have in such connections. Integrity and public trust are two critical conditions for any voting technology. MAPS channels fit the bill. Of course trust in secure technology is not always well placed. Just as private businesses like Target and Home Depot have been susceptible to hackers stealing sensitive consumer data, cyber security experts have raised serious concerns about even the most advanced Internet-voting systems. These concerns may rule out Internet-voting for national and statewide elections where the risks and stakes of manipulation are irredeemably high. But on the municipal level, the cost-benefit calculus of Internet-voting changes. Municipalities face the weakest levels of political engagement, and the consequences of manipulation arguably decrease along with the scope of elections. At the very least, local political participation should be encouraged over MAPS channels via links to online voter-registration or proactive reminders about where and when to vote. This revolutionary technology should have a salutary effect not only on government budgets, but also on American democracy. In a democracy, the people retain the power to have their collective voice heard at the polls; citizens’ connection to government derives from their ability to communicate with it. A more effective technological connection between citizens and government should be established, and then used to realize a more holistic political connection. Skeptics might counter that government will never adopt MAPS technology because the public sector is hopelessly inefficient. But that convenient criticism may not fit here. Government has historically employed technology to more efficiently provide its many services— just look at the Internet and the success of e-filing on the federal level. Government has largely failed, though, to take the next critical step in the Mobile Revolution, namely by establishing communication channels with citizens that are mobile, actionable, personal, and secure. Government can take that step. It was the public sector, after all, where the first steps towards the Mobile Revolution were taken with the development of the Internet and nanotechnology for military use. What the public sector developed the private sector has leveraged, so that government now lags far behind. That paradox brings with it both irony and opportunity.

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Jack Brake is a second year studying in the Politics Honors program. He is also founder of EnAct, a government technology firm, and Editor-In-Chief of Seriatim.

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Seriatim | Journal of American 71 * * P*olitics

Examining the role of social democracy in modern America by Eli Weiner

College of Arts and Sciences (2018)

“The rugged face of society, checkered with the extremes of affluence and want, proves that some extraordinary violence has been committed upon it, and calls on justice for redress. The great mass of the poor in countries are become an hereditary race, and it is next to impossible them to get out of that state of themselves.”

ocial Democracy was, until very recently, a bad word in American politics. Like the tract above, it conjured up images of class struggle, European-style bureaucratic governments, and, incorrectly, connections to communism. To be labeled a social democrat or a socialist was a favorite of political insults, a slur hurled at politicians who were considered too leftist, too liberal, or too extreme. But this is a recent development. Social democracy, the pursuit of social, political, and economic justice within the framework of a capitalist economic system, is no stranger to the United States, and its tenets can be found within the most successful social and economic programs in our nation’s history. Theodore Roosevelt’s Square Deal, Franklin D. Roosevelt’s New Deal, and Lyndon B. Johnson’s Great Society all exemplify social democratic principles secured within a capitalist structure; indeed, a large part of the 20th century could be situated within a narrative of increasing social democratic policies, a narrative validated by history and reinforced

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Seriatim | Journal of American Politics

with reference to fundamental precepts undergirding this country’s founding. Case in point: the quotation at the top of the page was written in 1797, by a quintessential figure of the American Revolution, Thomas Paine.

“In fact, it was the early constitutional fights over the power and reach of the federal government, originating in the debate between Hamilton and Jefferson, which laid the groundwork for the emergence of an American form of social welfare. That initial capitulation in favor of increased centralization, for reasons both of politics and efficacy, enabled the eventual passage of labor reforms and social transformations that characterized... progressivism...” The construction of the American state could not have presupposed the existence of social democracy; to argue that would be anachronistic. But within the framework crafted by this nation’s architects there exists a space for social democratic theory. Man’s pursuit of happiness, proclaimed in the Declaration of Independence and reiterated in the Virginia Declaration of Rights, did not always assume a doctrinaire Lockean connotation; section three of the latter document was explicit in describing the ideal state as one that is “instituted for the common benefit, protection, and security of the people, nation, or community…[and] which is capable of producing the greatest degree of happiness and safety,” principles of government which drew their inspiration from a sense of communal responsibility for the totality of society, not just its most privileged members. In fact, it was the early constitutional fights over the power and reach of the federal government, originating in the debate between Hamilton and Jefferson, which laid the groundwork for the emergence of an American form of social welfare. That initial capitulation in favor of increased centralization, for reasons of both politics and efficacy, enabled the eventual passage of labor reforms and social transformations that characterized early- and mid-20th century progressivism, the exact same programs which were social democratic in practice, if not necessarily in theory. The social democratic goals of universal suffrage, the implementation of the welfare system, workers protections, and governmental regulation of the economy were all realized in an earlier America, without socialist rhetoric but with socialist policies. Yet still the critique is raised that socialism and social democracy cannot coexist with American values, American beliefs, that it is somehow antithetical to the American spirit. However, even a passing glance at the historical record demonstrates that social democracy is not inimical to the American way of life; indeed, in many respects, social democratic policies were responsible for creating the archetypal vision of 20th century America that many, conservatives and liberals, hold dear today. The G.I. Bill, one of the largest social-democratic programs ever initiated, is credited with being largely responsible for the subsequent era of

SAocial in modern America rticledemocracy title

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mass prosperity and social mobility that characterized the “idyllic” 1950’s, which LBJ built upon and extended through his domestic programs combating poverty, investing in education, establishing Medicare and Medicaid, expanding urban transportation and housing, and launching cultural institutions from PBS to the National Endowment for the Arts and Humanities. The great irony of history is that these progressive platforms have been internalized within the American polity as political givens, while the aggressive hyperbole towards the very philosophy supporting the structures of modern American society has risen. So the question isn’t whether social democracy can exist within America; that question has been answered a hundredfold. The question is whether social democracy can come out of the proverbial closet, for it to be recognized and acknowledged as one of the animating forces of American progress and American prevalence. If so, the very policies which proved so effective in transforming American society in the 20th century may be reinvigorated to meet the challenges of the 21st, and the neoliberalism of the past three decades may be seen as detours on the roadmap towards a more prosperous, more democratic, and more egalitarian America.

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Eli Weiner is a second year in the History, Distinguished Majors Program. His essay “Contested State” appeared in this issue of Seriatim.

Brief reflections on some questions of distributive justice

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Navigating Rawls and Nozick's competing theories

by Travis Quigley, Sam Tobin, & Jack Brake

istributive justice is one of the most popular veins of political thought. It concerns how society should navigate competing claims to common resources, and thus has clear, critical relevance to hot-button policy issues like taxation and entitlement spending. For the past half century, the literature on distributive justice has been dominated by two canonical, competing works: John Rawls's A Theory of Justice (Belknap, 1971), and Robert Nozick's Anarchy, State, and Utopia (Basic Books, 1974). Obligatory reading in college philosophy and politics curricula, these works have inspired countless debates among students, academics, and policy professionals. The three short essays that follow offer a sample of the many critiques that have been levied at Rawls and Nozick and the ongoing effort to adjudicate between their two competing theories of distributive justice.

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Seriatim | Journal of American Politics

1. The Economy of Knowledge Behind the Veil of Ignornace By Sam Tobin

Political philosopher John Rawls claims that the “Original Position” described in his book A Theory of Justice is the ideal way to determine principles of justice to be used by society. The Original Position supposes an initial meeting of members engaged in social cooperation who will lay the rules for future society. The members collaborate under a supposed “veil of ignorance” which excludes information regarding class, position, individuality, and other information that could result in bias. Rawls claims that under the veil of ignorance in the Original Position society will unanimously decide upon principles of justice that protect citizens’ basic liberties and achieve fair distribution of “social primary goods.” However, the idealness of the Original Position comes under criticism from other theorists that include Robert Nozick and John Stuart Mill. These objections include Nozick’s claim that the Original Position, which is designed to eliminate bias, in fact leans toward that of an end-state bias; Mill’s assertion that varying opinions are necessary for debate in order to come to a consensus as to what is an acceptable principle; and the finite and non-negotiable terms of “social primary goods” and of principles of justice that do not permit future social innovation. Despite these objections, though, Rawls’s claim that the Original Position is the optimal approach to determining principles of justice remains steadfast with various rebuttals of its own. Nozick believes that the premise of the Original Position is biased for end-state theories of justice and thus ignores historical theories such as Nozick’s entitlement theory, or rather, given the circumstances of the Original Position outlined by Rawls, historical theories have very little probability of being selected. Nozick asserts that the veil of ignorance is the main culprit of this bias as it prohibits members of the Original Principle from considering certain information such as relevant claims, natural talents, and merit. Take Nozick’s self-allocation of grades by students example. Students gather and, having no idea what grades they actually received, must “allocate grades among themselves so that the grades total to a given sum.” Each student has an incentive to plead his or her case regarding the grade, that he or she is historically ‘entitled’ (whether based on intelligence, effort, or merit; information disallowed in the Original Position) to the best grade possible. With only a finite number of grades to distribute, these competing entitlements will overlap and ultimately make it impossible to guarantee everyone their entitled grade. Information necessary to determine entitlements are outlawed, thus the only way to come to a consensus is to accept a distribution that focuses on the results: end-state. This bias neglects the historical entitlement theory of justice, which very well could be an acceptable principle if given the chance, thus the Original Position is not fit for determining principle of justice. Just because the Original Position disregards a historical theory of justice, however, does not necessitate that the theory is in fact better or more intuitive than an end-state theory. The

Reflections on distributive justice

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Original Position is simply eliminating a theory of justice that members reject from the beginning. Rawls submits that the basic criteria of economic justice are found in end-state, not historical, principles. End-state principles concern themselves with how everyone measures up to each other once the sun has set. Humans are naturally risk averse to losing and will thus select an end-state principle that guarantees, comparable to each other, a certain amount justice per individual, rather than a historical principle of justice that distributes justice based on ambiguous entitlements and claims. History can be muddled and “he said, she said” competing claims of entitlement can stagnate the justice process, whereas comparing final results is concrete and undeniable. Thus, the Original Position, in its so-called bias, simply rejects a lesser theory of justice from the beginning. Mill’s principle of liberty of opinion, although written much before Rawls, is also useful in criticizing the veil of ignorance that shrouds the Original Position. The veil of ignorance screens out much information derived from people’s own self-awareness, thus effectively limiting the pool of ideas and opinions that people bring to the Original Position. Significant debate involving differing opinions is necessary in order to separate correct principles from garbage, and this can only be achieved if members of the Original Position are allowed to derive some basic opinions from their own selves. In the debates, “unpopular opinion[s] may be right… [and] if the opinion is wrong, refuting it will allow people to better understand their own opinions.” Regardless of the correctness of an opinion, the debate that arises from the discussion of the varying ideas will eventually lead to a consensus that could have been overlooked if said opinions had been repressed. Criticism of the Original Position from a Millian perspective attacks the conformity created by the veil of ignorance by its prevention of opinions and knowledge derived from self, thus the Original Position is unable to determine acceptable principles. Constraints on knowledge in the Original Position do not necessarily eliminate intellectual discussions from taking place. Rawls assumes that the members of the Original Position have perfect information regarding the various layouts of societies (ex. slave-owning society, patriarchal society, central planning, etc.), laws (ex. freedom of speech, civil rights acts, etc.), and other information that a standard historian would have, and can determine from this data the most just set of principles to yield the most just society. There is a clear and intuitive moral difference between a slave-owning society with a lack of civil rights and a modern society with an expansive code of civil and personal liberties. In order to determine the most basic principles of justice there is no need for extensive personal knowledge and opinions, which are more suited for debates of specific policies, as the basic principles should be just that: basic. They should be determined by the simplest reasoning intuitive to any rational person regardless of any personal opinions. Rawls does not reject debate though, as even simple reasons can differ. The principles he offers as the ones the Original Position will decide upon are only the ones Rawls can think of himself. The author is limited by his own imagination in his suggestions for principles, but not his format for selecting the principles. Rawls welcomes any and all principles that are objectively better than the ones he puts forth in the Original Position, principles that members derive through debate within the Original Position. Rawls does not

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reject Mill’s need for debate to achieve the most effective principle, but does rebut that the veil of ignorance and the suppression of personal opinions and knowledge hinder this debate, as the principles of justice are so basic that they only require the simplest information and intuitions in their determination. A final criticism of the Original Position is that its non-negotiable principles of justice and terms of “social primary goods,” once agreed upon, limit social innovation, which is developed over time through trial and error. Understandings of justice have changed over the course of history. Take, for example, the “just” punishment of crimes. Centuries ago many petty crimes were punishable by extreme stays in prison or even death, these punishments considered “just” by society. Society has progressed, however, to a more complete understanding of justice that has a more extensive, and less severe, set of punishments that are considered “just.” Furthermore, this innovation extends to Rawls’s “social primary goods,” which “are things which it is supposed a rational man wants whatever else he wants,” enumerated as “rights, liberties, and opportunities, and income and wealth.” But what if as society progresses it comes to value something new to the point it could and should be considered a social primary good (ex. leisure time)? Because the Original Position does not allow for renegotiation of its original principles it would seem that important innovations would not be permitted in Rawlsian society. Societal innovations, Rawls would submit, are simply improved interpretations and implementations of the principles put forth in the Original Position. The penalties of just punishment of crimes have evolved over time, but the governing principle of justice that there must be consequences for violating law has remained the same. Society innovates the specific policies that stem from Original Position principles, but not the basic principles themselves. As for innovating social primary goods, an important tenant of the Original Position, any and all innovations and determinations of new goods will stem from the initial goods proposed by Rawls. In the example of leisure time, this so-called “new” social primary good, if society deems it as such, derives itself from Rawls’s original good of “opportunities”. The division of this social primary good requires equal access to opportunities, in this case, the opportunity to enjoy leisure time. A factory worker who must work every day just to scrape by (ignoring the fact that this certainly conflicts with the primary good of self-respect as well as distributive justice) does not have the same opportunity to enjoy leisure time, as does a wealthy CEO who is not on a strict budget. Thus, any “new” innovations of social primary goods are subsets or derivations of the original goods. Societal innovations of justice or social primary goods do not change the basic principles of the Original Position themselves, but rather constitute improved application and understanding of the basic principles. Despite strong objections from various angles, the Original Position proves to be the ideal way to determine principles of justice. An end-state theory of justice guarantees receipt of justice comparable to that of a neighbor, whereas a historical theory based on entitlements distributes justice based on relevant and sustainable claims, which can be widely and varyingly interpreted. The principles are on the most basic and intuitive level that they require only the simplest of information in order to determine them, making more complicated opinions de-

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rived from self-awareness obsolete. Furthermore, because these principles are the foundational means of creating justice, all future innovations are merely further applications of the basic principles. The Original Position, as the ideal manner, fosters a venue for rational intellectual debate on the most intuitive levels of basic social thought that establishes fundamental principles of justice that are the framework for all future laws and policies.

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2. Anarchy, State, and Rawls By Travis Quigley

Nozick, an obviously brilliant writer and thinker, organizes Anarchy, State, and Utopia, now best known as a critique of Rawls, in an interesting way, in that he spends far longer defending himself against pure anarchists in the first part of the book than he does actually critiquing Rawls in the second. This may seem like a mark that Nozick’s criticisms are questionable, but it seems more likely that he thought that, even relatively briefly stated, they were unassailable. In some sense, I think he was right—the briefer and broader his points are, the better questions they seem to raise about Rawls. In canvassing Nozick’s arguments, this might be illustrated: I’ll begin with several of Nozick’s specific critical examples seeking to undermine Rawls’s theory of justice, namely the Wilt Chamberlain example, the question of why less talented groups have the bargaining leverage to implement the difference principle, and the problem, illustrated by the ten Robinson Crusoes example, of what kinds of talents can be regulated in what kinds of societies. All of these critiques, while seemingly powerful in their specificity, have serious flaws. Nozick also tosses off several less detailed criticisms, though, which are actually more difficult to answer, mostly centering on the question of why Rawls focuses on a bargaining mechanism to establish distributive justice in the first place. After considering these, I will briefly try to apply similar critiques to Nozick’s own entitlement theory, and thus hopefully place the two theories in a helpful context. I’ll begin with the famous Wilt Chamberlain example, which proceeds as follows: imagine an entirely free and equal society, where everyone begins with equal shares of the distributive pie, and no one is coerced to do anything. Imagine this society also has professional basketball teams, like ours, and that Wilt Chamberlain (perhaps we should read this as “LeBron James”) is a phenomenally talented and entertaining basketball player, who people deeply want to watch. But Wilt will only agree to play if some small additional price is added to the cost of a ticket (usually distributed equally amongst the players), and that price is added to his salary. The coaches and players don’t object, because Wilt clearly merits such a raise, and the basketball fans happily pay the additional cost in order to see him play. Thus, from a free and equal society arises a free and unequal society, from entirely rational and uncoerced actions. Over time, this inequality could multiply until it far exceeds what Rawls wants to allow. But maintaining the desired dis-

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tribution (pattern) would require, Nozick says, constant interference: you would have to prevent people from freely taking actions that would cause inequality, or else somehow reset the ecosystem to your desired pattern constantly—and wouldn’t that defeat the purpose of Wilt’s demand for extra pay? Hasn’t a patterned principle of distribution thus deeply violated liberty? I won’t deal here with arguments pertaining to either the structure of the Original Position or the problem of whether talented people truly deserve their talents, as both will come up soon enough. I’d simply like to point out that Nozick, as he is in many places, is simply making an ungenerous reading of what any pattern of society would require: Rawls never required strict egalitarianism, which is the only thing that might require restrictions on behavior as imagined here. He also never specified the interval at which, mechanism with which, or stringency at which the difference principle distribution would be enforced. Nozick imagines a horde of regulators running about correcting divergences from the desired pattern, but that’s just his imagination; something like Rawls’s distribution (or certainly some pattern of distribution, perhaps one without principles of which inequities are allowable, as Rawls’s has) could be established simply through something like a more progressive version of the tax system already used today. Our own taxes (and certainly those of more egalitarian countries—of which America was one when Nozick was writing) already change behavior from its pure laissez-faire state, but it doesn’t involve the dystopia Nozick conjures. Next, I’d like to discuss briefly an interesting section where Nozick addresses the bargaining nature of Rawls’s contract theory. He imagines two groups bargaining (he wonders why Rawls deals in groups at all, but given that Rawls’s is interested for the most part in material distributions, sorting people into classes seems unproblematic): the talented and the untalented, or less talented. In order to achieve the difference principle, the less talented would have to essentially threaten the the more talented into agreement, or else convince them to act against their own interests. The problem with this is clear: it doesn’t include the veil of ignorance, which is what makes rational actors risk-averse, which is what leads to the difference principle. Nozick isn’t unaware of this obvious point, and defends it in a lengthy footnote where he notes several instances where Rawls’s language implies that he isn’t invoking the veil of ignorance at that particular point. But the argument is too obvious and important to overlook in this way; Nozick gets lost in the linguistic weeds, and fails to cope with a line of argument absolutely central to A Theory of Justice. This troublingly inconsistent reading of Rawls’s argument is even clearer when Nozick discusses his otherwise creative and interesting ten Robinson Crusoes example. In it, he illustrates the question of natural endowments by imagining a man, like Crusoe, stranded on an island by himself. He’s entitled to use the resources of that island, we imagine. But what if there was actually a string of ten islands, each with one stranded individual, each with different natural resources—one with abundant fresh water and fish, say, while another is fallow and dry, with the others falling in between. We would imagine that every person would make the best life they could on their island, without interaction. But what if they could communicate, though not travel to live on the best island? Would the lucky person on the verdant island be required to float food and water across to the fallow island on a makeshift raft? After all,

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each of the stranded islanders landed on their respective island by chance—they don’t deserve their particular resources (talents). Are they required to emulate the difference principle? Nozick, here, doesn’t take seriously the Original Position. If the ten Crusoes are acting solely based on their current situations, their “entitlement” does seem clear. But if they were agreeing in advance on how to distribute the resources of the islands, it seems entirely possible that they might come to the difference principle, or something like it. Nozick’s sometimes odd reading of Rawls continues, as on the very next two pages he pivots from the islands example to a defense of the possibility of measuring dessert based on productivity in an economic system. He questions whether Rawls is claiming that, in a complex economy, it’s impossible to disentangle who deserves what. But, only pages after formulating an example which neatly captures the arbitrariness of talents which Rawls claims, he now ignores the natural lottery argument in order to talk about the measurement of marginal productivity. This isn’t relevant - Rawls doesn’t think people deserve their talents, which lead to their marginal productivity, in the first place. Nozick isn’t obviously wrong—his later discussion of whether it’s appropriate to treat people’s character as arbitrary is interesting, if not definitive, but his specific readings are often unconvincing. What he does leave us with, though, is an important series of big questions: is character really arbitrary? Why does Rawls center his moral theory on what people would agree to, rather than what would result from individual good actions? Does the Original Position, with rational actors so far removed from actual human beings (“thick with particular traits,” as Nozick writes), actually bind us in the real world? But these aren’t fully fleshed out, and while Nozick offers something of an alternative in the entitlement theory, he doesn’t answer the questions Rawls might put to him: if Nozick asks whether what people would agree to in the Original Position reflects individually free actions, Rawls might ask if people would ever agree to the final result of those completely free actions; that is, if the entitlement theory were put forward in the original position, would it have any chance of success? And that seems like a hard test. Even in the real world, where those real persons with their individual traits and knowledge of their own interests rule, for the most part progressive schemes closer in intent to Rawls than to Nozick tend to rule, after all.

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3. Nozick's “Invisible” Welfare State By Jack Brake

In an effort to show that the minimal state of Classical liberalism is “the most extensive state that can be justified,” Robert Nozick develops a theory of distributive justice under which the centrally planned redistribution of citizens’ holdings is morally illegitimate. Thus Nozick’s entitlement theory of justice opposes patterned or end-state principles of justice, which ignore the historical facts of acquisition and transfer in favor of structural considerations that motivate redistribution. This puts Nozick on a collision course with Rawls, whose difference

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principle judges some distribution D by looking at a time-slice of its structure. Indeed, the clash between Nozick’s entitlement theory of justice and Rawls’s theory of justice as fairness crystallizes the significant differences between how contemporary liberals and libertarians approach questions of distributive justice. Yet these differences may be deceiving. This essay will first treat Nozick’s entitlement theory; second, sketch Nozick’s critical treatment of Rawlsianism; and third, propose that, in practice, Nozick’s minimum state naturally evolves into a proto-Rawlsian welfare state. In Part I, Nozick shows how the minimal state arises by a moral “invisible hand process” out of the (Lockean) state of nature. It is important to briefly treat this minimal state in order to understand the impetus for the entitlement theory of justice. Nozick adopts Locke’s conception of the state of nature, but searches for alternative solutions to its “inconveniences” than the social contract and rise of the state. He goes on to show that individuals in the Lockean state of nature will join “mutual protective associations” out of self-interest, publicspiritedness, or even friendship. Yet there is still a great inconvenience in everyone being constantly responsible for protecting his partners in these protective associations. Market forces will motivate specialization and trade; entrepreneurs will develop and sell protection plans. At first, many agencies will compete, but over time, the stronger agencies draw more and more customers, and consolidation occurs until there is one dominant protective agency in a geographical location. This dominant protection agency has the outline of a state. It establishes procedures for adjudicating internal disputes and has a “de facto monopoly” on power because no other actor in the relevant geographical area can assert its preferred procedures of justice if they conflict with the dominant agencies’ preferred procedures. In fact, while various “independents” can remain outside of the dominant protection agency, they are not free to assert their right to punish members of the agency who trespass against them, at least by means of their preferred procedure; the dominant protective agency will not authorize independents to use procedures it cannot independently verify as just. The dominant protective agency is morally obliged to compensate independents for abridging their right to execute the law of nature as they see fit. That compensation consists either of vouchers that can be used to purchase the agency’s services, or in-kind transfers of those services. The result is that the dominant protective agency comes to cover everyone in a given area, and hold a de facto monopoly on the legitimate use of force. Thus the ultraminimal state (the dominant protective agency) has emerged naturally out of the state of nature, and the “operators of the ultramininal state are morally obligated [by the principle of compensation] to produce the minimal state.” This process, while not directly related to Nozick’s discussion of distributive justice, is relevant for two reasons. First, Nozick’s entitlement theory of justice is meant to show that the minimal state described above is the only justifiable state. Second, Nozick’s criticism of Rawls becomes problematic when his ideas regarding distribution are reflected back upon his discussion of the minimal state. Addressing the first of these points, it is clear that any significant redistribution of citizens’ holdings (other than the redistribution inherent in providing protection to all) is incompatible with the minimal state, which is “limited to the functions of

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protecting all its citizens against violence, theft, and fraud, and the enforcement of contracts, and so on.” Individual rights are inviolable “side-constraints” on state action, not merely part of the end of that action. This logic leads Nozick to propose a “historical” theory of justice— the entitlement theory—as opposed to a “patterned” or “end-state” theory, meaning that a given distribution D is just if it arose justly, irrespective of how things are actually distributed, or “who has what.” Historical principles of distributive justice can be summed up as: “Whatever arises from a just situation by just steps is itself just.” The only time when the state may interfere with this self-motivated process of distribution is when it seeks to rectify the results of some clear injustice. Specifically, Nozick proposes three lexical principles: (1) one may originally acquire something justly; (2) one may acquire something through a just transaction with someone who came to hold that thing justly; (3) “no one is entitled to a holding except by (repeated) application of 1 and 2.” This is opposed (a) to time-slice principles of justice that do not distinguish between (I 5, II 10) and (I 10, II 5), and (b) to patterned theories of justice that distribute holdings by constructing some formula “to each according to his _____.” The only such formulation that Nozick can countenance is, “From each as they choose, to each as they are chosen.” This sets Nozick on a collision course with Rawls, whose difference principle is decidedly ahistorical. To put it simply, Rawls does not consider whether or not distribution D has arisen through a series of just acquisitions and transactions: if the worst-off representative man is worse off in D than he would be in some more equal distribution E, D is not justifiable by the difference principle. In fact, Nozick suggests that it is impossible for deliberators in the original position to arrive at the entitlement theory of justice. Imagine that, as Nozick proposes, a group of students gather together having just taken a test. They do not know their grades, but must come up with a way to distribute the total number of points earned on the test. Nozick admits that these students will likely agree to a roughly equal distribution; without knowing how he has done, student X is unlikely to suggest that they simply accept the grades they are “entitled to” by the teacher’s assessment lest X’s grade be below average. Yet few people would think that dividing grades in this manner is fair; it ignores the pre-existing entitlements that the individuals have to the grades they earn. On one hand, performance on tests is not just a function of natural assets. It includes preparation, luck, and other variables, at least some of which (hard work especially) seem morally significant in determining the distribution of holdings. Nozick quotes Rawls as saying that, “The existing distribution of income and wealth… is the cumulative effect of prior distribution of natural assets.” Rawls condemns a distribution according to natural assets because these are “morally arbitrary,” i.e. not connected to desert. Yet “attributing everything noteworthy about [a] person completely to certain sorts “external” factors” has the consequence of “denigrating a person’s autonomy and prime responsibility for his actions.” Rawls posits that if individual A knows his natural assets, he will formulate principles of justice that benefit himself at the expense of others; this is the prime justification of the veil of ignorance. Nozick denies that the distribution of natural assets violates anyone’s rights and that individual B can

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rightfully claim an entitlement to individual A’s natural endowments. A few of Nozick’s criticisms of Rawls badly miss the mark. For example, he attempts to show that the abrogation of individuals’ entitlements could devolve into a situation where the state harvested (healthy) individual A’s organs to make (sick) individual B better off. This argument ignores Rawls’s liberty principle, which would prevent the state from violating the bodily autonomy of individual A. However, other criticisms about the workability of the difference principle are more valid. For example, Nozick’s famous Wilt Chamberlain thought experiment demonstrates how a redistributive state would have to constantly infringe upon citizens’ liberties in order to preserve distribution D. D would change if individuals transferred some of their holdings via voluntary exchange to some person (Wilt Chamberlain) for providing some in-demand service (playing basketball well). Should the least-off members of society be prevented from attending a basketball game, since if they paid for the ticket and transferred some of their holdings to the players, the resulting distribution D2 would be less just (by the difference principle) than the initial D1. These considerations are especially important for Nozick given his formulation of a minimal state that strictly respects individual rights as inviolable side constraints. Given this diametric contrast between Nozick and Rawls’s theories of distributive justice, it is ironic to suggest that Nozick’s minimal state devolves into a proto-Rawlsian redistributive welfare state. It is even more ironic to suggest that his devolution occurs via the very sort of invisible hand process by which the minimal state first emerged. Yet the logical conclusion of the entitlement theory of justice is a state in which the needs of the poorest members of society determine the distribution of holdings. Consider the following thought experiment: The most destitute members of the minimal state are constantly disassociating themselves from it and forming their own associations. This is because the minimal state (operated in accordance with the entitlement theory of justice) lacks a social safety net or social minimum. The worst off will fall so far that they will be in danger of perishing; certainly, not everyone will be able to provide a tolerable life for themselves and their families. These people (the destitute) lack an incentive to remain part of the minimal state, in which they have an obligation to protect their wealthier fellow citizens and are simultaneously barred from aggressing upon them to gain subsistence. (One can see the outline of Rousseau’s criticism of liberal theory here). At the very least, the destitute lack strong connections to the minimal state and will abandon it if an opportunity arises to better themselves. Crucially, unlike Locke, Nozick never rescinds the right of individuals to once again become independents in the state of nature. (Rather, he merely says that the operators of the ultraminimal state have a moral obligation to protect independents too.) The destitute members of the minimal state reserve the right to reassert their independence, and they will do so when playing by the rules of the minimum state suffocates them economically. There is safety in numbers, so these destitute independents will form a rival mutual protection agency. This rival agency will start out as being much weaker than the dominant agency, but over time, more and more people will find their situation intolerable and leave to join the rival. (When the destitute leave, the merely poor take their place at the bottom of the free market economy

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without a social safety net. When the poor leave, the lower-middle class takes their place, and so on). The result is a process of degradation and degeneration whereby the minimal state splits into competing protection agencies. â&#x20AC;&#x192; These agencies will compete for members because membership is equivalent to power; the larger an agency is, the larger its reach. How will these agencies compete? They cannot offer security to would-be members. Indeed, independents represent marginal units of security for the above reasons; independents are selling security to the protective agencies. The agencies must buy these marginal units of security in a competitive marketplace. How will they do so? By offering services and benefits, such as vouchers that can be redeemed for (a) free protective services, or (b) welfare programs that ensure some social minimum. Even if the agencies provide (a) individuals will be assured of having some resources left over to provide for themselves. The result of multiple protective agencies competing for independents in a competitive marketplace (and labor market) is some version of the welfare state. â&#x20AC;&#x192; It is a stretch to call this state Rawlsian. It is not built on a contract arrived at in the Original Position, and it does not include either of the two principles of justice. However, it is proto-Rawlsian to the extent that the poorest members of society determine the social minimum and the distribution of holdings, since they are the ones who drive demand for protective services. The destitute are the first to leave a given protective agency if they are not well provided for, so even the minimal state must try to entice them to say. (Barring, of course, policies that forbid emigration, which Nozick explicitly disavows.) The resulting enticements constitute entitlement programs. â&#x20AC;&#x192; The fundamental problem for Nozick is that his theory of distributive justice (meant to show that only the minimal state is justified) by his favored methodology (invisible * * shows * hand process) that the minimal state will not exist for long, and that competition in the free * * are * redistributed with an eye to the worst off. market leads to a welfare state in which holdings

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Jack Brake, Sam Tobin, and Travis Quigley are students in the Politics Honors Program.

Publius

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his issue, we deviate from our traditional discursive format

in the Publius section to honor the passing of Justice Antonin Scalia in February 2016. Known for his commitment to a strictly originalist interpretation of the Constitution, as well as his pithy and incisive dissents delivered from the bench, Justice Scalia was respected even by those who disagreed in the strongest terms with his often controversial decisions. The following essay commemorates the life and career of Justice Scalia by reviewing some of his most influential legal opinions from thirty years on the nation's highest court.

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The Court's most polarizing Justice

Understanding the jurisprudence of Antonin Scalia

* * * * A*very* R*asmussen * * * * * * * * by * * * * * * * * * * College of Arts and Sciences (2016)

olitical conservatives often laud his opinions, and liberals love to hate him. Often cited as the most sarcastic and scathing Justice to ever sit on the Supreme Court, Antonin Scalia is certainly a divisive figure. His drastic viewpoints have led him to write the third highest number of dissents of any Justice on the Supreme Court. Even when in agreement with the holding, Scalia often still cannot resist making his views known: he has written the most concurring opinions of any Justice in history.1 In total, he has authored over 600 opinions, each dripping with “aggressive,” “confrontational,” and “testy” language.2 Scalia, one of the most “outspoken” and “high-profile” Justices ever on the bench and “unlike any other in the nation’s history,” represents the voice of originalism on the modern Supreme Court.3 Originalism’s most prominent supporter is best understood in the context of the overarching originalist-living constitutionalist debate. The debate provides a framework for understanding a coherent and consistent theory underlying Scalia’s jurisprudential decisions, a theory distinct in its nuances from some other forms of originalism. The theoretical originalist-living constitutionalist debate also lends context to exploring the legitimacy of critiques of the practical application of Scalia’s interpretive theory. The polarizing Justice is criticized for being unpredictable, hypocritical, and self-serving. Yet whether one believes them to be right or wrong, Scalia’s decisions can all at least be directly traced to a consistent textualist approach to constitutional interpretation. Claims of hypocrisy or inconsistency are only attributable to a misunderstanding of Scalia’s distinct interpretive theory. _______________________________________________________________________ Please note that this article was written before Justice Scalia's death on February 13, 2016. We have kept the text's use of present tense to preserve the “original intent” of the article.

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INTRODUCTION: ORIGINALISM AND ITS CRITICS The main theoretical arguments surrounding originalism lay the proper groundwork for understanding Scalia’s nuanced positions. Originalism and its critics (generally living constitutionalists) often debate three prominent and interconnected themes: the rule of law, the dead hand of the past, and the production of good consequences. Originalist theory is first and foremost premised on perpetuating “a government of laws, not of men.”4 By constraining Justices to their proper sphere, originalists attempt to ensure that they will not be governed by a tyranny of “nine lawyers” creating policy.5 Interpreting the Constitution as having a fixed meaning ensures preservation of certain timeless ideals and yet still allows democratic processes to respond to evolving popular will.6 Living constitutionalists counter this argument by asserting that the Constitution must preserve certain values from majority-imposed infringement, but those values change over time. Accordingly, Justices must be able to ascertain which principles should be beyond the reach of democratic lawmaking according to modern values. Justices should be able to protect these principles even if they are not explicitly laid out in the Constitution. A living constitution creates flexibility to keep the Constitution up-to-date with evolving societal standards and expectations, since our society is clearly not grappling with the same issues that the Framers did.7 Living constitutionalists further argue that originalism creates a different kind of tyranny than originalists fear: tyranny of the dead over the living. Originalism holds modern society hostage to the dead hand of the past by “turn[ing] a blind eye to social progress.”8 Originalists refute this argument first by insisting that the written principles are meant to be timeless. They also see the argument as invalid because nearly all law and precedent has been created by people now dead. The dead hand of the past argument would render the Roe v. Wade holding, for example, null and void since no Justice who delivered that opinion is still alive today.9 Third, living constitutionalists argue that judicial decisions should seek to produce the best possible outcome by adapting the spirit of the Constitution’s principles to changing circumstances in order to benefit modern society.10 Originalists, however, maintain that it is not the role of unelected Justices to make decisions about what results would be desirable. Originalism looks solely at the letter of the law rather than at consequences of particular decisions in an attempt to be ideologically neutral. It seeks to keep judges objective in order to guard against the temptation to make rulings based on personal policy preferences. These arguments for and against an originalist theory of constitutional interpretation set the stage for understanding the practical critiques of Scalia’s jurisprudence. Originalists have a theoretical response to every argument posed by the living constitutionalists in the abstract; however, many voice concerns regarding the application of originalism in practice, particularly as Scalia applies it. He is often accused of being inconsistent between his touted theory and actual application and between individual decisions. Critics often condemn Scalia for using originalism as a front to advance his own policy ideals and for being aggressively and hypocritically activist. A comprehensive understanding of Scalia’s precise theory of jurisprudence

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as opposed to other brands of originalism, as well as how that theory translates into specific decisions, illegitimates these common criticisms.

SECTION ONE: UNDERSTANDING SCALIA'S JURISPRUDENCE “Originalism” broadly describes several different methods of narrowly interpreting the Constitution in accordance with its original meaning. Scalia’s brand of originalism is distinguished from both original intent theory and strict constructionism, instead relying upon textualism and an original meaning theory of interpretation. Bork, the “intellectual godfather of originalism,” subscribes to original intent theory, holding that the Constitution should be interpreted according to the intention the Framers had when writing it.11 The point of putting a constitution in writing is to express meaning; yet the words mean little apart from being “scrawls of markings on a piece of paper” if they are divorced from the actual purpose for being written in the first place.12 The theory says that interpreting the Constitution based on what the drafters meant is the only way to properly restrain Justices who have their own conceptions of what constitutes good, moral policy.13 Original intent theorists hold that the amount of historical documentation from the time of the framing enables modern interpreters to determine the purpose behind most passages of the Constitution.14 Scalia and other originalists reject original intent theory for two main reasons. A primary reason is that despite whatever historical documentation that may exist, original intent actually is indeterminable. Brennan claims that it is conceited to think that over 200 years later, an interpreter can determine how the Framers would have wanted a principle to be applied to a modern situation.15 A unanimous representation of all drafters especially “could not be found,” according to Scalia, since all writers of a law (or the Constitution) are never in undisputed agreement about the purpose of each clause.16 Because a single, coherent original intention is indiscernible, Justices can easily substitute their own personal preference as the decisional factor or allow their partialities to color their interpretation of legislative history and debates.17 Scalia also rebuffs original intent theory because it “is ‘not consonant with our scheme of government for a court to inquire into the motives of legislators,’”18 and binding society to “what the lawgiver meant, rather than…what the lawgiver promulgated” is “simply incompatible with democratic government, [or] even with fair government.”19 The conversations preceding the codification of a law are not binding. Only the actual words of the law are binding.20 “We are governed by laws,” says Scalia, “not by intent of legislators.”21 Scalia’s textualism is also distinct from strict constructionism. The arguments in favor of strict constructionism align with the benefits already mentioned, the most important being constraining Justices from inserting their own policy preferences into their decisions. However, the method of strictly construing the words of the Constitution is different from Scalia’s method of textual interpretation. Strict constructionism, in Scalia’s view, is overly restrictive by solely focusing on the exact, literal words of a text rather than its overall meaning.22 Scalia

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regards strict constructionism as a “degraded form of textualism that brings the whole philosophy [of originalism] into disrepute.”23 The difference between strict constructionism and Scalia’s theory is brought to light in his Smith v. United States dissent, in which he argued that a man who attempted to trade a firearm for illegal drugs should not be given additional punishments reserved for those who “use a firearm” in drug trafficking. He did not actually “use” a firearm in the sense the phrase is commonly understood by a reasonable interpreter – as a weapon. In the same way, “When someone asks, ‘Do you use a cane?’ he is not inquiring whether you have your grandfather's silver handled walking stick on display in the hall; he wants to know whether you walk with a cane.”24 Scalia’s textualism attempts to find the meaning that the text suggests rather than an illogically constraining literal interpretation. Like original intent theory and strict constructionism, Justice Scalia’s textualism attempts to restrict the interpretation of constitutional text to its original meaning. However, Scalia looks to the original public understanding of the text rather than to legislators’ intent or literal textual meaning. Scalia’s approach relies on a three-step test to determine what falls within the meaning of the Constitutional text and which rights deserve constitutional protection: (1) If the text of the Constitution specifically requires that a particular right be protected, then the Court is obligated to protect that right. (2) If not, the Court should determine whether or not the particular right is entrenched in the social or political history of the United States. If it is, the right should be upheld. (3) If no text or tradition exists, the right is not constitutionally protectable.25 In the first prong of the test, the Court should determine if there is specific text in the Constitution to protect an alleged liberty or right. Textualists use a Holmesian approach to interpreting the text by looking at the way it is written and inferring what a “skilled, objectively reasonable” user would take those words to mean when thinking about the problem in question.26 Scalia usually finds this simple and straightforward, as in the interpretation of the Affordable Care Act in King v. Burwell. “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”27 When the text is less clear, Scalia often employs time-period dictionaries to determine precise meaning of words and phrases and arrive at an objective meaning as originally understood. For example, in Morrison v. Olson, Scalia uses dictionaries from the time of the framing to define the word “inferior” found in Article II, 2, Cl. 2 of the Constitution instead of relying on the “irrelevant” and arbitrary meaning of the word chosen by the majority.28 As of 2006, Scalia had cited historical dictionaries in 69 separate opinions.29 In the second prong, the Court should determine whether or not the particular right is ingrained in the nation’s history. If so, the right falls under “the meaning that [the Constitution’s] words were understood to bear at the time [it] was promulgated.”30 For example, in United States v. Virginia, Scalia thinks it was erroneous for the Court to strike down “an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half ”—an institution so “deeply rooted in this Nation’s history and tradition” that it is clearly constitutional under the original meaning and therefore should be

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protected.31 If no such text or tradition exists according to these two prongs, the Court cannot act to protect an alleged right. The Constitution recognizes the existence of unenumerated rights in the Ninth Amendment, and so even many originalists believe that the Court should uphold unenumerated rights.32 Yet for Scalia, the Amendment “is far removed from affirming any [unenumerated rights], and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.”33 Many modern-day citizens look to the Court to create unenumerated rights or expand the Constitution’s meaning to make decisions aligning with their idea of a good outcome, but Scalia reminds them that “everything that is hateful and odious is not covered by some provision of the Constitution.” Thus, the Court cannot strike down even things that are almost universally reviled.34 One example is torture, which has been held unconstitutional by the Court since Wilkerson v. Utah under the Eighth Amendment; yet Scalia argues that using torture other than as a form of punishment is actually “not contrary to the Constitution.”35 Scalia’s restrained approach does not necessarily mean that he thinks these things are not terrible nor that they should not be outlawed. It means that Scalia does not believe it to be the Court’s role to outlaw them. A simple example of a straightforward application of textualism’s three-step test for Scalia is Eighth Amendment jurisprudence. Living constitutionalists often quote a vague notion of “evolving standards of decency” as a guide for interpreting the principles laid out in the Constitution. They therefore often interpret the Eighth Amendment prohibition on cruel and unusual punishment to preclude the death penalty, an odious punishment according to modern societal morals. In Scalia’s jurisprudence, however, one must only look to the first prong of his textualist theory to know that the Court cannot legitimately strike down capital punishment as unconstitutional, even if widely disliked. The text of the Constitution specifi- “The crux of Scalia's jurisprudence is maintaining strict cally mentions capital punishment, so it cannot possibly be considered unconstitutional under separation of powers as laid the original meaning of the Constitution.36 If out explicitly in the more evidence is needed, the second prong of Constitution.” Scalia’s theory further supports the same conclusion: capital punishment has existed as part of the country’s tradition since the time of the framing. While individual states can therefore choose to outlaw the death penalty because of evolving moral standards, the Court cannot legitimately intrude into this decision by declaring it unconstitutional. “Time and again a vocal minority of this Court…has sought to replace the judgments of the People with their own standards of decency,” Scalia says of living constitutionalists who attempt to declare capital punishment unconstitutional.37 It has been a controversial topic since the beginning of the country, and even the Framers debated the soundness of capital punishment. Yet some Justices believe that they can and should declare it unconstitutional, in a move that Scalia says would “not just reject the death penalty, but reject the Enlightenment” philosophy of allowing self-governing nations to decide controver-

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sial issues for themselves.38 “There is something to be said for popular abolition of the death penalty,” Scalia concedes. But “there is nothing to be said for its incremental abolition by this Court.”39 The crux of Scalia’s jurisprudence is maintaining strict separation of powers as laid out explicitly in the Constitution. Scalia emphasized its importance in his time on the bench: “If there is anyone who, over the years, had a greater interest in the subject of separation of powers, he does not come readily to mind.”40 He has called separation of powers “the cornerstone of our Constitution and the North Star of our founding fathers” and sees it as the unique element distinguishing American government from that of any other country.41 The goal of Scalia’s textualism is to restrain Justices to their intended sphere of influence: namely, interpreting the laws as they are written rather than creating policy or letting personal result-oriented preferences dictate decisions. Scalia abhors judicial policy-making because it is not the responsibility of “nine lawyers” who are unelected, unaccountable, and wholly unrepresentative people to decide what is in the best interest of the country overall.42 For Scalia, it is therefore neither the Constitution’s nor the Court’s job to keep the law up to date with an evolving society. It is the legislature’s job to resolve things about which the Constitution is silent “through normal democratic means…[because] this Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.”43 Scalia’s decisions, therefore, are not “Scalia's decisions, therefore, statements about his personal preferences for the way society should be ruled. In disare not statements about sent arguing against the unconstitutionalhis personal preferences for ity of gay marriage in Obergefell v. Hodges, the way society should be for example, he insists, “It is not of special ruled... What he cares about importance to me what the law says about is the process by which these marriage.”44 What he cares about is the prodecisions are made and who cess by which these decisions are made and who is therefore ruling over the people. He is therefore ruling over the calls Justices “egotistic” and “pretentious” for people.” making what he views to be policy choices rather than strictly interpreting law, thereby decreeing their all-knowing ruling over the people.45 Because “it will rarely, if ever, be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives,” decisions about which there is a deep societal division and no explicit constitutional mandate should be left to the people to decide.46 Textualism is so important to Scalia because it is a method by which Justices are forced to neutrally apply the Constitution and refrain from policy-making. Otherwise, Justices are prone to go beyond their scope and make value judgments. As Scalia richly puts it, “No government official is ‘tempted’ to place restraints upon his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’”47 Deeply related to the separation of powers element is the import Scalia places on judicial restraint. Justices do not “have free reign to create rights as they see fit; instead…they should

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employ a standard that is rooted in the Constitution and American history and that cannot be altered or manipulated by future court majorities.”48 “A Constitution is not meant to facilitate change,” Scalia says in response to living constitutionalists. “It is meant to impede change, to make it difficult to change.”49 Judges, therefore, should be restrained by textualism rather than employing the “judge-empowering philosophy” that is living constitutionalism.50 After all, “Judges are no longer agents of the king, for there are no kings.”51 There is instead a democratically operating legislature, perfectly situated to respond to society, while the Justices simply maintain the Constitution’s explicit and timeless principles. Scalia’s view about the ease discerning and applying textualism leads to interesting views on the doctrine of stare decisis.52 Many believe that stare decisis is valuable in that “protecting the power of precedent lends stability to the expectations of citizens.”53 Even many conservatives and originalists give reasons for adhering to precedent in most cases.54 Scalia, however, convinced of textualism’s correctness, says that original meaning will always trump precedent.55 He is not concerned about the stability offered by stare decisis because a consistently textualist approach would offer that same stability. He is also not convinced by the argument put forth in Planned Parenthood v. Casey that stare decisis is necessary to maintain legitimacy, because he views this position to be results-oriented in nature. Even more, Scalia deplores Justices’ manipulative use of precedent when it gets them results they want, yet ignoring it otherwise. In Casey, he calls the application of precedent “completely contrived” in a scheming “keep-what-you-want-and-throw-away-the-rest version” of stare decisis designed arrive at a desired outcome.56 He later calls Lawrence v. Texas “manipulative” in ignoring precedent laid down in Bowers v. Hardwick, a decision completely “inconsistent” with the Court’s proclaimed necessity of maintaining stare decisis in the Casey majority opinion.57 If precedent is not binding, as Scalia argues it is not, then it should not be purported to be so in decisions like Casey to aid Justices in arriving at their desired end. Scalia himself will freely admit the limitations of his theory of textualism. He calls himself a “faint-hearted originalist,” since extreme adherence to any interpretive theory would simply produce “a lot of problems.”58 One shortcoming is the obvious problem that different people can often reasonably interpret the same words a number of conflicting ways, and so there is not always a single clear original public meaning. However, the difficulty of searching for an acceptable interpretation does not stop Scalia from looking, nor does it stop him from declaring certain interpretations completely indefensible.59 At the very least, textualism excludes several interpretations that are really just judicial political decisions, and it identifies a range of acceptable, more neutral, and constrained interpretive options. Nevertheless, Scalia maintains that the majority of cases can be easily decided based on straightforward textual rationale, and “disagreement regarding the original meaning…[or] how the original meaning applies to unforeseen phenomena” will only occur “sometimes, though not very often.”60 Where it does happen, though, Scalia will approve the use of precedent to resolve the matter. In cases where the direct application of textualism is not obvious, Justices should establish general rules as precedent to guide future interpretation. This restrained view of the power of precedent both ensures that citizens will be able to have fair notice and expectation

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of law and that Justices will not be able to interpret the few vague clauses of the Constitution according to their own whim or preference. For example, when Michigan v. Chesternut came before the Court in 1988, it was unclear what exactly was included under the Fourth Amendment’s search and seizure clause. Scalia therefore joined an opinion to set forth a general rule for determining whether or not police restraint is prohibited under the Constitution, since there was insufficiently explicit text and insufficient historical evidence to guide application to modern situations.61 With all of these principles taken together, Scalia’s decisions in all of his 600 decisions can be readily explained. Exploration of Scalia’s jurisprudence on just a few controversial topics (freedom of religion, speech, homosexuality, and abortion) provides useful examples of the consistency of his approach in practice. In 29 years on the Court, Justice Scalia has never authored or joined an opinion striking down a law for violation of the First Amendment’s Establishment Clause.62 Scalia’s textualism leads him to understand the Clause as a minimal standard simply prohibiting the government from creating a state-sponsored religion. Neither (1) a reasonable interpretation of the text nor (2) the history of American tradition justifies the Supreme Court trend of insisting upon an impenetrable wall between the state and any semblance of religion. The text of the First Amendment “prohibit[s] religious tyranny, [it does] not…undermine religion generally.”63 Further, Scalia maintains that tradition in fact supports state interaction with religion, and the Court cannot reasonably declare unconstitutional certain practices that have been occurring since the framing.64 “Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions,” Scalia argues in dissent from the Lee v. Weisman majority holding disallowing prayer at public school graduations.65 The original public meaning of the First Amendment also did not include a prohibition on laws that generally restrict behavior not specifically directed at religion. While the government should try “to accommodate religion, particularly a minority sect,” it is not unconstitutional for legislatures to make generally applicable laws without special stipulations to protect obscure religious practices.66 In Employment Division of Oregon v. Smith, Scalia wrote the majority opinion upholding a ban on a particular drug, one that happened to be used in Native American religious ceremonies. Even though this practice was a religious tradition for Native Americans, the law was intended to apply generally and was not aimed at their religion directly. In Scalia’s mind, the text of the Constitution cannot be reasonably construed to require that every single law carve out religious exceptions to generally prohibited behavior.67 With this in mind, then, the interpretation of the text of the First Amendment must also be read to allow the legislature to actually accommodate such minority religions, a tolerance that “follows the best of our traditions.”68 Dissenting in Board of Education of Kiryas Joel v. Grumet, in which the majority struck down a school zoning law drawn around religious communities for unconstitutionally endorsing religion, Scalia argues that the Framers would be “astonished” if they saw the Court interpreting the First Amendment to “prohibit characteristically and admirably American accommodation of the religious practices…of a tiny minority

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sect.”69 The original meaning of the First Amendment was that “‘no one powerful sect or combination of sects could use political or governmental power to punish dissenters,’” and yet the decision twisted that to completely separate the government from religion.70 Scalia’s Board of Education of Kiryas Joel dissent indicates that while he finds the law in Smith (above) generally restricting drug use to be constitutional also necessitates the legislatures’ ability to carve out an exception for Native American religious ceremonies without the Court striking down such a law as an unconstitutional endorsement of religion. Similarly, Scalia looks at the text and tradition behind the First Amendment’s free expression clauses to determine what it was originally understood to protect. First, his understanding of what the text explicitly protects provides an interesting contrast to how a strict constructionist would interpret the words. Scalia reads the First Amendment text to include not just what its words literally say (which, in the case of free expression, would be solely “speech” and “press”). Instead, the actual meaning extends to protection of anything reasonably construed to be included. He cites handwritten letters as an example of a medium not literally included in the First Amendment’s protections; yet any reasonable reader of the words would expect protection of handwritten expression because “speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole.”71 Because Scalia believes the text encompasses of all forms of political discourse, he argues to protect speech even in uniquely modern situations, for example, arguing against campaign spending regulations in McConnell v. Federal Election Commission and restrictions on anti-abortion protesters in Hill v. Colorado.72 Secondly, Scalia’s reading of history dating back to the framing leads him to oppose extension of the First Amendment to cases it was not originally understood to reach, two examples being pornography and indecency.73 In Barnes v. Glen Theater, Inc., Scalia wrote a concurring opinion to uphold a public indecency law against a challenge on grounds of freedom of expression. He argued that that the question was not even one of First Amendment jurisprudence since the text of the Amendment nor the traditions of the country support public nudity as a protected form of free expression.74 Scalia laments the Court’s wayward interpretation of striking down laws that should be protected as long-standing American traditions, yet upholding claims of violations of rights to expression that do not reasonably exist under the First Amendment. In McConnell, he laments: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”75 His understanding of the text and tradition undergirding freedom of expression often lead him to quite the opposite opinions. A holistic look at Scalia’s First Amendment jurisprudence would likely produce some confusion in those unfamiliar with his theory of interpretation. He dissents from opinions intending to separate the state from religion; yet he dissents from opinions intending to allow greater

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religious freedom.76 He dissents from opinions intending to limit freedom of expression to more pure forms of speech; yet he dissents from opinions intending to expand freedom of expression to include unconventional types of expression.77 Critics charge him with being politically motivated, results-oriented, and contradictory in First Amendment jurisprudence specifically.78 Yet really, Scalia is just intending to uphold the original meaning of the First Amendment without directly considering the results. Scalia also often dissents from rulings on laws regarding homosexuality, another very controversial issue often before the Court in which his opinions constantly favor the political conservative viewpoint.79 Scalia approaches the issue of homosexuality as follows. First, there is no text specifically upholding many of the rights claimed in this general sphere (privacy and marriage, to name two often claimed as constitutional liberties). Further, the history of American tradition serves to indicate that many laws regarding homosexuality are not unconstitutional: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.”80 Further, laws restricting sodomy have been in effect since the Constitution was written, so it cannot be reasonably considered unconstitutional according to original public understanding.81 Because neither of the two prongs of Scalia’s test are met, practicing homosexuality cannot be regarded as a fundamental constitutional right. While it is conceivably a liberty worth protecting, it is not the Court’s job to strike down laws in order to protect all liberties – just those that are constitutionally based liberties, as Scalia explains in Lawrence v. Texas: “[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. … But there is no right to ‘liberty’ under the Due Process Clause … Only fundamental rights qualify for this so-called ‘heightened scrutiny’ protection—that is, rights which are ‘deeply rooted in this Nation’s history and tradition’ (Washington v. Glucksburg). All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.”82 Once Scalia determines, according to the first two prongs of his theory, that various practices of homosexuality (sodomy, same-sex marriage) are not fundamental, he insists the Court cannot strike down democratically made laws to protect that freedom. Scalia also often dissents in cases concerning the issue of abortion, also attributable to his textualist approach. First, Scalia holds the purported right to an abortion (or privacy, for that matter) up to his three-step test, and he simply finds that it is not a constitutionally protected right. Because the Constitution is silent on the issue and there is no tradition of preserving abortion as a right, it cannot be construed to be in the original meaning of what the Constitution protects. In fact, restrictions on abortion have been pointedly allowed in the history of the nation dating back to the founding, indicating that the original understanding of the text of the Constitution did not make abortion unconstitutional. Though a woman’s right to privacy to have an abortion is conceivably a liberty that a free society should protect, it is simply not a constitutional liberty. Scalia is careful to draw this distinction in his Casey dissent, classifying abortion as “a liberty not especially constitutionally protected” regardless of its merits.83 Because the Constitution is completely silent on the issue of abortion, judicial attempt at policy-making in this arena is encroaching on the established role of the judiciary in a sys-

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tem of separation of powers. “You think there ought to be a right to abortion? No problem,” Scalia says. “Create it the way most rights are created in a democratic society. Pass a law.”

“This bending of the Court's decisions to subjective extraconstitutional value claims is an attempt to follow society's evolving standard of decency, but Scalia views it as the Court clearly acting as a legislature should.” Regulation of abortion is a policy question, one that the legislature must handle because it is both accountable to and more representative of the people. Legislatures, unlike the Court, are capable of compromises (“I was going to say it can split the baby!” Scalia remarked, when speaking on the issue.)84 The Court’s attempt to create policy regarding abortion, the most egregious of which was the Roe decision, just leads to “confusion and inconsistency” because of a lack of Constitutional guidelines.85 The decisions of the Court in various abortion cases are then “random and unpredictable,” created by a Court attempting to create an “Abortion Code” when it does not have the expertise nor the authority to do so.86 This bending of the Court’s decisions to subjective extra-constitutional value claims is an attempt to follow society’s evolving standard of decency, but Scalia views it as the Court clearly acting as a legislature should. The result damages the Court as it becomes increasingly perceived as a policy-making body that considers public opinion. Scalia colorfully laments this shift in the public’s view of the Supreme Court in Webster v. Reproductive Health Services: “We can now look forward to at least another term with carts full of mail from the public, and the streets full of demonstrators, urging us—their elected and life-tenured judges who have been awarded those extra-ordinary, undemocratic characteristics precisely in order that we might follow the law despite popular will—to follow the popular will.”87 The Court, having erroneously ignored the doctrine of judicial restraint and actively inserted itself into creating abortion policy, is now subject to those political pressures that should be reserved for the legislature. The Court is not meant to respond to public opinion. The abortion cases also reveal Scalia’s opinion about stare decisis. Convinced of the correctness of his opinion that abortion issues are extra-constitutional, Scalia refuses to be bound to precedent. For example, in Planned Parenthood v. Casey he asserts, “Roe was plainly wrong” and in Stenberg v. Carhart he bluntly states, “Casey must be overruled.”88 He believes that the Court uses the Roe precedent manipulatively, keeping the parts that are convenient to their desired outcome in the Casey decision yet throwing away other parts like the trimester schema.89 The determination that abortion is not a constitutionally-protected right, in Scalia’s view, is far more important in guiding his decision than the determination that society has come to rely on the Roe precedent or that overturning Roe would hinder the Court’s legitimacy. Scalia’s emphasis on judicial restraint to maintain separation of powers, his specific uses for stare decisis, and his interpretation of the Constitution solely on its original meaning as determined by the text and American tradition can be found consistently throughout his more than 600 decisions and 29 years as a Supreme Court Justice.

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Though Scalia purports to be very consistent in applying a neutral textualist theory, he comes under fire for using it to actively advance a conservative agenda. Critics contend that he “manipulate[s] his originalist theory to reach the result that he [seeks]” and chooses politically conservative outcomes because of his personal values.90 A second prominent critique is that if he always had his way, his extreme hypocritical activism would end up actively “throwing out much of the nation’s existing constitutional law, and depriving Americans of basic rights.” 91 First, critics say that Scalia’s theory is a front to advance a conservative agenda, and he actually decides cases to get favorable results despite his professed condemnation of results-oriented jurisprudence. Scalia, however, maintains that he strictly and consistently uses an ideologically neutral interpretation. “There is no liberal or conservative meaning of the text of the Constitution; there is only a right meaning and a wrong meaning,” in the view of textualists.92 It is first important to note that Scalia’s textualism is not a neutral theory but rather is inherently conservative. A strict interpretation of the Constitution will almost always favor small government over expansive government and therefore will favor conservative policy over liberal policy.93 This is not always true of textualism: for example, the Lochner-era Court used extra-constitutional principles (reading a liberty of contract into the Constitution) to strike down New Deal programs, while a more textualist theory that took hold after the “switch in time” allowed liberal government policies to flourish.94 But for the most part, refusing to recognize rights beyond those specifically mentioned in the Constitution or entrenched in tradition means upholding typically conservative values. Scalia’s consistent application of textualism leads him to make mostly politically-conservative opinions, such as failing to recognize a right to abortion or gay marriage, disagreeing with strict separation of church and state, and upholding a right to freedom of speech even in dubious modern circumstances. These decisions are not necessarily indicative of a results-oriented, politically-conservative agenda but rather of a consistent application of a judicially-conservative interpretive method. Despite the tendency for textualism to support conservative policy, it does often lead Scalia to uphold outcomes he does not personally agree are sound policy. In Texas v. Johnson and United States v. Eichman, Scalia upheld the right to burn the American flag even though he says, “If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me.”95 In Scalia’s textualist interpretation, the right to burn a flag as a matter of expression is explicitly protected by the First Amendment’s protection of all forms

“Despite the tendency for textualism to support conservative policy, it often does lead Scalia to uphold outcomes he does not personally agree are sound policy.” of political expression.96 Scalia also cites Apprendi v. New Jersey as an example of his textualism supporting a traditionally liberal policy choice.97 In this case, he interpreted the Sixth

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Amendment’s text to explicitly protect the right to a jury trial in all circumstances, thereby striking down legislation mandating addition jail time based on evidence reviewed only by a judge.98 He also cites Crawford v. Washington, in which Scalia held that the Sixth Amendment’s Confrontation Clause prohibited the use of hearsay evidence originally provided by unavailable witnesses in trials.99 These two decisions are counter to conservative policies, yet Scalia’s textualism led him to believe that fundamental constitutional rights existed according to the explicit text of the Constitution. “The honest originalist will sometimes or often reach results he does not personally favor … This cannot be said of constitutional consequentialists” or living constitutionalists, who are always result-oriented and thus by inherently advance their views of good policy.100 These are just a few examples of Scalia’s textualism leading him to results that he would not necessarily choose for himself. Some critics claim that these decisions are evidence of Scalia’s inconsistency, leading him to “unexpectedly” make liberal decisions in a manner that is “difficult to foresee.”101 These critiques are far too results-oriented for Scalia’s jurisprudence, which does neither in theory nor in practice consider the results of a decision. His consistent application of textualism leads him to outcomes that are usually conservative, but sometimes of varying political ideologies, and this is not a mark of inconsistency or orientation towards results. A second common criticism of Scalia is that he is hypocritically an activist judge. For all of his lauding of judicial restraint and abhorrence of judicial activism, many critics contend that he is actually one of the most active Justices in history. As pointed out by Representative Frank, Scalia has “been as active in this past term as any Justices in our past history,” voting “to invalidate more acts of Congress than all but one of the Justices.”102 While he insists that policy-making questions should be left to the legislature, he “regularly overturns laws passed by Congress”103 and has been “quite active in voting to overturn court precedence,” overturning more precedents than just two Justices in the history of the Court.104 He pretends to defer to democratic majorities when it would deliver politically conservative results, critics say, but then ignores this theory of restraint when it is politically inconvenient, such as when the “unelected justices impos[ed] their will…[in] an extremely unpopular decision in Citizens United.”105 In evaluating the merits of this criticism, it is important to first define “judicial activism.” The phrase often holds little meaning, instead applied to rulings that one simply does not like.106 Generally, judicial activism can be said to mean a few things: striking down legislation, overturning precedent, or judicial policy-making.107 Scalia is most commonly called a judicial activist by those claiming that he overturns laws made by the judiciary and disregards precedent. Scalia defines judicial activism as “decisions that hold unconstitutional practices that were not only approved at the founding but that were continuously viewed as constitutional by at least a substantial portion of the American people.”108 By his own definition, Scalia is not an activist because he refuses to partake in judicial policy-making departing from text and tradition. He believes there is a difference between unconstitutional policy and foolish policy

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(“I do not think…the avoidance of unhappy consequences is adequate basis for interpreting a text,” Nixon v. Missouri Municipal League109), and so he will defer to the legislature even for unfavorable policy, as long as it is not clearly unconstitutional. In the same spirit, he will not hesitate to overturn laws that directly conflict with the protections offered by the original public understanding of the Constitution. In Citizens United v. FEC, the case called out as unmerited activism above, Scalia ruled that restrictions on campaign expenditures were unconstitutional not necessarily because he disagreed with them, but because he believed they directly conflicted with the First Amendment’s explicit text.110 Striking down this law, therefore, was not activist by Scalia’s definition of the word. While Scalia can be classified as activist in his unhesitating overturning of laws, he is not activist by his own definition of “judicial policy-making,” and his views and practice therefore do not contradict one another. As Scalia himself will admit, originalism is not perfect. However, the only reassurance Scalia needs to continue applying his textualist theory is the mere fact that it is more consistent and more neutral than any alternative.111 Originalism is “not a guarantee against judicial abuse,” but it helps in preventing distortion of the law in pursuit of a Justice’s own preferences.112 Scalia’s jurisprudence is among the most consistent of any Justice to serve on the Supreme Court, and despite criticisms that his decisions are unpredictable and hypocritically result-oriented, his consistent deference to originalism can actually explain his decisions far more reliably than his own policy preferences. His pride in the consistency of his jurisprudence means Scalia will not entertain one common criticism – that his jurisprudence is overly formalistic. “Of course it’s formalistic! The rule of law is about form,” Scalia declares in response, emphasizing the reliability of his formalistic application of his textualism.113 Right or wrong in his decisions, Scalia applies the most consistent interpretive theory of any Justice on the bench.114

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Avery Rasmussen is a fourth year from Pensacola, Florida, studying Commerce and Political Philosophy, Policy, and Law. Her interests lie in First Amendment law and Supreme Court history.

endnotes & appendices

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Blame in gerrymandering 1. Nolan McCarty, Keith T. Poole, and Howard Rosenthal. Polarized America: The Dance of Ideology and Unequal Riches (Vol. 5). (Cambridge, Massachusetts; MIT Press, 2006), 60. 2. Thomas Mann. “Polarizing the House of Representatives: How much does gerrymandering matter?” In Red and Blue Nation? Characteristics and Causes of America's Polarized Politics ed. Pietro S. Nivola & David W. Brady. (Stanford, California: Hoover Institution on War, Revolution, and Peace, Stanford University, 2007), 271. 3. Micah Altman, Karin MacDonald, and Michael McDonald. “Pushbutton Gerrymandering: How Computing Has Changed Redistricting.” In Party Lines: Competition, Partisanship, and Congressional Redistricting ed. Thomas E. Mann and Bruce E. Cain. (Washington, D.C. Brookings Institution Press, 2005), 51. 4. Atlman et al. “Pushbutton Gerrymandering,” 52. 5. Nolan McCarty, Keith T. Poole, and Howard Rosenthal. “Does Gerrymandering Cause Polarization?” 53 American Journal of Political Science 3 (2009), 667. 6. Mann, “Polarizing the House.” 7. Joseph Parent, Joseph Bafumi, Charles Kupchan, and Peter Trubowitz. “Of Polarity and Polarization.” 33 International Security 1, 170. 8. Mann, “Polarizing the House,” 268. 9. Mann, “Polarizing the House,” 273. 10. Mann, “Polarizing the House,” 274. 11. McCarty et al., Gerrymandering, 667. 12.Seth Masket, Johnathan Winburn, Jonathan, and Gerald Wright. “The Gerrymanderers Are Coming! Legislative Redistricting Won't Affect Competition or Polarization Much, No Matter Who Does It.” 45 Political Science & Politics 1 (2012), 41. 13. Masket et al., “Gerrymanderers Are Coming,” 41. 14. Masket et al., “Gerrymanderers Are Coming,” 42. 15. McCarty et al., “Gerrymandering,” 668. 16. McCarty et al., Polarized America, 60. 17. Mann, “Polarizing the House,” 261. 18. McCarty et al., Polarized America, 65. 19. Mann, “Polarizing the House,” 266. 20. Masket et al., “Gerrymanderers Are Coming,” 39. 21. McCarty et al., “Gerrymandering,” 672. 22. James DeVault. “Political polarization, congressional redistricting, and trade liberalization. “157 Public Choice 1 (Oct, 2013), 211. 23. McCarty et al., “Gerrymandering,” 668. 24. Mann, “Polarizing the House,” 270. 25. Jamie L. Carson, Michael H. Crespin, Charles J. Finocchiaro, David W. Rohde. “Redistricting and Party Polarization in the U.S. House of Representatives.” 35 American Politics Research 6 (2007), 894. 26. Carson et al., “Redistricting,” 883. 27. Mann, “Polarizing the House,” 270. 28. Carson et al. “Redistricting,” 900. 29. DeVault, “Political Participation,” 220. 30. McCarty et al., “Gerrymandering,” 673. 31. DeVault, “Political Participation,” 221.

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The power of corporate interest: The New York Times vs. NBC News 1. Michael Parenti. Inventing Reality: The Politics of the Mass Media. (New York, NY: St. Martin's Press, 1986), chapter 3. 2. Parenti, Inventing Reality, ch. 3. 3. Parenti, Inventing Reality, ch. 3. 4. Bernard Goldberg. Bias: A CBS Insider Exposes How the Media Distort the News. (Washington, D.C.: Regnery Publishing, 2002), chapter 1. 5. Julianne Pepitone. “FCC Passes Net Neutrality Rules in Victory for Open-Internet Activists.” NBC News, February 26, 2015. 6. David Shaw. “Abortion Bias Seeps into News: A Comprehensive Times Study Finds that the Press Often.” Los Angeles Times, July 1, 1990. 7. Shaw, “Abortion Bias”. 8. Goldberg, Bias, ch. 1. 9. Pepitone, “FCC Passes Net Neutrality”. 10. Lance W. Bennett, Regina G. Lawrence, and Steven Livingston. When the Press Fails: Political Power and the News Media from Iraq to Katrina. (Chicago and London: University of Chicago Press, 2007). 11. Steve Lohr. “In Net Neutrality Push, F.C.C. Is Expected to Propose Regulating Internet Service as a Utility.” The New York Times, February 2, 2015. 12. Bennett et al., When the Press Fails. 13. Shaw, “Abortion Bias.” 14. Lohr, “Net Neutrality Push.” 15. Lohr, “Net Neutrality Push.” 16. Bennett et al., When the Press Fails. 17. Bennett et al., When the Press Fails.

A critical analysis of the Moynihan Report and its popularity 1. Herbert J Gans. The Moynihan Report and Its Aftermaths. 8 Du Bois Review 2 (2011), 315. 2. James T. Patterson. Freedom Is Not Enough: The Moynihan Report and America's Struggle over Black Family Life: From LBJ to Obama (New York, NY: Basic, 2010), 59. 3. United States. Department of Labor. Office of Policy Planning and Research. The Negro Family: The Case for National Action. (Washington, D.C.:Supt. of Docs., U.S. Govt. Print. Off., 1965), 48. 4. Dept. of Labor, The Negro Family, Introduction. 5. Dept. of Labor, The Negro Family, 29. 6. Dept. of Labor, The Negro Family, 29. 7. Dept. of Labor, The Negro Family, 29. 8. Dept. of Labor, The Negro Family, 29. 9. Gans, The Moynihan Report, 318. 10. Robert Staples. The Black Woman in America: Sex, Marriage, and the Family (Chicago, IL: Nelson-Hall, 1973), 20. 11. Gans, The Moynihan Report, 318.

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12. Charles Willie, ed. The Family Life of Black People (Columbus, OH: Charles E Merrill, 1970), 222. 13. Robert Bernard Hill. The Strengths of Black Families. (Lanham, MD: University of America, 2003), 21. 14. Hortense J. Spillers. Mama's Baby, Papa's Maybe: An American Grammar Book. 17 Diacritics 2 (1987), 74. 15. Hill, The Strength of Black Families, 107. 16. Dept. of Labor, The Negro Family, 25. 17. John H. Scanzoni. The Black Family in Modern Society: Patterns of Stability and Security (Chicago, IL: University of Chicago, 1977), 43. 18. Lee Rainwater and William L. Yancey. The Moynihan Report and the Politics of Controversy: A Trans-actional Social Science and Public Policy Report (Cambridge, MA: MIT Pr., 1967), 297. 19. Feagin, â&#x20AC;&#x153;Black Women in the American Work Force,â&#x20AC;? in Willie, The Family Life, 29. 20. Hill, The Strength of Black Families, 112. 21. Gans, The Moynihan Report, 319. 22. The Holy Bible: Containing the Old and New Testaments, Translated out of the Original Tongues and with the Former Translations Diligently Compared & Revised, King James Version (New York, NY: American Bible Society, 2004), Gen. 3:13. 23. King James Bible, Gen 3:16. 24. Hesiod, trans. Hugh G. Evelyn-White. Works and Days, Theogony, and The Shield of Heracles (Mineola, NY: Dover Publications, 2006), 105. 25. Dept. of Labor, The Negro Family, 42. 26. David Adams Leeming. Creation Myths of the World: An Encyclopedia (Santa Barbara, CA: ABC-CLIO, 2010), 102. 27. Robert Staples. The Black Woman in America: Sex, Marriage, and the Family (Chicago, IL: Nelson-Hall, 1973), 6. 28. Willie, The Family Life, 315. 29. Daniel C Thompson. Sociology of the Black Experience (Westport, CT: Greenwood, 1974), 79. 30. William Ryan. Blaming the Victim (New York, NY: Vintage, 1976), 62. 31. Hill, The Strength of Black Families, 115.

New institutionalism and the politics of Medicare 1. Theodore R Marmor and Jan S Marmor. The Politics of Medicare. (Chicago: Aldine Pub. Co, 1973: Rev. American ed.), 10. 2. Marmor and Marmor, Politics of Medicare, 13. 3. Robert Reischauer, Stuart Butler, and Judith Lave. Medicare: Preparing for the Challenges of the 21st Century. (Washington, DC: National Academy of Social Instance, 1998), 29. 4. Marmor and Marmor, Politics of Medicare, 15. 5. Julian Zelizer. Taxing America: Wilbur Mills, Congress and the State, 1945-1975. (New York, NY: Cambridge University Press, 1998), 254. 6. Peter Corning. The Evolution of Medicare: From Idea to Law. (Baltimore, MD: Office of Research and Statistics, 1969), 3. 7. Marmor and Marmor, Politics of Medicare, 31. 8. Reischauer, Medicare, 30.

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9. Marmor and Marmor, Politics of Medicare, 64. 10. Zelizer, Taxing America, 252. 11. Corning, Evolution of Medicare, 24. 12. Corning, Evolution of Medicare, 17. 13. Barbara Sinclair. Party Wars: Polarization and the Politics of National Policy Making. (Norman: University of Oklahoma Press, 2006), 68. 14 .Sinclair, Party Wars, 71. 15. Corning, Evolution of Medicare, 22. 16. Sinclair, Party Wars, 72. 17. Marmor and Marmor, Politics of Medicare, 29. 18. Marmor and Marmor, Politics of Medicare, 45. 19. Marmor and Marmor, Politics of Medicare, 43. 20. M. G. Gluck and V. Reno. Reflections on Implementing Medicare. (Washington, DC: National Academy of Social Insurance, 2001), 3. 21. David Blumenthal and James Morone. “The Lessons of Success—Revisiting the Medicare Story.” 359 New England Journal of Medicine 22 (Nov. 2008), 2385. 22. Zelizer, Taxing America, 223. 23. Zelizer, Taxing America, 226. 24. Blumenthal and Monrone, “Lessons of Success,” 2385. 25. Zelizer, Taxing America, 229. 26. Blumenthal and Monrone, “Lessons of Success,” 2386. 27. Blumenthal and Monrone, “Lessons of Success,” 2387.

Is hydraulic fracturing an environmental injustice? 1. Elena Pacheco. “It's A Fracking Conundrum: Environmental Justice And The Battle To Regulate Hydraulic Fracturing.” 42 Ecology Law Quarterly 2 (2015), 394. 2. Austin Troy. The Very Hungry City: Urban Energy Efficiency And The Economic Fate Of Cities (New Haven: Yale University Press, 2012), 177. 3. Troy, Very Hungry City, 176. 4. Madelon L Finkel ed. The Human and Environmental Impact of Fracking (Santa Barbara, CA: Praeger: An Imprint of ABC-CLIO, LLC, 2015), xv. 5. Finkel, Impact of Fracking, xv-xvi. 6. Frank R. Spellman. Environmental Impacts of Hydraulic Fracturing (New York, NY: CRC, 2013), 116-17. 7. Kellie Fisher. “Communities In The Dark: The Use Of State Sunshine Laws To Shed Light On The Fracking Industry.” 42 Boston College Environmental Affairs Law Review 1 (2015), 104. 8. Fisher, In the Dark, 110. 9. Fisher, In the Dark, 109. 10. Fisher, In the Dark, 113, 115. 11. Fisher, In the Dark, 104. 12. Fisher, In the Dark, 110. 13. Fisher, In the Dark, 104, 111. 14. Finkel, Impact of Fracking, 131. 15. Finkel, Impact of Fracking, 131 16. Finkel, Impact of Fracking, 131

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17. Pacheco, “A Fracking Conundrum,” 373. 18. Pacheco, “A Fracking Conundrum,” 394. 19. Finkel, Impact of Fracking, 94. 20. Barry Yeoman. “The Shale Rebellion.” The American Prospect, 11 Dec. 2013. 21. Meng, Qingmin. “Spatial Analysis of Environment and Population at Risk of Natural Gas Fracking in the State of Pennsylvania, USA.” 515-16 Science of The Total Environment (2015), 200. 22. Yelena Ogneva-Himmelberger, and Liyao Huang. “Spatial Distribution of Unconventional Gas Wells and Human Populations in the Marcellus Shale in the United States: Vulnerability Analysis.” 60 Applied Geography (2015), 165. 23. Ogneva-Himmelberger and Huang, “Spatial Distribution,” 165. 24. Ogneva-Himmelberger and Huang, “Spatial Distribution,” 171. 25. Pacheco, “A Fracking Conundrum,” 382. 26. Yeoman, “Shale Rebellion.” 27. Yeoman, “Shale Rebellion.” 28. Devin W. Wagstaff. “Fractured Pennsylvania: An Analysis Of Hydraulic Fracturing, Municipal Ordinances, And The Pennsylvania Oil And Gas Act.” 20 New York University Environmental Law Journal 2 (2013), 349. 29. Wagstaff, “Fractured Pennsylvania,” 324. 30. Wagstaff, “Fractured Pennsylvania,” 335. 31. Wagstaff, “Fractured Pennsylvania,” 354-55. 32. Wagstaff, “Fractured Pennsylvania,” 355; Pacheco, “A Fracking Conundrum,” 374. 33. Pacheco, “A Fracking Conundrum,” 378-79, 394. 34. Wagstaff, “Fractured Pennsylvania,” 359. 35. Matthew Fry, Adam Briggle, and Jordan Kincaid. “Fracking And Environmental (In)Justice In A Texas City.” 117 Ecological Economics (2015), 97. 36. Fry et al., “Fracking and Environmental (In)Justice,” 97-98. 37. Fry et al., “Fracking and Environmental (In)Justice,” 98. 38. Fry et al., “Fracking and Environmental (In)Justice,” 99. 39. Fry et al., “Fracking and Environmental (In)Justice,” 104. 40. Fry et al., “Fracking and Environmental (In)Justice,” 105. 41. Fry et al., “Fracking and Environmental (In)Justice,” 105. 42. Fry et al., “Fracking and Environmental (In)Justice,” 99-100. 43. Dianne Rahm. “Regulating Hydraulic Fracturing In Shale Gas Plays: The Case Of Texas.” 39 Energy Policy (2011), 2979. 44. Rahm, “Regulating Hydraulic Fracturing,” 2979. 45. Jim Malewitz. “Texas Drops Suit Over Dead Denton Fracking Ban.” The Texas Tribune, 18 Sep. 2015. 46. Malewitz, “Texas Drops Suit.” 47. David Giller. “Implied Preemption And Its Effect On Local Hydrofracking Bans In New York.” 21 Journal Of Law & Policy 2 (2013), 632. 48. Giller, “Implied Preemption,” 634. 49. Giller, “Implied Preemption,” 633.

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50. Giller, “Implied Preemption,” 677. 51. Giller, “Implied Preemption,” 660-61. 52. Yeoman, “Shale Rebellion.” 53. Giller, I“Implied Preemption,” 643-44. 54. Reid Wilson. “Cuomo Administration Rules Against Fracking.” The Washington Post, 17 Dec. 2014. 55. Pacheco, “A Fracking Conundrum,” 394. 56. Pacheco, “A Fracking Conundrum,” 394.

The contested state 1. Johann Gottlieb Fichte, Addresses to the German Nation, trans. R. F. Jones & G. H. Turnbull (Chicago: University of Chicago Press, 1922), 136-138, 143-145. 2. Fichte, Addresses to German Nation, 136-138, 143-145. 3. Fichte, Addresses to German Nation, 136-138, 143-145. 4. Vladimir I. Lenin. The State and Revolution, trans. Gosudarstvo i Revoliutsiia (New York: International Publishers, 1985; orig. 1917), chapter 1. 5. Lenin, The State and Revolution; Chapter 1: Class Society & the State (1917, excerpt). 6. Lenin, The State and Revolution; Chapter 1: Class Society & the State (1917, excerpt). 7. Michel Foucault. Security, Territory, Population (New York: Palgrave Macmillan, 2007), 287. 8. Michel Foucault, Security, Territory, Population, (1977-78, excerpt), 287. 9. Michel Foucault, Security, Territory, Population, (1977-78, excerpt), 287. 10. Michel Foucault, Security, Territory, Population, (1977-78, excerpt), 247. 11. Lenin, The State and Revolution; Chapter 1: Class Society & the State (1917, excerpt).

The Court's most polarizing Justice 1. Staab, James A. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. New York, NY: Rowman & Littlefield Publishers, Inc., 2006. 27. 2. As of the publication of Rossum’s book in 2006. Rossum, Ralph A. Antonin Scalia’s Jurisprudence: Text and Tradition. University Press of Kansas, 2006. 1-2. 3. Rossum, 1; Murphy, Bruce Allen. Scalia: A Court of One. New York, NY: Simon & Schuster. 2014. 244-245. 4. Madison, James. Massachusetts Constitution, 1780. 5. Obergefell v. Hodges, 576 U.S. __(2015) (Scalia, J., dissenting) 6. Meese, Edwin. “Speech by Attorney General Edwin Meese, III, before the American Bar Association.” Originalism: A Quarter-Century of Debate. Ed. Steven G. Calabresi. Washington, DC: Regnery Pub, 2007. 47-54. 7. Brennan, William J. “Speech by Justice William J. Brennan, Jr., at Georgetown University.” Originalism, 59-60.

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8. Brennan, 59. 9. Calabresi, Steven G. Originalism: A Quarter-Century of Debate. Washington, DC: Regnery Publishing, 2007. 9. 10. Brennan, 59. 11. Calabresi, 14. 12. Meese, 73; Calabresi, 8. 13. Bork, Robert H. “Speech by Judge Robert H. Bork at the University of San Diego Law School.” Originalism: A Quarter Century of Debate. Washington, DC: Regnery Publishing, 2007. 86. 14. Meese, 72. 15. Brennan, 58. 16. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 621 (1991) (Scalia, J., concurring in the judgment) 17. Easterbrook, Frank H. “The Role of Original Intent in Statutory Construction,” 11 Harvard Journal of Law and Public Policy 59 (1988). 18. National Endowment for the Arts v. Finley, 524 U.S. 569, 118 (1998) (Scalia, J., concurring in the judgment). quoting Tenney v. Brandhove, 341 U.S. 367 (1951) 19. Scalia, Antonin, and Amy Gutmann. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton University Press, 1997. 17. 20. Easterbrook, “The Role of Original Intent in Statutory Construction.” 21. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment) 22. Levinson, Tom. Confrontation, Fidelity, Transformation: The Fundamentalist Judicial Persona of Justice Antonin Scalia, 26 Pace Law Review 445 (2006). 23. Levinson, quoting Scalia, A Matter of Interpretation. 24. Smith v. United States, 508 U.S. 223 (1993) (Scalia, J., dissenting) 25. Ring, Kevin A. Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice. Washington, D.C.: Regnery Publishing, Inc. 2004. 104. 26. In Holmes, “The Theory of Legal Interpretation,” 12 Harvard Law Review 417, 419 (1899): “We do not inquire what the legislature meant; we ask only what the statute means.” Quoted in Easterbrook, 65; Manning, John F. “Textualism as a Nondelegation Doctrine.” 97 Columbia Law Review 673 (1997). 675. 27. King v. Burwell, 576 U.S. ___ (2015) (Scalia, J., dissenting) 28. Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting) 29. Rossum, Appendix A. 30. Scalia, Antonin. “Remarks at The Catholic University of America: A Theory of Constitutional Interpretation.” (1996). Quoted in Levinson. 31. United States v. Virginia, 518 U.S. 151 (1996) (Scalia, J., dissenting); Michael H. v. Gerald D. 491 U.S. 110 (1989) (Scalia, J., opinion of the Court). Quoting Moore v. East Cleveland, 431 U.S. 503. 32. Example, Suzanna Sherry and Walter Dellinger. “Panel on Originalism and Unenumerated Constitutional Rights,” Originalism, 113-135. 33. Troxel v. Granville, 530 U.S. 57, 91 (2000) 34. Scalia, Antonin. “Foreword.” Originalism: A Quarter Century of Debate. Washington, D.C.:

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Regnery Publishing, 2007; Stahl, Lesley. “Justice Scalia on the Record.” CBS News: 60 Minutes. 24 Apr 2008. 35. Ford, Matt. “Antonin Scalia’s Case for Torture.” The Atlantic. 13 Dec. 2014. 36. 5th Amendment; 14th Amendment. As pointed out in Ring, 143. 37. Glossip v. Gross, 576 U.S. ____ (2015) (Scalia, J., concurring in the judgment) 38. Ibid. 39. Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, J., dissenting) 40. Smith, Christopher E. Justice Antonin Scalia and the Supreme Court’s Conservative Movement. Westport, CT: Praeger Publishing Group. 1993. 39. 41. Staab, James. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. New York, NY: Rowman & Littlefield Pub, Inc.,2006. 36.; Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting) 42. For example, see Obergefell v. Hodges, 576 U.S. ___. (2015) (Scalia, J., dissenting): “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City... Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges…” 43. Romer v. Evans, 517 U.S. 620 (1996) 44. Obergefell v. Hodges, 576 U.S. __ (2015) 45. Ibid. 46. Thompson v. Oklahoma, 487 U.S. 815 (1988) (Scalia, J., dissenting) 47. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) 48. Ring, 104. 49. Stahl, “Justice Scalia on the Record.” 50. Scalia, Originalism, Foreword. 51. Scalia, A Matter of Interpretation, 9. 52. Gutmann, A Matter of Interpretation. Preface. 53. Glendon, Mary Ann. Commentaries on A Matter of Interpretation. Princeton, N.J.: Princeton Univ. Press, 1997. 54. Example: Akhil Amar and Thomas Merrill. “Speeches on Originalism and Precedent,” Originalism. 210-217, 223-227. 55. Smith, 68-69. 56. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting) 57. Lawrence v. Texas, 539 U.S. 558 (2003) 58. Levinson, Tom. “Confrontation, Fidelity, Transformation: The Fundamentalist Judicial Persona of Justice Antonin Scalia,” 26 Pace Law Review 445 (2006). 59. Gutmann, A Matter of Interpretation. Preface 60. Ibid. 61. Michigan v. Chesternut, 486 U.S. 567 (1988)

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62. Ring, 169. 63. Meese, 52. 64. Ring, 170. 65. Lee v. Weisman, 505 U.S. 577 (1992) 66. Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1997) (Scalia, J., dissenting) 67. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (Scalia, J., opinion of the Court) 68. Zorach v. Clauson, 343 U.S. 306 (1952) 69. Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1997) (Scalia, J., dissenting) 70. Ibid. Quoting Zorach v. Clauson, 343 U.S. 306 (Black, J., dissenting) 71. Scalia, A Matter of Interpretation, 37-38. 72. McConnell v. Federal Election Commission, 540 U.S. 93 (2003); Hill v. Colorado, 530 U.S. 703 (2000) 73. Ring, 257. 74. Barnes v. Glen Theatre, 501 U.S. 560 (1991) 75. McConnell v. Federal Election Commission, 540 U.S. 93 (2003) 76. In the examples above, Lee v. Weisman and Board of Education of Kiryas Joel v. Grumet; Employment Division of Oregon v. Smith, respectively 77. In the examples above, McConnell v. Federal Election Commission and Hill v. Colorado; Barnes v. Glen Theatre, respectively 78. Schultz, David Andrew and Christopher E. Smith. The Jurisprudential Vision of Justice Antonin Scalia. Lanham, MD: Rowman & Littlefield Publishers, 1996. 110. 79. For example: Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003), Obergefell v. Hodges, 576 U.S. __ (2015) 80. Obergefell v. Hodges, 576 U.S. __ (2015) 81. Lawrence v. Texas, 539 U.S. 558 (2003) (Scalia, J., dissenting) 82. Lawrence v. Texas, 539 U.S. 558 (2003) (Scalia, J., dissenting) 83. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting) 84. Stahl, “Scalia on the Record.” 85. Ring, 104. 86. Hodgson v. Minnesota, 497 U.S. 417 (1990) (Scalia, J., concurring and dissenting) 87. Webster v. Reproductive Health Services, 492 U.S. 490 (1989) 88. Planned Parenthood v. Casey (Scalia, J., dissenting); Stenberg v. Carhart, 530 U.S. 914 (2000) (Scalia, J., dissenting) 89. Planned Parenthood v. Casey (Scalia, J., dissenting) 90. Murphy, 386. 91. Murphy, 321 (quoting “That Scalia Charm,” editorial, The New York Times, March 21, 2005, p. A16). 92. Calabresi, 4. 93. Bassham, Gregory. “Justice Accosted: A Review of Bruce Allen Murphy’s Scalia: A Court of One.” 41 Journal of College and University Law 395 (2015). 41. 94. General knowledge from McCurdy, Charles. “History of Modern American Law,” HIUS 3653. Fall 2013. 95. Texas v. Johnson, 491 U.S. 397 (1989); U.S. v. Eichman, 496 U.S. 310 (1990)

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96. Stahl, “Scalia on the Record.” 97. Apprendi v. New Jersey, 530 U.S. 466 (2000) 98. Scalia, “Foreword,” Originalism. 44. 99. Crawford v. Washington, 541 U.S. 36 (2004) 100. “Scalia Defends Originalism as Best Methodology for Judging Law.” Univ of VA School of Law, 20 Apr. 2010. 101. Stern, Mark Joseph. “Scalia’s Liberal Streak.” Slate. 18 Sept. 2014. 102. Representative Frank (MA). “Unjustified Criticism of Judicial Activism.” Congressional Record 143: 100 p. H5185-H5186. 103. Cohen, Adam. “Psst, Justice Scalia, You Know, You’re an Activist Judge, Too.” The New York Times. 19 Apr. 2005.; also in “Antonin Scalia’s Uber-Activism.” The Economist: Democracy in America. 28 Feb. 2013. 104. Staab, 27. 105. Pippinger, Nathan. “Scalia’s Gay Rights Argument Catches Up With Him.” Democracy: A Journal of Ideas. 2 July 2015. 106. Bassham, 420. 107. Kmiec, Keenan D. “The Origin and Current Meanings of ‘Judicial Activism.’” California Law Review, Oct. 2004; Bassham, 420. 108. Kmiec, “The Origin and Current Meanings of ‘Judicial Activism.’” 109. Nixon v. Missouri Municipal League, 124 S. Ct. 1555, 1556 (Scalia, J., concurring in the judgment) 110. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) 111. “Scalia Defends Originalism,” UVA School of Law. 112. Ibid. 113. Scalia, A Matter of Interpretation, 25. 114. Rossum, quoted by Bassham, 418-419.

Images Photograph credit goes to Ian Robertson. Public domain photographs obtained on Pixabay.

Figures For figures referenced in Hirsch and Zimmerman, please see http://tinyurl.com/Seriatim3-2.

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* * * AFTERWORD * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

eriatim was conceived in the winter of 2012 and founded on a simple premise: everyone has a voice. We hope to provide an avenue through which the genuine political

speech of undergraduate students may better be heard and shared with the community at large. Seriatim uses a three-pronged approach: an online forum where student contributors can lend their voice, a semi-annual print journal consisting of the best work from the semester, and a regular speakers series on Grounds where members of the community can interact with each other in person to discuss and debate political issues. By using academic papers as well as original work, we hope to bring greater meaning to students’ work inside the classroom by making it accessible to a wider audience. We encourage you to contribute to U.Va’s marketplace of ideas, either by submitting a paper you wrote for your politics class or by writing an original article on an issue of your choosing. Visit seriatimjournal.com to contribute your work throughout the fall semester. Jefferson once said of the University, “For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” At Seriatim, we seek to embody this ideal, and we invite you to join us along the way.

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Seriatim Journal of American Politics

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Our Mission To serve the University of Virginia community and support an engaged citizenry by fostering an open marketplace of ideas and encouraging the productive exchange of political speech

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