Seriatim

Seriatim

Journal of American Politics

VOLUME I / ISSUE 2 spring 2014

PROGRESSIVISM * and THE REPUBLIC

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Seriatim

Journal of American Politics

VOLUME I / ISSUE 2 spring 2014

PROGRESSIVISM * and THE REPUBLIC

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

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Seriatim Mission

To serve the University of Virginia community by supporting an engaged citizenry, fostering an open marketplace of ideas, and encouraging the productive exchange of political speech.

Editors-in-Chief Ian T. Robertson Russell C. Bogue

Publisher

Evan L. Pivonka

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 Editors-in-Chief.

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

“FOR HERE WE ARE NOT AFRAID TO FOLLOW THE TRUTH, WHEREVER IT MAY LEAD...”

– Mr. Thomas Jefferson

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LETTER FROM THE EDITORS ACADEMIC ESSAYS

17 The- realization of anti-federalism and procreation 23 Marriage the walls of the cyber-cubicle 35 Raising parties and democratic decision41 Political making authority versus 47 Congressional international law 61 The- American identity clash versus accommodation 67 Separation 77 The- casualty gap Katherine King

Alex Lichtenstein Eric Leimkuhler

Lila Kelso

Ian T. Robertson

Elena Weissman

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Nicholas T. Hine Joe Riley

ARTICLES, ET AL.

Arizona’s religious 85 Evaluating freedom bill – democracy needs a campaign 89 This finance amendment

America’s organ donor 93 Solving shortage Russell C. Bogue

-Ben Rudgley

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-Grace Muth

PUBLIUS

SPEAKER’S CORNER

109 Tales of a Foreign Service officer 114 Fortress America with Ambassador Ryan Crocker

with Gerard Alexander and James Carafano

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* * LETTER * * FROM * * THE* EDITORS * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Dear Readers,

I

t has been an incredible year for us.

Seriatim started as a

composite dream in the winter of 2012—the product of the aspirations of a few undergraduates who wanted to allow students to engage with important political issues in a thoughtful, productive manner. We envisioned something holistic: a constant web presence, a commitment to in-person speaker events, and a capstone print product that would showcase our best offerings of the semester. This structure has allowed us to provide our readers with continuous engagement with the issues in various different formats.

This semester, we have published articles online on subjects ranging from the social networking laws of the United States to the influence of J.S. Mill and Jeremy Bentham on our nation’s political thought. In Publius, our blog on constitutional law, we have discussed the insurance policies under President Obama’s signature Patient Protection and Affordable Care Act, offering three different perspectives on the constitutionality of mandating birth control

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coverage from businesses. We have maintained an active Speaker’s Corner schedule, co-hosting an event on national security policy with the Alexander Hamilton Society, a panel discussion on women in politics with the University Women’s Forum, and a discussion of America’s budget deficit and public debt burden with Common Cents at U.Va. During Ambassador Ryan Crocker’s visit to the University in February, we sat down to interview him on his time in the service of the State Department—soundbites of which are included in the Speaker’s Corner section of the Journal (p. 106). As part of our mission to provide University undergraduates with coverage of political events on Grounds, we have attended and reported on several talks at the Miller Center of Public Affairs.

We are also excited to announce that we have received a $10,000 grant from the Jefferson Trust, an initiative of the Alumni Association and the Board of Managers at the University. This year, the competition for the limited funding was especially fierce, so we are honored to have received this amount from the Trustees. The money will fund our printing costs for several semesters, and it will give us the time—and confidence—to pursue other avenues for long-term funding. We look forward to continuing on this journey with you!

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Letter from the Editors

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In the following pages, you will read some of the best work on American politics, political theory, and public policy that we received this semester, as well as snapshots of our speaker events.

Many of these pieces call for reform in our nation: a change to our campaign finance laws, the abolition of political parties, new regulations for organ transplants. The cry of “progress!” has gone out—we submit it to you to evaluate for yourself whether our country indeed should change to fit a new era. If you disagree or agree strongly with one of our pieces, we invite you to submit a response: discourse is our highest aim.

Thank you for your continued support this year. We look forward to many more years of publishing the sharp political thinking of our peers at this University. Enjoy this issue of Seriatim: Journal of American Politics, and have a restful, productive summer break.

Sincerely,

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Ian T. Robertson

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Russell C. Bogue

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academic essays

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T

he following pieces consist of academic work completed 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. Works for publication are accepted on a rolling basis and may be submitted via our online forum at seriatimjournal.com.

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17

The realization of AntiFederalism Deconstructing the evolution of the American political identity

by Katherine King

College of Arts and Sciences (2016)

A

t the time of the drafting of the United States Constitution, two different ideologies had developed. The Federalists advocated for a strong central government, with state governments ceding many powers to the federal government for the good of the nation as a whole. The Anti-Federalists opposed this position, emphasizing the importance of local representation and states’ rights. Although the Federalists insisted that the central government would free officials from the influence of public whims, control the development of powerful political factions, and create confidence in the unity of the states, the federal government in place today has failed in its aims. On the other hand, the AntiFederalists believed that independent state governments would preserve the voluntariness of law, the accountability of representatives to their constituents, and the value of civic virtue in the preservation of liberty. Their concerns about a strong central government have proven to be serious challenges that our government still faces today. An examination of the application of the Federalist model in our nation’s Constitution reveals its failure to act as a unifying, productive agency of the people; ironically, the smaller, more concentrated Anti-Federalist model of government has actually fulfilled many of the goals that the Federal-

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ists believed could only be accomplished by the larger, more comprehensive national government. Anti-Federalist concerns, on the other hand, have not been addressed by the Federalist system and remain at the forefront of the American political debate. Due to the inefficacy of the Federalist model, the American political ideal has shifted from the Federalist to the Anti-Federalist model valuing voluntariness, adequate and honest representation, and civic virtue.

The Federalist position emphasized the necessity of a strong central government in freeing politicians from the pressure of public whims, fighting the development of divisive factions within the political system, and allowing a deeper, more confident unity between states. The Federalist system distanced officials from the citizens they governed. Some argued that this distance would allow public officials to focus on their duty to act in the actual best interest of the people, rather than allowing themselves to be influenced by the fickle and impassioned public opinion; additionally, when each representative is chosen by a greater number of voters, “it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.”1 In addition to its influences on politicians, passions—Madison argued—would join large majority groups of citizens into interest groups known as factions, whose interests often conflicted with the interests of the government. Factions were regarded as an inevitable component of a democratic republic, but they could be dangerous if permitted to grow so strong that they infringed upon the rights of other individuals. The Federalists believed that a strong central government would dilute the power of factions within the political system.

In larger, more centralized governments, factions would have a more difficult time forming a majority.2 Madison feared that otherwise factions would have “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.”3 Finally, the delegates to the Constitutional Congress all had personal experience living under the government created by the Articles of Confederation. They had seen firsthand the difficulties of a government that had thirteen distinct heads all making decisions independently in various locations across the country, and they felt that an “exterior pressure of circumstances” was necessary “to bring them to harmonious resolutions on important points.”4 At the Constitutional Convention, the Federalists were mindful of the need to streamline the government and integrate all of the states into a more efficient and centralized system.

These justifications and more led to the eventual ratification of a Federalist system. However, the Anti-Federalists voiced many concerns about potential

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problems with the Federalist model, and these original issues remain serious challenges that face our political system today. While Federalists believed that this elite professionalism would enhance trust in the government, Anti-Federalists feared the alienating effect of a centralized government with fewer, more distant representatives. The greater distance between the politicians and their constituents would mean that fewer voices would be represented in government, as larger numbers often homogenize opinion by absorbing smaller individual interests into the whole.5 “A very extensive country cannot be governed on democratical principles,” but must be governed by small, independent republics.6 A second fear was that public officials would lose their sense of responsibility and accountability to their constituents, and would become more focused on election and re-election than on the concerns of individuals in their state if they lost the personal connection of a local government.7 Today, the Anti-Federalist concerns are very clearly illustrated in the political sphere, where individuals actually make careers out of political life with reelection as their pri- Ironically, it is the state mary focus. At the time, no nation as large as the United States had governments that uphold ever been successfully democratic the Federalism ideal of for an extended period of time.

The Anti-Federalists believed that multiple smaller parties in if our nation was to be truly dem- the face of an oppressively ocratic and represent the interests of all and not merely those of the partisan federal system. overwhelming majority, great care would need to be taken to ensure that the voices of the people were heard, and that the smaller state governments would do a better job of listening to their citizenries.

The Federalist argument that a larger government would diminish the potency of factions has been shown to be false. Madison was concerned that “public good [is] disregarded in the conflicts of rival parties”8 in a smaller government, where factions can more easily develop and constitute a majority. He believed that federalism would dilute the power of factions and allow for individual voices to have greater influence. Madison would have undoubtedly been shocked at our hostile partisan government today, because his logic was that “the smaller the society the fewer probably will be the distinct parties and interests composing it.”9 Our current system, however, is the reverse; in our larger government, the only parties and interests that carry any real weight are the Democrats and the Republicans. The rise of the third party has been virtually impossible because of

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the difficulty in obtaining sufficient funding to combat these large, well-established political parties. It is only in our local and state governments that smaller third parties have the capability to get their message out to the people, and therefore ironically, it is the state governments that uphold the Federalist ideal of multiple smaller parties in the face of an oppressively partisan federal system.

Finally, the Anti-Federalists were concerned with the ability of a central government to really unite the people and their government. The Federalists had claimed that a strong central government was needed to elevate the union of the states to something more than merely “a simple alliance offensive and defensive.”10 However, Anti-Federalists recognized that they were walking a fine line between unity and the overrunning of individual dissenting voices by the majority opinion. Madison proposed two ways to amend this potential problem; one was to create “a will in the community independent of the majority” and the other was to engender “so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”11 Although Madison intended for these measures to come about as a matter of the federal government, these aims are much more effectively achieved through the lens of state governments. AntiFederalism relies on civic virtue to unite its people, encouraging citizens to look out for each other and put their society before their own self-interest. On the other hand, the federal government relies on people trusting the government to coordinate their own self-interest with the common good, reflecting a sense of superior knowledge and ability within the government.12 However, Anti-Federalists contended that “no great talents are necessary for government,”13 and that education alone is sufficient qualification for the leaders of the nation.14 The loyalty and unity of the citizenry today provides another ironic twist to the Federalists’ argument; citizens experience more unity on a state level than a national level, where a cripplingly partisan federal government has handicapped itself and divided its constituents. The effective preservation of unity lies with the state governments, not the federal government.

An examination of our political system today demonstrates that the AntiFederalists had very legitimate concerns about the potentially negative impact of a large, strong central government. State governments have actually preserved many of the aims the Federalists hoped to achieve through the national government. State governments are responsible for realizing the Declaration of Independence,15 and they have managed to take ownership of the Constitution as well. The voluntary obedience of the citizenry to the law, the accountability of representatives to their constituents, and the development of

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civic virtue—the basic principles of the Anti-Federalist perspective—have become integral components of the American political identity. Conversely, basic tenets of the Federalist position, such as confidence in the government, officials’ freedom from the influence of public whim, and the channeling of self-interest toward the common good have warped into mistrust, ruthless political careers concentrated on reelection, and unabated self-interest on the national level. While the Federalists may have won the battle over ratification, the war between the two ideologies rages on over two hundred years later.

Katherine King is a second year from Tampa, FL. She is studying Political Philosophy, Policy, and Law, and is interested in the impact of religion on political systems.

Article title

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“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures...” – Amendment XVII

I

n this paper, I will argue that the Seventeenth Amendment weakens the connection between state and national government by severing the link between state legislators and national senators. Instead of a detached, “long-run” group of deliberate thinkers, the national senate has become a political arena motivated not by the public good but the opinion of the majority. Repealing the Seventeenth Amendment will restore the voice of states as distinct entities in federal decision-making, reduce the influence of money and interest groups in politics, and check the expansion of an increasingly dominant national government.

After learning firsthand about the pitfalls of a weak national government under the Articles of Confederation and the dangers of a strong national government under British rule, the Framers established a federal system, where the national and state government share power that is derived from the authority of the people.1 James Madison summed up this perspective by arguing “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”2 While recognizing that factions would inevitably form, Madison argued that this organization would minimize their deleterious effects and ensure that the government would be responsive to local needs. As a result, the bicameral Con-

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Marriage and procreation

The compatibility between “traditional marriage” and same-sex relationships

by Alex Lichtenstein

College of Arts and Sciences (2015)

I

n contemporary debates over same-sex marriage, the idea of “traditional marriage” has emerged as one of the most potent and widely used arguments against the practice. In fact, an appeal to traditional marriage and its importance to American public life was fundamental to the plaintiffs’ defense of Proposition 8 in the case before the Supreme Court last session, Hollingsworth v. Perry (2013).

Introducing the idea of marriage as part of a larger tradition is a powerful rhetorical tool for opponents of same-sex marriage, bringing the full weight of history to bear on their position. However, such rhetorical appeals also serve to muddle the debate, blurring the line between ideology and historical fact. Clarification on exactly what the idea of traditional marriage is meant to invoke when it is used in contemporary debate is necessary for the conversation about same-sex marriage to continue.

When opponents of same-sex marriage cite “traditional marriage,” they mean to invoke the idea of an institution designed to regulate procreation and childrearing and, by extension, our social and political order. Individual proponents of traditional marriage emphasize the idea of protecting the well-being of children as more important; the state, on the other hand, emphasizes its role in

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promoting social stability and virtue. Nevertheless, neither paradigm is incompatible with allowing same-sex marriage. For the state, expanding the definition of marriage would only increase the value of the institution, as it would strengthen the government’s ability to impose a normative standard on the population. For individuals, allowing same-sex couples to wed would help to safeguard all children and families, even those outside the ideal. What same-sex marriage threatens, then, is not the idea of traditional marriage as it is used today; it is the inflexible gender roles that frame marriage as a hierarchical relationship and which no same-sex marriage can ever fulfill.

Contemporary meaning of “traditional marriage” The majority of those who draw on the idea of traditional marriage, especially in current legal arguments, claim that the institution has its roots in the regulation of procreation and childrearing. In Hollingsworth v. Perry, the petitioners defined the “traditional conception” of marriage as an institution that is designed “to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.”1 The interest of the state does not extend merely to the sexual reproduction of the couple; the greater concern is ensuring that children will be “likely to be raised in stable family units by both their mothers and fathers.”2 While a few proponents of traditional marriage argue that the purpose of marriage is to encourage only responsible procreation, not responsible parenting more generally, the majority of arguments, including those advanced in court, focus more broadly on both creating and nurturing the next generation.3 Proponents of same-sex marriage base their conception of traditional marriage on what they identify as the interests of the child. David Blankenhorn, a vocal opponent of same-sex marriage who testified in favor of Proposition 8 during Perry v. Schwarzenegger (2012), identifies marriage as the way in which a state recognizes and protects “the right of children to know and to be cared for by the two parents who brought them into this world.”4 In this conception, rearing a child outside of the two-parent, monogamous household of his or her biological parents is, without exception, detrimental to the development and future well-being of that child. It is simply impossible for any same-sex couple to combine “biological, social, and legal parenthood into one bond,” which makes their households inherently weaker.5 Same-sex couples, no matter how strong they are as parents, are simply not as well “situated with respect to society’s purpose of promoting responsible procreation and child-rearing.”6 The argument is not truly about the

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historical or religious traditions associated with marriage. Instead, the term “traditional marriage” is merely shorthand for a model of the monogamous, procreative relationship in which opponents of same-sex marriage believe children should ideally be born and raised.

The U.S. Government and the regulation of marriage What is currently referred to as traditional marriage does indeed have its roots in the history of the United States, and its proponents do have a strong claim to the tradition of their conception within the American system. However, procreation is not the only interest that the state has historically had in marriage. The regulation and definition of marriage in the U.S. has actually gone through three distinct periods: as a means to inculcate civic virtue, as an economic relationship between a provider and a dependent, and finally as an encouragement of responsible child-rearing. Each conception reflected a slightly different understanding of the institution, and only the most recent understanding of marriage reflects the current equivalence of traditional marriage with procreation and child-rearing.

At the founding of the country, “political and legal authorities endorsed and aimed to perpetuate nationally a particular marriage model: lifelong, faithful monogamy” in which quality future citizens could be raised.7 The focus was on the foundational importance of encouraging proper procreation and parenting as the means by which children could be raised to uphold the ideals of civic virtue, not as the end itself. To the Founders, the metaphor of a good marriage served as a model for democratic self-governance.8 Both were to be voluntary unions based on consent that would provide stability and strength to the family unit and to the nascent country, respectively.9 Marital status was seen as analogous to national allegiance, helping to shape both personal identity and civic role.10 Through this association with civic virtue, marriage took on a larger normative role as the foundation of the social order, providing for a proper family form to serve as the basis of responsible citizenship.11 While the emphasis on civic virtue was entwined with a concern for procreation and child-rearing, it concentrated specifically on the need to shape future citizens. Civic virtue could be inculcated through the model presented by a faithful marriage, the patriotism of the parents, and the way in which the child was raised. The state thus focused laws governing marriage on ensuring that the right kind of children would be born as American citizens, and that they would then be raised in proper households that would rear them to be good citizens; by “incriminating some marriages and encouraging others,” the state was able to draw “lines

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among the citizenry and define what kinds of sexual relations and which families” would be considered legitimate, further embracing marriage’s potential as a normative institution.12 As new groups of persons, including freed slaves, immigrants, Mormons, and Native Americans, became citizens, “federal law and policy sought to bring them within the embrace of the preferred model of marriage” and thus to fit their reproductive and child-rearing practices into the American ideal.13 As responsible family units were seen as necessary to the stability and democratic freedom of the state, marriage was used as an assimilative practice that could turn outsiders into conscientious citizens.

For those whose procreative otherness could not be so easily “fixed” or brought into the mainstream, the state simply made marriage impossible. Before the 1940s, it was illegal for particular classes of people whom the state did not consider worthy to reproduce, including those with TB and those classified as “feeble-minded,” to marry.14 It was not until 1967 that the Supreme Court ruled that interracial marriage was constitutional, and not until 1987 that it upheld the right of prison inmates to marry.15 Though early marriage laws did reflect a concern for procreation, it was not the state’s principal interest. Rather, the early American state’s defense of marriage must be seen as being a defense of a particular social and political order, nourishing the specific sense of civic virtue the state hoped to develop.16 As the nation grew older and the American civic character became more ingrained, the state no longer had to direct as much energy to promoting civic virtue, and its interest in marriage shifted from being focused on citizenship to being focused on economic roles. This shift was reinforced by the desire to preserve the marital framework of the husband as provider and the wife as his dependent, even in the face of greater gender equality and female independence. Monogamous marriages that “distinguished citizen-heads of households had enormous instrumental value” for the American state: they were seen as the foundation for orderly families, which were necessary for both moral and economic stability.17 Originally, this relationship had been firmly legally established. Coverture, under which a woman was legally subsumed by her husband upon marriage, was the law of the land up through the dawn of the twentieth century, codifying the relationship of husband and wife. Once women gained the vote in the 1920s, however, that model logically had to go, leaving the proper marital relationship an open question.18 The passage of the New Deal filled that void with a new economic definition of marital roles. Enacting the aims of the legislation required defining social categories— including earner and dependent—and regulating the social relations between them.19 As women continued to push for greater gender equality throughout the

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twentieth century, marriage ideals ostensibly became far less rigidly hierarchical.

However, below the surface the state continued to advance its interest in marriage by perpetuating the provider/dependent dichotomy, locking men and women into defined roles within the marital relationship.20 The introduction of the idea of traditional marriage as it is used today is actually a development of the late twentieth century. World War II inspired a focus on marriage and family as public emblems of the nation, and the idea that these institutions were vital to the existence and defense of the United States carried over after the end of the war.21 At the same time, the 1960s brought a drastic reorientation in public perceptions of sex and reproduction.22 Prior to the success of the American birth control movement, the state could rely upon a general expectation that most sexual activity and reproduction would take place within the confines of stable family units, suitable for raising children.23 The growing acceptance and use of contraception, however, heralded a new era of sexual revolution that was correlated with an increase in the number of children born out of wedlock and the number of single-parent families headed by unmarried mothers.24 For a country that viewed the proper raising of children as intertwined with the future of the nation as a whole, this development was deeply troubling and provided a new rationale for governmental regulation of marriage. Rather than focusing on the economic relationship between man and wife, the state put a new emphasis on procreation and child-rearing, making those marital functions its area of primary interest.

The state’s new focus on marriage as an institution for regulating reproduction crystallized in the early 1990s fight over welfare. For decades, the arguments for welfare had been fueled by “fingerpointing at…single mothers—especially teenagers,” giving the government a concrete reason to be interested in the reproductive lives of its citizens.25 With opposite-sex relationships severed from an expectation of marriage, the state began to have a greater interest in channeling the presumptive procreative potential of these relationships into enduring marital unions “so that if any children [were] born, they [would] be more likely to be raised in stable family units by both their mothers and fathers.”26 The Personal Responsibility and Work Opportunity Act (PRWO) of 1996 took full advantage of that rationale and focused in on “marriage as a solution to the ballooning welfare caseload.”27 Indeed, it opened with the normative claims that “marriage is the foundation of a successful society” and “marriage is an essential institution of a successful society which promotes the interests of children.”28 The debates over the law reflect the distinctly normative role that the state had proscribed for marital procreation. Politicians and critics of welfare policy even went so far as to identify

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women’s non-marital childbearing and mothering “as a source of social pathology and deviance,” forging a link between proper reproduction and the preservation of society as a whole.29 By this point, responsible reproduction had become the foundation of the marital norm. As the state turned its full attention to regulating marriage on the basis of potentially procreative sexual relationships, the idea of traditional marriage as it is understood today was born.

In defining traditional marriage only in terms of its most recent understanding, proponents ignore not only the disparate forms that marriage has taken on throughout American history, but also the existence of a consistent state interest that has underlain its many different regulations of marriage. Foundationally, the United States government has generally organized marriage in order to prescribe rules to ensure the stability of the social order.30 Jurisdiction over marriage is merely one tool that the government draws on to further the health, safety, and welfare of the population, imposing certain responsibilities on individuals in the wider public interest.31 The marriage bond is normative; it allows states to declare which types of relationships are allowed and which are not.32 By creating a “unifying moral standard” for the population through its regulation of marriage, the state has been able to encourage a stable, ideal social order throughout the development of the country.33 The state and same-sex marriage While it is historically true, then, that the state has an interest in regulating marriage for the purpose of ensuring responsible reproduction, that interest is only the most recent incarnation of the state’s greater, ongoing effort to shape the American social order. Recognizing same-sex marriages would not undermine this goal. In fact, allowing such marriages would strengthen the state’s ability to provide for stability and social order.34 Marriage is a powerful social paradigm, and as such can be used to teach, guide, and mold the rest of society.35 Even opponents of same-sex marriage allow that every marriage reinforces the marital norm, which “imposes the obligations of fidelity and monogamy” that are the foundation of our social system.36 Samesex marriage is no different. It represents an affirmation of values like commitment and mutual responsibility, ideals that the state has a vested interest in promoting.37 The normative role of marriage is not weakened by widening the institution.

If that were true, weakening would have occurred during other historical periods of change, including the removal of race restrictions and the elimination of coverture.38 The state is far less interested in the exact shape marriage takes than it is

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in the way marriage can be used to enforce a broader moral standard. Ultimately, it would be in the state’s interest to extend the definition of marriage to include same-sex marriages, as it would only increase the scope and power of its normative influence on the American population.

The history of marriage also indicates that shifting the moral standard of the institution to include same-sex marriage is well within the purview of the state.

Through legislation, court decisions, political discourse, and bureaucratic practices, the state has the political authority to shape people’s sense of what is desirable in marriage.39 The evolving understanding of marriage throughout the history of this country, and its continued flexibility today, can thus be understood as being guided by the interests of the government. Widening the definition of marriage to include same-sex marriage is both within the state’s capacity and a benefit to its interests, leaving no reason why the state should not endorse same-sex marriage.

Proponents of traditional marriage and same-sex marriage While the state has an obvious interest in allowing same-sex marriages, it is less clear that individual proponents of traditional marriage do. After all, “no same-sex couple…can ever under any circumstances combine biological, social and legal parenthood into one bond,” which is the ideal sought by those who rhetorically invoke traditional marriage.40 Same-sex marriage, they contend, will sever the idea of marriage from what they see as its historical procreative purpose, weakening the emphasis on creating a proper environment for the raising of children.41 Laws like Proposition 8 are designed to protect the state’s vital interest in increasing the likelihood that children will be born and raised in stable family units by the mothers and father who brought them into the world.42 That is not to say that the state must outlaw adoptions, prevent parents from raising children to whom they are not biologically related, or even make a normative claim about the inferiority of same-sex couples’ child-rearing abilities.43 While death, divorce, or other circumstances may prevent the ideal, the state has an interest in showing a preference for children to be born to and raised by a married mother and father.44 However, this conception of the role of marriage is problematic in several ways. First, and most obviously, it does not square with the empirical state of marriage today. It is abundantly clear that “showing preference” to biological families by withholding marriage from same-sex couples has not strengthened the idea of marriage over the past several decades.45 If this were the case, there would be evidence of increased numbers of children being born and raised in biological families. Instead, state promotion of traditional, heterosexual marriages seems to have

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had little to no impact on procreation and child rearing. Indeed, there has been an increase in the number of broken families, divorces, and out-of-wedlock births over the last several decades.46 While children being born and raised in biological households may very well be the ideal, it is obvious that denying same-sex couples the right to marry does not strengthen this goal.

Another issue concerns the well-being of children who are not fortunate enough to be in the ideal situation. It is important not to lose sight of the fact that the basis of encouraging that children be raised by their biological, married parents is a driving interest in the welfare, protection, and safety of children.47 Biological families are not an end unto themselves; they are the means by which the state feels it can best ensure that the next generation is responsibly created and nurtured. But what of children that end up being born to or raised by same-sex couples who are denied the right to marry? It is becoming an increasingly common situation in the United States. Full joint adoption by same-sex couples is currently legal in twenty states, the District of Columbia, and Guam, and they are only explicitly prohibited from adopting in two states.48 Same-sex couples in any state can also bear children who are biologically related to one partner through invitro fertilization. Scientists are even moving closer to allowing same-sex couples to produce children related to both partners, with recent experiments in mice leading to the creation of offspring from two eggs, without the introduction of sperm.49 The number of same-sex couples raising children nearly doubled between 2000 and 2012, and as it continues to rise in the coming years the need to address this population of children will become impossible to ignore.50 If traditional marriage is designed to ensure the best possible situation for procreation and child-rearing, then its supporters should have an interest in providing for the well-being of the growing number of children who find themselves outside of the ideal, in same-sex family units. There is no question, even among opponents of same-sex marriage, that this can best be done by ensuring that children in all families have the “security of parents committed through marriage, with all its attendant rights and responsibilities.”51 If a child has two loving and capable parents who choose to create a permanent bond through marriage, “it’s in the best interest of their children that legal institutions allow them to do so.”52 As the Solicitor General pointed out in Hollingsworth v. Perry, denying same-sex couples the ability to marry “denies to the children…the very thing that Petitioners focus on is at the heart of the marriage relationship.”53 Instead of creating happier, healthier, more successful children, rejecting same-sex marriage makes it more difficult for same-sex couples to provide their children with the best possible life.

Under the framework of traditional marriage and its concern for the well-

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being of children, it is not possible to “justify offering societal protections to only certain children.”54 According to the American Academy of Pediatrics, which declared its support for same-sex marriage in March 2013, not only does marriage “[strengthen] families and [benefit] child development,” but allowing same-sex couples to raise children without stigma increases their “sense of competence and security.”55 Full civil marriage provides these families with benefits, legitimacy, and a status “that no informal marriage has ever approximated.”56 This argument does not imply that children raised by gay or lesbian parents are less likely to be healthy, successful, and well adjusted. Indeed, “there is a growing consensus among experts that the sexual orientation of parents is not a major determinant in how well children fare.”57 However, marriage is an institution that provides tools to make it easier for “parents, regardless of sexual orientation, to build and maintain strong, stable, and healthy families that are able to meet the needs of their children.”58 Same-sex marriage does not make “straight people gay, promiscuous, or indifferent to parenthood”; it affirms the idea that the simple values of commitment and mutual responsibility should be present in all family units, reinforcing a positive norm for gay and straight couples alike.59 If traditional marriage is truly designed to allow children to have the best possible situation in life, then its proponents should be in favor of marriage for all parents, including same-sex ones.

Traditional marriage and the issue of gender The logic of the previous section would suggest that, under their own definition, proponents of traditional marriage should accept same-sex marriage. For many, however, there is a caveat to this argument caused by the issue of gender roles. The specific type of parenthood that proponents of traditional marriage identify as the purpose of marriage is not a gender neutral one; it is based on gendered expectations of fatherhood and motherhood.60 They find it unnecessary to say that “a female husband or a male wife is not possible,” because within their conception of traditional marriage those terms have unambiguous, genderspecific meanings.61 One of the important roles of opposite-sex parents, under this understanding, is to “image the identity of each sex to the children,” modeling and instructing children on the proper roles for each gender.62 Only opposite-sex marriage can properly reflect the complementarity of the sexes, both biologically and socially.63 Research, however, has proven this to be untrue. Children raised by samesex couples have “self-concepts and preferences for same-gender playmates and activities…much like those of other children their ages.”64 More than two decades

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of research into the subject has failed to reveal important differences in the development or socialization of children raised by same-sex couples. Nor do the genders of the parents influence their ability to successfully nurture, discipline, or generally raise their children.65 Indeed, research has shown that the gender of parents’ partners does not affect parenting ability and is not an important predictor of the well-being of the child.66 Indeed, the historical development of gender roles indicates that the requirement for marriage to consist of a man and a woman did not grow out of a concern for proper gender socialization of children. Rather, the reason that a man and a woman were seen to be necessary to form a marital household was because of ideas about the sexual division of labor.67 Throughout the early development of America, men were seen as resilient providers and women were seen as nurturing dependents.68 A household’s survival, therefore, rested on each partner fulfilling their complementary tasks and acting out their expected gender roles.69 As previously mentioned, however, these traditional gender roles were first undermined by the elimination of coverture, then rejected completely during the feminist movement. Women today are no longer legally subservient to their husbands. Officially, spousal roles are gender neutral: both spouses are equally obligated to support one another and states no longer advance systematic sexual inequality within marriage, developments which most of the American public would agree are positive.70 While supporters of traditional marriage, sensing widespread public support for gender equality, make disclaimers about not wanting to return to an idea of marriage based on male dominance and female submission, many are “deeply uncomfortable” with leaving behind traditional gender roles.71 The argument over same-sex marriage reveals a concern for gender roles that goes beyond the raising and socialization of children. When opponents of same-sex marriage argue that it will turn marriage into a “genderless institution” or oppose the acceptance of “androgyny” within marriage, their discomfort stems from the lack of unique, gender differentiated-roles between same-sex couples.72 As Ellen Degeneres noted, “asking who’s the ‘man’ and who’s the ‘woman’ in a same-sex relationship is like asking which chopstick is the fork.”73 For those who support gender equality within marriage, this presents no problem; indeed, the more symmetrical and gender-neutral spousal roles have become, “the more that marriage between couples of the same sex seems perfectly capable of fulfilling the purposes of marriage.”74 For some supporters of traditional marriage, however, that growing gender-neutrality is the heart of the problem. Their commitment to traditional marriage is not limited to encouraging responsible procreation; it extends to upholding a hierarchical vision of marriage and preserving the differences between the roles of the sexes.75

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Within this understanding, same-sex marriage does indeed threaten traditional marriage: not because it will weaken the family bond or injure children, but because it challenges ideas about proper gender roles.76 The compatibility of same-sex marriage and traditional marriage only makes sense to those who also accept gender equality.77 If traditional marriage is defined as it has been legally and publicly, as a means to ensure proper procreation and child-rearing, then allowing same-sex marriage fits logically with those goals. For those supporters of traditional marriage who insist that each child “needs a mother and a father, rather than simply loving parents,” however, the idea of traditional marriage is rooted in a “strong gender essentialism” whose scope extends far beyond the issue of same-sex marriage.78 The fates of the movements for marriage equality and gender equality are tied up together.79 Accepting the importance of same-sex marriage will require the nation to fully embrace the idea of marriage as an association of two equal, independent individuals, once and for all rejecting the notion of hierarchy within marriage.

Conclusion The debate over same-sex marriage rages on in the American legal system, among politicians, and within the nation as a whole, and the idea of “traditional marriage” plays an important role in shaping the conversation. However, it is important for both sides to understand exactly what is being said. Rather than referring to the full history of marriage in the U.S., the term “traditional marriage” is meant to invoke the idea of marriage as a normative institution used to shape procreation and child-rearing and, through it, our social and political order. As such, traditional marriage is not inconsistent with allowing same-sex couples to marry; indeed, expanding the definition of marriage only strengthens social norms that safeguard the well-being of children and the stability of families. What are threatened by same-sex marriage, though, are inflexible gender roles that frame marriage as a hierarchical relationship between husband and wife. Same-sex marriage is frightening to some proponents of traditional marriage not because of concerns for history, children, or straight marriages, but because of concerns for the marital hierarchy. They do not fear the advance of marriage equality; they fear the advance of gender equality. Without first addressing that fear, gay marriage will never move forward in gaining the support of marriage traditionalists.

Alex Lichtenstein is a third year from Virginia Beach, VA, majoring in Politics Honors and Religious Studies. She is particularly interested in the role that religion plays in American public life.

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Raising the walls of the cyber cubicle Privacy on the Internet in the twenty-first century

by Eric Leimkuhler

College of Arts and Sciences (2016)

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ithin the past two decades, social media has become an increasingly ubiquitous component in the creation and expression of individual identities. Individual consumers, however, are not the only ones who are plugged in: employers, college admissions offices, and other third parties that evaluate potential candidates for admission have taken to private social media profiles as yet another window into the lives of prospective (and current) members of their communities. This new phenomenon raises several questions and conflicts regarding definitions of privacy, the extent of government protection of individuals online, and the integrity of social media content in the new domain of digital publishing. This piece explores the background of social media protection, the stakeholders in today’s debate over social media privacy, and new legislation that may redefine the parameters of online expression, identity, and intellectual property. >>

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s social media skyrockets in popularity among an increasingly tech-savvy generation, a new horror story has emerged to spook young adults into more careful mediation of their online presence. In the scenario, a college admissions officer or prospective employer casts a gleaming resume and stellar track record into his fireplace, having perused the bowels of an otherwise private social media profile and found that the applicant (or employee) is no longer fit for the position due to a single wall post, tweet, or photo. To most social media users, especially of the younger generation, the prospect is chilling—as social networking becomes an increasingly ubiquitous aspect of daily reality, online profiles become crafted extensions of personal selves. They often reflect opinions, attitudes, and behaviors, becoming cyber representations of identities that were previously only experienced through face-to-face interaction and direct observation. Universities and employers have not been blind to this phenomenon, and the mining of social media profiles is not an unheard-of practice when evaluating candidates. In response, the debate over privacy rights within the realm of social media has reached a new climax. One contingent argues that non-government third parties (i.e. employers) should not have access to information on social media against the volition of the poster, and that this should be mandated by law; however, employer advocates and legal experts counter that information posted on social media is not inherently guaranteed privacy by its nature as determined by current media regulation, and that further hindrance of employer access to this information may stunt serious investigations of employee misconduct.

On one side of the debate lie the major parties that advocate for restriction of private employer access to social media. One is the hypothetical everyday social media user, whose online profile reflects more private aspects of her daily life that she would not normally share with an admissions officer or employer. The percentage of the population identifying this way seems to be growing every day, and with it, a societal expectation that social media profiles are, by their nature, an extension of what the American Civil Liberties Union calls “private lives.”1 This idea—that the privacy of social media presences should be an expectation, and a right inherent to possessing these profiles, rather than a privilege—is echoed by another main faction against employer access: social media outlets themselves. When confronted with an influx of reports that employers were asking for Facebook passwords in early 2012, Facebook’s privacy officer Erin Egan noted, “This practice undermines the privacy expectations and the security of both the user and the user’s friends.” Others, such as Maryland State Senator Ronald Young, whose state later approved a bill protecting social media privacy from employers, referred to the request for social media access as “an infringement on constitutional rights,” and likened the practice to “monitoring a phone call or reading your personal mail.”2

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With a lingering unease over privacy debates that have arisen surrounding the PATRIOT Act (2001) and NSA surveillance tactics, the American media policy atmosphere is tenser than ever in regard to personal privacy, especially in an era of digital social interaction. Recently passed and pending legislation at both the state and national level reflects a growing concern for individual social media privacy, with new laws in twelve states making it illegal for admissions officers or employers to demand access to social media profiles—a practice often conducted through direct requests of usernames and passwords used to infiltrate privacy firewalls.3 This trend in state legislation has also inspired a Federal bill: H.R. 537, the Social Networking Online Protection Act, introduced in February 2013, which would make it illegal for employers or college administrators to demand access to private profiles, or in any way retaliate against any employee who refused to grant this access.4 Private employers and colleges, on the other side of the table, would surely love to do more digging about their candidates than these laws will allow and would therefore oppose these harsh restrictions; yet the implications of this debate expand beyond preliminary and superficial explorations of an applicant’s personal life. As David Glockner explains for Bloomberg Law, the passage of laws restricting access to social media, especially non-identical and inconsistent bills implemented at the state level, creates several risks for these companies. While private organizations would be blocked from accessing personal information that has no pertinence to their everyday operations, they would also be prevented from accessing evidence that could aid investigations of employee misconduct or breaches of company security. Several cases within the past few years—including instances of reported online sexual harassment of coworkers and leakage of private medical information via social media outlets—have raised concern that tying a company’s hands may hinder the proper and efficient investigation of these situations; it could also lead companies to involve law enforcement more quickly when problems could otherwise be solved within the company’s purview. Social media now has the power to undermine companies both figuratively and literally—the privacy of social media within a company environment not only makes employee communications regarding potential misconduct harder to track, but it also leaves the company’s digital infrastructure more vulnerable to the implanting of malware, account takeovers, and other digital security breaches.5 Despite the deterrence of these possible outcomes, it is also possible to rely on a purely principled argument against protection of social media. The maintenance of an individual’s rights to privacy over their social media profile assumes a degree of ownership and individual rights to this personal information. Yet, the situation suggests a greater question: with the advent of technology in which anyone can construct an online identity through the conduits of selectively private networks, who

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exactly “owns” the information? Is it really private? And if it can be privately “owned,” what rights can be ascribed to that ownership? While some would argue that an individual has at least some rights to the personal information that she divulges—indeed, a large percentage of the millennial generation believes that they may expect a certain degree of privacy and autonomy in the construction and maintenance of their digital identity6—others would argue that newer generations have been misled by a false sense of ownership of what they consider their personal, private information. As Lothar Determann explains in The Stanford Technology Law Review, “Fact is that no one owns facts… Personal information about you that you or others post on social media platforms… is not secret and thus not subject to trade law protection,” and therefore is accessible to anyone who desires to use it.7 While Determann’s statement may reflect current parameters for control of social media content, arguments against social media protection stand contrary to my personal vision for social media policy. While publishing to the internet does entail a risk for invasion of privacy, I believe that one’s online presence is an extension of his intellectual property and identity, and that these must be protected against the infringement of private third parties to the highest degree possible. This means that no employer or other private organization should have the right to demand access to information contained within a protected, private profile without legal warrant or court subpoena. Social media posts have the same integrity as any publication; they are the original creation of the composer, and they are recorded electronically. Therefore, they should be considered the private property of the owner. If one chooses to construct his entire life inside the walls of his home, never leaving, yet never bothering anyone, he has the right do so, and to welcome however many or few guests as he pleases; similarly, individuals should have the right to a private and personal identity online. Individuals may technically “rent” their online “home”—their personal profile—from a network that maintains the rights to the space, and therefore the rights to regulate things that they deem inappropriate (i.e., obscene), but no outside party without a legal warrant may enter against the resident’s will.

My policy reform would build on this analogy of a rented space to more concretely define access and ownership of information posted on social media. Rather than regard social media content as part of a universally accessible domain, our government should shut the front door on third parties (i.e., employers) and make it illegal for them to keep knocking; in other words, a company should not have the ability to demand (or surreptitiously acquire) unfettered access to private social media content without consent of the poster, unless a warrant permits it. Exceptions to this rule would be restricted to government employers that require background checks as a part of their hiring process; national security is enough of a counterweight to allow

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access to otherwise private information. Social media networks must also be required to back down by relinquishing ownership of individual posts and content to their authors—it is their intellectual property—while still being allowed to maintain control and “lease” the publishing space. Therefore, if a social network deems content inappropriate based on their set standards, they may revoke the publication space, and in doing so remove the content from their domain. To help the public understand the new parameters of online identity and freedom of expression, the government should also be required to develop educational materials and programs that inform different demographics about their rights and responsibilities as online individuals.

These would include specific programs for children at each stage of schooling, college students, new employees, and veteran employees across a range of disciplines. Employers and educators should also be required to implement educational workshops to promote a more well-rounded understanding of media policy surrounding social networking and mediating an online presence.

Eric Leimkuhler is a second year Media Studies Distinguished Major from McLean, VA. His interests include running, coffee and the ethical concerns surrounding media policy and law.

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Political parties and democratic decisionmaking

The deleterious effect of the party system on American democracy

by Lila Kelso

College of Arts and Sciences (2015)

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cholars have contested the definition of “democracy” for centuries. For some, democracy encompasses an entire societal system, while for others it is simply a way of electing a specific form of government. In his piece, “The Place of Parties”, scholar Robert Goodin astutely defines democracy as a community’s ability to self-legislate and “give laws to itself.” For Goodin, this means that a community is both self-determining and able to establish a rule of law that encompasses the entire population.1 Stemming from this interpretation of democracy is the idea that, in order for a law or policy to be democratic, it must be backed by a “ratio,” or a certain rationale that legitimizes the law in the eyes of the populace.2 In order to assure that a proper ratio is given to each law or policy, Goodin further argues, political parties must be developed. These parties will in turn serve as mechanisms that allow for the establishment of concrete organizational and ideational structures that properly set specific ratios in place for each law.

Looking at the function of both ratios and political parties in democratic societies, however, it becomes quickly apparent that Goodin’s emphasis on the positive power of political parties in a democracy is misplaced. Through a further analysis of his argument, I will contend that Goodin’s interpretation of ratios and his emphasis

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on political parties are incorrect, and I will further argue that political parties constrict the proper functioning of democracy and are therefore detrimental as a whole.

Before further delving into a conversation about the injurious role of political parties in a democracy, the argument that Goodin presents in regards to ratios must be discussed. Goodin’s over-arching belief that laws need rationales behind them in order to be democratic in scope is, on the whole, accurate. This contradicts Joseph Schumpeter, who argued that laws are simply handed down by the elites who are in power, with no true meaning behind each policy. Goodin, on the other hand, astutely states that in order for a person to “give laws to himself,” he must have the ability to see a true reason behind why he must follow the law.

However, while he is correct about the necessity of ratios in order to define a political system as a democracy, Goodin goes wrong in arguing that in order for a law to be truly democratic, it must have a single ratio behind it, rather than many.3 Goodin argues that in a No-Party Democracy, politicians would come together on different issues for a plethora of reasons, thereby creating laws that had a variety of weaker rationales behind them. In his viewpoint, multi-party democracies would act similarly.4 Yet, what is wrong with defining a law by multiple ratios? When more than one rationale supports a law, it allows for a larger variety of policymakers and citizens to incorporate their beliefs into the foundations of the law, further allowing the people to “give laws to themselves.”

Similarly, there are very few instances in the field of politics in which all politicians, even ones who fall under the auspices of the same party, agree to support a policy or law for precisely the same reasons. Looking more broadly, it becomes apparent that multiple ratios, rather than one, define almost all American laws—further contradicting Goodin’s argument. With multiple ratios supporting each law, America has been able to thrive as a country for the last two centuries. While the necessity of ratios in a democracy is well supported, Goodin is incorrect in arguing that a law must have one ratio in order to be democratic. Rather, a law with multiple ratios is far more realistic and democratic in scope.

While the restrictive capabilities of political parties make them detrimental to society as a whole, an idea that will be discussed later, the organizational structure of political parties is a necessary evil in order to ensure that ratios are integrated within laws. As has been previously stated, in order to be democratic, a law must have a plethora of ratios supporting it. In order to define these ratios, some sort of organizational structure must be established that creates and dictates implementation of these rationales. As Goodin argues, political parties can be seen as the organizational structures that have this ability. Without this underlying component of political parties, individual politicians would be unable to come together to effectively form ra-

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tios to justify their lawmaking.

This dilemma, in which individuals need an organization through which they can create real change rather than simple rhetoric, can be similarly mirrored in society. During the Civil Rights Movement of the 1960s, Dr. Martin Luther King, Jr., along with other leaders, was instrumental in advancing civil rights for African Americans. However, Dr. King’s speeches alone were not able to change the laws of the land. Rather, an organized body had to take charge in order to ensure that equal rights were given to all citizens, regardless of the color of their skin. Similarly, political parties play this organizational role in the establishment of a true democracy based in ratios.

Ironically, the organizational component of political parties, along with an ideational element, is actually what makes political parties detrimental to democracy.5 If we take the earlier argument that laws must have multiple ratios rather than one in order to represent the interests of a broader segment of the constituency, then political parties actually serve to constrict this process from occurring. Political parties do this through the creation of a party platform, which espouses the common views on which—hypothetically—all politicians in a certain party campaign. The party’s view on each specific issue is considered its ratio, and the politician is urged not to diverge from these platforms established by the party. While Goodin argues that this is positive, typically giving voters the choice between the platform of one party or the other, it actually serves to underrepresent the populace as a whole, preventing them from “giving the laws to themselves.” When politicians are forced to conform to a specific party platform—pandering to the people based on these ratios—it further restricts the voter from having any choice. Political parties force democracy to become more restrictive, inhibiting laws from having foundations in the multiple ratios that are needed to truly represent the people.

The harmful impact of political parties on the formation of multiple ratios presents society with a complicated juxtaposition. On one hand, in order to give laws ratios, it is necessary that a democracy have some sort of organizational structure, one that can be best found in the form of political parties. Therefore political parties will forever be a necessary evil. However, while I concede this prior point, political parties are in fact also highly injurious to the course of democracy. Through their organizational component, combined with ideological factors, political parties serve to restrict the number of ratios available. In turn, politicians, forced to conform to the teachings of their parties, inhibit voters from having a choice regarding ratios for laws. In this way, political parties harmfully limit the probability that a specific constituent’s interests are being represented. While political parties are necessary for the organization of laws—arguably in some moderation—they are harmful to

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democracy, as they constrain multiple ratios from supporting laws, a condition that is necessary for a society to have true democratic decision-making.

The correct idea of democracy as the people “giving laws to themselves,� as proposed by Robert Goodin, is effectively supported by the argument that laws require ratios, or rationales, in order for them to be truly democratic. However, while this fundamental argument is correct, Goodin quickly strays into false territory through his promotion of the effectiveness of political parties. Further analysis proves that in order for the average constituent to be better represented in self-determination, there must be multiple ratios behind each law. While political parties do provide the organizational structure to implement these ratios, they restrict individual politicians in such a way that very few ratios support each law, creating a net negative effect. This limiting of options, in turn, neglects the interests of the myriad citizens whose views are not represented on an issue. While political parties will always be a necessary evil, it is important to recognize the negative power that they hold over democracy and to discuss means by which their grip can be loosened on the political process in order to better the average citizen’s chances of giving laws to himself.

Lila Kelso is a third year from Charlotte, North Carolina, studying Foreign Affairs and German. This fall she will begin her M.Sc. in Public Policy and Administration at the London School of Economics.

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Congressional authority versus international law Exploring the constitutional stipulations of international treaty enforcement

by Ian T. Robertson

College of Arts and Sciences (2016)

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he aim of this paper is to examine the scope of congressional power when enacting federal statutes pursuant to the enforcement of valid treaties with foreign nations. In a trans-historical analysis of American constitutionalism, I hope to resolve the constitutional quandary raised by the intersection of congressional authority and international law. Specifically, this paper will address the contentious interplay between the Tenth Amendment and the Treaty and Supremacy clauses and attempt to answer the question raised by the juxtaposition of the three: whether the nexus between the Treaty and Supremacy clauses grants Congress the authority to make laws beyond those that are specifically enumerated or necessary and proper for the execution of the government’s powers.

The analytical framework employed to address these broader questions of American federalism is channeled in a narrow constitutional analysis of The Chemical Weapons Implementation Act of 1998, a federal statute criminalizing the intentional development or use of a chemical weapon. The Act, the constitutionality of which was most recently debated in the case of Bond v. United States, was signed into law by Congress to fulfill the intrastate obligations required of the signatories to The Chemical Weapons Convention treaty, which the United States ratified on April 29, 1997.

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In resolving the constitutionality of the statute in question, I will consider neither the merits of the law, nor the constitutionality of the treaty from which it arose; the former is entrusted to the discretion of our nation’s elected representatives and is thus not a constitutionally justiciable issue, and the latter is irrelevant to the goal of this study. Instead, the purview of this paper pertains solely to whether or not the CWCIA transgresses the constitutionally enumerated powers of Congress and violates Tenth Amendment protections of the rights retained by the States—the answers to which hope to shed greater light on broader questions of separation of powers and limitations of governmental power in the intersection of domestic and international law. >>

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ddressing the constitutionality of the CWCIA must begin with an understanding that the federal treaty-making power differs from Congress’s authority to enact statutory law. While Article II, Section 2, Clause 2 of the Constitution provides that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur,” federal statutes are enacted by a separate procedure delineated by Article I, Section 7, Clause 2. These two enumerations of power—to make treaties, on the one hand, and to pass statutes, on the other—are singular and distinct and subject to different parameters of constitutional interpretation.

That proponents of the statute in question defend its constitutionality on the grounds that it upholds a federal treaty significantly complicates the matter; the question at hand may not be resolved by separate interpretations of these enumerations of power, but instead by an examination of their independent and yet interconnected legal merits. For if the CWCIA were not passed in pursuance of a federal treaty, then surely the merits of this case would be considered on much narrower grounds, and the constitutional question examined in accordance with familiar limits to congressional statutory power. Instead, the question is whether a statute may be passed notwithstanding those express limitations in order to fulfill the obligations of a treaty. As the Constitution does not explicitly address the juxtaposition of the treaty-making power and the Tenth Amendment, the answer to this question must be found in the historical context of the Treaty and Supremacy Clauses, the jurisprudence of the Supreme Court, and an examination of the pertinent governmental powers in light of the structure and spirit of the Constitution.

That the Framers of the Constitution granted the national government an expansive treaty-making power is no doubt evident in the history of the United States and reflected in the text of the Constitution.1 Recognizing the inadequacies of Congress under the Articles of Confederation—under which, as James Madison observed, the “tendency of the States” to commit “violations of the law of nations & of Treaties” was “manifested in sundry instances”2—the Framers of the new Constitution deliberately mandated State compliance with federal treaties and intended that all such measures would preempt conflicting local law. Instead of leaving treaty execution “dependent on the good faith”3 of the States, as Alexander Hamilton had said was the case under the Articles, the Constitution’s Supremacy Clause provides that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” U.S. Const., Art. VI, cl. 2.

Contemporaries at the Constitutional Convention, as proof of the Framers’ intentions for the Supremacy Clause, asserted congruent understandings of federal treaties. As put by one Pennsylvania delegate to the Constitutional Convention, James Wilson, the

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treaty as the supreme law of the land was meant to “show the world that we make the faith of treaties a constitutional part of the character of the United States.”4 Indeed, the Supremacy Clause would ensure that the execution of federal treaties would no longer be, as James Madison said in Federalist No. 42, “substantially frustrated by regulations of the States.”5 The Court, too, affirmed the Framers’ conception of a supreme federal treaty power.

Justice Chase, writing his opinion in an early case addressing the supremacy of federal treaties, said: “Every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State.” Ware v. Hylton, 3 U.S. 199, 237 (1796).

Emphasizing the preemption doctrine inherent in the Supremacy Clause and its applicability to federal treaties, Chase further declared that, “the laws of any of the States, contrary to a treaty, shall be disregarded.” Ibid.

The pertinence of this history to the question being examined is twofold. First, it underscores how the Constitution’s Framers deliberately endowed the national government with a strong power to make and enforce valid treaties. Second, it establishes that federal treaties are intended to take precedence over conflicting State law.

But where the supremacy of federal treaties is no doubt obvious in the text of the Constitution and consistent with both the recorded intentions of its Framers and the jurisprudence of the Court, acknowledgment of this history does not itself provide conclusive evidence for resolving the issue at hand. To rule out the possibility of any limits to the federal government’s treaty powers purely on the basis of the Supremacy Clause and its history would be a grave misreading of the constitutional context of such powers and the relevant judicial question. The aforementioned history pertains to judicial controversies of an entirely different nature than that of the case now before the Court. Neither the Constitution itself nor the Framers ever specifically envisioned the role or legal status of the nonself-executing treaty, in which Congress must enact supplemental legislation to enforce its international obligations.6 “Treaties made between the United States and foreign powers often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect.” Prigg v. Pennsylvania, 41 U.S. 539, 619 (1842).

The case of Medellín v. Texas, 128 S.Ct. 1346 (2008), appears to resolve this issue in part, finding that non-self-executing treaties nevertheless become the supreme law of the land when Congress enacts pursuant legislation. Quoting from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the Court held that, “the authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’” Medellín v. Texas, 128 S.Ct. 1346, 1368 (2008). Under this ruling, it would seem logical to conclude that the Chemical Weapons Convention treaty is indeed the supreme law of the land. Congress, having enacted legislation pursuant to the provisions of the treaty, thereby ensured the treaty’s validity.

This ruling, however, is not exhaustive either, as the issue at hand does not concern

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the constitutionality or supremacy of a federal treaty; the question is, instead, one of determining whether or not statutes that enforce non-self-executing treaties are subject to the same constitutional limitations as ordinary congressional legislation. Specifically, we must ascertain whether the CWCIA constitutes the supreme law of the land with the same power of preemption over State legislation as intended by the Framers to apply to the treaty from which it arose.

The text of the Supremacy Clause itself and the jurisprudence of the Court provide a noncontroversial answer with respect to this specific question. The Supremacy Clause, in addition to applying to federal treaties, provides that, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.” U.S. Const., Art. VI., cl. 2. As explained by Chief Justice Marshall in a lasting interpretation of the Supremacy Clause, “It is of the very essence of supremacy to remove all obstacles to [the government’s] action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence.” McCulloch v. Maryland, 17 U.S. 159, 206 (1819). For all intents and purposes, a federal statute, whether enacted in pursuance of a federal treaty or not, is undoubtedly supreme over conflicting State law when limited to its proper sphere of legislative action.

Be that as it may, this again fails to resolve our question. For indeed, the federal government “is acknowledged by all to be one of enumerated powers.” McCulloch v. Maryland, 17 U.S. 159, 199 (1819). In accordance with the separation of powers inherent in our federalist system, the Tenth Amendment provides that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. Supremacy Clause notwithstanding, the ability of Congress to make federal statutes is, nonetheless, more or less limited by the constraints of federalism and constitutional law; the specific degree to which Congress is limited in this regard remains to be debated.

That it has been determined that both self-executing and non-self-executing treaties—when Congress passes pursuant legislation—are the supreme law of the land does not resolve whether treaties and their concurrent statutes are yet susceptible to the restrictions and limitations of the Constitution as prescribed by the Tenth Amendment and as interpreted by the Court’s ensuing jurisprudence. The core question still remains as to whether and to what degree the Tenth Amendment limits the exercise of the federal treaty-making power. Indeed, we must resolve whether the mere nature of the CWCIA as a statute enacted to enforce a valid non-self-executing treaty allows for the usurpation of State powers claimed by the petitioner to exist under the Tenth Amendment.

With respect for stare decisis and the precedent of the Court, we must turn to cases that address both the intersection of the Tenth Amendment with the federal treaty-making power and the role of the Tenth Amendment in our federalist system. I will first address

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whether federal treaties and pursuant legislation are subject to Tenth Amendment limitations and then proceed to determine the constitutional merits of the CWCIA in light of this general principle.

An examination of the Court’s jurisprudence in this area must begin with the case of Missouri v. Holland, 252 U.S. 416 (1920), in which the Court upheld the Migratory Bird Treaty Act of 1918. The statute in question before the Court, passed by Congress to enforce a valid treaty between the United States and Great Britain that protects birds migrating between the United States and Canada, was disputed on the grounds that it violated the Tenth Amendment. The State of Missouri, like the petitioner in the case now before the Court, asserted that any treaty “cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do.” Missouri v. Holland, 252 U.S. 416, 432 (1920). In other words, it was argued that what Congress cannot do regular legislation could not Judicial interference with through be done by entering into a treaty with a the government’s for- foreign power.

The Court, though, nonetheless eign affairs powers must, upheld the law in a 7-2 decision, statadmittedly, be carefully ing that the Tenth Amendment places construed so as not to little to no restrictions on the ability of Congress to enforce treaties with disrupt the delicate bal- relevant acts of Congress. Writing for ance of power in the in- the majority, Justice Holmes explained that, “It is obvious that there may be ternational sphere. matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with, but that a treaty followed by such an act could.” Missouri v.

Holland, 252 U.S. 416, 433 (1920). In upholding the law, Holmes inferred that the treaty power may only be limited by “prohibitory words to be found in the Constitution” or by “some invisible radiation from the general terms of the Tenth Amendment.” Ibid. 434.

Adding that no such prohibitory language exists and that the Tenth Amendment must be considered with regard to “what this country has become in deciding what the amendment has reserved,” Holmes and the majority found no grounds to strike down the statute.

Ibid. In light of an expanding national government and the Court’s growing deference to federal power, the Tenth Amendment was found to be of little significance in blocking a statute that was otherwise acknowledged by the Court to be unconstitutional. Such has also been concomitantly reaffirmed by various other similarly broad constructions of the

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federal government’s treaty-making powers and their immunity from Tenth Amendment concerns of the States. In the case of Kolovrat v. Oregon, 366 U.S. 187 (1961), for example, the Court found that “State policies…must give way under our Constitution’s Supremacy Clause to ‘overriding’ federal treaties and conflicting arrangements.” Kolovrat v. Oregon, 366 U.S. 187, 190 (1961).

Justice Stone, delivering the opinion of the Court in Nielsen v. Johnson, 279 U.S. 47 (1929), asserted two general principles pertinent to our further examination. First, “When a treaty provision fairly admits of two constructions, one restricting, the other enlarging, the rights which may be claimed under it, the more liberal interpretation is to be preferred.” Nielsen v. Johnson, 279 U.S. 47, 52 (1929). Second, “as the treaty-making power is independent of and superior to the legislative power of the States, the meaning of treaty provisions so construed is not restricted by any necessity of avoiding possible conflict with state legislation and when so ascertained must prevail over inconsistent state enactments.”

Ibid. That treaties should be construed as liberal grants of power to the federal government and that “conflict with state legislation” is an illegitimate limitation on the treaty-making power would suggest that the federal government indeed possesses the authority to make and execute treaties that violate State sovereignty. Ibid.

The standing precedent set by the case of United States v. Pink, 315 U.S. 203 (1942), provides additional evidence to the fact that the rights retained by the States under the Tenth Amendment should do little in the way of preventing the federal government’s foreign policy endeavors: “Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies whether they be expressed in constitutions, statutes, or judicial decrees.”

United States v. Pink, 315 U.S. 203, 233 (1942). The earlier case of Hines v. Davidowitz, 312 U.S. 52 (1941), similarly held that the foreign affairs powers of the federal government are “the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority.” Hines v. Davidowitz, 312 U.S. 52, 68 (1941).

Judicial interference with the government’s foreign affairs powers must, admittedly, be carefully construed so as not to disturb the delicate balance of power in the international sphere. As was feared by the Framers, disruption of the government’s negotiations and obligations with foreign nations are “just causes of war,”7 equal to that of open hostilities, and thus should not be considered lightly. Again, though, the precedential jurisprudence in these matters are neither pursuasive nor conclusive of the constitutionality of the statute in question. Heeding the warnings of the Framers, there nevertheless can be “no question that it is the responsibility of this Court to enforce the limits of federal power by striking down acts of Congress that transgress those limits.” National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2580 (2012).

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As explained by the Declaration of Independence, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” The Constitution, the instrument through which the people of the United States entrusted their government with its just powers, is therefore the sole source of all governmental authority.

It was ordained and established to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” U.S. Const., pmbl. Any and all governmental power thus begins and ends with the text of the Constitution; when the government acts, it does so pursuant to the enumerated powers and limitations therein.

The treaty power of the United States, like all other governmental powers, therefore exists insofar as the Constitution says it does. Indeed, “The United States is entirely a creature of the Constitution.” Reid v. Covert, 354 U.S. 1, 6 (1957). The conferral of power upon the national government to make and enforce treaties is no different in this regard.

Nothing in the framing of the Constitution suggests otherwise; the intent of the supremacy of federal treaties, it has been shown, was to ensure uniform obeisance of treaty obligations by the States, not uniform submission to the violation of constitutional principles by the federal government.

Such powers are therefore no less susceptible to the constraints of the Constitution than any other conferred by the people to the government. “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. 616, 620 (1870). Such an understanding—that no treaty can violate the principles of the Constitution—is no doubt inherent in the landmark ruling of Marbury v. Madison, 5 U.S. 137 (1803), which held that, “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” Marbury v.

Madison, 5 U.S. 137, 176 (1803).

It is inconceivable that the Framers viewed the treaty power of the United States as a loophole to all protections against infringements on the sovereign rights of the people and the States as guaranteed by the Constitution. Such an idea is wholly inconsistent with the nature of the government established therein—one of enumerated powers, limited by the intentional delineation of state and national spheres of influence. It is a premise the Court has not entertained in the past and one that should likewise be rejected today. Treaties and their provisions are indeed law, “unless they violate the Constitution of the United States.”

Doe v. Braden, 57 U.S. 635, 657 (1853).

In the notable case of Reid v. Covert, 354 U.S. 258 (1957), the Court took a step to establishing what exactly comprises a violation of the Constitution in this realm, holding that executive agreements with foreign nations are not exempt from the limitations and

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protections of the Bill of Rights. Explaining that, “This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,” the Court simultaneously affirmed that the government can “only act in accordance with all the limitations imposed by the Constitution,” and “No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Reid v. Covert, 354 U.S. 258, 17, 37, 16 (1957) If the federal government there could not enter into agreements with foreign nations that violated a citizen’s Fifth and Sixth Amendment rights, then why should the Court here allow a similar act of Congress to violate those guaranteed by the Tenth? If we hold that it may—that any congressional legislation pursuant to the enforcement of a valid treaty may violate the sovereign rights of the States—what is to stop the government from violating those prohibitions listed in other equally precious protections against national power?

Indeed, Justice O’Connor, writing the opinion of the Court in Boos v. Barry, 485 U.S. 312 (1988), held that, while “it is of course correct that the United States has a vital national interest in complying with international law,” such a vital national interest could never be used to violate the First Amendment limitations on congressional power. Boos v. Barry, 485 U.S. 312, 323 (1988).

That the Tenth Amendment, as part of the Bill of Rights, is no doubt included in and equal to the limitations imposed upon the federal government’s authority—its treaty power notwithstanding—is abundantly clear in the structure and spirit of the Constitution. The Tenth Amendment, after all, has consistently been understood by the Court to be “but a truism that all is retained which has not been surrendered.” United States v. Darby, 312 U.S. 100, 124 (1941). Although the Tenth Amendment does not expressly prohibit particular actions of the government, like the explicit prohibitions provided by the First Amendment, it is no less a limitation on governmental power than any other found in the Constitution.

Indeed, the Tenth Amendment “confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” New York v.

United States, 505 U.S. 144, 157 (1992).

Quoting the case of Geofroy v. Riggs, 133 U. S. 258 (1890), the Reid Court affirmed the following principle: “There is nothing…which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution…It would not be contended that [the treaty power, as expressed in the Constitution,] extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States…without its consent.” Geofroy v. Riggs, 133 U. S. 258, 267 (1890). Such was also evident in the intentions of the nation’s founders. As put by Thomas Jefferson, the treaty power does not absolve the government of its constitutional limitations; such power cannot be construed to abrogate “the rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole government is

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interdicted from doing in any way.”8 That the Tenth Amendment is indeed as fundamental to the “character of the government” as any express limitation or principle in the Constitution necessitates that any action precipitated by a federal treaty that violates this character is in violation of the Constitution itself. The treaty power must, that is, be “consistent with the nature of our institutions, and the distribution of powers between the general and state governments.” Holmes v. Jennison, 39 U.S. 540, 569 (1840). I would therefore stress the dissenting opinion of Justice Daniel in the case Smith v. Turner, 48 U.S. 283 (1849): “Every power delegated to the Federal government must be expounded in coincidence with a perfect right in the States to all that they have not delegated… Laws of the United States, in order to be binding, must be within the legitimate powers vested by the Constitution. Treaties, in order to be valid, must be made within the scope of the same powers; for there can be no authority of the United States, save what is derived mediately or immediately, and regularly and legitimately, from the Constitution. A treaty no more than an ordinary statute can arbitrarily cede away any one right of a State, or of any citizen of a State.” Smith v. Turner, 48 U.S. 283, 507 (1849). The Supremacy Clause therefore does not provide an avenue for extra-constitutional legislation

by Congress; the limitations to congressional power that exist absent a relevant treaty as mandated by the Tenth Amendment are no less relevant to legislation justified by its connection to a valid treaty. What is unconstitutional as a statute remains unconstitutional as a statute pursuant to a treaty.

In having found that the Tenth Amendment indeed limits statutes that enforce valid treaties, it still remains to be seen whether these protections by the Tenth Amendment are relevant and apply to the statute in question. Alexander Hamilton’s Federalist No. 32 provides solid evidence of the Framers’ intentions regarding the relationship between the governments of the State and the federal government—a relationship that is likewise affirmed in both the text of the Tenth Amendment and the jurisprudence of the Court. “The State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”9 Further, the delegation of power to the United States by the Constitution, and the subsequent usurpation of State power in that policy sphere as mandated by the Supremacy Clause, “would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”10 That Congress has not been expressly granted the powers it claims to possess under the CWCIA, that such powers are not prohibited to the States, and that there exists no such conflict between the authority of the federal government and the States in this instance are, no doubt, testament to the fact that Congress here

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has transgressed its constitutionally enumerated powers. For indeed, while “the Framers envisioned a National Government capable of solving national problems,” they also envisioned “a republic whose vitality was assured by the diffusions of power not only among the branches of the Federal Government, but also between the Federal Government and the States.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 581 (1985), dissenting opinion.

In conjunction with the express intent of the Framers, the Court has also consistently recognized that the governments of the several States possess “police powers.” National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2578 (2012). As explained by James Madison in Federalist No. 45, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”11 Indeed, federalism mandates that States possess the “freedom to structure integral operations in areas of traditional governmental functions.” National League of Cities v. Usery, 426 U.S. 833, 852 (1976). A federal statute providing for the prosecution of a crime so local in nature as the To allow the statute to one committed by the Petitioner, re- stand would be fundamengardless of its nexus to a federal treaty, is entirely antithetical to the spirit of tally hostile to the separathe Constitution and the enumerated tion of powers integral to powers of the national government.

Treaties, after all, apply to “subjects of the structure of federalism. negotiation between our government and other nations,” and not the internal affairs of the several States. Asakura v. Seattle, 265 U.S. 332, 341 (1924). To allow the statute to stand would be fundamentally hostile to the separation of powers integral to the structure of federalism, the validity of the Constitution, and the express intent of the Framers.

Be that as it may, that the Tenth Amendment should limit the ability of Congress to pass statutes pursuant to the enforcement of treaties and that the Tenth Amendment should indeed apply to the statute in question does not conclude the matter. Article I, Section 8 of the Constitution provides that Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution…all other Powers vested by this Constitution in the Government of the United States.” U.S. Const., Art. I, §8, cl. 18.

It might yet follow that—despite the limitations of the Tenth Amendment extrapolated above and their applicability to the contested statute—if the government of the United States possesses the power to make treaties, then Congress might conjunctionally possess the power to ensure that such a treaty is enforced. As explained by Alexander Hamilton in

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Federalist No. 44, “No axiom is more clearly established in law or in reason that whenever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.”12 Such an understanding of the Necessary and Proper Clause has concurrently been upheld throughout the history of the Court. “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. 159, 206 (1819). The Court has also explicitly recognized that such qualifications apply to the enforcement of valid treaties.

“The power of Congress… includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.” Neely v. Henkel, 180 U.S. 109, 121 (1901).

As reflected by jurisprudential precedent, the Court has largely deferred questions of this sort to the nation’s elected representatives. The same standard with which the Court has historically evaluated the legitimacy of the Commerce Clause can likewise be invoked here. As explained by Justice Souter in her dissenting opinion in United States v. Lopez, 514 U.S. 549 (1995), the Court’s decisions reflect its “respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress’s political accountability in dealing with matters open to a wide range of possible choices.” United States v. Lopez, 514 U.S. 549, 604 (1995). Nevertheless, respect for the coequal roles of the governmental branches as facilitated by the separation of powers does not translate to silence on the part of the Judiciary when witness to unconstitutional derivations and exercises of power. “Our deference in matters of policy cannot, however, become abdication in matters of law.” National Federa� tion of Independent Business v. Sebelius, 132 S.Ct. 2566, 2579 (2012).

To determine whether the Necessary and Proper Clause applies here to Congress’s enactment of the CWCIA, I turn to the aforementioned test of Chief Justice Marshall: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. 159, 206 (1819). By virtue of the explicit aim of the CWCIA, to implement the provisions of The Chemical Weapons Convention treaty, the end here is recognized as the enforcement of a valid treaty. The ability to enforce a valid treaty is, no doubt, a legitimate exercise of congressional power “vested by this Constitution in the Government of the United States” and enumerated in the Necessary and Proper Clause. U.S. Const., Art. I, §8, cl. 18.

Pursuant to the aforementioned expression of Tenth Amendment limitations on

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the enforcement of a treaty, though, the Necessary and Proper Clause does not apply to the CWCIA. Indeed, it has already been established that, while The Chemical Weapons Convention treaty may be valid, its enforcement through statute by violation of the Tenth Amendment is not. To reiterate a past decision, “There is nothing…which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” Geofroy v. Riggs, 133 U. S. 258, 267 (1890). The end, therefore, is not legitimate, and any means necessary and proper for the execution thereof is likewise unconstitutional.

To sustain the statute under the Necessary and Proper Clause would be equivalent to allowing Congress to “reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.” National Federation of In� dependent Business v. Sebelius, 132 S.Ct. 2566, 2592 (2012). The Court has similarly struck down statutes that, while necessary to a particular end, are not properly in scope of the government’s limitations. Indeed, would a federal statute that abrogates Fifth and Sixth Amendment or First Amendment protections—like in the cases of Reid v. Covert and Boos v. Barry, respectively—be a constitutional exercise of congressional power simply because it is a necessary and proper execution of obligations to foreign nations that so mandate them? Like the Patient Protection and Affordable Care Act of 2010, which the Court did not sustain by the Necessary and Proper Clause, the CWCIA as a like exercise of governmental power would “[vest] Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.” Ibid.

Having already found that the limitations of the Tenth Amendment are equal to those of all others found in the Constitution—that it is so fundamentally valuable to the protection of federalism and the separation of powers—the Necessary and Proper Clause cannot possibly be invoked to justify its violation when no such legitimate end exists. Just as it is inconceivable to think that the Framers envisioned the federal government’s treatymaking powers as a loophole to all constitutional limitations and protections, so too is it inconceivable to think that the Necessary and Proper Clause may render the closing of that loophole moot.

For the foregoing reasons, I would thus argue that the CWCIA transgresses the limits prescribed by the Tenth Amendment. Laws as such are fundamentally inconsistent with the spirit and the text of the Constitution and, because the Tenth Amendment limits the enforcement of federal treaties by pursuant congressional statutes, unjustifiable by the provisions of the Necessary and Proper Clause.

Ian Robertson is a second year from London, England, studying Politics Honors. His academic interests lie in the intersection of the American political tradition and political Islam.

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Main headline Sub-headline

by Kurt Lockhart

Batten School of Leadership and Public Policy (2015)

I

n this paper, I will argue that the Seventeenth Amendment weakens the connection between state and national government by severing the link between state legislators and national senators. Instead of a detached, “long-run” group of deliberate thinkers, the national senate has become a political arena motivated not by the public good but the opinion of the majority. Repealing the Seventeenth Amendment will restore the voice of states as distinct entities in federal decision-making, reduce the influence of money and interest groups in politics, and check the expansion of an increasingly dominant national government.

After learning firsthand about the pitfalls of a weak national government under the Articles of Confederation and the dangers of a strong national government under British rule, the Framers established a federal system, where the national and state government share power that is derived from the authority of the people.1 James Madison summed up this perspective by arguing “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”2 While recognizing that factions would inevitably form, Madison argued that this organization would minimize their deleterious effects and ensure that the government would be responsive to local needs. As a result, the bicameral Con-

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The American identity clash

Realism and moralism in the public sphere

by Elena Weissmann

Batten School of Leadership and Public Policy (2015)

A

merica’s identity is complicated. It is complicated in its formation; it is complicated in its perception among citizens; and it is complicated in its manifestation through foreign policy. At its root, our identity is tormented by a tension between moralism and realism inherent in the nation’s struggle to serve at once as a source of security for its citizens and a beacon of light for the world at large.

Throughout our history, this tension has expressed itself in varying forms and degrees, with each instance shaped by different social and geopolitical contexts. Rather than commit to a single worldview, American policymakers routinely use both realism and moralism as justifications for action, often involving American exceptionalism as a bridge between the two. An examination of the rhetorical underpinnings of major U.S. foreign policy initiatives reveals the changing contexts of this trend.

At the heart of the theory of realism is the concept that each state pursues its own self-interest and will not be influenced by the powers of other states. This implies a Hobbesian view of humankind as inherently competitive and self-interested, and on a larger scale it depicts the international arena as subject to a zero-sum competition for power. American moralism, on the other hand, pays tribute to Thomas

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Paine’s depiction of the United States not only as a “city upon a hill,” but an “asylum for mankind.”1 The famous opening lines of the Declaration of Independence imply that the morals by which we govern ourselves are in fact “endowed” for “all men.”

This implies a positive-sum game with America throwing the dice, as the nation has a sense of responsibility to ensure the manifestation of these rights for all people throughout the world.

The link between these two political realities is the concept of American exceptionalism. America’s founding fathers warned their successors of entangling themselves in foreign affairs because doing so would threaten the nation’s self-interest.

However, they also hoped that America would in some way “commend the general cause by the countenance of her voice, and the benignant sympathy of her example,” as articulated by Secretary of State John Quincy Adams in 1821. These contradictory guidelines for governance seem to have been resolved by an institutional framing of international intervention in terms of social justice and moral pursuits given America’s unique ability to provide an example of principled governance. At certain points throughout our nation’s history, the of realism has paradoxically At certain points through- force manifested itself through the lens of out our nation’s history, moralism.

For example, consider the closthe force of realism has ing of the American frontier as arparadoxically manifested ticulated by Frederick Jackson Turnitself through the lens of er in 1893. There began a growing sense that America’s pursuit of influmoralism. ence and self-interest would need to occur beyond the nation’s borders.2 America’s government in the 1890s was, in a realist sense, “increasingly likely to rely on its military and economic power to pursue foreign policy goals”3 through events like the Spanish-American War, and yet simultaneously dedicated to Progressive reform rooted in moralism. The closing of the frontier forcibly armed society with the realist understanding that America was to some degree involved in a zero-sum resource game and would need to conquer international spheres of influence in order to survive. The era thus marked a fortuitous opportunity for social groups and policymakers to resolve the moralism-realism tension by framing hegemonic exploits in terms of morality: “Some churches even framed the Spanish-American War as one that was being waged against evil and social injustice in the world.”4 The tension re-emerged with the onset of the Great War. When President Woodrow Wilson appealed to Congress to enter WWI, he seemed to use realism as a

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cause for action and moralism as a source of energy. With regard to the former, Wilson noted that “American ships have been sunk, American lives taken,” lending just cause to America’s entry into the war in pursuit of her own self-interest and security.

For the latter, Wilson claimed that Germany had “put aside all restraints of law or of humanity,” and had violated “the humane practices of civilized nations” in what was seen as “a warfare against mankind.”5 As his rallying cry at the speech’s close, Wilson harnessed the element of exceptionalism to tie these two arguments together: “To such a task we can dedicate our lives and our fortunes, everything that we are and everything that we have, with the pride of those who know that the day has come when America is privileged to spend her blood and her might for the principles that gave her birth and happiness and the peace which she has treasured. God helping her, she can do no other.”6 This speech embodies the framing trend of coalescing realism and moralism using American exceptionalism.

Upon entry into World War II, however, moralism as rhetoric was nowhere to be found. In Roosevelt’s famous “day of infamy” speech after the attack on Pearl Harbor on December 7, 1941, he almost mirrored Wilson’s language by stating that “the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan,” and the attack “caused severe damage” to military forces and “very many American lives have been lost.” However, in this defensive military initiative there was no discussion of protecting the rights of others, and the action was couched almost entirely in terms of self-interest. However, the notion of exceptionalism was still present in Roosevelt’s assurance to the public that “we will gain the inevitable triumph—so help us God.” By the time the Cold War began, the dynamic altered course entirely. The rationalizations of self-interest or revenge from the World Wars disappeared in favor of the language of moralism. In a speech that can be considered a major harbinger of the Cold War, President Truman set out the terms of the Truman Doctrine and appealed to Americans by insisting that “we must assist free peoples to work out their own destinies in their own way.” Interestingly, Truman used a realist lens to cast his moralist aims, in contrast to the language of the World Wars. After explaining that U.S. engagement was necessary because “the free peoples of the world look to us for support in maintaining their freedoms,” he stated: “If we falter in our leadership, we may endanger the peace of the world. And we shall surely endanger the welfare of this nation.”

Here, we see American exceptionalism—formerly a source of rhetorical smoothing between realism and moralism—merge with realist interests. Truman is articulating that American self-interest is itself rooted in our ability to embody Paine’s concept of an “asylum for mankind.” This implies that it is not only our duty

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to pursue the rights and privileges of a moralist argument, but it is in fact critical to ensuring our wellbeing as a nation. Thus, the beginnings of the Cold War marked the convergence of these three trends in American discourse: realism, moralism, and exceptionalism.

Joshua Hersch’s question of whether or not we “need to change the world to be safe in it” exemplifies the moralism-realism tension.7 The moralist answer is yes: we can help structure a better world to secure our own interests and those of others throughout the globe. But the realist answer is no: we cannot contend with certain realities of the world and must structure our policies to deal with but not replace these realities. Understanding the relationship between these forces is critical in looking towards the future of U.S. foreign policy. As global threats to national security grow in number and complexity, our response will need to change accordingly.

The extent to which the forces of moralism and realism will interact with, complement, and contradict one another in the face of changing threats to American security and interests remains to be seen. It is clear that policymakers habitually appeal to both the realists and moralists in the public sphere, with varying degrees of intensity depending on historical context. Both principles will likely continue to play out in the policy arena despite their deeply embedded tension. American exceptionalism is the common foundation of U.S. foreign policy actions in each of the examples detailed above, and our nation’s manner of pursuing that aim will continuously evolve.

At each stage in our history, exceptionalism manifests itself in varying capacities, and remains tied to the dueling forces that underpin our conflicted identity.

Elena Weissmann is an MPP candidate in the Frank Batten School of Leadership and Public Policy. She is a native of Atlanta, GA, and studied history as an undergraduate.

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Separation versus accommodation

An analysis of religious freedom and religious establishment in town hall prayer in the case of Town of Greece v. Galloway

by Nicholas T. Hine

College of Arts and Sciences (2015)

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he United States Court of Appeals for the Second Circuit erred in its decision in the case Town of Greece v. Galloway (2013), which upheld the right of the Town of Greece to open its Town Board meetings with prayer, holding that the Town’s endorsement of Christianity through prayer does not run afoul of the Establishment Clause of the First Amendment. The Court found that the prayer is protected because it is no more unconstitutional than public transportation to parochial schools (Everson v. Board of Education [1947]), tax exemptions for religious organizations (Walz v. Tax Commission of the City of New York [1970]), or prayer to convene the Nebraska State Legislature (Marsh v. Chambers [1983]). While I believe that previous decisions allowing for government entanglement in religion—in so far as they have advanced the secular purpose of helping students and the charitable functions of religious organizations—I draw the line at the endorsement of religion through public prayer. While an affirmation of the Lower Court ruling could be a significant cause of public agitation, and thus a reversal by the Supreme Court would best avoid further divisive challenges to different forms of public prayer, I believe that this shows a cowardly commitment to tradition; the question should be one of constitutionality, not the Court’s popularity among those who value religious expression over freedom

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from government endorsement of religion. In this paper I seek to (I) respond to the flawed reliance on the existing precedent of Marsh v. Chambers and explain how tradition is no excuse for an unconstitutional practice, (II) explain how under existing precedent, the practice of the Town of Greece is unconstitutional given its advancement of Christianity and explicit endorsement of religion over non-religion, and (III) give my interpretation of the Constitution to show how, all precedent aside, the Constitution supports the Lower Court’s ruling to strike town the Town Board prayer.

Section I The passage that must guide our understanding of this case is the Establishment Clause of the First Amendment: “Congress shall make no law respecting the establishment of religion.” All arguments in this case must not stray far from our purpose—to determine whether or not the prayer in question violates this, the Establishment Clause. Unfortunately, the majority ruling in the Court of Appeals erred in its decision and allowed misinterpretation of precedent to lead them far from the meaning of the Constitution. The Court relies heavily on the precedent set by Marsh v. Chambers (1983) and while I acknowledge that this case bears similarities to Greece, the case in question illustrates why we should not accept Marsh’s precedent, and, moreover, why the flawed Marsh ruling deserves to be overturned. In Marsh, the Court declared the practice of prayer to open the Nebraska state legislature to be constitutional. In his 1983 opinion, Chief Justice Burger argued from tradition, noting that, “from colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” Here Chief Justice Burger acknowledges the deep roots prayer enjoys in the traditions of legislative bodies. Tracing the tradition back to the first Congress serves to add length to the argument of tradition, but not necessarily strength—while I sympathize with the Marsh decision, history, no matter how long, is no excuse for a practice that defies the Establishment Clause. The argument that something is constitutional simply because we have always done it is weak and utterly disregards the historical debate surrounding the practice. Contrary to what some may believe, the Framers did not unanimously agree on this issue. Justice Brennan, in his Marsh dissent, cites James Madison’s divergent views on the issue of legislative prayer.

Madison objected to Congress’ practice, writing in his Detached Memorandum: Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness, the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion.

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Madison clearly believed that the appointment of Chaplains to open Congressional meetings with prayer to be unconstitutional—akin to establishing a national religion.

Had he been a justice in Marsh, a case that was decided with the intent of the Framers in mind, he would have undeniably voted to strike down the legislative prayer. The false sense of security that the argument for tradition relies on is simply not strong enough to disregard the Constitution, and it is high time to overturn the Marsh decision.

Furthermore, this argument fails to take into account the inherent difference between the America of 1776 and the America of 2013. When the first Congress convened, white, Anglo-Saxon males who overwhelmingly professed adherence to Christianity constituted the majority. Legislative bodies in America today now represent the ethnic and religious diversity of our country, a country with a plurality of religious traditions and a growing number of the non-religious. In fact, the Court has previously acknowledged the right of Americans to adopt any religion or none at all—the First Amendment guarantees religious equality to “the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism” (Justice Stevens, Wallace v. Jaffree [1985]). Thus, I find impossible to accept an argument that has its foundation in the safe homogeneity of our country’s founding. The religious diversity of the United States is represented by the respondents Susan Galloway and Linda Stephens, one who is an atheist and one who is Jewish, both of whom were offended by the overwhelmingly Christian prayer in the Town Board meetings of Greece, NY. Even if some may not share my desire to see the flawed Marsh decision overturned, I believe the facts of the case require that the dominant precedent of Marsh v.

Chambers not contribute to the Greece decision. Here, we are dealing with the Town Board meetings of Greece, NY. Like most Town Board meetings, these serve not just a legislative function, but also an administrative one. In Justice O’Connor’s concurrence in Lynch v. Donnelly (1984), she writes, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” In Greece, we see that due to the intimate nature of the Board meetings and the inherent “insider vs. outsider” atmosphere these prayers create based on one’s compliance with them, the adherence to Christianity is relevant to their standing in the town’s political community. These public meetings allow the Board to vote on public ordinances, hear the concerns of the town’s residents, and consider zoning regulations, citizenship awards, town employees, etc. This administrative function means that citizens may participate in the meetings, unlike in the Nebraska state legislature, where citizens are relegated to relatively private balcony seating. The town meetings in Greece are small, and generally have poor attendance. Thus, when the meetings are opened with the invocation of a prayer, it is perfectly evident to all present whether or not individuals have decided to remove themselves from the

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room or similarly defer participation by not standing, bowing their head, or performing other prayer-like actions at the invitation of the chaplain. This has the reported effect of alienating individuals who are then expected to stand in front of the Board to voice their concerns, effectively coercing them to engage in the chaplain’s prayer.

The potential for religious coercion is a concern noted by Justice Black in his 1962 opinion in Engel v. Vitale, in which he notes: When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.

The publicly endorsed prayer carries with it the power of the government and thus inherent coercive pressure. This, along with the active coercive pressure of the small Town Board meeting, makes it particularly offensive to those who do not subscribe to the dominant religion of the town, and creates a crucial distinction between it and the circumstances in Marsh. I mention the dominant religion because while the petitioner claims that the town would allow prayer of any type—even from the non-religious or non Judeo-Christian—this claim holds little weight, as nearly every single prayer on record has been overwhelmingly Christian. The Establishment Clause exists to guard against this situation—one in which those who do not participate in a certain religion are labeled as outsiders, or do not enjoy the full favor of the political community. This is where the root of coercion in the town hall meetings comes from, and why I am extraordinarily uncomfortable with the Court’s past ruling. It may prove to be less contentious in the long run than striking down the tradition of legislative prayer, and I sympathize with this concern. However, the Marsh v. Chambers precedent and the questionable tradition it relies on is not an adequate defense for a practice that I find to be fundamentally in violation of the Establishment Clause of the First Amendment.

Section II Having responded to the majority’s Marsh argument, I will now turn to more relevant precedent that suggests the majority has erred in its reversal. In past decisions, the Court has been timid in relying on a single test to make sweeping determinations in Establishment Clause cases. This is not, I believe, a poor decision, but it does leave us with little concrete framework within which to make a ruling. Thus, I will strive to elucidate the error of the Court’s ruling in the context of various previous methods the Court has used to evaluate questions of Establishment Clause constitutionality, namely the Lemon test and the more recent “endorsement” test. In Lemon v. Kurtzman (1971), Chief Justice Burger

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helped consolidate previous rulings by the Court into a set of concrete criteria: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra.

Based off this three-pronged test, it is clear that the town hall prayer of the Greece Town Board should not stand. First, the statute clearly lacks a secular legislative purpose. The point of the Town Board prayers is ostensibly to appeal for divine guidance to the Town Board members. However, the very fact that chaplains are invited to vocalize prayers in front of the Town Board negates the possibility of its being a secular practice—the purpose is undeniably a religious one. If the real aim was to instill the Board members with a sense of duty and promote a focus on the importance of their actions, a nonreligious action could surely suffice. The second prong of the test—that the practice “neither advances nor inhibits religion”—is also violated. Prayer is one of the most basic outward expressions of religious belief, and the town’s endorsement of the prayer as the ideal way to open a meeting advances this religious tool, no matter that the participants have the option to dissent. As Chief Justice Black’s aforementioned opinion in Engel v. Vitale (1962) states, even when individuals have the option to dissent from participation in prayer, the very fact that the power of the government is behind it means that “the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” The final aspect of the Lemon test asks if there is “excessive government entanglement with religion.” State entanglement may be defined as excessive oversight of religion, and, as Justice Brennan notes in his dissent in Marsh v. Chambers: “the process of choosing a ‘suitable’ chaplain, whether on a permanent or rotating basis…involves precisely the sort of supervision that agencies of government should if at all possible avoid.” Employees of the town of Greece did not have a formalized procedure for the selection of prayer-givers, but a standard procedure developed in which a town employee was tasked with inviting members of the clergy and keeping a list of those who came to give prayers. The town’s practice of reaching out to chaplains thus entangles the government and the church because, while the town says it will not turn away a volunteer, it also engages in the active recruitment of chaplains to administer the prayers. The town must not fail any of the prongs order to pass constitutional muster under the Establishment Clause of the First Amendment, but it fails all three. And while the Lemon Test has undergone interpretive changes (most recently in Agostini v. Felton [1997]) to make it more accommodating, the tenet that government cannot define people based on religion or use its power to

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indoctrinate citizens through religious advancement remains an important consideration of the Establishment Clause. The Lemon test remains a fair judge of whether the practice does this, and the Town Board prayer clearly breaches these principles.

I use the Lemon test to show that the petitioners run afoul of many of the basic tenets of disestablishment that the Court has long held. However, the Court has not consistently relied on the precedent of this test when evaluating cases of establishment of religion. In her concurring opinion in Lynch v. Donnelly (1984), Justice O’Connor argues that focusing on endorsement of religion “clarifies the Lemon test as an analytical device.” From an objective look at the practice of the Town Board, as well as from the reports of the Respondents, it is clear that the town has endorsed religion by conveying that “religion or a particular religious belief is favored or preferred,” thus failing the endorsement test as defined by Justice O’Connor in County of Allegheny v. American Civil Liberties Union (1989). In the Allegheny decision, the Court held that the display of a holiday crèche in the county courthouse was a violation of the Establishment Clause as its primary effect was to endorse religion through the display of a Christian symbol with nothing around it to suggest it did not hold a preferential place. I see little distinction between that case and the circumstances in Allegheny, as the place of the prayer in the Town Board meeting presents religious beliefs as preferred to non-Christian or atheistic beliefs. And the town’s de facto preference for Christianity (as evidenced by the frequency of Christian references in the prayers and lack of prayers from other religious denominations) also proves that the Town Board favors a particular religious belief, thus failing the endorsement test.

Some may ask for a solution that respects the right to free-exercise while also respecting the rights of those who wish to not have prayer forced into their life.

And the argument they put forward is that if favoring a religion over another is the problem, a solution would be to require strictly non-denominational prayer in the Town Board meetings. But this brings up the tricky question of whether a non-denominational prayer is even possible, and it also brings up worries of excessive government entanglement—for surely banning denominational content would require the government to assume an active role in censoring overtly denominational references from the content of prayers. I sympathize with this concern, because just as religion should have no place in the government, so too should the government respect the wall of separation between itself and the church. The easiest solution is to enjoin the practice of the Town Board’s prayer altogether and allow the moment of silence that the Town Board was perfectly content with before 1999. This would allow every town resident to center themselves in divine guidance, in atheist humanistic values, or in nothing at all, while solving the problem of coercive pressure and possible government entanglement with non-denomi-

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national requirements. What is more, it would not only respect those with nontraditional religious beliefs, but would also respect the non-religious and atheistic.

The majority’s decision sets a dangerous precedent for the future by not taking into account the interests of atheists and non-believers. We should not forget that one of the Respondents is an atheist, and that the First Amendment has long been interpreted as guaranteeing religious equality even to non-believers, providing the non-religious with freedom from religion’s posing an unwanted intrusion into her life. My opponents will likely say that eliminating public prayer in the interest of the non-religious impedes the free expression of religion, thus also violating the First Amendment. I acknowledge the inherent tension between the Free Expression clause and the Establishment clause of this amendment, but I hold that limiting public prayer, especially in the case of this Town Board meeting, does not inhibit religion.

Going back to the practice of a moment of silence would undeniably still allow for the free exercise of religion, for disallowing a public prayer would have no effect on one’s personal religious beliefs or ability to continue to hold and express them in every aspect of their private lives. And let us not forget that a secular practice is not the same as an atheistic practice—lack of religion does not constitute opposition to it. It merely affirms our commitment to the wall of separation between church and state, and, as Justice Brennan wrote in his Marsh v. Chambers dissent, “[i]t is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves.” I maintain that the proper way to evaluate Establishment Clause cases is to disallow any practice that has no secular purpose and endorses one religion over another, or religion over non-religion.

Section III Placing precedent aside, I would also like to examine this case from a purely constitutional point of view, as I believe the reliance on precedent has taken the Court far from the meaning of our founding document. Over time, the Court has slowly moved from a separationist approach to Establishment Cases, one that does not allow any government support to any or all religions, to an accommodationist approach, one that allows government to provide support to religions provided it does not prefer one over any other. Identifying the correct method of interpretation is difficult, but looking at the meaning of the Constitution will help illuminate our perception of this case. In order to do this, we must approach the Constitution from two angles: a textual dimension and a temporal dimension. Looking at it from a textual standpoint—where we determine how literally we should stick to the text—it is

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easy to quickly eliminate the most radical absolutist view that would hold that, quite literally, “Congress shall make no law respecting the establishment of religion.” This method of interpretation keeps us too close to the literal word of the Constitution, and I am simply not comfortable with a reading that does not allow for some degree of interpretation. Rejecting the absolutist approach, we may look at the statute’s original purpose to determine what the Establishment Clause actually means as a whole.

One of the underlying ideas of the Establishment Clause is based on the history in England and the United States that shows that “a union of government and religion tends to destroy government and degrade religion” (Justice Black, Engel v. Vitale [1962]). Those who wish to see the government aid the advancement of religion often forget this aspect of the Establishment Clause’s purpose. It is designed to guard against excessive government advancement of religion not only to respect the rights of those who do not accept an established religion, but also because excessive government entanglement in religious life tends to denigrate the religion. For if a religion is legitimate and trustworthy and honest, it should not need the monetary or symbolic support of government, and any explicit government advancement will only serve to alienate those it wishes to indoctrinate through disrespecting the sacred nature of the religion. In his Engel v. Vitale opinion, Justice Black goes on to remind everyone that “religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” The true purpose of the Establishment Clause requires a separationist approach, as this is the best way to preserve the state and respect the church.

When looking at the Establishment Clause from a temporal perspective—in which we ask whose views we should prioritize in our reading—we should not necessarily rely on the personal religious views of the Founders (who, as many argue, preferred to open their Congress with a prayer), but rather from the perspective of today’s more diverse nation, a nation that demands the respect of a plurality of religious and non-religious beliefs. Failure to do so would be to disregard the incredible transformation our country has undergone since 1776. Combining a modern temporal view with a textual interpretation that respects the purpose of the Establishment Clause as a tool to protect both government and religion, there is no doubt in my mind that a reading of the Constitution that disregards the confusing web of precedent would lead to an affirmation of the Lower Court’s Greece ruling.

I hold that the most evident interpretation of the Establishment Clause, both on precedent and on my own reading of the Constitution, binds us to not allow the government to endorse religion in a non-secular way that gives preference to one religion over another, or to religion in general over non-religion. It is clear to me that the practice of prayer in the Town of Greece violates this principle. And, to once again channel Justice Black, while the command of the Es-

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tablishment Clause has often been violated in this Nation’s history, “[this] cannot diminish in any way the force of this command” (Engel v. Vitale [1962]).

Nicholas Hine is a third year from Wilmette, IL, studying Political and Social Thought. His academic interests lie in the study of Chinese social policy, the intended focus of his capstone thesis.

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The casualty gap

Evaluating casualty disproportionality in the United States military

by Joe Riley Alumnus

T

he Casualty Gap provides convincing statistical evidence to support what many who are familiar with the military have known for decades: the majority of soldiers come from lower and middle-income backgrounds. The positive aspect of this phenomenon is that, as Kriner and Shen (K/S) acknowledge, the military serves as a powerful tool for social mobility. The unavoidable consequence of this phenomenon, though, is that in times of war these lower socioeconomic classes will share a higher percentage of the casualties associated with that war. This is an unavoidable reality in an All Volunteer Force (AVF). Therefore, in this paper I will affirm K/S’s empirical findings that a casualty gap exists, but I will argue that K/S’s lack of understanding of the military structure causes them to misinterpret and at times over-inflate the problem. I will also analyze the solutions that K/S offer for how to resolve this problem, which they accurately describe as “antithetical to American democratic norms.”1 Finally, I will provide my own thoughts on ways the casualty gap might be reduced.

K/S’s first claim is empirically and intuitively true: the lower ends of the socioeconomic ladder have shouldered a disproportionate share of the casualties that the U.S. has experienced in Iraq, Afghanistan, Vietnam, and Iraq. As K/S show, the casualty gap is wider in the Iraq and Afghan wars than it was in the Vietnam or Korean

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wars. The rationale for the increased gap is very simple: the replacement of a conscription army with an AVF. One need only look around the ranks of any Basic Training camp to see that the majority of recruits did not grow-up in wealthy families. For many soldiers who fill the enlisted ranks, an opportunity to receive a decent salary, to escape their small town or urban project, and to have a shot at receiving an education are the three primary factors that motivate military service. Furthermore, increasing salaries for those with college and professional degrees have made military service for those citizens on the higher end of the educational and socioeconomic ladder less inclined to serve because giving up private sector employment has a higher opportunity cost. In contrast, salaries for enlisted soldiers and non-commissioned officers (NCOs) have increased relative to the salaries of their civilian counterparts who lack a college education. Thus, from an economic perspective, it is easy to see why there has been an increased percentage of Americans from the lower socioeconomic levels filling the enlisted ranks of the military.

While this gap is real, K/S overlook some important nuances that reveal a severe lack of understanding of the military and its personnel structure. They are right that the most dangerous branches of the military are the Army and Marine Corps, and they are correct that compared with the Navy and Air Force, the Army and Marine Corps draw much more heavily from lower socioeconomic groups. Because our naval and air forces face little threat in the contemporary operating environments in Iraq and Afghanistan, the Navy and Air Force offer relatively safer opportunities to serve the country. This provides these branches with certain advantages when trying to recruit members from the upper and upper middle classes. In addition, the Navy and Air Force also need recruits and officers with more advanced technical skills. Thus, the forces pushing toward a greater concentration of poorer, less educated recruits in the Army and Marine Corps are a consequence of both (1) the technical expertise needed by the various services and (2) the varying degrees of risk and quality of life associated with the four branches.

The next level of nuance is to examine the distribution of casualties within the Army itself—the branch that is of primary interest to K/S. The authors are right that more enlisted soldiers die than officers, but this should not be the measure of a casualty gap within the Army because there are far more enlisted soldiers than officers.

Instead, we should look at the percentage of both officers and enlisted soldiers who become casualties. The authors do examine this percentage, but they lump all officers into one category, instead of separating officers by rank. Most officers only stay for their first four years, and these first four years (while the officers is still a companygrade officer) are by far the most dangerous. While the job of a Colonel might carry minimal risk, the risk associated with a Second Lieutenant in the Infantry is at least

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comparable to that of the enlisted soldiers under his direct command. Doctrinally, the Lieutenant moves with the forward operating squad or the assault element, and his need to command and control multiple squads and fire teams means that he must maneuver on the battlefield in a way that makes him one of the most exposed members of the platoon. Any enemy who recognizes the importance of command and control will seek to take out the senior leaders of a unit first, to disrupt the cohesion and effectiveness of the opposing unit. To the extent that the officer and other senior NCOs are clearly in control, they present themselves a primary targets to the enemy. All of these Lieutenants and many of the NCOs will have a college education and their salaries, levels of education, and professional training will be high relative to many members of the American public.

The most dangerous Military Occupation Specialties (MOS) in the current conflict are all in Special Forces (SF). The Green Berets, Navy Seals, Rangers, and Delta Operators suffer the highest percentage of casualties. The fact that these forces represent only a tiny fraction of military personnel means that they do not reflect as large of a percentage of the overall casualties, but their percentage of casualties The military is one of the are far higher than any other MOS. Most SF operators have college de- best tools for social mobiligrees and speak at least one (if not ty available to many memmore) foreign languages. Many have received advance medical and com- bers of society. munications training, and in the private sector they would be very attractive future employees. Their levels of education and training are, as an average, higher than their counterparts in the conventional forces; yet their casualty percentages are also higher.

K/S analysis also reveals a lack of understanding for how soldiers and officers are placed into an MOS within the Army. There are a few instances where the Army identifies those with foreign language or technical capabilities and then places them either in Military Intelligence or Signal Corps respectively, and officers with an engineering degree are often given preference for selection into the Corps of Engineers. However, these represent only three of the over 50 MOSs in the Army. The rest, including highly dangerous MOSs, like Infantry, and relatively safe ones, like the Adjutant General or Chemical Corps, are assigned either randomly, or by the choice of the recruit.

Recruits often negotiate their initial contracts to try to secure the specific MOS that they desire. In contrast to the impression that K/S give, the most highly sought after MOSs are: 18 X-ray (Special Forces) and 11-Bravo (Infantry). These represent the two most dangerous MOSs, yet they are the most popular. Within the 11-Bravo

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contracts, recruits compete for Ranger and Air Borne sub-contracts: the most dangerous assignments within the Infantry. The same phenomenon is repeated on the officer side. The Army ranks all 6,000 incoming cadets, and then allows them to choose their MOS in the order of their rank. Every year, three of the most competitive MOSs are Infantry, Armor, and Aviation: the three most dangerous MOSs for junior officers.

Thus, both on the officer and enlisted side, there is little that could be done to change the casualty gap within the Army itself. However, the casualty gap is not nearly as large as K/S indicate, and its causes are far more complex than K/S indicate. If we examine the MOSs with the highest percentage of casualties, they actually have a much higher percentage of soldiers with a college education than do MOSs that are far safer. Nevertheless, it is true that the majority of recruits come from underprivileged backgrounds and lack advanced degrees. As such, we would expect to see the majority of casualties coming from members who fit this profile, but the percentage of people from these backgrounds are no more likely, and in fact are often less likely to become a casualty than members from groups with more advanced degrees and skills.

Furthermore, the socioeconomic gap in the military was at its peak in the 1980s and 1990s and has declined in the aftermath of 9/11 and the 2008 economic recession.

In the aftermath of 9/11, many Americans who would not normally have enlisted joined the Army out of patriotism. This patriotic fervor quickly subsided, however.

Since enlisted contracts are only three years, many post 9/11 enlistees had left by 2005-2006. As K/S show, it was during these dark days of the Iraq War that the socioeconomic gap grew to its widest margin. 2005-2008 also saw the highest number of casualties, which exacerbated the overall casualty gap. The economic recession drove a whole new wave of non-traditional recruits into the Army after 2008. For example, when I attended AIRBORNE school in January of 2010, all four of my barracks mates were college educated and one had completed an MBA. They joined the military purely out of economic necessity, and all four are leaving this year when their contracts are finished.

Thus, we see that the casualty gap has little to do with the military’s recruitment or placement policies and has far more to do with larger societal factors that control the types of recruits coming to the Army. The Army will always have a plethora of young men and women from poor or underprivileged backgrounds. When, for economic or patriotic reasons, less-traditional demographic groups decide to join the military, the gap will decline as these candidates with more advanced educational credentials outcompete recruits from demographic groups that lack advanced educational or technical training. When no such external impetus is driving citizens from non-traditional feeder groups to apply for the military (both on the enlisted and officer sides), the gap between the percentage of rich and poor soldiers will expand. In a time of war, this will

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translate into a larger casualty gap between the wealthy and the poor.

How might we reduce this casualty gap? K/S provide little help here. They acknowledge that reinstating the draft is a political non-starter. Indeed, the military itself is the most adamant defender of the AVF because it allows a far more professional and disciplined force. K/S also acknowledge that there is little that can be done to change the military’s mechanisms for assigning soldiers to specific roles. I agree that little can or should be done to change the military’s placement policies, but we showed that K/S actually over-inflate the degree to which poorer, less educated recruits are pushed into the more dangerous combat arms roles. K/S’s only constructive thoughts for how to reduce the gap is to use public knowledge of the gap to place political pressure on elected officials to be more judicious about deploying soldiers into harms way. I question what tangible or concrete impact this policy would have, or if it could even be crafted into a policy proposal. Nevertheless, I agree that the larger objective should not be reducing the casualty gap, but finding ways to reduce the overall number of casualties by avoiding unnecessary wars.

Ultimately, we must recognize that the AVF is here to stay and that as long as the AVF remains in place, there will be a disproportionate number of Americans from the lower socioeconomic classes that volunteer. I do not necessarily see this as a negative, though. The military is one of the best tools for social mobility available to many members of society. Therefore, the key is to avoid unnecessary conflicts. When those conflicts do arise, members from the poorer classes will undoubtedly shoulder a larger share of the casualties. While there are many possible solutions for avoiding unnecessary conflicts, the one I have found most compelling is some form of a war tax on oil. Many variations of this have been proposed, but the most effective one I have encountered is a proposal to impose a roughly $0.25 to $0.50 per gallon tax while conventional forces in excess of two brigades are deployed overseas in a combat environment for more than six months. The beauty of this tax is that it would help offset the cost of expensive overseas conflicts, while providing a powerful disincentive against unnecessary forays into the Middle East. Tying the tax to supporting the troops would undercut many opponents of tax increases on the political Right and would satisfy many groups on the Left who would like to see an increased tax on gas anyway. External shocks might affect the demographic composition of military recruits, but hoping for a 9/11 or an economic meltdown hardly seems an ideal long-term strategy. Instead, we should embrace the AVF as a means for social mobility, but emplace political and economic disincentives to discourage unnecessary wars because a socioeconomic gap at the enlisted level is not a concern except for in times of war. * * *

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omprised of editorials and other short original works, the following pieces were written by undergraduates at The University of Virginia.To view the full collection of this semester’s submissions and to submit your own work,visit seriatimjournal.com. Student work is published on a rolling basis and featured in our weekly e-newsletter.

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Evaluating Arizona’s religious freedom bill

A constitutional analysis of SB1062, a bill that would allow businesses to refuse service on religious grounds

by Russell C. Bogue

College of Arts and Sciences (2016)

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ow far do First Amendment guarantees of religious freedom extend? Such a question has been posed recently in Arizona, where the state legislature passed SB1062, a bill that would protect individuals, businesses, and religious organizations from discrimination lawsuits if they could prove that their actions were motivated by sincere religious belief. Although Arizona’s governor, Jan Brewer, vetoed the bill, the sentiment behind it has not dissipated from national discourse. It is worthwhile, then, to discuss its constitutional justifications, and what lessons we can draw from it.

First, the bill is poorly constructed, with obvious and unacceptable loopholes. Although it was written to allow businesses to refuse service to gay and lesbian couples, the bill would essentially give carte blanche to discrimination of any sort, as long as the perpetrator could express a legitimate religious reason for doing so. As Anderson Cooper noted, the bill would allow businesses, if they chose, to refuse to serve single mothers or divorced individuals, citing religious condemnation of adultery and divorce. According Anna Tovar, the Democratic minority leader in the state senate, the bill would allow business to discriminate based on “race, familial status, religion, sex, national origin, age or disability.” Such discrimination is clearly unconstitutional under Fourteenth Amendment equal protection guarantees. By failing to advance a clearly defined and narrow state inter-

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‘Exercise of religion’ means the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

– SB 1062, State of Arizona

est, the Arizona bill would have likely been found unconstitutional.

However, there is more to say. Hypothetically, the bill could have been very neatly and specifically tailored to merely allow businesses to refuse to serve only same-sex couples. Would this be constitutional? Again, the answer is no, for several reasons. First, clarifying the law such that it would advance a narrow state interest would open the door to all sorts of legal scrutiny, as laws that single out a group of people for discrimination often prove unconstitutional. Such a law would assuredly create a caste of second-class citizens, which is blatantly unconstitutional. Second, businesses are considered “public accommodations”—or actors that serve the public—and are thus subject to state anti-discrimination laws. By taking on this role in society, businesses forfeit some rights, such as the right to not associate with people they don’t like. This secular status is why it is illegal to refuse to serve black people at restaurants. It doesn’t matter what your views on race are; you must provide the same services to people, regardless of your appraisal of their moral worth.

The same can be said of sexual orientation. Businesses do not have a constitutional right, under the First Amendment, to refuse to interact with people who subscribe to what they deem to be an immoral lifestyle. In their function for society, businesses are not acting as churches. In their production of goods and services, they serve a purely secular purpose; they cannot therefore bar others from participation in this secular activity on merely religious grounds. To take this out of the realm of abstract nouns: a barber cannot refuse to cut the hair of a gay man merely because he views homosexuality as a sin. There is no constitutional justification under the First Amendment for businesses to discriminate to whom they give their service.

When would such discrimination be acceptable? Although we must reject the constitutionality of the Arizona law, we must be careful not to take our conclusions too far.

It would be easy to extrapolate from this case to make the following statement: “If it’s un-

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No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. – Amendment XVII

constitutional for a business to refuse service because of their religious convictions, then a church can’t refuse to marry a gay couple.” But here, we must indeed defer to religious liberty. A church serves a fundamentally different role in society from a business; it is the representation of religion, the very sphere most untouchable by government, unlike secular “public accommodations.” Forcing a church that genuinely believed same-sex marriage was sinful to marry a gay couple would be coercive and restrictive of religious liberty. A shop owner cannot reasonably say that selling candy is an instance of religious expression, immune to state laws; a church can reasonably claim that facilitating and blessing a marriage is a religious act. Extending the constitutional logic to churches would constitute forcing individuals to act directly against their conscience on matters directly pertaining to religious expression; we should be wary of this.

It is thus a subtle, but firm, line that we must draw. The standards of a free and democratic society demand equal treatment of all citizens. There is no constitutional justification for a law that permits wanton discrimination against any citizen merely on the basis of religious conviction; but there are also constitutional prohibitions against extending this Fourteenth Amendment promise into actions that would coerce churches into violating their moral principles. Normally, a commitment to liberalism goes hand in hand with deference to religious practice. Instances arise, however, in which religion may run counter to a truly free and non-discriminatory society. In such cases, we must navigate the waters of constitutionality with a sure rudder, carefully delineating the proper spheres of government action. * * *

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This democracy needs a campaign finance amendment Reforming corporate infiltration of America’s electoral politics

by Ben Rudgley

College of Arts and Sciences (2016)

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n 2010, the Supreme Court’s ruling in Citizens United v. Federal Election Commission (2010) opened the floodgates for unrestricted corporate spending on independent political broadcasts during campaigns. The ruling struck down provisions of Senators McCain and Feingold’s Bipartisan Campaign Reform Act that restricted campaign finance from corporations, unions and non-profits as unconstitutional, citing a violation of the First Amendment. The logic is this: corporations are people too, and—as money is an extension of speech—they too deserve to swamp the airwaves.

Unfortunately, this ruling precipitated the pollution of American electoral politics by corporate, self-serving extra-political entities. A Fortune 500 CEO must, according to his or her obligation to the Board, act and spend company dollars only where it is in the interest of the corporation’s bottom line and not in some conception of the public interest.

Thus, motivations for corporate financing of elections are necessarily divorced from what the American people want and need from those running for public office. Indeed, Justice John Stevens dissenting opinion for the Supreme Court’s ruling of Citizens United was that “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

To highlight the scope of corporate influence in recent elections: for the 2012 presi-

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dential campaign, President Obama, the Democratic Party, and the Priorities USA Action Super Pac rose between them $1,072,000,000. About 89 percent of this sum was comprised of donations of $100,000 or more. The expectation of many of these multi-million dollar corporate campaign contributors is that public policy, if their candidate wins, will reflect their will. This hijacking of American democracy by big money not only elevates the influence of external self-serving entities and the extremely successful but also suppresses the voice of the American lower and middle classes.

In comparison, the average American’s $100 donation to a political campaign and candidate is merely a drop in the ocean of campaign coffers. However, when hedge fund manager James H Simons donates $5,000,000 to a campaign, it is analogous to a situation where I might bring a megaphone to a town hall debate and yell to the top of my voice to suppress and silence the majority.

The most powerful argument for campaign finance reform is that Citizens United didn’t protect the First Amendment’s guarantee of free political speech—it dismantled it.

John Stuart Mill’s conception of the free “marketplace of ideas” is very much in the spirit of the American republic’s most foundational pillars—freedom, equal opportunity and representative government—and is central to a government of the people, by the people and for the people. The free marketplace of ideas relies on a healthy and diverse political discourse among rich and poor, urban and rural, male and female, white and black alike.

Seemingly limitless corporate and individual spending, however, has perverted the free marketplace of ideas in such a way that it is impossible for the average American to compete to be heard alongside the corporate bankers and CEOs. Anti-trust laws, for example, demonstrate that free markets and monopolies cannot coexist. By extension, the free marketplace of ideas disintegrates from within if a tiny minority of the American public can comprise 89% of a presidential campaign’s funding.

Action needs to be taken to reverse this dangerous path from representative government to corporate oligarchy. Unfortunately, the precedent in campaign finance, beginning with Buckley vs. Valeo (1976) and culminating with Citizens United (2010), means that any meaningful attempt by Congress to limit corporate influence in elections will be struck down by the judicial branch as unconstitutional. The exception would be if lawmakers could irrevocably change the language of the Constitution through a campaign finance amendment to the Constitution.

Such an amendment would require three key features to take on the toxic corporate infiltration of politics. First, it must clearly delineate the status differences between the American people and corporations, unions and the like, so that the language of “corporations are people” can be forever tossed in the proverbial trashcan of American history.

Second, the amendment should impose strict limits on the donations of corporations, unions and non-profits to political campaigns or political broadcasts—official or indepen-

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dent—that mention candidates by name (limiting donations to $5,000 per candidate per election cycle and chained to inflation thereafter). Third, the amendment should streamline individual donations to independent and official campaign broadcasts referring to a candidate by name to $10,000 per individual per candidate per election cycle. Of course, any number might be arbitrary, but this seems like a reasonable figure that is open to debate or compromise.

An amendment would require support from two-thirds of the legislature before the President could sign into law. Any effort to make lawmakers regulate themselves faces difficulty, especially in a Congress as divided and ineffective as the current one; however, the bipartisan support of McCain-Feingold in 2002 illustrates the potential for unity in this area if grassroots support, acting on representatives, can be effectively mobilized. There is further reason for a positive outlook, as President Obama’s vocal, and controversial, opposition to the Supreme Court’s 2010 ruling on Citizens United precludes any risk of presidential veto at least for the next two years.

America’s federal representatives are less representative than ever, as the American people are losing their stake in their democracy and their government to increasingly powerful and influential corporate entities. American democracy needs revision and restoration now, and a constitutional amendment is the only viable and comprehensive solution. * * *

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Solving America’s organ donor shortage A free market approach to the sale of human organs

by Grace Muth

College of Arts and Sciences (2016)

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s of 2:22 PM on March 2nd 2014, there are currently 121,519 people in the United States actively looking to receive an organ. A large number of these patients are on dialysis, waiting for kidneys, and many of those who are on the waiting list to receive organs have donated in the past. Yet from January to November of 2013, only 26,517 transplants occurred—less than a quarter of the current needs.1 The deficit between the supply of organs and demand of donors continues to grow each year; we cannot escape the conclusion that the current system of organ transplantation in the US is in crisis. The crisis leads us to a few questions to explore as a society: do we continue to rely on altruistic donation as our source for viable organs? And if we identify this as a failing system, what is the most ethical and practical way for the federal government to solve the transplantation crisis?

The most economical, ethical, and practical solution to this crisis is the sale of organs. The sales system offers divergent paths; one option, however, best walks the line between satisfying demand and ethical considerations.

Currently in the US, we have an “opt-in” system of organ donation. Essentially, in order to donate an organ, either written permission is required from the family or from the donor (pre-mortem) in order to harvest organs. This system provides

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the most autonomy and personal concern for the individual and their family, as the underlying principle behind this system is that the organs are the individual’s, rather than the state’s, property. However, because of the fact that organs are thereby given only by goodwill, rather than through state driven processes, we are left in an extreme deficit. Other countries have adopted a wide variety of “opt-out” systems, some assigning full control of the deceased to the state, and others that require extensive education to provide the most autonomous and informed choice possible. However, even with as much education as possible, the risk of violating an individual’s autonomy poses too great a risk to be ethically preferable, even if the supply of organs would increase.

The system I propose does not go so far as to change the fundamental tenets of the “opt-in” system, but rather to financially stimulate the supply of organs.

A renowned law professor at George Mason University, Lloyd Cohen, proposes a system of organ donation to meet this economic and social crisis. This article advocates a model inspired by Cohen’s, whose system seeks to distinguish the sale of organs from a classic free-market system. The structure proposed here recommends donors are given a flat $5,000 sum from a third party and organs are then the property of the purchasing third party to do with as it chooses. This money is only received after the donor’s death, and therefore, the financial compensation for donation would only be received by the donor’s estate beneficiaries, thus decreasing the potential for organ donation to be a “poor-man’s burden”. Though Cohen doesn’t include a system of allocation of these organs, the federal government would be most capable of matching donors’ organs with a third-party (as wait lists and information on newly excavated organs is most easily available to public hospitals or government health administrative bodies).

This system removes the pitfalls of an unregulated organ market where “some desperately poor person…would choose to sell one of his kidneys”—something morally reprehensible both for its exploitation of the poor by the rich and for its negation of a donor’s autonomy: indeed, how autonomous is the choice to give up an organ when a donor feels the overwhelming force of poverty? This sales model excludes living donation so as to preclude any possibility of violating personal autonomy—the force of poverty cannot coerce a corpse. Furthermore, a flat $5,000 figure prevents a bidding war for an organ where the rich dominate the demand side of the organ transplantation market at the expense of those who require donor organs but may not have the funds to compete in an auction-style sales system. The Cohen-inspired model will, however, still stimulate sufficient demand for organs by providing a relatively small financial incentive to donate.

Moralists may argue that in monetarily-incentivizing body parts, the public

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outcry may in fact deter donors who would have donated without the money, but would morally abstain because of the monetary incentive, and thus this model would lower the number of organs available in the market. While this system does not prevent altruistic donations, it is possible the number of these sorts of donations would decrease. However, a far greater number of people would be willing to entertain the possibility of becoming an organ donor than would without the monetary incentive, thus leading to a vast improvement in thousands of lives. This trade-off is therefore acceptable in that potential uneasiness should not prevent a mechanism to save lives.

The policy implications for legalization in the post-mortem sale of organs would need to address the issue of privatization, one with which Cohen declines to engage. As stated previously, the government would be needed to organize the control of these organs; if private companies were able to buy the organs from the families for $5,000, an auction system would likely emerge, driving up the price so that the rich would be the only ones able to receive organs. So while Cohen’s fundamental argument provides a solution to the deficit of organs in the Unites States, major stipulations need to be made on his proposal to ensure the most fair and beneficial system possible. * * *

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Publius.

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ritten under pseudonyms harking to the revolutionary tradition of the American founding, Publius provides three different columns on contemporary constitutional issues. Each column, which represents the political ideology of the Founding Father under whose name it is written, offers a unique viewpoint on the given constitutional question.

See seriatimjournal.com for the latest editions.

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Issue II Exploring the constitutionality of the Obamacare contraception mandate

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Introduction

hough the Supreme Court’s ruling in the case NFIB v. Sebelius (2012)

upheld significant portions of the Patient Protection and Affordable Care Act, including the controversial universal coverage mandate, the law has once again come under contentious constitutional scrutiny.

Under the law, commonly referred to as Obamacare, employers are required to provide health insurance coverage for employees’ contraceptive needs—a component *of the* legislation * * that*some*religious * groups, * * who*oppose * contraception on the basis * * * * * * * * * * of their faith, decry as an unconstitutional violation of their First Amendment rights to freedom of religion. The government, conversely, believes that the birth control mandate is necessary to tackling gender-discriminatory insurance plans that leave women bearing the full costs of family planning and contraceptive health care.

Mr. Jefferson, Mr. Madison and Mr. Hamilton explore three perspectives on this issue. >>

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Congress shall make no respecting an establishment of religion, or prohibiting the free exercise thereof.

– Amendment I

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Mr. Jefferson

he First Amendment and its assertion of religious freedom in particular

have long been interpreted as the cornerstone of our most cherished rights, widely and rightly heralded as the paramount guarantor of individual freedom. Absent its stalwart declaration of personal liberty, the United States would differ little from the tyranny our forefathers fought to abandon and the framers of our Constitution sought to prevent.

Interpreting the Amendment’s establishment and free exercise clauses, what Thomas Jefferson wisely declared “a wall of separation between church and state,” has nonetheless proven exceptionally challenging, in the eye of both the courts and the realm of public opinion. Neither establishment nor free exercise of religion are particularly self-defining, and the historical record provides little conclusive evidence of the Amendment’s original and intended meaning, which would otherwise properly guide our interpretation.

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Constitutional quandaries regarding the proper separation between church and state have thus most often been resolved by tests designed by members of the Judiciary to establish judicial consistency and impartiality. Most notorious of such tests, and most invoked by the nation’s courts to settle recent conflicts of religious establishment and free exercise, is that of strict scrutiny, whereby the Judiciary weighs the interest of the government to make generally applicable laws against enumerated constitutional rights. Specifically, justices, in weighing these two competing interests, determine whether a law is neutral (i.e., whether it intentionally, and thus unconstitutionally, discriminates against a particular religious belief) and where it furthers a compelling state interest. If a law meets both standards, it is generally found constitutional.

The rationale for this judicial standard in freedom of religion cases, the oft quoted defense for the contraception insurance mandate of the Patient Protection and Affordable Care Act, may be summed up by Supreme Court justice Antonin Scalia’s opinion in the 1990 case Employment Division v. Smith: For religious convictions to exempt individuals from obeying a neutral and non-discriminatory— What is a right, if not an and consequently constitutional— unbridgeable contract law “would be to make the professed doctrines of religious belief superior between man and his to the law of the land, and in effect to government? permit every citizen to become a law unto himself.”

Right though Scalia may be, applying strict scrutiny to the disputed birth control mandate and finding the regulation a permissible exercise of congressional power would be a dangerous misreading of the Constitution and a grave threat to American religious freedom, its wall of separation between church and state, and every other right enumerated in the First Amendment.

Nowhere in the Constitution is either the Legislature or the Judiciary permitted to sacrifice enumerated rights for the purpose of furthering a particular legislative interest, as the rule of strict scrutiny would advise. What is a right, if not an unbridgeable contract between man and his government? If the Obama administration is willing to exempt churches from the birth control mandate—conceding that to enforce such a regulation would indeed abridge those institutions’ right to freely practice their religion—what makes it constitutionally acceptable to abridge the First Amendment protections of individual citizens who similarly believe their religious beliefs are being contravened by the law? So long as the religious convictions of those citizens are tried and true, as the Judiciary should be encouraged to determine, then

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the First Amendment makes no distinction between a church of a given denomination and an individual employer who prescribes to its doctrines. Indeed, just as the First Amendment’s free press clause does not discriminate between the media conglomerate and the solo pamphleteer hoping to speak freely on a controversial issue, so too should the establishment and free exercise clauses not distinguish between religious institution and pious believer.

Furthermore, the religious belief in question—that contraception is morally deplorable—has existed far longer than the current Legislature’s belief in a right to equal and universal access to birth control. Religious conviction, in this case, is thus not an excuse made in bad faith to avoid compliance with a long established law; rather, the will of today’s majority is threatening to quash the long established belief of a minority, the religious convictions of which far preceded the founding of the United States and indeed helped inform its liberal political tradition and undergirded its belief in the rule of law and the inviolability of human liberty. We thus need not fear that allowing a religious conscience exemption to the contraception mandate would “permit every citizen to become a law unto himself,” because the conscience of such objectors far preceded this new and questionable law.

Relying on strict scrutiny as a measurement of constitutional law in this case would also be an open invitation to further violation of First Amendment rights, though those concerning religion are sure to suffer the greatest in our increasingly secular society. Though I would urge extreme caution in questioning what the people’s elected Legislature believes to be a compelling state interest—for matters of constitutional interpretation should remain questions of law and not policy—what good is strict scrutiny as a constitutional standard if anything Congress says is necessary is ipso facto constitutional? Nothing could be further from our constitutional tradition and the founding ideals of this nation if strict scrutiny is always to yield blatant violations of our most fundamental rights when Congress sees fit to do so.

It should thus be for these reasons alone—that the First Amendment guarantees the free exercise of religion and that the use of contraception is a violation of established and respected religious doctrine—that the birth control mandate of the Affordable Care Act be found in clear infringement of both our Constitution and the nation’s long tradition of protecting religious minorities. Indeed, as so aptly articulated by Jefferson, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” * * *

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Seriatim | Journal of American Politics Mr. Madison

he First Amendment is perhaps the most frequently evoked right in the

entire Constitution. Whether the subject is campaign finance or animal sacrifice, interest groups and outraged individuals alike bring their grievances before our nation’s courts on the basis of this amendment. More than any of the other articles or amendments in our Constitution, the First Amendment embodies the fundamental belief that animated our Founders when they designed our government: that man, in entering into a contract with his government, retained freedom in his person, his expression, and his beliefs. They believed that there were certain rights, certain liberties, which were beyond the scope of any government action—especially the right to freely exercise one’s religion.

In the over two hundred years since our nation’s founding, the metes and bounds of these First Amendment protections have been redrawn again and again by the Supreme Court. But these variations are minor. The broad thrust of the amendment—that great deference should be granted to religious beliefs and great scrutiny applied to government action that restricts their exercise—has survived for centuries.

It is against this backdrop of traditional jurisprudence that the Obama administration introduced its “birth control mandate” as part of the Affordable Care Act: all employers would be required to cover their employees’ birth control in their insurance policies. Religious groups, particularly Catholic ones, immediately labeled the mandate unconstitutional on—you guessed it—First Amendment grounds. Obama eventually relented, stating that churches and other directly religious institutions would be exempt from the law, while other organizations that were religiously affiliated but not explicit in mission (hospitals, schools, businesses) would be required to cover employees. But is this concession enough to dispel our constitutional worries?

I submit that it is.

We can turn to a number of previous Supreme Court cases to inform our decision. On the side of the churches, perhaps the most famous case upholding the liberty of religious observers is Church of Lukumi Babalu Aye v. City of Hialeah (1993).

The city of Hialeah, Florida passed an ordinance that prohibited killing animals without the primary purpose of food consumption, largely in response to reports that the Church of Lukumi Babalu Aye—a religious sect that practiced Santería, which requires animal sacrifice—would be moving into the city. The Supreme Court, in a unanimous decision, found the ordinance to be unconstitutional on that grounds that it was neither “neutral” nor “generally applicable.” Although the text of the ordinance did not necessarily imply that it targeted the Church in particular (“facial neutrality”), the Court decided that the spirit and intent of the law was to discriminate against the practice of a particularly religion. In the Court’s opinion, Justice Scalia

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wrote that if a law were not neutral and generally applicable, the burden placed on religious believers had to be justified by a compelling state interest and “narrowly tailored to advance that interest.” How does this help us? It frames the questions we must ask. Is the birth control mandate neutral in regards to religion and generally applicable to the American populace? If not, does the birth control mandate fulfill some compelling governmental interest?

To help us answer this question, we can look to another Supreme Court case, one that has direct applicability to the question of mandating birth control coverage: Employment Division v. Smith (1990). This case tested the constitutionality of an Oregon law that banned the use of peyote, a psychoactive drug, even though some individuals in the state used the drug for religious purposes. In the unanimous 9-0 decision, the Court ruled that the Oregon law was “generally applicable” to all persons within the state—that is, the ban on peyote was a blanket regulation passed without reference to a specific religion—and therefore a constitutional exercise of a state’s regulatory powers. Justice Scalia, writing the majority opinion, referenced a previous decision in Reynolds v. United States (1878) that stated that allowing exemptions to generally applicable rules for religious reasons would be to make If we accept that there “the professed doctrines of religious belief superior to the law of the land, is a compelling state inand in effect to permit every citizen terest at play here, then to become a law unto himself.”

Although we can all recognize we must cede the First the logic of this decision—religious Amendment protections. belief is not carte blanche for any conceivable behavior—we should nuance his statement. Justice O’Connor, in her concurring opinion, acknowledges that the “generally applicable” rule is not the only necessary test for determining the constitutionality of a law, for generally applicable laws may be highly burdensome to citizens with minority beliefs. She held that religious belief deserved a level of protection beyond the mere determination of general intent, contending that laws that restrict or burden religious expression should address a compelling state interest and be precisely tailored to advance that interest.

The question is then better framed as “Does this law reasonably restrict First Amendment rights to address a compelling state interest?” rather than as “Does this law specifically target a religious sect, or does it apply generally to the entire populace?”

When evaluating President Obama’s birth control mandate, we should apply the former level of scrutiny. It is not enough to contend that the mandate applies equally to all citizens, as it undeniably does. Its constitutionality should hinge on whether it

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advances a compelling state interest and on whether religious groups have enough of a claim to assert the primacy of their First Amendment rights. The balance here must be precisely measured.

The balance, we must conclude, is found in Obama’s latest concession. Forcing explicitly religious institutions to cover birth control for their employees is a direct violation of the First Amendment, for the sole and primary purpose of churches is to express a particular faith. The breach is so flagrant, so direct and insulting in nature, that we cannot find the state’s interest in the health and safety of its citizens to be of greater importance in this regard. It is one thing to hamper the exercise of a religion by restricting a particular behavior; it is quite another to compel behavior that would be considered immoral by adherents of the religion. Such an action would be unconstitutional.

However, the grounds for First Amendment protection weaken significantly when extended to employers whose business is secular in nature. Such individuals are not explicitly practicing their faith through their occupations, and employees are not required to be religious themselves. In such a setting, religion is relegated to a more personal sphere of influence than it is when considering houses of worship. We cannot reasonably expect employers and employees to share the same faith in Catholic schools, hospitals, or businesses; we therefore cannot reasonably extend the same First Amendment protection to religious employers in an otherwise secular business as we can to overtly religious institutions. Their employees can and should expect a level of compliance with common law, which currently mandates birth control coverage. If we accept that there is a compelling state interest at play here, then we must cede the First Amendment protections of religious employers to this interest.

In sum, the framework for analyzing the constitutionality of the birth control mandate of Obamacare should be one where we balance compelling state interest with First Amendment protections. In certain instances—such as those that concern houses of worship and their functions—the First Amendment trumps state interest; in others—such as religious employers in an otherwise secular industry—we must cede to the mandate of the government. Asserting a blanket right to First Amendment protection or, conversely, an absolute lack of such protections dangerously oversimplifies the issue. Obama’s current stance on the birth control mandate is, therefore, constitutionally sound. * * *

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Mr. Hamilton

he much maligned Patient Protection and Affordable Care Act has been

dragged through the proverbial constitutional mud time and time again. Yet, it has survived test after test from the nation’s constitutional organs, and has emerged on the other side still intact. Recently, though, a new constitutional dilemma has arisen: religious groups have challenged the law’s birth control mandate, which directs all employers to provide insurance coverage of contraception.

Important to remember is that the First Amendment protects both freedom of and freedom from religion. In recent years, there have been a variety of Supreme Court rulings protecting the freedom of religion, but the freedom from religion has suffered. As the Court states in the case Larson v. Valente (1982), the government cannot “pass laws which aid one religion.” Times have changed in America; polls show incredibly high numbers of Americans support contraception, and our national culture is liberalizing. To allow individuals who object to contraception to be exempted from the law would be an implicit aid to the religious beliefs of one faith— something that is blatantly unconstitutional. It stands without question that people in America should have access to basic healthcare, even healthcare in the area of family planning. Giving women and men the choice to practice well-planned sexual relations is a boon to society; our legal system has established through penumbra an inalienable right to privacy that cannot be taken away, and this should extend to a right to equal access to contraception.

The Affordable Care Act is also neutral and uniform in its application. Employees of religious institutions should therefore not be denied their right to equal access to contraception; such individuals have a right to freedom from religion just as much as their employers deserve freedom of religion. Our government and society have also placed the free choice of individuals above anything else. Creating a religious loophole to exempt religious institutions from providing coverage of contraception would undermine the law’s entire application.

This law is not asking churches to give out condoms at communion. Rather, it is simply asking that citizens who work for these religious institutions be granted the same rights as their fellow citizens, and that they be protected from the intrusion of religion in their lives. * * *

Interested in writing for Publius? The Editors of Seriatim welcome guest writers to share their perspectives on modern day problems of constitutional law as Mr. Jefferson, Mr. Madison or Mr. Hamilton. Get in touch at seriatimjournal.com.

speaker’s corner

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H

osted by Seriatim’s Executive Editors, Speaker’s Corner brings together different members of the University community to engage in substantive and productive debate and discussion on different topics of interest in American politics. Explore the online forum at seriatimjournal.com for full audio recordings of the talks and information about upcoming events.

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Tales of a Foreign Service officer [excerpts from our interview with Ambassador Ryan Crocker, career U.S. Foreign Service officer and former American ambassador to Afghanistan and Iraq] February 11, 2014

I

Why did you enter the Foreign Service?

grew up in a military family and went to school in Morocco. My father was

a career Air Force officer and I accompanied him to Newfoundland, as well as to various U.S. assignments, and I graduated from high school in Turkey on his last tour; that instilled in me a deep love of foreign travel in the international arena, and my time in Turkey introduced me to the Middle East…

With my parents, I had the chance to visit Israel, Jordan, Lebanon, and became intrigued with the Arab world. I had an epiphany my sophomore year in college, which stopped me dead in my tracks one afternoon. With the realization that my father had retired, and unless I took my life into my own hands, I would spend the rest of it in Southeastern Washington—which was not a bad place, but that was not my ambition. So I applied to graduate school overseas and went to University College Dublin for a year, and then spent the summer between my junior and senior years hitchhiking from Amsterdam to Calcutta…passing through all of Europe, and then Turkey, Iran, Afghanistan, Pakistan. It changed my life. I also learned about embassies. I didn’t have a lot of money and I would knock on embassy doors looking for a handout, and didn’t get it—they weren’t completely stupid! But on one occasion, in New Delhi, I got to sleep on a Foreign Service officer’s couch, and he told me why he

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joined and how great the experience had been. That, of course, deepened the planting, as it were. When I got back from my senior year, I knew I was going overseas, and I just ‘shotgunned’ it, which is what I would recommend to any undergraduate at this university: I applied to the Peace Corps, I applied to graduate school overseas, I took the Foreign Service exam…The Foreign Service exam paid off for me and, at age 22, I was a brand new Foreign Service officer.

My first assignment was to the Middle East. I wasn’t thinking in terms of a career; I thought I’d try one tour—and liked it—and thought I’d try another. And after 37 years, I figured I found a career. I was actually retired when I was recalled by President Obama to be ambassador to Afghanistan, but it was quite a ride—something I wouldn’t have changed a minute of.

What has been the most difficult aspect of devoting yourself to public service?

W

ell, you do devote your life to public service. It’s not a job; it’s a

calling. You have got to be ready to give up everything for that service.

You are on call every day of the week, every hour of the day. And there is an axiom in the Middle East—that nine out of ten times, if something is going to happen, it is going to happen on a weekend; and nine out of ten times when something happens on the weekend, it will happen at night. You have just got to have the commitment and patience to put up with that. You have to be able to find your satisfaction in your public service, because if you go to hard places and do hard things, you’re not going to have a great deal of a personal life. If you go to hard places and do hard things in the Middle East, you have to have tolerance for discomfort and for danger. It’s real volatile out there.

What would you say has been the most rewarding aspect of public service?

E

xactly the same thing—that one is doing things in hard places that really

matter for core American interests…When you are trying to set the conditions to ensure that there is never again the return of the Taliban and pre-9/11 conditions in Afghanistan, you feel you are engaged in something that really matters to America’s interests and America’s national security.

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You’ve spent your life working in the Middle East. What are some of the unique challenges that working in the Middle East poses to U.S. Foreign Service officers, as opposed to in other regions?

T

here is a far higher likelihood of getting shot. It is probably—not just now

because of the Arab Spring—the most volatile region in the world. Things change in a heartbeat. You have to see change coming. And you have to be able to adapt to it. You have be able to not be trapped in your assumptions—even if your assumptions are correct going in to a country or a mission. Reality may take a 45 degree turn. You’ve got to be sure that you are not a prisoner of your initial assumptions when you recognize that turn happening, because otherwise it’s just like riding off the rope.

Could you describe a particularly memorable encounter with a foreign dignitary?

I

’ve known numerous heads of state, and you don’t get to be the head of any

state without being an exceptional personality. Some of them are pretty frightening, like al-Assad of Syria. All of them are memorable, but I will give an account of a memorable encounter with an individual in Afghanistan who, shortly after the fall of the Taliban, was not head of state. He was a cabinet minister.

We went in light into Afghanistan—a very small, conventional force. I was there to reopen the embassy. We were able to locate a contingent of al-Qa’ida in the northeast mountains, which is very rugged terrain, and develop a plan to go get them—again, with a small conventional force, and an even smaller non-conventional force, and with very little heavy weaponry. We got bogged down pretty quickly. The enemy was better armed than we expected and we were stuck way in the mountains.

We needed armor—we didn’t have any armor. The Tajik minority who withstood the old Russian takeover had old T55s, which were captured during the Soviet occupation. There was only one problem: the area where al-Qa’ida was holed up was an ethnic Pashtun area, and they hated the Tajiks.

I identified the chief who was up in the area and went to see him at night, on a freezing cold day in late February, under kerosene lanterns. He was a huge mountain of a man, heavily bearded, and who had obviously lived with a gun in his hand most of his life. And we went back and forth. ‘We’ve got to get the armor up there.’ ‘Out of the question—we’re not going to let those Tajiks into our country, they’ll never leave, and they’ll turn those guns on us.’ ‘We can’t win without them.’ ‘It cannot happen—we won’t let it happen.’

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And this fruitlessly went back and forth. It was the middle of the night and one of my colleagues whispered in my ear and the light went on. And I leaned forward and I said, ‘I’m sorry, I haven’t been clear with you. Here’s the thing: either that armor passes your lines without hindrance—either tomorrow at dawn or today at dawn—or we’re going to kill your brother, and we know where he is.’ And my interlocutor said, ‘Oh, oh I see. Well we’ll need a guarantee that in 48 hours at the end of hostilities, the armor will be out.’ I said, ‘Give me a piece of paper,’ and I wrote it up. I sent someone back to the embassy. We sealed it with a seal, and I handed it to him and got on the radio and we got the armor through.

Diplomacy is not always about talking nice, sharing greetings. We would have killed his brother, and later did. He turned rogue and was involved in attacks on U.S. forces and we tracked him down. It’s called find, fix, finish.

What is your advice for U.S. policymakers on Syria, and what line do we tread?

M

y first advice to policy makers is don’t do dumb things. We did two

dumb things: first, we completely misread the reality in Syria. The White House said Bashar al-Assad must go. Bashar al-Assad isn’t going anywhere, because of reasons that are too complex to get into. His regime was ready for this fight; it’s been ready for three decades, since the massacre of 15,000 Sunni civilians in Hama. In addition to causing the regime to make the preparations to survive a day of reckoning, it radicalized the Sunni population—which makes it not exactly a surprise to anybody who knows anything about Syria that the resistance quickly turned highly militant. Another dumb thing to avoid is setting red lines you can’t enforce.

So what do we do now? I think there are other choices.

As bad as the Assad regime is, there is worse—which is an al-Qa’ida ascendancy in Damascus running the country. Now, we are adversaries of the Assad regime, we are adversaries of the Iranian regime, and we are in a very strained relationship with Russia. But, guess what? All four of us have a common interest in seeing that Syria does not fall to al-Qa’ida and that it does not prevail there. What I would suggest and have suggested is that we have a quiet dialogue with elements of the regime in Syria, that we have a quiet dialogue with elements of the regime in Iran, than we engage the Russians and, equally importantly, that we have a talk—which undoubtedly will be tough—with non-Islamist elements of the opposition in the Free Syrian Army. We have to say, ‘Look, we are all at odds with each other, but there is a really big wolf that is getting close to our throats—real close—and that is al-Qa’ida. So let’s figure out how we can ensure that they gain no more ground and that the tide is turned around,

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and that will require that all four of us work together.’

I think we can make that work. It would be a very heavy lift. We might not get everybody there, but in addition to possibly turning the tide against al-Qa’ida, it could create a new dynamic in the opposition-regime struggle, in which they do decide that they do have some things to talk about—that there are worse threats than each other, that maybe there is some common cause, starting with some small steps, like humanitarian corridors, to build confidence…

It is certainly worth a try, because the policies we are following now are not leading us anywhere good.

What is your take on the drones trend in American foreign policy?

Should we fear drone use, encourage it, or have we found a balance already?

A

drone is a weapon, pure and simple. It’s a weapon like an artillery piece,

like a machine gun, like a helicopter. It’s just a weapon, and by definition weapons are just tactical. I fear that we are turning drones into a strategy. A weapon system is not a strategy.

I was in Pakistan as ambassador from 2004-2007. We used drones quite selectively. We sought the permission of the Pakistani government before any drone strike; sometimes they would come back to us and say, ‘Don’t do this, because you’ll turn a thousand people against us.’ And we would say, ‘Got it, wont’ do it.’ And I had final approving authority. That’s all changed. We don’t consult with most governments, and in many cases, ambassadors don’t even know a strike is going to take place. We’re causing way too much collateral damage, in the political sense. I think we may be making more enemies than we are taking them off the battlefield.

I certainly wouldn’t eliminate the use of drones, I would just take us to a much more selective posture. Is the target worth the collateral damage that might be done?

We should get host country permission, not just because it respects their sovereignty, but they may actually know more about the situation than we do; they certainly know more about the situation than we do, and could stop us from making a very bad mistake. We need to go back to that, but above all, we need to understand that a sophisticated weapons system is not a substitute for a well thought out, intelligent strategy.

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How do you think the U.S. can strike a balance between pursuing vital strategic objectives and respecting the national sovereignty of other countries in the region?

I

have some background in this from my time in Pakistan. We made clear to the Pakistanis a long time ago that if we could find Bin Laden, whenever and wher-

ever we found him, we were going to get him—just understand that. That’s the deal.

It is too important for us to do it any other way. In the Musharraf years, they were fine with that. In fact, I think they would have preferred it that way. So we didn’t do anything differently than what he had told them repeatedly we would do. And indeed, there was no other sane choice. This was a Special Forces raid. There was absolutely no way that the President of the United States was going to risk the lives of those special forces operators by telling the government that we did not completely trust when we were coming and where we were coming. But again, there was zero change in policy. We eventually found him and we came and did it.

In this case, I think we did it exactly the right way. The risk to our operators and the uncertainty of where the information might go if we relayed it to the Pakistani government all dictated that we take the course we did. We’ve done it very differently in different situations.

In Afghanistan, not only do we inform the government that we are undertaking a special operations raid against a high value target, but their special operators come with us. Not only do they come with us, they take the lead. They’re the ones who will break into the compound. We’ll cordon it, but we won’t go in. We have a different relationship and a different set of operating rules. Frankly, we much prefer to do it that way. It builds the Afghans’ capacity, lets us back away without risking a mission, and it is far less politically controversial if you have Afghans in an Afghan compound as opposed to Americans. We’re not able to do that in Pakistan. But neither do we conduct Special Forces raids in Pakistan, except for exceptions like in the case of Osama Bin Laden.

What is your take on recent diplomatic developments with Iran?

Should we be skeptical of any potential deal with the Iranians over their nuclear program?

T

he interim agreement—which went into effect on January 20 and will

be in effect for another six months for room to be reached for a permanent deal—I think it’s pretty bulletproof. The Iranians have undertaken to install no new centrifuges; they have undertaken to stop all work on their heavy water reac-

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tor; they have undertaken to reduce their stockpiles of 20% enriched uranium and convert it to a non-weaponized form, and to limit any enrichment to 5%, which is standard for peaceful purposes. They’ve also agreed to a very significant day-to-day presence of international spectators, on the ground, with access to all their facilities.

So, you have a high degree of confidence that, if they’re going to cheat on the deal, we’re going to know.

The Iranians have said—and I have personally met with President Rouhani and heard from him directly when he was in New York in September—that a nuclear weapon would degrade Iranian security, not enhance it, because it would spark a nuclear weapons race in the region, with Saudi Arabia the next to acquire a weapon.

The Iranians have a superior conventional military; they don’t need to suddenly find themselves in a situation where their conventional advantage is offset by a nuclear weapons parity with neighboring, potentially hostile states.

Does he really mean it? I don’t know. But I mean, he’s right. I would not call Iran repentant, and I think we need to be very careful with our language. They are a proud country with a very rich history, and very painful experiences with western powers: the British, the French and the Americans, who have occupied the country, carried out coups and insulted Iranian pride. That is why when Khomeini took power, he used a three-word slogan: Independence, Freedom, Islam. We need to be respectful of all three, otherwise Iranians are likely to retrench.

We need to show respect to our adversaries. One can respect one’s adversaries and still engage in productive negotiations. That is what I think is required right now. * * *

Visit seriatimjournal.com for the full audio recording of our interview >>

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Fortress America: Discussing American counterterrorism and national security policy [excerpts from our discussion with Professor Gerard Alexander and Doctor James Carafano February 24, 2014

Introduction ost 9/11, we’ve seen the federal government grow increasingly vigilant against perceived threats to national security. The sprawling bureaucracy that is the “security establishment” of the United States seems to have reached into every corner of the globe, vacuuming up metadata on millions of people. In 2001, President George W. Bush pushed The PATRIOT Act through Congress, which gave extensive surveillance powers to the federal government, including warrantless wiretapping and information gathering on American citizens and businesses. This past May, Edward Snowden leaked classified papers while working as a contractor for the National Security Agency (NSA) that revealed mass surveillance programs by the United States, often working in concert with other nations. And, most recently, it was revealed in October of this year that the U.S. had been tapping the personal phone of Chancellor Angela Merkel of Germany.

The sheer scope of this activity should make us ask some important questions.

Has the U.S. stepped over its constitutional limitations in its zeal for national security? In an age of ubiquitous monitoring, it is crucial that we jealously protect what little privacy remains. It may be, though, that all of these programs remain within the realm of legal government action. We must then ask whether it is wise for the U.S. to be expending such effort and so many resources on such comprehensive programs.

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This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.

ACLU v. James Clapper, U.S. District Court ruling

Need we tap the phone of one of our staunchest allies? The answer is not at all clear.

To help us sort through these difficult issues, Seriatim partnered with the Alexander Hamilton Society to bring together Associate Professor Gerard Alexander of the Politics Department and Dr. James Carafano of the Heritage Foundation.

James Jay Carafano is The Heritage Foundation’s Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director of the Kathryn and Shelby Cullom Davis Institute for International Studies. His most recent book is Wiki at War: Conflict in a Socially Networked World, and some of his recent research has focused on developing the national security required to secure the long-term interests of the United States—protecting the public, providing for economic growth and preserving civil liberties.

Gerard Alexander is associate professor of Politics at The University of Virginia, author of The Sources of Democratic Consolidation, articles on balancing behavior against the United States, and of articles in the Washington Post and other publications.

Read excerpts from the discussion below or visit seriatimjournal. com for the full audio recording of the event. >>

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S

omeone asked me a really interesting question in a meeting once. They

asked, “How do you win a long war?” And I thought, “that’s a really fascinating question,” because the one thing that I think everybody agreed on—and that I think everybody in Washington still agrees on—is that in dealing with transnational terrorism, you are dealing with protracted conflict. And that’s an important realization, because in dealing with protracted conflicts, you are dealing with different kinds of battles.

We’ve actually had many protracted conflicts throughout U.S. history, or throughout world history—whether it’s state-on-state, or empire-on-empire, or state versus non-state. Typically what happens in protracted conflicts is that they become conflicts of attrition…the last side standing wins…There are very few examples in history of when a power has gone into a protracted conflict and come out the other end better off than when they started. I think there’s really only two major exceptions to that—one is Britain in the Napoleonic Wars, and the other is the United States and its allies in the Cold War, where we came out the other end stronger and more confident and more vibrant and with the Constitution in good shape. And I thought, “how did they do that?”

I think the essence of what we tried to do in the Cold War—and what the essence of good, long-war, protracted competition is—is that we wanted to preserve our strengths; in many ways, that is more important than getting at the other guy. It’s like running a marathon. You keep going until the other guy either quits or collapses.

And when you get to the end of the race, you don’t want to be exhausted or depleted, you want to be ready to run another 26 miles.

So what are the great strengths of the United States—what are our great competitive advantages that allowed us to endure during the Cold War so well? One is security, because obviously any security strategy is going to have some element of fighting the enemy that includes a combination of offense and defense. But it’s not just that—it’s not just military power. If all you had to do was be a powerful military power and put a garrison state over everything, then the Soviets would have won the Cold War, and we would all have lost. The second element is prosperity, or as Eisenhower used to say, “it’s guns and butter, stupid.” You want to be able to grow your economy—not just to afford defense, but to afford all the other things that make an economy vibrant and prosperous. The third, which in my mind is in many ways the most crucial, is the freedom of individuals in society. That freedom doesn’t just make them more creative, more innovative, more productive—there’s also an enabling factor about living in a free society. Free societies endure better because people are

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invested in their society, and therefore they’re much more willing to stick it out. In my mind, in many ways, the freedom of the individual citizen is a core competitive advantage. If somebody came to you and said, “well we can make you safer, but we have to take away some of your rights, trim down the Bill of Rights to, say, five, ”that would be a bad deal, because you’d be undermining your most important competitive advantage.

The key to success is really in the United States’ doing all three well: security, prosperity, and freedom. On the security front, we’re king of doing alright; al-Qa’ida is kind of on the run. On the freedom side—in terms of looking at individual liberty—we’ve actually done pretty well; I actually think we’re in pretty decent shape.

What I used to caution people the most about five years ago was prosperity, that my greatest concern was that we’re killing the goose that lays the golden egg of freedom: the free market of the United States.

So now here we are. What would I say differently? I’d say I’m still terrified about the economy, and in many ways, I’m more terrified than when I was five or six years ago. The difference now is that I’m much more terrified about the security. I think that from 2011 and on, our counterterrorism strategy is just not working. And when you pair that with what we’re doing with our conventional forces, I think we’re actually less safe in the world than where we were in 2006-2007. Oddly, I would still argue that, with the freedom box, we’re in a not bad place compared to the others.

Are there things that I worry about? There are. I often worry about the efficiency and effectiveness of some of the things we’re doing. But among the actual protections of privacy and individual liberties, I’m not that worried.

ALEXANDER

T

his is an area, as I’ve watched the War on Terror go by, that I’ve gotten

more and more concerned about. To quickly express a bottom line, and then explain where I’m coming from, I’ll say I’m the first to agree that we need to have effective intelligence programs. But, we also need to effectively monitor those from a civil and political liberties point of view. And personally, I no longer have a lot of confidence in those mechanisms of monitoring and checking. The problem, for me, is not so much that I don’t know how to reconcile these two things—the need for effective programs, but a lack of confidence in how to monitor what is done. My problem is more that nobody anymore seems to know how to reconcile those two things. And that’s worrisome.

First of all, I get why we need to have effective intelligence programs, including this kind of signals intelligence we’re hearing more and more about; when it’s

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effective and it does good, we’re all going to be there cheering for it—just like the intelligence that ended up leading us to Abbottobad, something we’re all happy to have seen work.

The question is, should we be at all concerned that our government is now doing this on a very large scale domestically, as well as abroad? My concerns are pretty much ones that I have about all American domestic policy, and it’s a general concern about the concentration of power in the federal government.

So let’s not think about this about how we normally think about our government: We think about elected representatives in Congress passing laws, the president then signs off on them, and then he implements them with courts in the background somewhere appearing to monitor them if lawsuits are brought. That’s our most basic view of how government works and how decisions are made.

But the fact is, it’s just a very partial view of the federal government. The term administrative state has been used for many decades now to describe the vast parts of the federal government and its decision-making, because civil servants in a variety of agencies and departments are making policy—some of which is legitimate in applying and specifying what Congress wanted to do with legislation, but a lot of which is absolutely freelance rule-making. And it is disturbing for observers of limited government and protectors of constitutional rights that there is this large apparatus that engages in tons of rule-making and decision making and policy application. There are agencies and departments that are engaging in—when you really think about it—the legislative function, then applying laws and enforcing them in an executive function and then deciding on the appropriateness of their own rules in the judicial function. And there’s just something unsettling to any conception of constitutional government in which all three of those powers are wrapped up with the same people or agencies under the control—more or less—of the same people. This is famous for regulatory agencies like the EPA, SEC and many more.

Why does this matter? Because when government has the power to do something, you want to know, is it cost effective? You want to ask yourself, are these policies really the best ones or, to be realistic about it, are they at least half decent?

And second, is it a threat to our liberties or some other fundamental underlying way about how our system works—conceptually, is it a threat to our day-to-day liberties, or, operationally, is it a threat to our liberties?

The good news is that a lot of the actions of the administrative state are out in the open enough that at least we can find out about them, raise hell about them, make movies about them, get angry about them, try to impress the bureaucracy and elected officials to do something about them. And we are assured that, in most cases, the actions of the administrative state are visible to us as observers of government,

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able to be monitored by the Congress, and able to be monitored and checked in many circumstances by the courts; we’re reassured that there are mechanisms in place so as to ensure that checks and balances and transparency are not completely lost.

But the fact is that over time that argument has become increasingly un-persuasive. It’s really just not that confidence-inspiring. The thousands of congressional staffers—which are probably thousands more than there should be—just are not able to constantly monitor the millions of executive branch staffers; courts are often in a very poor position to monitor effectively what the administrative state does, partly because most judges are generalists, partly because their views can only be brought to bear once somebody initiates a long process of litigation. All of this concern about how much we really know about what the government does—about whether or not we know how the government came to certain decisions, about how it is applying them—this is the kind of thing that I don’t need to make up scary scenarios about; there is a scandal surrounding the IRS about this, there are constant concerns about EPA powers, about SEC powers and TARP use, and so on and so forth—and precisely because the administrative state and other parts of the government have issued tons of activities and exhibited behaviors that are really concerning to some people.

This is exacerbated with national security matters because there is less transparency and, often, there has to be less transparency for national security to work. The good news is, most uses of major military force are just too public to not get noticed.

I am sure that in the last thirteen years since 9/11, there have been dozens and dozens and dozens of uses of uniform force that we don’t know anything about. I bet you 99 percent of these actions we are glad we don’t know anything about, but glad they did it. But the fact is, in the margins, there is some lack of transparency. This is really exacerbated in intelligence matters—there more than anywhere else, because if it is not going to happen secretly, it can’t happen effectively at all. And I get that. On the other hand, if it’s happening that secretly, the problem is, how much effective oversight can you have on what’s being done? And the answer is some. * * *

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The realization of Anti-Federalism

by Katherine King Sources Hamilton, Alexander. “No. 10: Hamilton.” The Federalist Papers. Ed. Clinton

Rossiter. New York, NY: Signet Classic, 2003. Print.

Hamilton, Alexander. “No. 15: Hamilton.” The Federalist Papers. Ed. Clinton

Rossiter. New York, NY: Signet Classic, 2003. Print.

Madison, James. “No. 51: Madison.” The Federalist Papers. Ed. Clinton Rossiter.

New York, NY: Signet Classic, 2003. N. pag. Print.

Centinel. “’Centinel’ Number 1, October 5, 1787 (excerpts).” from PLAP 2250:

American Political Tradition course packet. Charlottesville, VA: N.K.

Print and Design, 2013. Print.

Ceaser, James W. American Government: Origins, Institutions, and Public Pol

icy. 2nd ed. Dubuque, IA: Kendall/Hunt Pub., 1998. Print.

Storing, Herbert J. What the Anti-Federalists Were For. Ed. Murray Dry. Chi

cago: University of Chicago, 1981. Print.

Endnotes 1 Federalist Papers No. 10, p. 77 2 Federalist Papers No. 10, p. 78 3 Federalist Papers No. 10, p. 73 4 Federalist Papers No. 15, p. 107 5 Storing 86 6 Centinel 80 7 Storing 87 8 Federalist Papers No. 10, p. 72 9 Federalist Papers No. 10, p. 78 10 Federalist Paper No. 15, p. 104 11 Federalist Paper No. 51, p. 321 12 Ceaser 84 13 Storing 87 14 Storing 89 15 Storing 86

Sources and endnotes

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Marriage and procreation

by Alex Lichtenstein Sources Akerlof, George and Janet Yellen. “An Analysis of Out-of-Wedlock Births in the United States.” Brookings Institute. August 1996. Accessed 27 April 2013. http://www.brookings.edu/research/papers/1996/08/childrenfamiliesakerlof.

“American Academy of Pediatrics Supports Same Gender Civil Marriage.” Ameri

can Academy of Pediatrics. 21 March 2013. Accessed 20 April 2013.

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ing Children Declines, Those Adopting Almost Doubles—Significant

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an-and-gay-families.

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parents.” The Washington Post. 27 March 2013. Accessed 26 April 2013. http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/27/sorryjustice-scalia-theres-no-evidence-that-gay-parents-arent-great-parents.

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jhu.edu/journals/good_society/v011/11.3mcclain.html.

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Center/PDFs/SAFEZONE%20Resources/Children%20of%20gays%20

and%20Lesbians.pdf.

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Saint Louis, Catherine. “Pediatrics Group Backs Gay Marriage, Saying it Helps Children.” The New York Times. 21 March 2013. Accessed 20 April 2013. http://www.nytimes.com/2013/03/21/health/american-academy-of-pediatrics-backs-gay-marriage.html.

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Sources and endnotes

* * *

127

Endnotes 1 Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief of petitioners Dennis

Hollingsworth, et al).

2 Ibid.

3 Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief by Several States in

Support of the Petitioners); Hollingsworth v. Perry 558 U.S. ____ (2010)

(Brief of petitioners Dennis Hollingsworth, et al).

4 David Blankenhorn, “How My View on Gay Marriage Changed,” The

New York Times, 22 June 2012, accessed 6 February 2013, http://www.

nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage changed.html.

5 Ibid.

6 Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief of petitioners Dennis

Hollingsworth, et al).

7 Nancy Cott, Public Vows: A History of Marriage and Nation (Cam

bridge: Harvard University Press, 2002), 3.

8 Linda McClain, “The Place of Marriage in Democracy’s Formative Proj

ect,” The Good Society 11.3 (2002): 50-56, accessed 24 March 2013,

http://muse.jhu.edu/journals/good_society/v011/11.3mcclain.html.

9 Nancy Cott, Public Vows: A History of Marriage and Nation (Cam

bridge: Harvard University Press, 2002), 3.

10 Ibid, 16.

11 Ibid, 222.

12 Ibid, 4.

13 Linda McClain, “The Place of Marriage in Democracy’s Formative Proj

ect,” The Good Society 11.3 (2002): 50-56, accessed 24 March 2013,

http://muse.jhu.edu/journals/good_society/v011/11.3mcclain.html.

14 Stephanie Coontz, Marriage, A History: From Obedience to Intimacy or

How Love Conquered Marriage (New York: Viking, 2005), 36.

15 Ibid, 38.

16 Nancy Cott, Public Vows: A History of Marriage and Nation (Cam

bridge: Harvard University Press, 2002), 3.

17 Ibid, 157.

18 Ibid, 157.

19 Ibid, 158.

20 Ibid, 181.

21 Ibid, 197.

22 Ibid, 201.

128

23

24

25

26 27

28

29

30

31

32 33

34

35

36 37 38

39 40

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Seriatim | Journal of American Politics

Stephanie Coontz, Marriage, A History: From Obedience to Intimacy or How Love Conquered Marriage (New York: Viking, 2005), 53.

George Akerlof and Janet Yellen, “An Analysis of Out-of-Wedlock Births in the United States,” Brookings Institute, August 1996, accessed 27 April 2013, http://www.brookings.edu/research/papers/1996/08/childrenfami lies-akerlof.

Nancy Cott, Public Vows: A History of Marriage and Nation (Cam bridge: Harvard University Press, 2002), 221.

Hollingsworth v. Perry 558 U.S. ____ (2010) (Oral Arguments).

Nancy Cott, Public Vows: A History of Marriage and Nation (Cam bridge: Harvard University Press, 2002), 221.

Personal Responsibility and Work Opportunity Act of 1996. Public Law 104-193, U.S. Statutes at Large 110 (1996): 2105.

Linda McClain, “The Place of Marriage in Democracy’s Formative Proj ect,” The Good Society 11.3 (2002): 50-56, accessed 24 March 2013, http://muse.jhu.edu/journals/good_society/v011/11.3mcclain.html.

Nancy Cott, Public Vows: A History of Marriage and Nation (Cam bridge: Harvard University Press, 2002), 6.

Nancy Cott, “No Objections: What history tells us about remaking mar riage,” The Boston Review, January 2011, accessed 12 April 2013, http:// www.bostonreview.net/BR36.1/cott.php.

Ibid.

Nancy Cott, Public Vows: A History of Marriage and Nation (Cam bridge: Harvard University Press, 2002), 5.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at trial).

William Saletan,“Homosexuality as Infertility,” Slate Magazine, 27 March 2013, accessed 27 March 2013, http://www.slate.com/articles/health_ and_science/human_nature/2013/03/homosexuality_as_infertility_how_ to_end_the_gay_marriage_debate.html.

Ibid.

Ibid.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at trial).

Ibid, 130.

David Blankenhorn, “How My View on Gay Marriage Changed,” The New York Times, 22 June 2012, accessed 6 February 2013, http://www. nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-

Sources and endnotes

41 42

43

44

45

46 47

48

49

50

51

52

* * *

129

changed.html.

Hollingsworth v. Perry 558 U.S. ____ (2010) (Oral Arguments).

Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief of petitioners Dennis Hollingsworth, et al).

Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief by Several States in Support of the Petitioners).

Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief of petitioners Dennis Hollingsworth, et al).

Kathleen Parker, “Same-sex marriage can help save the institution,” The Washington Post, 29 January 2013, accessed 27 April 2013, http://articles. washingtonpost.com/2013-01-29/opinions/36616409_1_gay-marriagemaggie-gallagher-david-blankenhorn.

Ibid.

Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief by Several States in Support of the Petitioners).

“State Laws Related to Adoption,” Child Welfare Information Gateway, 2012, accessed 26 April 2013, https://www.childwelfare.gov/adoption/ laws/state.

Bijal Trivedi, “The End of Males? Mouse Made to Reproduce Without Sperm,” National Geographic, 21 April 2004, accessed 27 April 2013, http://news.nationalgeographic.com/news/2004/04/0421_040421_ whoneedsmales.html.

Gary Gates and Cathy Renna, “As Overall Percentage of Same-Sex Cou ples Raising Children Declines, Those Adopting Almost Doubles—Sig nificant Diversity Among Lesbian and Gay Families,” The Williams Institute, accessed 20 April 2013, http://williamsinstitute.law.ucla.edu/ press/press-releases/as-overall-percentage-of-same-sex-couples-raisingchildren-declines-those-adopting-almost-doubles-significant-diversityamong-lesbian-and-gay-families.

Kathleen Parker, “Same-sex marriage can help save the institution,” The Washington Post, 29 January 2013, accessed 27 April 2013, http://articles. washingtonpost.com/2013-01-29/opinions/36616409_1_gay-marriagemaggie-gallagher-david-blankenhorn.

“American Academy of Pediatrics Supports Same Gender Civil Mar riage,” American Academy of Pediatrics, 21 March 2013, accessed 20 April 2013, http://www.aap.org/en-us/about-the-aap/aap-press-room/ Pages/American-Academy-of-Pediatrics-Supports-Same-Gender-CivilMarriage.aspx.

130

53 54

55

56

57

58

59

60 61

62 63 64

65 66 67

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Seriatim | Journal of American Politics

Hollingsworth v. Perry 558 U.S. ____ (2010) (Oral Arguments).

Kathleen Parker, “Same-sex marriage can help save the institution,” The Washington Post, 29 January 2013, accessed 27 April 2013, http://articles. washingtonpost.com/2013-01-29/opinions/36616409_1_gay-marriagemaggie-gallagher-david-blankenhorn.

Catherine Saint Louis, “Pediatrics Group Backs Gay Marriage, Saying it Helps Children,” The New York Times, 21 March 2013, accessed 20 April 2013, http://www.nytimes.com/2013/03/21/health/american-academyof-pediatrics-backs-gay-marriage.html.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at trial).

Ezra Klein, “Sorry, Justice Scalia: There’s no evidence that gay parents aren’t great parents,” The Washington Post, 27 March 2013, accessed 26 April 2013, http://www.washingtonpost.com/blogs/wonkblog/ wp/2013/03/27/sorry-justice-scalia-theres-no-evidence-that-gay-par ents-arent-great-parents.

“American Academy of Pediatrics Supports Same Gender Civil Mar riage,” American Academy of Pediatrics, 21 March 2013, accessed 20 April 2013, http://www.aap.org/en-us/about-the-aap/aap-press-room/ Pages/American-Academy-of-Pediatrics-Supports-Same-Gender-CivilMarriage.aspx.

William Saletan,“Homosexuality as Infertility,” Slate Magazine, 27 March 2013, accessed 27 March 2013, http://www.slate.com/articles/health_ and_science/human_nature/2013/03/homosexuality_as_infertility_how_ to_end_the_gay_marriage_debate.html.

Hollingsworth v. Perry 558 U.S. ____ (2010) (Oral Arguments).

Hollingsworth v. Perry 558 U.S. ____ (2010) (Brief by Several States in Support of the Petitioners).

Ibid.

Ibid.

Charlotte Patterson, “Children of Lesbian and Gay Parents,” Current Directions in Psychological Science 15.5 (2006): 241-244, accessed 20 April 2013, http://cms.bsu.edu/media/WWW/DepartmentalContent/ CounselingCenter/PDFs/SAFEZONE%20Resources/Children%20of%20 gays%20and%20Lesbians.pdf.

Ibid.

Ibid.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at

Sources and endnotes trial).

68

69

70 71

72

73

74

75

76 77

78 79

* * *

131

Nancy Cott, Public Vows: A History of Marriage and Nation (Cam bridge: Harvard University Press, 2002), 3.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at trial).

Ibid.

Linda McClain, “The Place of Marriage in Democracy’s Formative Proj ect,” The Good Society 11.3 (2002): 50-56, accessed 24 March 2013, http://muse.jhu.edu/journals/good_society/v011/11.3mcclain.html.

Hollingsworth v. Perry 558 U.S. ____ (2010) (Oral Arguments); Linda McClain, “The Place of Marriage in Democracy’s Formative Project,” The Good Society 11.3 (2002): 50-56, accessed 24 March 2013, http://muse. jhu.edu/journals/good_society/v011/11.3mcclain.html.

Libby Anne, “A Mommy and a Daddy: Evangelicals, Antifeminism, and Marriage Equality,” Patheos, 27 March 2013, accessed 27 April 2013, http://www.patheos.com/blogs/lovejoyfeminism/2013/03/a-mommyand-a-daddy-evangelicals-antifeminism-and-marriage-equality.html.

Perry v. Schwarzenegger, F.Supp.2d 921 (N.D. Cal., 2010) (Testimony at trial).

Tiffany Wayne, “Same-Sex Marriage Does Threaten ‘Traditional’ Mar riage,” Nursing Clio, 2 April 2013, accessed 20 April 2013, http://nursing clio.org/2013/04/02/same-sex-marriage-does-threaten-traditional-mar riage.

Ibid.

Libby Anne, “A Mommy and a Daddy: Evangelicals, Antifeminism, and Marriage Equality,” Patheos, 27 March 2013, accessed 27 April 2013, http://www.patheos.com/blogs/lovejoyfeminism/2013/03/a-mommyand-a-daddy-evangelicals-antifeminism-and-marriage-equality.html.

Ibid.

Ibid.

132

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Seriatim | Journal of American Politics Raising the walls of the cyber cubicle

by Eric Leimkuhler

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2 Ibid. at 1728.

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5 Madison, James. “Federalist 42,” in The Federalist Papers, ed. Clinton Ros

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the Treaty Power.” Columbia Law Review 98.7 (1998): 1739. JS

TOR. Web. 20 Apr. 2013.

7 Jay, John. “Federalist 3,” in The Federalist Papers, ed. Clinton Rossiter (New

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9 Hamilton, Alexander. “Federalist 32,” in The Federalist Papers, ed. Clinton

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siter (New York: New American Library, 1961): 289 12 Hamilton, Alexander. “Federalist 44,” in The Federalist Papers, ed. Clinton

Rossiter (New York: New American Library, 1961): 282

134

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Seriatim | Journal of American Politics Americaâ&#x20AC;&#x2122;s identity clash

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Article title

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