In this essay, I engage with G.A. Cohen’s argument by analogy that proletarians are individually free. I grant that Cohen’s analogy successfully represents the world. I disagree, however, with his conclusion, and use Philip Pettit’s conception of freedom as non-domination to demonstrate that proleta The Individual Unfreedom of the Proletarian Cal Fawell University of Chicago Author Marko Winedt Hanci Lei Neil Sehgal Matthew Dowling Editors Spring 2019 Abstract In this essay, I engage with G.A. Cohen’s argument by analogy that proletarians are individually free. I grant that Cohen’s analogy successfully represents the world. I disagree, however, with his conclusion, and use Philip Pettit’s conception of freedom as non-domination to demonstrate that proletarians are individually unfree. Specifically, I argue that even though fewer proletarians leave the proletariat than possibly could, they are nonetheless “dominated”—and thus, each is individually unfree. This essay grants the accuracy of Cohen’s analogy, and from this assumption draws the conclusion that proletarians are individually unfree. In drawing this conclusion, this essay follows the style of modus ponens. It first argues for the conditional: if Pettit’s notion of freedom holds, then the conclusion Cohen draws must fail. It then argues that Pettit’s notion holds, showing that it accurately captures our intuitions on the subject. In arguing for the conditional, this essay contends that Pettit’s criteria for unfreedom are satisfied for each individual proletarian. In arguing for the antecedent, it demonstrates a number of intuitive considerations which support Pettit’s conception of freedom. From this, it concludes that each character in the room of Cohen’s analogy is unfree. Combined with the original hypothetical stance that Cohen’s analogy accurately relates to the world, it follows that proletarians are individually unfree. Download full text PDF (12 pages) In The Structure of Proletarian Unfreedom , G.A. Cohen addresses the status of wage-earners whose only available resource is their potential to work for a salary; they are unable to produce the necessities of life themselves. These people are known as proletarians; the class of all such proletarians is known as the proletariat. Cohen begins with the view that since only a few proletarians are able to advance from the proletariat, proletarians—taken as a whole—are forced to sell their labor power. He denies, however, that this conflicts with his claim that “most proletarians are not forced to sell their labor power,” justifying this denial with an analogy: Ten people are placed in a room the only exit from which is a huge and heavy locked door. At various distances from each lies a single heavy key. Whoever picks up this key—and each is physically able, with varying degrees of effort, to do so—and takes it to the door will find, after considerable self-application, a way to open the door and leave the room. But if he does so he alone will be able to leave it. Photoelectric devices installed by a jailer ensure that it will open only just enough to permit one exit. Then it will close, and no one inside the room will be able to open it again.[1] The structure of this analogy is relatively simple. A group of people are imprisoned, all are initially able to escape, but ultimately only one is allowed to do so. He draws out the significance of this analogy by saying that: Whomever we select, it is true of the other nine that not one of them is going to try to get the key. Therefore it is true of the selected person that he is free to obtain the key, and to use it. He is therefore not forced to remain in the room. But all this is true of whomever we select. Therefore it is true of each person that he is not forced to remain in the room, even though necessarily at least nine will remain in the room, and in fact all will.[2] Here, Cohen alludes to the crucial assumption that whoever attempts to exit the room will not be interfered with from this task by the other occupants (elsewhere: “…each is free to use [the means of egress], since, ex hypothesi, no one would block his way”[3]). Cohen uses this analogy to argue that every individual in the proletariat is free to leave it. He neatly introduces this line of thought by saying that “there are more exits from the British proletariat than there are workers trying to leave it. Therefore, British workers are individually free to leave the proletariat.”[4] He calls this “argument 7.” Analogously: just as any chosen member of the room is able and free to leave it, Cohen believes that this same freedom applies to any—and therefore every—member of the proletariat. Yet, Cohen understands that “there is a great deal of unfreedom in their situation.”[5] He invents a term for this unfreedom, naming it “collective unfreedom,” which describes the case in which “not more that one can exercise the liberty they all have.”[6] Cohen uses this device to explain our intuitions about the unfreedom of this situation, ultimately claiming that “there are very few exits from the British proletariat and there are very many workers in it. Therefore, British workers are collectively unfree to leave the proletariat.”[7] He calls this “argument 8.” Cohen means to hold argument 7 (that proletarians are individually free) and argument 8 (that proletarians are collectively unfree) together in a state of non-contradiction in order to satisfy our intuitions about freedom on both collective and individual levels. It is the aim of this essay to show that, on the contrary, argument 7 fails. To do this, Philip Pettit’s conception of liberty as non-domination is enlisted. In short, Pettit holds that X dominates Y if X has the capacity to interfere on an arbitrary basis in certain choices that Y is in a position to make. There are three components to Pettit’s view of domination: one is dominating if they have (a) a capacity to interfere, (b) on an arbitrary basis, (c) in certain decisions another is able to make. Critically, domination is an inherently potential characterization of unfreedom. It is the capacity for a certain kind of interference, not the interference itself. With respect to (a), the capacity to interfere, Pettit claims that this interference must be intentional and must worsen the other’s situation. He claims as much when he says that “when I interfere I make things worse for you, not better. And the worsening that interference involves always has to be more or less intentional in character: it cannot occur by accident.”[8] Thus, in situations where only accidental or positive interference is possible, it violates Pettit’s view to say that there is domination. In describing how a choice situation may be worsened, Pettit provides three variables: options, expected payoffs, and outcomes. Understanding the idea of worsening options is pretty straightforward—Pettit explains this as “changing [for the worse] the range of options available.”[9] For our purposes, the elimination of options fits this criterion. By “worsening the expected payoffs,” Pettit means the attachment of punishment to a certain course of action in order to discourage it. By “worsening the outcomes,” Pettit means attaching punishment to a course of action that has already occurred in order to negatively affect the actual payoffs. Pettit qualifies (b), the condition of arbitrariness, by studying the relative locations of the agent deciding and the person affected (“the other”). He understands an act to be arbitrary if “it is subject just to the arbitrium, the decision or judgment, of the agent,” and moreover, that the action is done “without reference to the interests, or the opinions, of those affected.”[10] In other words, an arbitrary action is one which denies the status of the affected party as a meaningful human being by disregarding their wants and needs. On the other hand, Pettit sees non-arbitrary decisions as those which track, or take into account, the preferences and welfare of the people liable to interference. Pettit explains (c), or “certain decisions the other is able to make,” as a way of compartmentalizing different domains of freedom and domination. He says that the most salient aspect of this clause “is that it mentions certain choices, not all choices. This highlights the fact that someone may dominate another in a certain domain of choice, in a certain sphere or aspect or period of their life, without doing so in all.”[11] In other words, the other can be dominated at work while free in the home, or vice versa; the other can be dominated politically or socially, but not in their decisions of which music to listen to, etc. Pettit holds that domination—and therefore, freedom—can vary in extent, intensity, and across different domains. Domination can be in the form of absolute power over another in many critical domains, limited ability to interfere in largely inconsequential domains, and everything in-between. The intensity of domination varies along both of these dimensions, and though Pettit fails to give an explicit framework for determining an order of severity, he acknowledges, at the very least, that loose hierarchies exist. It is critical to understand that Pettit’s conception of domination is such that interference does not need to be actual in order for there to be unfreedom. At the heart of this view is the fact that the mere ability to interfere engenders unfreedom through domination. He writes that: The possession by someone of dominating power over another—in whatever degree—does not require that the person who enjoys such power actually interferes...it does not require even that the person who enjoys that power is inclined in the slightest measure towards such interference. What constitutes domination is the fact that in some respect the power-bearer has the capacity to interfere arbitrarily, even if they are never going to do so.[12] Here, Pettit explains that unfreedom can occur even without actual interference. Not only does he believe this, but also that unfreedom can occur even where actual interference seems very unlikely. He strongly emphasizes that the mere ability of arbitrary interference, however “small” that interference may be, causes a proportional amount of unfreedom. It is now possible to apply Pettit’s view to Cohen’s analogy. In Pettit’s view, any one person in the room is dominated by any other person in the room. This is true because each person has the relevant capacity to interfere in the relevant way with every other person. Suppose we initially select one person from the hypothetical room, as Cohen does. It is true that they have the capacity to interfere in the relevant sense—intentionally and harmfully. This person could choose to leave the room, thus rendering every other inhabitant finally trapped. In Pettit’s terminology, this certainly worsens their choices, since it removes their choice to leave the room. It is especially clear that this is a worsening of their choices when one recalls that the room stands for the proletariat, and exiting it stands for ascending to a higher class. It is further possible that this person could make their exit in order to intentionally worsen the lives of the other occupants. There is nothing stopping the person from growing resentful of their peers, and seeking to harm them by leaving the room for the sake of finally imprisoning them. Even if this sounds unlikely, it is important to remember that “what constitutes domination is the fact that in some respect the power-bearer has the capacity to interfere arbitrarily, even if they are never going to do so.”[13] Domination is not a question of probability, but rather capacity. Thus, by having the ability to leave the room, the selected person has the ability to intentionally interfere in the lives of the others for the worse. Second, this person may perpetuate this act on a totally arbitrary basis. Nothing forces the person to track the interests of the other occupants of the room when deciding whether or not to leave. They are free to make their decision to leave without any regard for the wants or needs of the others, and can reason purely from their own preferences and needs. Thus, the selected person has the capacity to interfere arbitrarily. Finally, their interference is, indeed, in “certain choices that the others are willing to make.” It is a real decision whether or not the others choose to leave the room. The capacity to arbitrarily interfere centers on this very locus of choice, and thus meets the third criteria for domination. Therefore, the selected person has the capacity to interfere—on an arbitrary basis—in certain choices that the others are in a position to make. But this is just the definition of domination—thus, the selected person dominates the others, which means that each of the others is in a position of domination. In Pettit’s view, this amounts to saying that each of the people in the room is unfree. But as Cohen writes, all this is true of “whomever we select.”[14] Thus, each person in the room dominates all the others, which means every person in the room is in a position of domination. Therefore, every person in the room is individually unfree. This conclusion is the negation of Cohen’s in his “argument 7.” It is worth briefly noting that Pettit generally formulates the dominating relationship between persons. He says that “while a dominated agent, ultimately, will always have to be an individual person or persons, domination may often be targeted on a group or on a corporate agent: it will constitute domination of individual people but in a collective identity or capacity or aspiration.”[15] Thus, the fact that the chosen agent is able to arbitrarily interfere in the same particular domain of choice for multiple other people does not mean it is not domination. A more serious objection to the claim that each person in the room is dominated and therefore unfree, however, is the thought that reciprocal domination over an identical domain of choice is impossible. It seems, prima facie, that because each person is dominating all the others just as much as the others dominate them, all have the same choice options; since the idea of domination seems to intuitively rely on asymmetrical relationships, it would seem that the idea of reciprocal domination is internally inconsistent. This worry may be mitigated in a number of ways. First, it is important to keep in mind the precise definition of domination: X dominates Y if X has the capacity to interfere, on an arbitrary basis, in certain choices Y is in a position to make. There is nothing in this definition which logically excludes it from being a reflexive two-place relation. The intuitive connection with asymmetry can be explained by the fact that the capacity for arbitrary interference is often made possible by asymmetries such as wealth, power, status, and others. Though this is the case, Pettit explicitly mentions that reciprocal power to interfere may be used as a strategy for achieving non-domination. He mentions two possibilities: defense and deterrent. He writes that “the strategy of reciprocal power is to make the resources of dominator and dominated more equal so that, ideally, a previously dominated person can come to defend themselves against any interference on the part of the dominator.”[16] In other words, the dominated party would be able to use their resources to counter the arbitrary interference of the other, and thus, this very possibility would eliminate the capacity of arbitrary interference and dissolve the dominating relation. However, it is not clear how this defensive interference would be possible in Cohen’s analogy, since he assumes that if one tried to leave, “no one would block his way,” and once the original person left the room, no one else could leave in order to finally imprison them.[17] By the very nature of this particular kind of interference, defensive interference—within Cohen’s analogy—is impossible. Pettit himself admits that the “ideal” of defensive interference will rarely materialize. Instead, he discusses retaliation as a second way of using reciprocal power to reduce domination. He says that the dominated agent may be able “at least to threaten any interference with punishment and to impose punishment on actual interferers.”[18] Cohen’s analogy, however, does not speak to such retaliatory interference. Given that the others would be locked in the room, it is hard to see how they would be able to affect the escaped person. Here, though, the analogy breaks down, since there is nothing necessarily physically separating someone who “recently exited the room” (e.g., joined the corporate workforce, or gained control of a company) from the wrath (e.g., physical attack) of their previous fellows. Still, it is not the original situation of reciprocal domination which engenders the possibility of retaliation. The relevant kind of domination—that is, leaving the room and trapping the rest—does not enable retaliation. Ultimately, then, this response has no bearing on the claim that the reciprocal domination must be self-annihilating, since it is not in virtue of this that retaliation is possible. For example, suppose that A and B work in a factory. A hates B, and so A decides to harm B by getting promoted to become the owner of the factory—eliminating B’s ability to do so. B cannot retaliate by also coming to own the factory. The job has been filled; the “room” has been “exited.” Yet, B can destroy A’s property, harass A’s person, or even threaten A’s life. This retaliation does not stem from the original position of reciprocal domination. Thus, Pettit’s only two ways that reciprocal domination might eliminate itself do not find application in Cohen’s scenario. We may safely conclude, then, that all the people in the room are dominated by at least one (and in fact all) of the others, which just means—in Pettit’s view—that each person in the room is individually unfree. It will now be the aim of this essay to motivate Pettit’s view independently from its application to Cohen’s argument. I shall do this by arguing that, even on the negative view of liberty, it is intuitively desirable to expand the horizon of freedom from mere non-interference to non-domination in Pettit’s sense. To begin with, certain kinds of obvious unfreedoms cannot be recognized as such under a negative conception of liberty which only recognizes interference as unfreedom. For instance, consider a slave whose master has not exercised their capacity to arbitrarily interfere in the slave’s life for the worse, and gives no indication that they ever will. Obviously, the slave is unfree, for the slave is a slave. Pettit remarks that: The observation that there can be domination without interference connects with the theme highlighted in the last chapter, that slavery and unfreedom is consistent with non-interference: that it can be realized in the presence of a master or authority who is beneficent, and even benevolent.[19] In other words, the example of the slave under a benevolent (non-interfering) master shows first that a strictly negative view of liberty fails to account for this obvious instance of unfreedom. The strength of Pettit’s view lies in the fact that the reasons we conclude this slave to be unfree are simply that the criteria of domination are met—and this shows the intuitive strength of his view. In elucidating these intuitions, Pettit quotes Richard Price as saying that “individuals in private life, while held under the power of masters, cannot be denominated free, however equitably and kindly they may be treated.”[20] Like Pettit, Price focuses on the persons “under the power of masters,” though not actively interfered with. Being under the power of another, in Price’s sense, certainly seems to imply the master’s capacity to arbitrarily interfere. Analyzing the unfreedom of the slave leads Price to conclude that it is this capacity to be arbitrarily interfered with which engenders unfreedom. Pettit himself characterizes domination as leading to this kind of slavish relationship. In domination, he says, “the powerless are at the mercy of the powerful and not on equal terms. The master-slave scenario will materialize, and the asymmetry between the two sides will become a communicative as well as an objective reality.”[21] Pettit also finds examples of this intuition in Machiavelli and Montesquieu. Machiavelli describes the power of a free community as “the power of enjoying freely his possessions without any anxiety, of feeling no fear for the honor of his women and his children, of not being afraid for himself,” and Montesquieu defines liberty as the “tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.”[22] In both characterizations of freedom, the common denominator is that when the conditions of domination are met—that is, when one has to “bow and scrape,” appease their dominator, and maintain “eternal discretion”—there is personal unfreedom (and vice versa). In other words, it is strongly intuitive to claim “freedom if and only if non-domination.” What Pettit’s definition does is make this intuition explicit. Pettit’s view is further strengthened by accounting for the intuition that a state of freedom should foment equality among the agents by whom it is enjoyed. Pettit often alludes to this intuition by showing the converse: in a dominating relationship, the individuals are not able to look each other in the eye. The dominated person may only assert their equality on the pain of being interfered with, which is to say, they cannot. Similarly, the dominating agent’s power suggests a condescending mindset. More to the point, it seems that domination dehumanizes the dominated, while non-domination forces the would-be dominator to see the other as a person. Pettit says that in a state of non-domination, You do not have to live either in fear of that other, then, or in deference to them. The non-interference you enjoy at the hands of others is not enjoyed by their grace and you do not live at their mercy. You are a somebody in relation to them, not a nobody. You are a person in your own legal and social right.[23] Here, Pettit argues that when one is free from domination, one secures one’s personhood. By this argument, Pettit seeks to directly align non-domination with freedom, as opposed to appealing to the converse, as above. Non-domination seems to imply fundamental equality and restores the relationship to that which holds between equal persons, instead of that which holds between master and slave. Because non-domination shares this intuitive property of freedom, and because of the (above) strong intuitions that the conditions for freedom are those of non-domination, Pettit’s view of freedom of non-domination ought to be accepted. Finally, it should be noticed that the intuitive support for Pettit’s conception of freedom does not trivially apply to the people in Cohen’s analogical room. Since the people in this room are on equal standing, it may seem like there is no room for the master-slave relationship to emerge, that people will be able to meet each other in the eye, and that there can be no degradation of personhood as there is when the domination is truly one-sided. A thought experiment will make clear how the intuitive strength of Pettit’s view holds, even in contexts like Cohen’s analogy in which there is reciprocal inter-domination. Imagine the following situation: persons A, B, and C are in the room. Person A wishes to have an affair with person C and afterwards leave the room. However, person B is jealous of this, and plans to leave the room as soon as the affair commences—if it does—in order to forever imprison A, denying A’s ultimate wish for escape. B makes this known to A. Now, A must appease B by not having an affair with C in order to fulfill their ultimate wish to leave the room. Thus, B dominates A, as A is unable to exercise their individual freedom: in order to exit the room, A must “bow and scrape” to B’s preferences. The mere fact that A also dominates B does not mean that A does not acutely feel the unfreedom of their domination by B. A cannot look B in the eye, because B stands between A and A’s desires. B’s whim determines the fate of A’s life. That A may leave the room, forever trapping B and C, does not negate this fact. All this thought experiment seeks to demonstrate is that the intuitions which locate freedom with non-domination are still present in Cohen’s analogy. Succinctly, these intuitions are first that someone is free if they are able to exercise their freedoms without the approval of another, and unfree if not (which is equivalent to defining freedom as non-domination). This is exactly the case in the analogy of the room: person A is unable to exercise their freedoms because they lack the approval of person B. Backtracking for a moment, the second intuition is that freedom as non-domination accords with the intuition that freedom produces equality. The inverse, that unfreedom induces inequality, also holds in Cohen’s room: precisely because of the possibility of situations such as the above thought experiment, the people in the room will be unable to look each other in the eye. Since this is the inverse, it is hardly a rigorous proof; however, even the inverse demonstrates a correlation between equality and non-domination which certainly does not malign the suggestion that they are equivalent. Suppose instead that the people in the room were individually free, as Cohen claims. Then they would enjoy equality amongst themselves, according to the rule: if there is freedom, then there is equality. When Cohen speaks of the possibility of solidarity among the members of the room—for instance, those who want to rise, not out of the proletariat, but with the proletariat—he asserts the possibility of the consequent, implying the situation is one of genuine freedom. However, two considerations must be noticed. First, the above thought experiment is meant to show that this possibility is nontrivial, and must be argued for. As the experiment shows, there is also a great possibility that there is profound inequality—an inability to “look each other in the eye”—amongst the members of the room. Insofar as this denies the consequent, it speaks to the possibility of the original situation being one of unfreedom. Second, it is important to remember that even if Cohen were able to succeed in proving the possibility of equality amongst the members of the room, it would be fallacious to conclude from this that they were free. Therefore, both of the original intuitions which support Pettit’s particular notion of freedom (respectively, the potentiality of interference and the relationship between freedom and equality) remain relevant to Cohen’s analogy of the room. Since these intuitions remain intact, Pettit’s concepts should still be held in the analogy of the room. Thus the individuals in Cohen’s analogy are individually unfree. Before concluding, it is worth noting that Cohen modifies his analogy in the same paper: in the modified analogy, exactly two people may leave the room. However, this modification leaves the above arguments unaffected. Indeed, as long as there are fewer exits than people in the proletariat, nothing changes. This is because the above arguments remain unchanged if we select two people at random, treat them as a single agent, and then in a similar manner proceed to show that the others are dominated by them, concluding that since they were chosen at random, all are dominated. Pettit has no problem with this kind of strategy, saying that “while a dominating party will always be an agent…it may be a personal or corporate or collective agent: this, as in the tyranny of the majority, where the domination is never the function of a single individual’s power.”[24] Thus, considering the dominating agent as an arbitrary group of people (the exact count of which equals the number of exits from the proletariat) rather than a single individual does not threaten any of the above conclusions. In conclusion, this essay first demonstrated that on Pettit’s view of freedom as non-domination, Cohen’s analogical backing for “argument 7” fails to prove that any proletarian is individually unfree. This is precisely because in this analogy, every person in the room is individually dominated. Assuming, with Cohen, that this analogy accurately represents reality, it is useful to step out of the analogy and towards what it depicts: Cohen begins by saying that there are more exits from the proletariat than proletarians leaving, and thus that any proletarian is individually free to leave the proletariat. Pettit’s view, however, shows how proletarians can hardly be said to enjoy freedom, since they are constantly threatened with losing it based on the arbitrary whims of their peers. Thus, holding Pettit’s view entails rejecting Cohen’s. This essay then argued for the intuitive strength of Pettit’s view, showing first that Pettit’s formulation of freedom matches with common, intuitive formulations, and then showing how the claim that ‘freedom is non-domination’ accurately tracks our intuitions about the relationship between equality and freedom. From this, in the style of modus ponens, it follows that the people in the room are individually unfree. Once again stepping out of the analogy, it follows that proletarians are each and all individually unfree. Endnotes [1] Cohen, G. A. “The Structure of Proletarian Unfreedom.” Philosophy & Public Affairs 12, no. 1 (1983): 9. [2] Cohen, “Proletarian Unfreedom,” 10. [3] Cohen, “Proletarian Unfreedom,” 10. [4] Cohen, “Proletarian Unfreedom,” 13. [5] Cohen, “Proletarian Unfreedom,” 11. [6] Cohen, “Proletarian Unfreedom,” 11. [7] Cohen, “Proletarian Unfreedom,” 14. [8] Pettit, Philip. Republicanism: A Theory of Freedom and Government. (Oxford: Oxford Univ. Press, 2010), 52. [9] Pettit, Republicanism, 53. [10] Pettit, Republicanism, 55. [11] Pettit, Republicanism, 58. [12] Pettit, Republicanism, 63. [13] Pettit, Republicanism, 63. [14] Cohen, “Proletarian Unfreedom,” 10 [15] Pettit, Republicanism, 52. [16] Pettit, Republicanism, 67. [17] Cohen, “Proletarian Unfreedom,” 10. [18] Pettit, Republicanism, 67. [19] Pettit, Republicanism, 64. [20] Pettit, Republicanism, 64. [21] Pettit, Republicanism, 61. [22] Pettit, Republicanism, 71. [23] Pettit, Republicanism, 71. [24] Pettit, Republicanism, 52. Bibliography Cohen, G. A. 1983. “The Structure of Proletarian Unfreedom.” Philosophy & Public Affairs 12 (1): 3–33. Pettit, Philip. Republicanism: A Theory of Freedom and Government. Oxford Univ. Press, 2010.

Sydney White From Bowers to Obergefell: The US Supreme Court's Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White Abstract: The gay rights movement has seen consistent support from the US Supreme Court over the last 25 years since the ruling in Romer v. Evans (1996). Culminating in recent years with the Obergefell v. Hodges (2015) ruling, which legalized same-sex marriage nation- wide, the Court’s jurisprudence has been an odd combination of internally consistent and erratic. How have the justices reasoned through this shift in their court opinions? How has the Court’s level of scrutiny for discrimination on the basis of sexuality heightened while the level of scrutiny for discrimination on the basis of gender or race has simultaneously lowered? Furthermore, what might this mean for future court battles related to civil rights? In the last 35 years, there has been a rapid shift in laws concerning same-sex conduct and same-sex marriage in the United States. At the time of the 1986 Bowers v. Hardwick decision, 24 states and the District of Columbia outlawed sodomy (1). Although these laws purported to ban sodomy for all couples regardless of their sexual orientation, anti-sodomy statutes were primarily a means of curtailing the sexual activity of gay men (2). Today, by contrast, gay and lesbian couples are allowed to marry throughout the US. This paper explicates this major shift in the Supreme Court’s jurisprudence, particularly through an examination of the interplay between the due process and equal protection claims made by plaintiffs, as well as through an analysis of American federalism and the conflict between state and federal laws. I argue that such a shift is a normative good, as the right to marry guaranteed in Obergefell v. Hodges (2015) grants gay couples greater hospital visitation privileges, marital status for tax purposes (such as inheritances), and ac- cess to numerous other privileges originally only allowed to heterosexual couples (3). Nonetheless, the Court’s jurisprudence over this time raises numerous questions. To what extent did the Court shift its level of scrutiny over the course of 35 years— from Bowers to Obergefell —without explicitly saying so? Is the Court’s use of the Equal Protection Clause and the Due Process Clause in Obergefell contrived? In my view, the Court’s decision in Obergefell should not have been seen as a surprise; indeed, it was a natural extension of the Court’s jurisprudence on gay rights since Romer v. Evans (1996). Nonetheless, the Court’s equal protection and due process jurisprudence is riddled with inconsistencies on these issues, and Justices Scalia, Thomas, and Roberts were right to point out the Court’s erratic invocation of different levels of scrutiny. Background and History: From Bowers to Lawrence Although overruled by Lawrence v. Texas (2003), Justice White’s and Justice Pow- ell’s reasoning in Bowers v. Hardwick (1986) relies heavily on historical and precedential claims regarding the Due Process Clause. In 1982, a police officer entered the home of Michael Hardwick and found him having sex with another man. Hardwick’s conduct was illegal under a Georgia law prohibiting sodomy, which was defined as “any sexual act involving the sex organs of one person and the mouth or anus of another” (4). Although the district attorney decided not to prosecute, Hardwick filed a suit against Georgia’s attorney general, Michael Bowers, arguing that the anti-sodomy law was unconstitutional under the Due Process Clause of the Fourteenth Amendment. In a 5–4 decision, the Supreme Court rejected Hardwick’s claim. In the majority opinion, Justice White argued that no precedent had announced a right resembling that of the “claimed constitutional right of homosexuals to engage in acts of sodomy.” He, along with Justice Burger in a concurring opinion, indicated that proscriptions against sodomy have ancient roots in Judeo-Christian moral and ethical standards. In a more explicitly legal argument, they also suggested that anti-sodomy statutes were inherited from English common law and were thus enacted in colonial America. Their conception of fundamental rights is oddly similar to that discussed in later case Washington v. Glucksberg (1997), as it sought to consider any substantive due process claims by utilizing the framework of tradition and history as the precedent (5). In his dissent, Justice Stevens put forth a principle that would render itself crucial to future gay rights cases, arguing that “a policy of selective application must be supported by a neutral and legitimate interest—something more substantial than a habitual dislike for, or ignorance about, the disfavored group” (6). In the case of Bowers , for example, Justice Sandra Day O’Connor inquired whether there was a legitimate state interest in curtailing homosexual conduct as a means to reduce the spread of HIV/AIDS among gay men. In response, Harvard University Law Professor Laurence Tribe, on behalf of Hardwick, indicated that this was not Georgia’s stated interest. Furthermore, various amici curiae briefs submitted in the case argued instead that anti-sodomy statutes would be counterproductive in mitigating the spread of HIV/AIDS (7). With this in mind, it is clear that Justices Powell and Burger were correct: Georgia’s actual interest was seemingly the prevention of immoral conduct, and nothing more. As such, the Court has had to grapple with the question of whether a morality-based interest is sufficient to justify discrimination on the basis of sexual orientation. Although the Georgia sodomy statute was upheld in Bowers , the later Romer v. Evans (1996) case proved to be more of a success for gay rights advocates, as Justice Kennedy did not consider the morality interest to be sufficient to justify a statute against sodomy. This case arose as the state of Colorado passed a series of local ordinances that sought to ban discrimination in many sectors, including housing, employment, education, public accommodations, and health and welfare services.8 Notably, it contained a ban on discrimination on the basis of sexual orientation. This ban prompted Colorado voters to pass “Amendment 2,” which precluded future action designed to protect persons from discrimination based on their sexual orientation. In this case, the Court considered whether the state of Colorado provided a sufficient rational basis for singling out gays, lesbians, and bisexuals, which the state justified on the basis of respecting citizens’ freedom of association and, in particular, the liberty of landlords or employers who had personal or religious objections to homosexuality (9). Nonetheless, in his majority opinion, Justice Anthony Kennedy argued that such a rationale was too broad to allow for deference to the state, as it had no legitimate purpose or discrete objective (10). In contrast to Justice Kennedy, Justice Antonin Scalia argued that the morality rationale was sufficient and that the Court was undermining the majority will of Americans (11). Scalia contended that Kennedy’s notion of animus—or decision-making motivated solely by dislike for a particular group—is allowed in various arenas of life. He noted: “But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct” (12). Scalia’s equivalation of murder and cruelty to animals to homosexuality was likely reprehensible then, as is it now. However, it also points to a crucial misconception in this case: that landlords or other groups of people may be discriminating against queer people on the basis of their conduct . In the Court’s hearing of Romer , Scalia argued that if one criminalizes homosexual conduct [ Bowers ], then it follows that one can discriminate against homosexuals as well (13). What Scalia failed to understand, however, and what lead counsel and future Colorado Supreme Court Justice Jean Dubofsky pointed out on behalf of respondents, is that Romer was about both conduct and sexual orientation. A person may be perceived as gay (when they are not) by a landlord, for example, and then discriminated against. In this regard, Scalia’s analogy does not hold, as murder, polygamy, and cruelty to animals are all forms of conduct, while homophobia can be directed at people regardless of whether or not they actually engage in homosexual conduct. In this regard, Scalia’s conflation of conduct and sexual orientation renders his analogy regarding the possibility for morality-based animus less persuasive. Scalia’s second argument was that the Court is an insulated institution of justices that have graduated from elite law schools, and so it had no business pushing its morality onto the good people of Colorado in Romer (14). While Scalia’s notion may have been theoretically viable, he failed to consider how his conception operates in a greater historical context. For example, as Laurence Tribe, counsel to Michael Hardwick, argued in the Bowers hearing, the majority of people in Virginia did not think that interracial liaisons were moral at the time of Loving v. Virginia (1967) (15). If the Court had relied on Scalia’s majoritarian claim regarding gay rights, volmany generally agreed upon cases, such as Loving , would have been decided differently. Following Romer , the Court made several decisions in favor of the gay community, such as in Lawrence v. Texas (2003). Lawrence mirrored the Bowers case in many regards, as it involved a police intrusion into the home of two men, John Lawrence Jr. and Tyron Garner, who were purportedly having sex (16). It differed in two crucial dimensions. For one, the Texas statute in question was specifically directed at prohibiting homosexual sodomy, while the Georgia law in Bowers targeted sodomy in general. The second difference was that Lawrence’s counsel, Paul Smith, argued that the Texas statute violated both the Equal Protection and Due Process Clauses of the Constitution, not just the Due Process Clause (17). Justice Kennedy argued in the majority opinion of the Court that the Texas statute was a violation of substantive due process, and Justice Sandra Day O’Connor claimed that it also violated the Equal Protection Clause so its potential violation of the Due Process Clause need not be decided (18). Kennedy relied on two precedents in his jurisprudence in Lawrence : Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) for substantive due process and Romer v. Evans (1996) for equal protection (19). In Casey , the Court introduced a new substantive due process claim: dignity and respect for autonomy (20). As mentioned in regard to Romer , the Court started to level up its scrutiny for discrimination on the basis of sexual orientation; Colorado gave a rationale regarding freedom of association, but the majority found that this was not a sufficient basis for Amendment 2. In Lawrence , Kennedy quotes Justice Stevens’s dissent in Bowers, in which he claimed that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons” (21). Following this logic, Kennedy disagreed with the Bowers decision, and it was overruled by Lawrence . Analysis of Justice O’Connor’s concurrence in Lawrence indicates the potential legal consequences that could have arisen if Justice Kennedy had not drawn on precedents from both Casey and Romer . O’Connor argued that the fact that the Texas statute was only aimed at same-sex sodomy resulted in a violation of the Equal Protection Clause. Unlike Kennedy, O’Connor did not rely on Casey but rather the liberal precedent of Romer (22). In her rational basis analysis, she asserted that “moral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause” (23). O’Connor’s decision in Lawrence was therefore much narrower and more minimalist than Kennedy’s, as she implied that a sodomy statute would still be constitutional while a same-sex sodomy statute would not. If O’Connor’s minimalist stance had been adopted by the rest of the Court, however, it seems that very little change would have occurred. In The Most Activist Court in Supreme Court History , Thomas M. Kerk notes that O’Connor’s reasoning would have only rendered four states’ same-sex anti-sodomy statutes unconstitutional (24). States would have still been able to adopt anti-sodomy statutes in general, and in practice, these statutes would likely only have been applied in same-sex cases. Consequently, Kennedy’s use of legal reasoning from both Casey (substantive due process) and Romer (equal protection) was imperative to establishing a precedent in Lawrence that resulted in legitimate change for the privacy and dignity of same-sex couples (25). The Shift After Lawrence: The Legal Fight for Same-Sex Marriage Following Lawrence , change was certainly on the horizon for same-sex couples in the US, particularly with regard to marriage. Evan Gerstmann, Professor of Political Science at Loyola Marymount University, argues in Same-Sex Marriage and the Constitution that Lawrence paved the way for lower courts to overturn bans on same- sex marriage (26). In November 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that the state’s ban on same-sex marriage lacked a rational basis. The state had provided justifications for the ban, including “providing a ‘favorable setting for procreation,’” ensuring an optimal setting for child-rearing, and preserving state resources. Still, the Court rejected all three claims, stating that “...the [Massachusetts same-sex] marriage ban does not meet the rational basis test for either due process or equal protection.” As a result, Massachusetts became the first state to legalize same-sex marriage (27). As more states began to allow same-sex marriage and the topic penetrated the national conversation, federal challenges concerning the definition of marriage reached the Supreme Court, such as in the 2013 case of United States v. Windsor . This case challenged the legality of the Defense of Marriage Act (DOMA), which Congress had enacted in 1996 (28). In Windsor , Thea Spyer and Edith Windsor had been in a committed relationship since 1963. In the 2000s, they were living in New York, which recognized same-sex marriage ordained elsewhere but would not legalize same-sex marriage itself for a few more years (29). As Spyer’s health deteriorated, the couple married in Ontario, Canada and then returned to New York. Upon her death, Spyer left Windsor all that she had. Although the couple had been married, Windsor was unable to claim a marital estate tax exemption due to Section 3 of the Defense of Marriage Act, which defined marriage as the “legal union between one man and one woman” (30). As a result, Windsor was required to pay $363,053 in estate taxes. For a heterosexual, federally sanctioned marriage, the entire estate tax would have been waived. When Windsor sought a refund, the Internal Revenue Service refused and claimed that Windsor was not a surviving spouse (31). Although Windsor had to first prove she had standing in the case, the central question in Windsor was whether or not the Defense of Marriage Act violated her right to equal protection under the Fifth Amendment (32). Indeed, the Court found that the federal government failed to provide a sufficient rationale for DOMA, but did not explicitly point to the level of scrutiny that it used to come to this conclusion. During the hearing of Windsor , Paul D. Clement, who represented the House of Representatives, implored the justices to adhere to the rational basis test. He also provided the apparent justification of the federal government for the act: uniformity of the definition of marriage across states. DOMA had been passed in 1996, just as same-sex marriage was starting to be considered at the state level. In Clement’s view, Congress at the time became concerned that same-sex couples would travel to other states to be legally wed and then return to a state in which their marriage was not valid and insist that it remained so (33). Nonetheless, reading from a 1996 House Report, Justice Kagan pointed out another potential legislative rationale for DOMA, which was that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” (34). Clement then argued that the report’s revelation of the intentions of some legislators did not necessarily lead to a failure of the rational basis test (35). Moreover, in his dissent in Windsor , Justice Scalia emphasized the rationale of uniformity, as well as his decades-old notion (dating back to Romer ) that the Constitution does not forbid the government to enforce traditional moral and sexual norms (36). Traditionally, sexual orientation has been relegated to the sphere of rational basis tests— immediate scrutiny often includes sex or gender and heightened scrutiny is often in regard to race (37). The level of scrutiny utilized is crucial to the level of protection given to a select class. The rational basis test, or rational review, is generally used in cases where no fundamental rights are at stake. In Windsor , Scalia also slighted Kennedy and the rest of those in the majority for their unwillingness to announce that they were using anything more than a rational basis test in their conclusion—a critical shift in the jurisprudence of gay rights cases. Scalia berated the majority members for their leveling up of protection for sexual orientation, writing that: “The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality” (38). While the justices in the majority did not indicate that they were utilizing heightened scrutiny, it is notable that Justice Breyer pointed out in the Windsor hearing that for “rational basis-plus,” the rationale of uniformity might not be sufficient (39). Although flippant, this points to the possibility that the liberal justices were consciously raising the level of scrutiny for discrimination on the basis of sexual orientation. Scalia’s critique also points to a more serious concern for proponents of civil rights: erratic levels of scrutiny are not only the case for discrimination on the basis of sexual orientation, but now also for discrimination on the basis of race. Berkeley Law Professor Russell Robinson argued that the Court has decidedly leveled up some types of scrutiny, particularly for discrimination on the basis of sexual orientation, while it has lowered it for issues of race (40). Arkansas Law Professor Susannah Pollvogt took this a step further, arguing that Kennedy’s analysis regarding the discrimination ordinance in Romer (1996) is incompatible with his analysis in Schuette v. Coalition to Defend Affirmative Action (2014). In Schuette , Michigan voters had enacted a similar ordinance to that discussed in Romer which precluded future protections based on race, and Kennedy found that such an ordinance was constitutional (41). In this regard, it does seem that Scalia was correct: the justices that supported gay rights issues over the last 25 years had seemingly changed their level of scrutiny without announcing it. Although this may seem like a win to gay rights advocates, unconscious or unannounced changes regarding the Court’s level of scrutiny can have profound effects, particularly as the Court levels down its protections for race and gender. Windsor and Obergefell: A Resolution... Beyond the rational basis test, the Court was concerned about whether DOMA intruded on the principle of federalism and if the federal government could im- pose one uniform idea of marriage on the states (42). Justice Kennedy’s opinion in Windsor suggests that the decision in Obergefell v. Hodges may not resolve the concern with federalism. He indicates that in Windsor, federalism was of grave concern to the majority and that a future case that would establish same-sex marriage at a federal level could meet serious challenges from the Court. He wrote that state governments are delegated authority on the matter of marriage and divorce, quoting Haddock v. Haddock (1906) (43). In this regard, he asserted that “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage” (44). In a 2014 article entitled “Federalism as a Way Station, Windsor as Exemplar of Doctrine in Motion,” Duke University Law Professor Neil S. Siegel acknowledged that the Court concocted their decision in Windsor to a certain degree (45). It is clear that imbued in the majority opinion was concern for federalism, equal protection, and substantive due process, but it is not as easy to discern where each concern lies or originates. In particular, Siegel noted the difference between Scalia and Roberts’ dissents. Roberts, for example, read the majority opinion as being concerned with federalism, although he himself thought that Windsor lacked standing (46). Scalia, by contrast, thought that the majority was more concerned with the malice directed at same-sex couples by the federal government, and, consequently, its intention to impose inequalities and restrictions on same-sex couples (47). Siegel argues that the Court resisted making a definitive judgment on either side and instead used the concept of federalism to push the country towards marriage equality. Thus, the rhetoric of federalism employed by Kennedy in the majority opinion, as well as the majority’s choice not to announce the level of scrutiny applied, may be used by the Court as a way station to a future resolution. Popularized by constitutional law scholar Alexander Bickel, this approach would seek to invite, as opposed to resolve, national conversation (48). Siegel’s interpretation may suggest that federalism was less of a concern to Kennedy and rather a means of rhetoric to push the Court in one direction. Obergefell v. Hodges itself also provides clearer guidance as to why the federalism notion in Windsor can be disregarded. In Obergefell , Justice Kennedy rooted his decision in the ever-changing due process jurisprudence, citing marriage as a fundamental right laid out in Griswold v. Connecticut (1965) and Loving v. Virginia (1967) (49). Nonetheless, the Court hesitated to enforce a federal definition of marriage onto the states. At the onset of the hearing, Justice Ruth Bader Ginsburg asked Mary Bonauto, counsel for Obergefell, how to square the Windsor case with Obergefell , a case in which “the Court stressed the government’s historic deference to the States when it comes to matters of domestic relations” (50). Although Bonauto agreed with Justice Ginsburg’s characterization of Windsor , she suggested that Obergefell differed in an important way: the Court’s failure to affirm the right to same-sex marriage would result in a violation of the Fourteenth Amendment. Conversely, in Windsor , the Court struck down a definition of marriage for the states because it prevented equal protection. The two cases are thus an inversion of one another in this regard, allowing Obergefell to overcome the federalism concern of Windsor . On a constitutional level, however, Obergefell intertwined the notions of the Equal Protection and Due Process Clauses in a manner akin to that of Lawrence . Indeed, Obergefell relied heavily on precedents from Lawrence, Romer , and Casey which were imperative for differentiating Justice Kennedy’s majority opinion from Justice O’Connor’s concurrence in Lawrence . A similar process seemingly occurred with Obergefell . NYU Law Professor of Law Kenji Yoshino argues that while the Court relied on both the Equal Protection and Due Process Clauses of the Fourteenth Amendment, it put greater faith in fundamental rights claims (51). In Loving , the equality and liberty claims were made in parallel to one another (52). In Obergefell , Justice Kennedy described them as interrelated and unable to be captured fully without one another. But just as O’Connor’s equal protection concurrence in Lawrence would have only resulted in the striking down of same-sex sodomy statutes, the enforcement of Obergefell may have been weaker had Kennedy not invoked the substantive due process claim in his decision. Theoretically, the Court’s use of both clauses should have prompted states to level up their protection for same-sex couples, as opposed to exiting the marriage licensing business altogether. As Yoshino notes, this was a concern in South Africa’s 2005 decision to legalize same-sex marriage, in which the Constitutional Court of South Africa warned against their “levelling down” of marriage licensing in the wake of the decision (53). Nonetheless, although the US Supreme Court attempted to use both the Equal Protection and Due Process Clauses in Obergefell to mitigate such practices, the enforcement of Obergefell was not necessarily easy. One prominent example concerned Kim Davis, a county clerk in Kentucky, who refused to grant a marriage certificate to a same-sex couple on the grounds of freedom of religion (54). Yoshino asserts that actors such as Kim Davis “violate a due process ruling in a way that would not violate an equal protection ruling” (55). Such a sentiment mirrors the potential outcome of O’Connor’s opinion in Lawrence —had her opinion been carried out, the decision would have been toothless. Indeed, the entire jurisprudence of the Court in the area of gay rights seems to have some sort of internal consistency. This raises the question: following Romer and Lawrence , was Obergefell predictable? Ron Kahn, James Monroe Professor of Politics and Law at Oberlin College, argues that Obergefell could have been predicted by commentators that recognized the Court’s combination of formalist and realist conceptions of gay rights (56). At first glance, the Rehnquist Court and Roberts Court jurisprudence on issues of sexual orientation is a bit surprising, as Kahn remarks: “... the Supreme Court has reaffirmed and expanded implied fundamental rights and equal protection under the law for gay men and lesbians during a period of political dominance by social conservatives, evangelical Christians, and other groups who view the protection of their definition of family values as a central mission of government” (57). Integral to Kahn’s conception of the Supreme Court over these decades is whether or not justices understand the bidirectionality between legal principles (a more formalistic conception) and the “lived lives of individuals” (a more realistic conception) (58). In Windsor , for example, Kahn asserts that Justice Kennedy engaged in a realist form of decision-making as he discussed the burdens that DOMA placed on same-sex couples with regard to their married and family lives.59 Kahn traces this bidirectionality from Lawrence to Obergefell , arguing that he was able to anticipate Obergefell insofar as the case was internally consistent with its precedents, and it relied on the bidirectionality of realism and formalism (60). Final Remarks It seems less likely that Kahn could have anticipated the later developments of the Court’s jurisprudence on gay rights issues, particularly with the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights (2018). In this case, Jack Philips, a Colorado baker and owner of Masterpiece Cakeshop, refused to create a wedding cake for a gay couple (61). Notably, this interaction occurred in 2012 before the Obergefell decision. Relying on the Free Exercise and Free Speech Clauses, the Court ruled in a 7–2 decision that the Colorado Civil Rights Commission’s decision in favor of the gay couple violated the First Amendment. Kahn’s framework does not seem to suit this case; indeed, if the Court had an understanding of the lived lives of gay people, and the discrimination that they face, it may have provided greater weight to the commission. Instead, the Court found that the Commission had “clear and impermissible hostility” toward Philips (62). In his majority opinion, Chief Justice Roberts asserted that the commission’s hostility revealed that Philips was not afforded the neutrality mandated by the Free Exercise Clause. Cases such as Masterpiece Cakeshop certainly cast doubt on the progress of gay rights advocacy. Regardless, gay rights advocates have achieved a series of victories over the last 35 years, from Romer in regard to discrimination ordinances, to Lawrence in regard to anti-sodomy statutes, to Windsor and Obergefell as the Court redefined marriage to include same-sex couples. Backlash, however, is still probable. Indeed, the Massachusetts Supreme Court’s decision in Goodrich in November of 2003 was likened to “an early Christmas gift to Republicans” prior to Massachusetts Senator John Kerry’s bid for the presidency in 2004 (63). Although Obergefell should have been anticipated, it certainly highlights the Court’s continued inability to state its level of scrutiny in regard to discrimination on the basis of sexual orientation, which lends itself to conservative critiques. Many commentators have also found it problematic that the Court has leveled up its protection for sexual orientation while it it has simultaneously leveled it down for race. Nonetheless, it is promising that the Court has provided greater civil rights for the gay community. The Court’s internal consistency should be kept in mind for proponents of gay equality—even if its jurisprudence has been correct. The future of civil rights litigation hinges on it. Endnotes 1 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice White’s majority opinion. 2 Ibid. See Justice Stevens’ dissent. 3 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s opinion, in which he lists the aspects of life in which rights are conferred on married couples: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. 4 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). 5 Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997). 6 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice Stevens’ dissent. 7 Ibid. See oral argument. This line of questioning starts at 51:50. O’Connor states “Perhaps the state [of Georgia] can say its desire to deter the spread of a communicable disease or something of that sort,” to which Mr. Tribe replies. 8 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). See Justice Kennedy’s opinion. 9 Ibid. 10 Ibid. 11 In Romer, Scalia argued that a ‘politically-powerful minority’ is acting against the majority will of Colorado: “the majority of citizens [is attempting] to preserve its view of sexual morality state wide against the efforts of a geographically concentrated and politically powerful minority to undermine it.” 12 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Opinion Announcement - May 20, 1996. 13 Ibid. See oral argument: 52:57-53:36. Scalia asks: “It seems to me the legitimacy of the one follows from the legitimacy of the other. If you can criminalize it, surely you can take that latter step, can’t you?... Doesn’t... if the one is constitutional, must not the other one be?” 14 Ibid. 15 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See oral argument: 35:41. Tribe states: “But, as this Court recognized in Loving against Virginia, where also a majority of the people of Virginia believed that interracial liaisons were inherently immoral and where for a long time a lot of people had believed that, this Court did not think that the Constitution’s mission was to freeze that historical vision into place.” 16 Dahlia Lithwick, “Extreme Makeover: The Story behind the Story of Lawrence v. Texas,” The New Yorker, Mar. 4, 2012, https://www.newyorker.com/magazine/2012/03/12/extreme-makeover-dahlia-lithwick. 17 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See oral argument: 1:48-2:10. 18 Ibid. See Justice O’Connor concurrence. 19 Ibid. See Kennedy opinion. 20 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. Supreme Court 1992). 21 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Kennedy opinion. 22 Thomas M. Kerk, The Most Activist Court in Supreme Court History: The Road to Modern Judicial Conservatism (Chicago: The University of Chicago Press, 2004), 219. 23 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Justice O’Connor concurrence. 24 Kerk, The Most Activist Court in Supreme Court History, 219. 25 Kenji Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges,” Harvard Law Review 129, no. 147 (2015): 173. 26 Evan Gerstmann, Same-Sex Marriage and the Constitution: We All Deserve The Freedom To Marry (Cambridge: Cambridge University Press, 2004), xii. 27 Ibid, xiii. 28 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 29 N. S. Siegel, “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion,” Journal of Legal Analysis 6, no. 1 (2014): 89, https://doi.org/10.1093/jla/lau002. 30 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 31 Ibid. 32 In Hollingsworth v. Perry, 570 U.S. 693 (U.S. Supreme Court 2013), the petitioners were denied standing. This was certainly a concern for Windsor; Roberts’ opinion indicated that he would have denied standing here as well. 33 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Oral argument: 1:06:05. Clement gives the example of Hawaii here, which had considered legalizing same- sex marriage around the time that DOMA was enacted. 34 Ibid. Oral argument: 1:14:16. 35 Ibid. Oral argument: 1:14:40. Clement’s rebuttal was that the improper motive of a few legislators does not mean that DOMA would necessarily fail the rational-basis test: “This Court, even when it’s to find more heightened scrutiny, the O’Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” 36 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Scalia’s dissent. 37 Legal Information Institute at Cornell Law. “Strict Scrutiny. https://www.law.cornell. edu/wex/strict_scrutiny. 38 Ibid. See Scalia’s dissent. 39 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:17:41. 40 Russell K. Robinson, “Unequal Protection,” Stanford Law Review 68, no. 1 (2016): 151. 41 Susannah William Pollvogt, “Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?,” SSRN Electronic Journal, 2014, https://doi.org/10.2139/ssrn.2436616. 42 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:16:09. Kennedy stated: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.” 43 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 44 Ibid. 45 Siegel, “Federalism as a Way Station,” 87. 46 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Roberts’ dissent. 47 Siegel, “Federalism as a Way Station,” 90. 48 Ibid, 87. 49 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s majority opinion. 50 Ibid. See oral argument. Within seconds (0:52), Justice Ginsburg asked this question: “What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relations?” 51 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges ,” 148. 52 Ibid, 172. 53 Minister of Home Affairs v. Fourie, No. ZACC 19 (Constitutional Court of South Africa 2006). The Honorable Justice Albie Sachs of the Constitutional Court of South Africa: “Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.” 54 Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same- Sex Marriage,” New York Times , Sept. 3, 2015, https://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html. 55 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges ,” 173. 56 Ronald Kahn, “The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015),” Maryland Law Review 75, no. 1 (2015): 271–311. 57 Ibid, 272. 58 Ibid, 275. 59 Ibid, 292. 60 Ibid, 302. “...specifically, Obergefell cannot be explained only on the basis of either formalist or realist elements.” 61 Noah Feldman and Kathleen M. Sullivan, Constitutional Law , Twentieth edition, University Casebook Series (St. Paul: Foundation Press, 2019). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 (2018). 62 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (U.S. Supreme Court 2018). 63 Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York: Oxford University Press, Incorporated, 2012), 183. https://ebookcentral.proquest.com/lib/swarthmore/detail.action?pqorigsite=primo&docID=5746877#. Bibliography Blinder, Alan, and Tamar Lewin. “Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage.” New York Times , Sept. 3, 2015. https://www.ny-times.com/2015/09/04/us/kim-davis-same-sex- marriage.html. Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). Gerstmann, Evan. Same-Sex Marriage and the Constitution: We All Deserve The Freedom To Marry . Cambridge: Cambridge University Press, 2004. Feldman, Noah, and Kathleen M. Sullivan. Constitutional Law . Twentieth edition. University Casebook Series. St. Paul: Foundation Press, 2019. Hollingsworth v. Perry, 570 U.S. 693 (U.S. Supreme Court 2013). Kahn, Ronald. “The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015).” Maryland Law Review 75, no. 1 (2015): 271–311. Kerk, Thomas M. The Most Activist Court in Supreme Court History: The Road to Modern Judicial Conservatism. Chicago: The University of Chicago Press, 2004. Klarman, Michael J. From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. Oxford: Oxford University Press, Incorporated, 2012. Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). Lithwick, Dahlia. “Extreme Makeover: The Story behind the Story of Lawrence v. Texas.” The New Yorker, Mar. 4, 2012. https://www.newyorker.com/ magazine/2012/03/12/extreme-makeover- dahlia-lithwick. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (U.S. Supreme Court 2018). Minister of Home Affairs v. Fourie, No. ZACC 19 (Constitutional Court of South Africa 2006). Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. Supreme Court 1992). Pollvogt, Susannah William. “Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?” SSRN Electronic Journal , 2014. https://doi.org/10.2139/ssrn.2436616. Robinson, Russell K. “Unequal Protection.” Stanford Law Review 68, no. 1 (2016): 151–233. Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Siegel, N. S. “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion.” Journal of Legal Analysis 6, no. 1 (2014): 87–150. https://doi. org/10.1093/jla/lau002. Legal Information Institute at Cornell Law. “Strict Scrutiny. https://www.law.cornell.edu/wex/strict_scrutiny. United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997). Yoshino, Kenji. “A New Birth of Freedom?: Obergefell v. Hodges.” Harvard Law Review 129, no. 147 (2015): 147-179. Previous Next

*Feature* Nicola Sturgeon Nicola Sturgeon is the fifth and current First Minister of Scotland and leader of the Scottish National Party (SNP). She is the first woman to hold either position and has been a member of the Scottish Parliament since 1999. She advocated that Britain remain in the European Union and has called for Scotland's place in the European single market to be protected. Sturgeon is notable as a campaigner for women's rights and gender equality. Sturgeon’s piece reflects on the merits of experimenting with a Universal Basic Income Fall 2018 Too many people in Scotland are being failed by the UK Government’s social security and employment support systems and we have seen rising poverty levels in recent years. Finding employment is sadly no longer the protection against poverty it once was, with in-work poverty now at an all-time high and the majority of adults and children in relative poverty living in households where someone is in paid work. Likewise, income and wealth inequality in Scotland and the UK, although it has been relatively stable for the last 20 years, has shown no sign of reducing. While there is no quick fix for wealth inequality, there are steps that governments can and should take to close the gap between the richest and poorest in society. We know sustainable and fair work is a long-term route out of poverty so we, and other administrations, must be committed to creating opportunities that support this. In Scotland, we have stressed the importance of promoting inclusive growth – growth which everyone has a fair chance to contribute to, and from which everyone in society can benefit. There are moral, economic and political reasons to support this. Our Economic Strategy focuses on the two mutually supportive goals of increasing competitiveness and tackling inequality. There are a wide range of factors that cause income inequality and these must all be addressed to effectively tackle the issue. In Scotland we have committed to reduce the gender pay gap and increase the labour market participation rates for disabled people and those from minority ethnic groups. New UK legislation which requires large listed companies to publish the pay ratios between their chief executive and their average worker, as well as their gender pay gap, will help maintain focus on such inequalities. While this is a step in the right direction, we would like this legislation to go further and require companies to publish what actions they will take to address such pay gaps. Both governments and businesses also need to address structures and cultures in workplaces that can perpetuate income inequality. Changing the perception of ‘valued’ jobs is one step to reducing such inequalities. For example caring jobs such as social care and childcare tend to be lower paid and undertaken in the main by women. It is argued that that the undervaluing of skills required to undertake caring jobs contributes to the low pay which characterises these and other low paid sectors. We are using the Living Wage Scotland initiative to highlight the value of workers in low paid sectors and encourage more employers to become Accredited Living Wage employers. In addition to taking steps to reduce income inequality, we also want to deliver a new Scottish social security system with dignity, fairness and respect at its centre to better meet the needs of the people of Scotland. We are already taking steps to improve the benefits being devolved to Scotland by increasing carer’s allowance, introducing the Best Start Grant for parents and carers on low incomes to help at key stages of children’s lives and transforming the disability assessment process. As well as the existing historic factors that can lead to wealth inequality, advances in technology and increasing automation of services means the world of work is constantly changing. That is why innovative ideas to tackle these new challenges should be debated by both current and future leaders. One such radical approach to social security which has gained attention recently is the idea of a universal basic income (UBI) – a universal, non-taxable, non-means tested payment made to all citizens from cradle to grave. It is paid regardless of past national insurance contributions, income, wealth or marital status. While a simple concept in principle, its implementation is highly complex. One of the main complexities of UBI is determining the level at which it is set – ranging from a minimum payment to prevent destitution to a higher level which on its own gives individuals an adequate but basic standard of living. It is usually assumed that UBI replaces all other social security payments and this is reflected in one of the most profound concerns around UBI – the impact it could have on people in poverty and people facing additional costs in their day to day life. As a universal benefit, it removes the stigma of ‘being on benefits’. That can only be good for society but there are concerns about whether governments will be able to afford both UBI and a generous welfare state. In Scotland, we already provide many universal benefits such as free school meals, personal care, prescriptions, eye tests and university tuition and the respective role of UBI and these benefits would have to be considered. Supporters of UBI suggest it provides a greater incentive for those out of work to take up employment and can encourage people to be more entrepreneurial as they already have a basic income to support them. Most models of UBI suggest that anything over the UBI value is taxed at a single rate. However, this does not align with our more progressive approach to income tax in Scotland where those who can afford to pay more will make a higher contribution through increasing tax rates to support better public services. The Scottish Government is supporting four local areas to carry out further scoping of the idea in Scotland. These pilots will help inform our thinking around the future of UBI in Scotland and I look forward to seeing the results. We want Scotland to be prosperous and reducing inequality is a key part of this. We believe we should tackle poverty and wealth disparities by sharing opportunities, wealth and power more equally.

Anna Savo-Matthews The Unchurching of Black Lives Matter: The Evolving Role of Faith in the Fight for Racial Justice Anna Savo-Matthews The Black church was at the center of the Civil Rights Movement in the 1950s and 1960s. In the early 1990s, American society began a trend in secularization, whereby many Americans began to identify less with religious institutions. This societal shift, coupled with the rise of social media, has had a marked impact on racial justice movements. To illustrate how secularization has affected protest, this work compares the Civil Rights Movement with Black Lives Matter and specifically examines the decline of the Black church’s organizational capacity in Jacksonville, Florida. Faith has long been closely intertwined with racial justice movements. Scholars of Black liberation theology believe that Jesus is the God of the oppressed, someone who stands with those struggling for freedom. This religious movement was born from civil-rights activism of the 1960s, and it continues to inspire activists to this day (1). Furthermore, the Civil Rights Movement’s close relationship with the Black church has been well documented, as the church provided organizational support that was crucial for the movement’s success (2). When comparing the Civil Rights Movement to more recent racial justice movements, more specifically the Black Lives Matter protests during the summer of 2020, the Black church has had a less prominent role in organizing and mobilizing protestors. However, spirituality still had a great influence over the content of the protests, as protesters often draw from a greater plurality of religious inspiration than the Civil Rights Movement did (3). In line with findings on a national scale, local reporting has found that spiritual rituals were incorporated into the Black Lives Matter protests in Jacksonville. Prayer, vigils, and altars were incorporated into the protests, and the rhetoric used by many organizers and protestors reflected common religious tropes. The Civil Rights Movement and the Black Church The impact of religion on the Civil Rights Movement has been well documented. Both in terms of organization and content of protests, the Black church had an enormous effect on the Civil Rights Movement. The Black church was an autonomous sphere, owned and controlled by Black people, within a larger societal context where Black people were excluded economically, socially, and politically. As a result, in terms of structure, the Black church was the primary organizational center for the Civil Rights Movement (4). The church provided a network of charismatic clergymen who were “economically independent of the larger white society,” a regular meeting place free from surveillance, and a membership that was united by a rich culture and similar political aims (5). As a result, the Black church gave the Civil Rights Movement many resources crucial for a successful social movement. Additionally, the content of the protests themselves were often based on religious teachings from the Black church; one would have to look no further than Martin Luther King Jr.’s speeches to see its influence. In one of his most famous speeches, “Eulogy for Martyred Children,” King draws upon Christian notions of martyrdom and applies these sentiments to the fight for racial equality. Older martyrdom accounts—like those of Perpetua and Felicity, or animal sacrifices found in Leviticus—speak of suffering and death transformationally powerful, sometimes for entire communities. King employs a similar theme in his speech, claiming that the children who lost their lives “died nobly,” and that “the innocent blood of these little girls may well serve as a redemptive force that will bring new light to this dark city” (6). Furthermore, King’s speeches often explicitly draw connections between his faith and the modern-day fight for racial justice, saying “They did not die in vain. God still has a way of wringing good out of evil. History has proven over and over again that unmerited suffering is redemptive” (7). When an innocent life is lost due to senseless violence, it can be a rational response to try to make sense of the tragedy. In this way, martyrdom accounts serve an important social function, allowing communities to grapple with tragedy in a meaningful way. Furthermore, these tragedies can be leveraged politically. Many sociologists consider martyrs to be “tangible cultural resources” that can be used to motivate social and political movements. The violence inflicted on a martyr can “galvanize a course of action” and rally a community around their cause (8). Black Lives Matter and Secularization Originally founded in 2013 following the acquittal of George Zimmerman, the Black Lives Matter movement began to build a more prominent national profile in the wake of the deaths of Michael Brown and Eric Garner, who were both killed by police in the summer of 2014 (9). The Black Lives Matter movement reached a new level of public support following the murder of George Floyd, and it is estimated that tens of millions of people participated in protests across the country in 2020 (10). As a result of its large and diverse membership, the movement is very decentralized; however, the general aims of the movement include police reform and reallocating police department funds to invest in Black communities directly. In contrast to the powerful, direct influence the Black church had on the Civil Rights Movement, Black Lives Matter’s religious influences are far less straightforward, and this is especially apparent in the movement’s organization. Sociologists and political scientists have contended that the Civil Rights Movement and Black Lives Matter movement have markedly different structures. Professor of political science Dewey Clayton has noted that the leadership structure of the two organizations are “vastly different,” describing Black Lives Matter’s structure as “highly decentralized and unstructured” (11). He suggests that, rather than the Black church, social media is the new movement center for Black Lives Matter, contributing to its decentralized nature. Other scholars and researchers have confirmed that social media has played a “core role” in the proliferation of the movement, as platforms like Twitter and Instagram allow for the “documentation of cases of police violence” against both “individual African Americans” and “BLM protests,” which can draw emotional responses from casual users of social media (12). Because of its heavy use of social media, Black Lives Matter “does not want one leader,” but rather encourages leaders from all over the country to “engage in grassroots organizing in their local communities” (13). Jamal Bryant, a clergyman who spoke at Freddie Gray’s funeral, acknowledged this shift in leadership and noted that his role in Black Lives Matter is more limited, saying, “The difference between the Black Lives Matter movement and the civil-rights movement is that the civil-rights movement, by and large, was first out of the church. The Black Lives Matter movement, largely speaking, is not” (14). However, despite the Black church’s receding role in the organization of the movement, the influence of religion and spirituality on the Black Lives Matter movement is still apparent on a national scale. Founders of the movement, like Patrisse Cullors for example, practice Ifà, a religious tradition from Nigeria. She describes her spirituality as having a huge influence on her protests, saying that , “seeking spirituality had a lot to do with trying to seek understanding about [her] conditions… and how [she understands] them as part of a larger fight, a fight for [her] life.” In Black Lives Matter more broadly, researchers have found that protests often incorporate a wide variety of religious rituals, from invoking “the names of abolitionist ancestors'' to “the creation of sacred sites and alters at locations of mourning” to “purification, protection, and healing practices'' like burning sage (15). Overall, Black Lives Matter has incorporated rich religious pluralism into the national movement, as it draws inspiration from Native American, Buddhist, and African religious traditions, in addition to Black Protestant traditions (16). Scholars have found that Black Lives Matter draws from a broader source matter than the Civil Rights Movement did, and others argue that “the Black church is not the only religious well from which Black movements have historically drawn,” and Black Lives Matter is no different (17). Given the broad variety of faiths that Black Lives Matter draws inspiration from, Erika Gault argues that “we are actually seeing more religion, not less” (18). Younger activists from Baltimore described their own beliefs similarly; they did not necessarily have a diminished sense of spirituality, but they felt a need to express their religious beliefs outside of formal institutions. Brion Gill, a 25-year-old organizer, recounted that many of her friends within Black Lives Matter identify as “spiritual but not religious” and claim that they want “a relationship with the Creator” but don’t wish to manifest that “within the church space” (19). BLM’s move away from formal religious organizations fits within social trends more broadly. Around the turn of the century, sociologists began to describe a new theory of secularization, which emphasized that faith is still a “powerful force at the individual level” despite a decline in religious institutional authority (20). Theorists from this newer perspective, sometimes called neosecularization theorists, emphasize that religion is not necessarily “declining… They believe that it is changing” (21). These findings are similar to those articulated in a major study by Hout and Fischer, who found that the number of Americans who identified themselves as having no religious preference increased significantly in the late nineties. From the early ‘90s to the early 2000’s, the number of adults who reported having no religious preference doubled, from roughly 7 percent, to 14 percent (22). However, despite this increase, a significant portion of the population still retains spiritual beliefs: “Over two-thirds (68 percent) of adults with no religious preference expressed some belief in God or a higher power in 1998 or 2000; one-fourth said they do not doubt that God really exists” (23). Thus, the decrease in identification with formal institutions is not driven largely by a decrease in religious sentiment, but rather a stronger desire to disassociate from organized religion. This urge to express religious beliefs often originates from a desire to distance oneself from the conservative political views often associated with religious institutions (24). The sudden decline in religious identifications correlated with the rise of the Religious Right, as “religious conservatives definitely received more attention in the press in the 1990s than during earlier years” (25). Therefore, the authors argue that the rise of the Religious Right initiated dissociation with religious institutions among left-leaning individuals. Hout and Fisher stress that a decline in religious identification is most attributable to a dislike of the Religious Right, and not a result of a decline in religious sentiment or ideas: “The key fact, in sum, about people who express no religious preference is that most are believers of some sort, and many are quite conventional” (26). One of the most commonly used metrics to gauge the religiosity of an individual is the frequency with which they pray. This metric was cited by the authors of this study, and they noted that of the respondents who claimed no religious preference, “Relatively few are secular, agnostic, or atheist; most actually pray. Their most distinguishing feature is their avoidance of churches” (27). Therefore, we may expect contemporary activists to still express religious beliefs and participate in religious rituals in protest, even though they may not be guided by any specific institution. The authors of this article actually raise concerns regarding the future of religious institutions and their connections to social and political movements, asking the question of how the “spiritual but not religious” trend will affect new social movements (28). Overall, secularization in the Black Lives Matter movement seems to be widely consistent with a general nationwide trend towards secularization. While formal religious institutions have less power in influencing behavior and social movements, religious beliefs are still held by a majority of those who participate in the BLM movement. This seems to be the general consensus among scholars who have studied the movement; that, while the movement is no longer organized through the church, spirituality still has a great influence on the movement, and at times, protest can even be a spiritual act. To examine these claims, I will take a closer look at one specific city. To get a sense of how the shift from ‘churched’ social movements to a decentralized movement plays out in a specific city, I will compare Jacksonville’s Civil Rights Movement to its Black Lives Matter movement. Jacksonville and Racial Justice Jacksonville has an extensive history with the Civil Rights Movement. For a considerable portion of time, the primary method of challenging segregation in Jacksonville was through litigation. The City Council segregated numerous public services: streetcars, saloons, theaters. There were long, drawn-out attempts to overturn these and other segregation policies like unequal pay, and an “all-white Democratic primary” (29). However, the courts ruled against African American attorneys seeking to challenge segregationist policies. As a result, civil rights activists turned to civil disobedience. One of the most well-known events in the history of civil rights activism in Jacksonville occurred on August 27, 1960, when a group of African American men staged a sit-in to protest segregation in local businesses and lunch counters (30). The group of protestors were attacked by a group of over 200 Ku Klux Klan members, armed with baseball bats and axe handles. The lunch counters were desegregated in the months following this protest. Although African American communities in Jacksonville had pushed for desegregation in the past, many locals see Axe Handle Saturday as the true start of the Civil Rights Movement in Jacksonville. A first-hand account from protestor Rodney Hurstdetails the planning that went into this protest. His account demonstrates the importance of the Black church. In Hurst’s view, the Black church was a lifeline for the Civil Rights Movement: “the civil rights movement in Jacksonville would not have survived without the support of Black pastors and their churches” (31). Along with providing a support network for protestors, Black churches were the meeting place for the NAACP meetings during the fifties and sixties, providing resources for a legal organization responsible for many local civil rights victories (32). The NAACP’s efforts were crucial in desegregating businesses and public services in Jacksonville. In the months following Axe Handle Saturday, the NAACP Youth Council continued a boycott of downtown merchants, and in the following year the NAACP and business leaders reached an agreement to desegregate the lunch counters (33). Turning to the Black Lives Matter protests that took place decades after the Civil Rights Movement, it is apparent that Jacksonville mirrors national religious trends. While Jacksonville’s Civil Rights Movement used the Black church as its main movement center, taking advantage of its resources and member base, the Black Lives Matter protests were organized in a more decentralized manner, often relying on social media to spread awareness of police violence and information about upcoming events and protests. Over the course of the summer of 2020, several waves of protests were held in Jacksonville; from May 30th to June 8th, the city saw thousands of protestors participate in marches in the downtown area (34). Smaller marches occurred sporadically throughout the greater Jacksonville area in the subsequent weeks. A smaller march took place near Atlantic and Neptune Beach on June 28th. An inter-faith group held a Juneteenth celebration live stream discussing racial injustice on June 19th, and a group of Black ministers hosted a press conference in front of the Duval County Courthouse on June 8th (35). Another wave of protests occurred on July 10th, as protestors blocked off portions of highways around the downtown area (36). Consistent with findings on a national scale, the Jacksonville protests were largely organized through social media; websites like Twitter and Instagram played a crucial role in spreading information throughout the Jacksonville community. Social media accounts were started at several Duval county high schools to document instances of racial profiling; the accounts generally followed a similar format: “they’re titled “Black At [the respective school]” and allow students, parents, and faculty to submit posts where they document racist experiences they’ve had at their respective high school, which are shared publicly on the Instagram account (37). Kiara Alexis, a young community organizer born and raised in West Jacksonville, described the crucial role Twitter played in diffusing information throughout her community, saying “Twitter has become this hub… the news won’t tell you what’s going on, but people on Twitter, they’re gonna come up there and they’re gonna give it to you” (38). Diversity in Spirituality Again, in line with findings on a national scale, although the church was not the main avenue through which protests were organized, religion and spirituality still had a notable impact on the content of the protests. Moments of prayer were incorporated into many of the protests that took place in Jacksonville. One notable example took place on June 3, outside of the Jacksonville Sheriff’s Office, where faith leaders led a prayer before a press conference on police accountability (39). Rituals and prayers were not only seen in smaller protests: one of the largest rallies that took place in Jacksonville was the “Reflective Walk” for Floyd in which over 1,000 participants prayed before marching throughout Jacksonville’s San Marco business district and residential areas (40). Even protests that were planned by secular organizations, like The Women’s March Jacksonville Chapter, involved spiritual ceremonies. The Women’s March held a two-hour long remembrance ritual on June 4, where “candles were lit in memory of those who died by police or racial brutality, plants watered on a table as each was remembered.” Participants at this protest were encouraged to express their “sorrow and disgust over the racial division in this country” (41). Jacksonville’s protests often seem to embody what sociologist Emile Durkheim would identify as “collective effervescence,” referring to the emotional effect experienced by individuals when they collectively perform religious rituals; when people come together and perform the same action together, they may feel ‘outside of themselves.’ Durkheim describes this process in Elementary Forms of Religious Life, saying that “When collective life reaches a certain degree of intensity it awakens religious thought… vital energies become overstimulated, sensations stronger; there are even some that are produced only at this moment” (42). In this moment, collective effervescence then strengthens group identity. The common usage of prayer in protest likely serves a similar function; overall, rituals like group prayer serve an important, unifying force during protests, allowing the protester to step outside of themselves and feel a greater sense of unity with those they are protesting with. Aspects of the Jacksonville protests encourage such an experience. For example, Chapter President Bonnie Hendrix was reported as saying “I felt it was time for black people to have the podium to raise their voice, to be heard, to let the pain and anguish of years of oppression, out,” acknowledging the heightened emotional experience that was produced by the remembrance ritual (43). Even disregarding the use of rituals like prayer and reflection, protests exhibited religious characteristics in other ways. When activists described their motivations for protesting, they often directly or indirectly referenced their religious beliefs, often echoing sentiments in speeches from the Civil Rights Movement. On June 8th, several dozen ministers from local Black churches read a letter addressed to Jacksonville mayor Lenny Curry, Sheriff Mike Williams, and various other city and state officials. The letter called for a variety of reforms that asked for increased transparency and communication between police and community members. Some of the demands included roundtable discussions with black officers, increased sensitivity training, and increased diversity in leadership (44). Martyrdom narratives were incorporated into the minister’s press conference as well, as one minister was quoted as saying “It was as a result of George Floyd that all of a sudden a choir began. A choir of people from all across this nation have come together to lend their voices together in harmony for the express purpose of making sure that people can be treated fair.” In a similar manner to how martyrdom narratives were used during the Civil Rights Movement, the pain and suffering inflicted upon George Floyd can be the impetus for social change. In the quote from Rev. Williams, there are themes of unity and healing, demonstrating similar themes to those used by Martin Luther King Jr. in his “Eulogy for Martyred Children” as well as older martyrdom accounts, like those in Leviticus, where the loss of innocent life has the power to transform an entire community. In honor of Juneteenth, a holiday commemorating the end of slavery, the Interfaith Center of Northeast Florida held a livestream, connecting the protests that took place this summer to the fight for equality during the Civil War. Religion again played a large role in the motivations for those participating in the conversation. In describing her motivations for fighting for justice, Rev. Juana Jordan referenced Matthew 10 as an inspiration for resilience in her activism, saying “[Jesus] says people are gonna harass you, and he talks a lot about… using your voice. If you are a part of the family, if you are gonna do what I’m doing, people are gonna come against you. But there’s some responsibilities that you have” (45). In a later comment, Rev. Juana again connected the notion of equal rights to Scripture, saying “I believe in communion, there is more than enough at the table. When Jesus laid out the table, he stretched the table to make sure everybody could come around” (46). This livestream reiterated a common theme from Hurst’s personal account, where faith gives activists resilience in their work. Conclusion In conclusion, faith still plays a prominent role in Black civil rights movements, but its role has been complicated due to recent trends in secularization and the rise of social media. Although social media has replaced the Black church as the organizational center of the movement, spirituality has proved itself to be indispensable to the movement due to its ability to unify protesters through rituals. Finally, spiritual beliefs also seem to be a powerful source of motivation for those who participate in protest, providing inspiration to continue persevering when met with opposition. With this sudden shift towards a more decentralized movement center, it will be interesting to see if Black Lives Matter will be able to achieve the same legislative successes as the Civil Rights Movement. Endnotes 1 “Black Liberation Theology, in its Founder’s Words,” NPR, 2008. 2 Morris, Aldon D , The Origins of the Civil Rights Movement: Black Communities Organizing for Change, (The Free Press, 1986). 3 Gleig, Ann and Farrag, Hebah, “Far from Being anti-religious, faith and spirituality run deep in Black Lives Matter,” The Conversation. 4 Morris, Aldon D , The Origins of the Civil Rights Movement: Black Communities Organizing for Change, 4. 5 Ibid. 6 King, Martin Luther, “Eulogy for the Martyred Children,” Carnegie Mellon University. 7 Ibid, 221. 8 DeSoucey et al, “Memory and Sacrifice: An Embodied Theory of Martyrdom,” ( Cultural Sociology, 2008), 114. 9 Luibrand, Shannon, “How a death in Ferguson sparked a movement in America,” 2015. 10 Buchanan, Quoctrung, and Patel, “Black Lives Matter May Be the Largest Movement in U.S. History,” 2020. 11 Clayton, Dewey M, “Black Lives Matter and the Civil Rights Movement: A Comparative Analysis of Two Social Movements in the United States,” Journal of Black Studies , Vol. 49 no. 5, 2018. 12 Bolsover, Gillian, “Black Lives Matter discourse on US social media during COVID: polarised positions enacted in a new event,” The University of Leeds, Centre for Democratic Engagement, 2020. 13 Clayton, Dewey M, “Black Lives Matter and the Civil Rights Movement: A Comparative Analysis of Two Social Movements in the United States.” 14 Green, Emma, “Black Activism, Unchurched,” The Atlantic, 2016. 15 Gleig, Ann and Farrag, Hebah, “Far from Being anti-religious, faith and spirituality run deep in Black Lives Matter,” The Conversation. 16 Ibid. 17 Ibid. 18 Ibid. 19 Green, Emma, “Black Activism, Unchurched.” 20 Yamane, David and Roberts, Keith A, “Secularization: Religion in Decline or Transformation?” Religion in Sociological Perspective, (SAGE Publications, 2015), 25. 21 Ibid. 22 Hout, Michael and Fischer, Claude, “Why More Americans Have No Religious Preference: Politics and Generations,” American Sociological Review , vol. 67, no. 2, pp. 165-190, (April 2002), 166. 23 Ibid, 173. 24 Ibid, 168. 25 Ibid, 179. 26 Ibid, 175. 27 Ibid, 175. 28 Ibid, 178. 29 Crooks, James B, “The history of Jacksonville race relations. Part 2: Struggling for equality,” The Florida Times-Union, 2021. 30 Ibid. 31 Hurst, Rodney L, “It was never about a hotdog and a Coke,” Wingspan Press, 2008. 32 Ibid. 33 Woods, Mark and Soergel, Matt, “Ax Handle Saturday: The segregated lunch counters are gone, but the ‘Jacksonville Story’ continues,” 2020. 34 Avanier, Erik, “Thousands march through San Marco during peaceful demonstration,” 2020. 3 5 “The Spirit of Juneteenth,” YouTube, Uploaded by Interfaith Center of Northeast Florida, 2020. https://www.youtube.com/watch?v=flDBJx_HWhM&feature=youtu.be 36 Cravey, Beth R. and Patterson, Steve, “Black Lives Matter protesters march through downtown Jacksonville; 3 arrested,” The Florida Times-Union, 2016. 37 Bloch, Emily, “Students at Jacksonville’s elite schools discuss racism — often anonymously,” The Florida Times-Union, 2020. 38 “The Spirit of Juneteenth,” YouTube, 50:13. 39 “Photos: Jacksonville Black Lives Matter protests in the wake of George Floyd’s death,” The Florida Times-Union, 2020. 40 Ibid. 41 Scanlan, Dan, “Jacksonville Residents continue protests in support of black lives,” The Florida Times-Union. 2020. 42 Durkheim, Emile, “The Elementary Forms of Religious Life,” ( Oxford University Press: 2001), 317. 43 Scanlan, Dan, “Jacksonville Residents continue protests in support of black lives.” 44 Savo-Matthews, Anna, “Black ministers call for Jacksonville reforms amid unrest,” The Florida Times-Union , 2020. 45 “The Spirit of Juneteenth,” YouTube, 61:28. 46 Ibid, 66:54. Works Cited Aron, Hillel. “These Savvy Women have Made Black Lives Matter the Most Crucial Left-Wing Movement Today” LA Weekly. November 9, 2015. http://www.laweekly.com/these-savvy- women-have-made-black-lives-matter- the-most-crucial-left-wing-movement-today/. Avanier, Erik. “Thousands march through San Marco during peaceful demonstration.” News4Jax . June 3, 2020. https://www.news4jax.com/news/local/2020/06/03/city-says-to-expect- emergency-personnel-in-san-marco- square-due-to-scheduled-walk/ “Black Liberation Theology, in its Founder’s Words.” NPR. March 31, 2008. https://www.npr.org/templates/story/story.php?storyId=89236116 Bolsover, Gillian. “Black Lives Matter discourse on US social media during COVID: polarised positions enacted in a new event.” The University of Leeds, Centre for Democratic Engagement. August 21, 2020. https://arxiv.org/ pdf/2009.03619.pdf Bloch, Emily. “Students at Jacksonville’s elite schools discuss racism — often anonymously.” The Florida Times-Union. June 16, 2020. https://www.jacksonville.com/story/news/local/2020/06/16/students-at-jacksonvillersquos- elite-schools-discuss-racism-mdash-often-anonymously/112296954/ Buchanan, Quoctrung, and Patel. “Black Lives Matter May Be the Largest Movement in U.S. History” The New York Times. July 3, 2020. https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size. html Clayton, Dewey M. “Black Lives Matter and the Civil Rights Movement: A Comparative Analysis of Two Social Movements in the United States.” Journal of Black Studies . Vol. 49 no. 5, pp. 448-480. March 21, 2018. https://journals.sagepub.com/doi/abs/10.1177/0021934718764099? journalCode=jbsa Cravey, Beth R. and Patterson, Steve. “Black Lives Matter protesters march through downtown Jacksonville; 3 arrested.” The Florida Times-Union. July 10, 2016. https://www.jacksonville.com/news/metro/2016-07-10/story/black-lives-matter-protesters- march-through-downtown-jacksonville-3 Crooks, James B. “The history of Jacksonville race relations. Part 2: Struggling for equality.” The Florida Times-Union. September 5, 2021. https://www.jacksonville.com/story/opinion/columns/guest/2021/09/05/james- crooks-history- jacksonville-race-relations-struggling-equality/8210831002/ DeSoucey et al. “Memory and Sacrifice: An Embodied Theory of Martyrdom.” Cultural Sociology. Vol. 2, no.1, pp. 99-121. 2008. https://journals.sagepub.com/doi/pdf/10.1177/1749975507086276 Durkheim, Emile. “The Elementary Forms of Religious Life.” Oxford University Press. Translated by Carol Cosman. 2001. Farrag, Hebah H. “The Role of Spirit in the #BlackLivesMatter Movement: A Conversation with Activist and Artist Patrisse Cullors.” Religion Dispatches. June 24, 2015. https://religiondispatches.org/the-role-of-spirit-in-the-blacklivesmatter-movement-a- conversation-with-activist-and-artist-patrisse-cullors/ Gleig, Ann and Farrag, Hebah. “Far from Being anti-religious, faith and spirituality run deep in Black Lives Matter.” The Conversation. https://theconversation.com/far-from- being-anti-religious- faith-and-spirituality-run-deep-in- black-lives-matter-145610 Green, Emma. “Black Activism, Unchurched.” The Atlantic. March 22, 2016. https://www.theatlantic.com/politics/archive/2016/03/black-activism-baltimore- black-church/474822/ Hout, Michael and Fischer, Claude. “Why More Americans Have No Religious Preference: Politics and Generations.” American Sociological Review . vol. 67, no. 2, pp. 165-190. April 2002. https://www.jstor.org/stable/3088891?seq=1 Hurst, Rodney L. “It was never about a hotdog and a Coke.” Wingspan Press. Jan 1, 2008. “The Spirit of Juneteenth.” YouTube. Uploaded by Interfaith Center of Northeast Florida, June 24, 2020. https://www.youtube.com/watch?v=flDBJx_ HWhM&feature=youtu.be King, Martin Luther. “Eulogy for the Martyred Children.” Carnegie Mellon University. http://digitalcollections.library.cmu.edu/awweb/awarchive?type=- file&item=434085 Luibrand, Shannon. “How a death in Ferguson sparked a movement in America.” August 7, 2015. CBS News. https://www.cbsnews.com/news/how-the-black-lives-matter-movement-changed- america-one-year-later/ Morris, Aldon D . The Origins of the Civil Rights Movement: Black Communities Organizing for Change . The Free Press. January 1, 1986. Savo-Matthews, Anna. “Black ministers call for Jacksonville reforms amid unrest.” The Florida Times- Union. June 8, 2020. https://www.jacksonville.com/story/ news/local/2020/06/08/black- ministers-call-for-jacksonville-reforms-amid-unrest/112295624/ Scanlan, Dan. “Jacksonville Residents continue protests in support of black lives.” The Florida Times- Union. June 4, 2020. https://www.jacksonville.com/sto- ry/news/local/2020/06/04/jacksonville- residents-continue-protests-in-sup- port-of-black-lives/112302732/ “Photos: Jacksonville Black Lives Matter protests in the wake of George Floyd’s death.” The Florida Times-Union. June 7, 2020. https://www.jacksonville.com/photogallery/LK/20200607/PHOTOGALLERY/607009988/PH/1 Vandenboom, Liza. “The Faith of the Black Lives Matter Movement.” Religion Unplugged. July 10, 2020. https://religionunplugged.com/news/2020/7/10/ the-faith-of-the-black-lives-matter- movement Woods, Mark and Soergel, Matt. “Ax Handle Saturday: The segregated lunch counters are gone, but the ‘Jacksonville Story’ continues.” The Florida Times-Union. August 21, 2020. https://www.jacksonville.com/story/news/ history/2020/08/21/jacksonville-civil-rights-demonstrators-took-action-60-years-ago-ax-handle-saturday/5620995002/ Yamane, David and Roberts, Keith A. “Secularization: Religion in Decline or Transformation?” Religion in Sociological Perspective, Sixth Edition. SAGE Publications. 2015. Previous Next

Vance Kelley Civil Disobedience and Desert Theory of Punishment Vance Kelley I. Introduction In this paper, I discuss how the state ought to punish civil disobedience given a desert theory of punishment. By “desert theory of punishment,” I mean the view that lawbreakers ought to be punished according to what they deserve. Other considerations, such as what would best deter or incapacitate lawbreakers, are to be ignored according to desert theory. Since there are many distinct notions of “civil disobedience,” I will also clarify my use of this phrase. I use “civil disobedience” to mean “breaking the law in order to communicate to the public and the state that a policy violates the lawbreaker’s moral convictions.” My definition leaves aside whether civil disobedience is nonviolent or a last resort (as John Rawls supposes), although these features could marginally affect how civil disobedience ought to be punished (1). Ultimately, I conclude that states ought to punish all civil disobedience less harshly than typical offenses. I arrive at this “mercy for all” view in a roundabout way. In fact, I initially point out a shortcoming with this view in Section III. In Section IV, I examine an alternative view that advocates lesser punishment only for civil disobedience done from correct moral convictions. I argue that this “mercy for correct moral convictions” view is impractical, since the state cannot identify who disobeyed from correct moral convictions and who disobeyed from incorrect ones. This leads me to argue in Section V that the state must punish all civil disobedience uniformly, without regard to the correctness of civil disobedients’ moral convictions. I then conclude that the best uniform punishment is indeed to treat all civil disobedience with mercy, since this avoids over-punishing those who act from correct moral convictions. II. Why Desert Theory? As I have said above, my central claim is that given desert theory of punishment, the state ought to punish all civil disobedience mercifully. Some may find it perplexing that my central claim accepts desert theory as the correct theory of punishment, and indeed this needs to be justified. Simply put, I accept desert theory because it best captures our intuitions about disciplining lawbreakers. Most of us share the intuition that it is wrong to punish innocent people as well as the intuition that it is wrong to over-punish the guilty. Desert theory offers an explanation of these intuitions; it is wrong to punish the innocent and to over-punish the guilty because these conflict with what people deserve . Innocent people do not deserve to be punished at all, and guilty people deserve to be punished in proportion to the severity of their crimes. Yet alternatives to desert theory—such as theories that recommend punishments based on their incapacitation or deterrence value—have a difficult time explaining why we hold the above intuitions (2). In fact, these “consequentialist” theories of punishment would suggest punishing the innocent or over-punishing the guilty if doing so deterred or incapacitated lawbreakers. For example, suppose that by executing a petty thief the state could deter all would-be thieves from stealing others’ property in addition to incapacitating the executed criminal. Consequentialist theories of punishment would recommend executing the petty thief even though this conflicts with our intuition that over-punishing him with death is wrong. Therefore, the problem with consequentialist theories of punishment runs even deeper than what Walen suggests. Not only do consequentialist theories fail to explain our intuitions about punishment; they also render verdicts that directly conflict with these intuitions. Of course, one could write volumes on the merits of different theories of punishment, and what I have written above merely scratches the surface. But I hope to have at least made the argument that desert theory is compelling, and my do- ing so should assuage concerns that I am unduly neglecting what consequentialist theories would say about punishing civil disobedience. Desert theory is the most plausible account of how we ought to punish lawbreakers, and I will now move on to my central concern: how should the state punish civil disobedience? III. The Shortcoming of “Mercy for All” One initially plausible view is that given desert theory, all civil disobedience ought to be punished less harshly than typical offenses. Kimberly Brownlee discusses this “mercy for all” view in her Stanford Encyclopedia entry, writing that civil disobedients deserve mercy because they are motivated by moral convictions. The idea is that lawbreakers generally deserve mercy if obeying the law would have been very difficult for them, and civil disobedients’ moral convictions indeed make obeying the law quite difficult (3). Additionally, perhaps civil disobedients deserve mercy because their motives are less reprehensible than those of typical offenders. Breaking the law because of one’s moral convictions seems far less shameful than doing so out of self-interest, and this has long been held by legal scholars (4). The view that all civil disobedients deserve mercy because they act from moral convictions may therefore seem plausible, but it is not quite right. Surely, granting mercy even to civil disobedients who have incorrect moral convictions is too broad. These misguided disobedients do not deserve lesser punishments than typical offenders, and an example shall make this clear. Suppose a man publicly refuses to obey a law that protects gay citizens from discrimination. Believing that homosexuality is immoral and that the law unjustly protects wrongdoers, the man refuses to serve same-sex couples at his restaurant as a way of protesting the law. Clearly, the fact that his disobedience is done from a moral conviction does not make the man deserve lesser punishment than normal offenders (5). His moral conviction is severely misguided, detestable, and undeserving of mercy. Therefore, it seems that only civil disobedients who act from correct moral convictions deserve reduced punishments. IV. The Impracticality of “Mercy for Correct Moral Convictions” I have just shown that only civil disobedients who act from correct moral convictions deserve mercy. Disobedience done from incorrect moral convictions, on the other hand, deserves no lesser punishment than normal. On desert theory, then, it seems rather straightforward that states ought to punish civil disobedients who hold correct moral convictions less harshly than normal offenders, while those with incorrect moral convictions ought to be punished at the standard level. However, this “mercy for correct moral convictions” view faces a significant problem. In practice, the state cannot administer the different levels of punish- ment that the view calls for. During sentencing, judges would need to discern who disobeys from correct moral convictions and who disobeys from incorrect ones. Yet typically judges will not be able to discern this, and instead they will view both types of civil disobedients as having incorrect moral convictions. This is because all civil disobedience expresses moral convictions contrary to those of lawmakers—that is the entire point of civil disobedience—and typically lawmakers’ convictions will also be held by judges. After all, in most democratic systems, lawmakers choose judges whose views accord with their own. Given that judges’ own moral convictions will agree with those of lawmakers and conflict with those of civil disobedients, judges will regard all civil disobedients as having incorrect moral convictions, for it will not matter that some civil disobedients’ convictions actually are correct and some are not. Admittedly, there may be cases where acts of civil disobedience convince judges that their moral convictions are wrong and that the disobedients’ convictions are correct. In such cases, judges could perceive that civil disobedience is being done from correct moral convictions, since here they do not allow their own moral convictions to cloud their judgment. That said, these cases are rare. Civil disobedients often fail many times before persuading the state that their moral convictions are correct. For example, the civil rights period in the United States lasted many years and required numerous instances of civil disobedience before judges and lawmakers were persuaded to end Jim Crow segregation. Generally, judges will view civil disobedients as having incorrect moral convictions even if some actually are correct; consequently, the state cannot give the different types of civil disobedients the disparate punishments that they deserve. V. “Mercy for All” Revisited So, how can the state punish civil disobedience? It cannot discriminate between disobedients who have correct moral convictions and those who lack them. In- stead, the state must punish all civil disobedience uniformly, without regard to the truth of disobedients’ moral convictions. This may cause us to conclude that desert theory is false if “ought implies can.” If states only have moral obligations to do what is possible, then it is not the case that they ought to give different punishments to civil disobedients depending on the truth of their moral convictions. As I have shown in the previous section, it is generally impossible for the state to assess the truth of these convictions and give out different punishments for them. Yet “different punishments depending on the truth of civil disobedients’ moral convictions” seems to be exactly what desert theory entails. The view claims that states ought to punish lawbreakers according to what they deserve, and civil disobedients deserve different punishments depending on the truth of their moral convictions. Since desert theory seems to entail a false conclusion, it appears to be false. However, there is a way around this problem for the view. We can add a proviso to desert theory that handles cases where the state is unable to give lawbreakers the different levels of punishment that they deserve. According to this proviso, if a state cannot identify and administer these different levels of punishment, then it no longer ought to give lawbreakers these different levels. Instead, the state ought to choose a uniform level of punishment that gives no one harsher punishment than she deserves, even if this lets some lawbreakers receive undeserved mercy (6). One may wonder why this proviso places so much emphasis on treating no one worse than she deserves. But in fact, many people agree with the spirit of the proviso. We often say that it is better to let guilty people go free than to imprison someone who is innocent; this idea was formalized by British jurist William Blackstone and has remained a part of jurisprudence ever since (7). With this proviso added to desert theory, it no longer imposes a moral obligation that violates “ought implies can.” Now, states are simply obligated to impose a uniform level of punishment on civil disobedients, and this should pose no practical difficulties. Given this proviso, what uniform level of punishment does desert theory recommend for civil disobedience? This could take one of two forms (8). First, the state could show no mercy to any civil disobedients and punish all of them at the lev- el appropriate for normal offenders. But this would over-punish those who have correct moral convictions and deserve mercy, so it is ruled out by the proviso. Alternatively, the state could show mercy to all civil disobedients and punish them at the reduced level appropriate for those with correct moral convictions. This under-punishes civil disobedients with incorrect moral convictions (who deserve full punishments), but it avoids over-punishing those with correct moral convictions. Since this second option avoids over-punishment, it is favored by the proviso. Therefore, states ought to show mercy to all civil disobedients and punish them at the reduced level appropriate for those with correct moral convictions. VI. Conclusion I have shown that given desert theory, we ought to punish all civil disobedience mercifully. I began in Section II by justifying and accepting desert theory, which claims that people ought to be punished according only to what they deserve. Then, in Section III, I examined my preferred view that all civil disobedients ought to be punished less harshly than typical offenders. I initially argued that this “mercy for all” view has a shortcoming: civil disobedients with incorrect moral convictions do not deserve mercy. Nonetheless, I returned to this view after recognizing in Section IV that it is impractical to give mercy only to disobedients with correct moral convictions. As I then explain in Section V, punishment of civil disobedience must therefore be uniform with respect to the truth of lawbreakers’ moral convictions. After adding a proviso to desert theory which accounts for this fact as well as our intuition that under-punishing is preferable to over-punishing, I return to the “mercy for all” view and accept it as the only one compatible with justice. Endnotes 1 John Rawls, A Theory of Justice. Harvard Belknap Press, 1971. 320, 327. 135 2 Alec Walen, “Retributive Justice”. Stanford Encyclopedia of Philosophy, Fall 2020 Edition. https://plato.stanford. edu/entries/justice-retributive/. Section 1. 3 Kimberlee Brownlee, “Civil Disobedience”. Stanford Encyclopedia of Philosophy, Fall 2017 Edition. https:// plato.stanford.edu/entries/civil-disobedience/. Section 4.2. 4 Harrop A. Freeman, “The Right of Civil Disobedience”. Indiana Law Journal, Vol 4 Iss 2, 1966. https://www. repository.law.indiana.edu/cgi/viewcontent.cgi?article=3628&context=ilj. 228-254. 5 It might be hard to imagine the “normal offender” for this case. Here, it would be someone who refuses to serve gay citizens but does not do so to protest the antidiscrimination law. Perhaps this person thinks that serving gay citizens will cause him to lose the business of homophobic customers. 6 One might question why the new level of punishment must be uniform. For example, perhaps different levels of punishment could be administered on a random or arbitrary basis. But surely, such punishments would be unjust. 7 William Blackstone, Commentaries on the Laws of England, 1893. 358. 8 It could also take a third form, at a level somewhere between what the two groups of disobedients deserve. But this would obviously over-punish those who have correct moral convictions and be thrown out by the proviso. Previous Next

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown University Journal of Philosophy, Politics & Economics *FEATUREs * FROM Paul Krugman Steven Pinker Yanis Varoufakis Editorial board foreword Volume II Issue II Introducing the fourth issue of JPPE Click to flip through the journal and see previous JPPE issues politics All Power to the Imagination economics John Taylor and Ben Bernanke on the Great Recession Radical Student Groups and Coalition Building in France During May 1968 and the United States during the Vietnam War By Calder McHugh Who Was Right About What Went Wrong? By Mikael Hemlin philosophy politics Respect for the Smallest of Creatures The Life Cycle of the Responsibility to Protect An Analysis of Human Respect for and Protection of Insects The Ongoing Emergence of R2P as a Norm in the International Community By Grace Engelman By Maxine Dehavenon philosophy The Moral Futility of Contempt Philosophy In Favor of Entrenchment A Response to Macalester Bell’s Hard Feelings in the Era of Trump By Jessica Li Justifying Geoengineering Research in Democratic Systems By Samantha M. Koreman economics POLITICS Financial Literacy, Credit Access and Financial Stress of Micro-Firms Peaceful Animals Evidence from Chile By Lucas Rosso Fones A Look into Black Pacifism and the Pedagogy of Civil Rights in American Public Education By Jade Fabello

Author Name < Back The Relationship Between Education and Welfare Dependency Aiden Cliff Abstract Several studies have described the correlation between welfare dependency and factors such as welfare conditionality, gender, and high school or college graduation rates. Using Annual Social and Economics Supplement Data (ASEC) from 2009 through 2019, downloaded from sources such as IPUMS CPS, this paper crafts an OLS regression model to find the relationship that years of completed education have on welfare dependency status. This paper concludes that there is a negative correlation between higher education levels and lower participation in the welfare system, with the completion of one additional year of schooling suggesting a decrease in the probability of needing welfare by 0.1%. While this correlation is small, it is still statistically significant in the linear probability model due to a large sample size (n = 145,431). After adding other explanatory variables, such as measures for race, biological sex, and employment status to control for endogeneity, further regressions confirm that there is still a statistically significant negative relationship between education and welfare dependency. These results suggest that policymakers should focus on educational subsidies over welfare subsidies to increase social mobility. I. Introduction Education is often referred to as an essential mechanism in promoting social mobility (Haveman, 2006). However, the rising costs of education in America have forced many individuals to require more income to pay off student loans. As a result, families who are enrolled in welfare programs are spending a larger portion of their income on student debt, correlated with an increased reliance on such welfare programs and a positive feedback loop that makes it more difficult to climb out of welfare dependency (Johnson, 2019). In addition, most welfare programs have substantial requirements that, rather than helping recipients to get out of poverty, restrain recipients from escaping the welfare system (Rupp et al, 2020). This, and other societal pressures, have forced lots of students to put a pause on their education and work at low-skilled jobs with minimal pay, keeping them reliant on welfare programs (Johnson, 2019). This vicious cycle will only cause more people to remain trapped within welfare programs, preventing them from escaping poverty and improving their livelihoods. Previous studies have shown that education levels are correlated with the probability of a welfare recipient returning to welfare in the future (London, 2008). Other studies have also shown how changes in the welfare system have improved welfare recipients' education qualifications and subsequently their employment opportunities (Hernaes, 2017). London’s (2008) study focused on how attaining a higher educational degree allows welfare recipients to improve their employment opportunities, reduce their welfare dependency, and reduce their overall family poverty levels by 63%. Meanwhile, Hernaes et.al (2017) found that more conditionality in welfare programs helped Norwegian teenagers from welfare-recipient families reduce their reliance on welfare programs; and lower the country’s high school dropout rate by 21%. In addition, Pacheo & Maloney (2003) found that intergenerational welfare participation differs between genders due to family characteristics such as household size and parents’ welfare dependency. As a result, young females tend to have lower educational attainment and are nearly two times as probable of relying on welfare in the future when compared to their male counterparts (Pacheo et al, 2003). Based on the insights offered by the studies above, this paper aims to contribute to this field by investigating the hypothesis that years of schooling completed reducing the probability of receiving welfare in the future. Factors of endogeneity will also be analyzed through the implementation of explanatory variables such as race (Courtney, 1996), sex (Bakas, 2014), number of children (Arulampalam, 2000), marital status (Hoffman, 1997), hours worked (Bick et al, 2018) and employment status (Arranz, 2004) into the regression model. These variables were chosen due to past publications finding possible links between this psychographics and demographics to welfare benefits. Preliminary hypotheses predict that there will be a negative relationship between the education level attained and the probability that an individual will receive future welfare. Using simple and multi-linear OLS regression analysis and the IPUMS-CPS annual data from 2009-2019, it has been observed that individuals with more years of schooling completed are less likely to be on welfare in the future. Data was chosen from this period because the American economy was beginning to recover from the 2008 Financial Crisis during this time. This allows us to observe correlations between education levels attained by individuals and whether they ended up in welfare programs more clearly. This paper will be presented as follows: Section II will cover previous research on how welfare conditionality, gender, and education levels affect welfare dependency. Section III will present information on how this data was obtained and explain the data-cleaning process along with the types of variables used throughout this paper. This section ends with explanations of how the data is verified through the four OLS assumptions. Section IV will cover econometric methodology which includes alternate functional forms explored and additional X-Variables tested through multiple regression along with methodologies we’ve used to control the endogeneity of independent and explanatory variables to ensure the fairness of the regression model. Section V highlights the results, the sample regression line, and statistically significant information regarding the regression analysis. Section VI contains the paper's conclusions where the results are evaluated and put into context within the field. The paper concludes with section VII, the appendix, where all tables, figures, diagrams, and supporting calculations are represented for reference. II. Literature Review The literature works that are presented here serve as important foundations in the field and provide extensive insight into the relationship between welfare dependency and education levels, along with how other variables might affect this relationship. The study conducted by Hernaes et al. (2017) found that the strict welfare conditionality, linking welfare to certain characteristics or traits in Norwegian welfare programs, has reduced welfare dependency while increasing the high school graduation rate among Norwegian welfare recipients. In the process, they used a logarithmic regression model (LRM) and regressed a dependent dummy variable that identifies welfare recipients who are 21 years old onto an independent variable that consists of family characteristics such as parent’s education background and cumulative income, to control for endogeneity. The study resembles this approach because the dependent variable that they’ve used is also a dummy variable that indicates welfare recipients. In addition, the study used other explanatory variables, in particular the recipient’s parental background, to control for the endogeneity of those variables on the probability of returning to welfare. However, Hernaes et al. (2017) emphasizes how family background affects teens’ probability of returning to welfare in the future through explanatory variables that focus on family characteristics. Whereas this study focuses more on how other individual characteristics such as education level, labor condition, and family status of the welfare recipient have affected the welfare recipient’s probability of returning to welfare programs in the future. Notably, a previous study indicated that there is a correlation between welfare recipients who have obtained a higher education degree with reducing their reliance on welfare programs, but only if they receive additional financial aid to support their college expenses. London (2006) uses data such as college attendance, college graduation rate, and personal characteristics, such as extraversion and race demographics, to predict the welfare recipient’s three outcomes: employment, return to aid, and poverty status. By controlling influencing factors that change over time – such as the rate of college enrollment – and making sure all omitted variables, – such as familial culture and personal motivation – are factored into the result, the study employs instrumental variable econometric models to calculate predictions. The study found that “college attendance, more than graduation, is an important predictor of future employment. At the same time, college graduation better predicts the probability of returning to aid or being poor within five years of leaving welfare” (London, 2006, p. 491). Specifically, the study quoted “college graduation rather than enrollment without graduation has an effect on recidivism, and only in the five-year interval” (London, 2006, p. 489). Their findings support this hypothesis that the education level a welfare recipient attains is crucial to the probability of returning to welfare in the future. Despite the similarities in the use of variables to investigate the issue, predicting the probability of return to welfare using college graduation and attendance is only a part of this study’s objectives. The study also conducts an investigation into how college graduation and attendance affect employment opportunities and family poverty levels. Another earlier study showed that genders might have different levels of welfare participation and education attainment. Pacheco & Maloney (2003) learned that females “have an estimated intergenerational correlation coefficient that is more than double that for males.” (Pacheco & Maloney, 2003, p. 371). The study uses simple regression models and inputs such as the number of years in formal education completed by age 21, family background characteristics (parent’s education qualifications and the number of children in the household), and the proportion of years where parents obtain welfare benefits to produce their findings. In addition, Pacheco & Maloney (2003) found that female welfare recipients whose families have a history of welfare dependency tend to remain in welfare programs. The study uses the same regression model to offer insight into how familial and cultural forces affect male and female probabilities of returning to welfare in the future. Nevertheless, Pacheco & Maloney (2003) offered insight into how gender might have altered the relationship between education levels and probability in return to welfare. III. Descriptive Statistics All of the raw data was downloaded directly from the CPS portion of the IPUMS website, which is a reputable federal source for time series and cross-sectional data. Annual Social and Economic Supplement Data (ASEC) from 2009 to 2019 was downloaded. These years were selected to obtain the most up-to-date data while also analyzing enough observations to create the best regression analysis possible. Twenty-one variables were analyzed within these years, the most important of which were EDUC and INCWELFR, the two variables that were altered and then used for the regression analysis. These variables were raw and included nearly 150,000 observations over the 11 years. The data was meticulously cleaned before running any regressions to test the hypothesis. The first variable cleaned was EDUC. The raw EDUC variable could hold any coded value from 1 to 125. These coded values did not reflect the true years of schooling any individual had, so a new variable was created: EDUC_REV, to accurately reflect the true years of schooling each individual has completed. The values for this new variable were generated using the observations for the EDUC variable alongside the specific numeric code utilized by CPS. For example, an individual who has obtained a high school diploma through 12 years of completed education would receive a value of EDUC=73 within the CPS data set. The data was cleaned so this specific value would now be EDUC_REV=12. This cleaning procedure was used for all possible levels of education within the data set. Individuals who were too young to receive any education at all were also removed from the data set (they were identified through EDUC=1 in the original data set). The focus then shifted toward the INCWELFR variable from CPS. This variable measures the dollar value of the income an individual receives from any source of government welfare benefits. In this study, the focus is on the effect that education has on the reception of welfare at all, not the amount of welfare that was received. This means the analysis is valid if an individual receives any form of welfare payments, and not focusing on the actual dollar value of said payments. So, for this reason, another new variable was created: WELFARE. This variable is a dummy variable that gets its values from the information in the INCWLFR variable. If the individual receives no form of welfare they will be assigned INCWLFR=0 in the data set. This same individual would be assigned a value of zero for the newly created variable (WELFARE=0 when INCWLFR=0). However, if an individual receives welfare in any form, regardless of the amount, they will be assigned a value of one for the new variable (WELFARE=1 when INCWLFR>0). Any individual who was not eligible to receive welfare in any form was denoted by INCWELFR=999999. These observations, many of which were individuals under 18, were removed from the data set to generate a less skewed, and more accurate, sample. Additional variables were also analyzed for the multiple regression analysis. These variables tested the effects of not only education, but also employment status, income, hours worked, marital status, gender, and number of children on the reception of welfare. These variables were used to try and control for endogeneity within the model and are further described in Table 1 of the appendix . Before the new variables could be put through a proper regression analysis, the four assumptions of an Ordinary Least Squares Regression Line had to be tested. If all of these assumptions hold true then the estimators of b1 and b2 would be BLUE (Best Linear Unbiased Estimators) and all of the calculations done through STATA would be completely accurate. The first OLS assumption is that the expected error within a sample will be zero. This is noted as E[WELFARE_RES/EDUC_REV]=0 and this does hold true in this sample. The 95% confidence interval for WELFARE_RES does include zero so it is likely that the expected value of the error is zero and therefore the first OLS assumption is met. The second OLS assumption is that the data is homoscedastic. This is noted as Var(WELFARE_RES/EDUC_REV)=Sigma^2. However, since the dependent variable is a dummy variable, this regression takes the form of a linear probability model (LPM). By definition, every linear probability model has heteroscedastic data. Therefore, the second OLS assumption is not met. The third OLS assumption is that the data is free of clustering. This is noted as Cov(WELFARE_RES_i,WELFARE_RES_j)=0, meaning that the value of WELFARE for one value does not directly influence the value of any other observation within the data set. This influence usually occurs when two observations are within the same geographical unit. While there is no way to test if any observations are within the same geographical unit (such as the same household) due to confidentiality, the sample size is large enough and pulls from each region almost equally, so it would be extremely unlikely for any two observations to come from the same household. Therefore, for the sake of the regression, the third OLS assumption will be met. The fourth and final OLS assumption is that Y is normally distributed. This was tested by creating a histogram for WELFARE and seeing if it roughly resembled a bell curve. When this was done, it was obvious that the data was not normal. This is apparent through a multitude of factors but is most clearly shown by the high skewness, a value of over 16. Therefore, it was concluded that welfare was not normally distributed. However, since the sample size consists of 145,431 observations, the central limit theorem (CLT) is met. So, while the fourth OLS assumption failed to be met for this particular regression, it will not have a significant impact on the regression since the sampling distribution for WELFARE will still be normally distributed. In conclusion, the regression met two of the four OLS assumptions. Therefore, while the regression analysis will not be BLUE, it will still be significant since it is free of serious sampling errors. IV. Econometric Methodology While this paper mainly focuses on the linear probability model and the effect that education has on welfare dependency, other functional forms that could better fit the regression analysis were also considered to develop a more thorough analysis. This was done through the experimentation of the functional forms that the independent variable took. While the previous section discussed the linear form of EDUC_REV, exponential and logarithmic forms of this variable were also considered. The independent variable was only altered since the dependent variable is a dummy variable. Altering the value of the variable will not generate any different results since its domain is limited to {0,1}. Other explanatory variables, and the results they produced, are summarized in Table 5 of the appendix. While all of the functional forms tested would have produced statistically significant interpretations that support the hypothesis, although their interpretations would have been different, the original regression was still the most accurate for this particular data set. Other functional forms included EDUC_REV in quadratic, cubic, and log forms. These functional forms are used to emphasize the effects of EDUC_REV in order to match the data points. The original is the most accurate because it has the highest R-Squared value, a measure of how well the data points fit the linear regression line. These R-Squared values can be found in Table 5 but the linear model has the highest value of .0014. Since the linear regression between WELFARE and EDUC_REV has the most accurate regression line relative to the data set, this regression model was the basis from which all conclusions were drawn. Interaction terms were also analyzed by creating the term EDUC_UNEMP which was EDUC_REV multiplied by UNEMPLOYED. By using this interaction term, the possible effect of EDUCATION on WELFARE varying with UNEMPLOYED can be studied. The regression showed that when UNEMPLOYED is 0, the likelihood of WELFARE is constant plus b2. When UNEMPLOYED is 1 then the likelihood of being on WELFARE increases. This means that individuals who are unemployed are more likely to be receiving benefits from welfare. The motive that drives this is individuals who are unemployed do not receive any form of compensation or income outside of their welfare payments. Slope and Intercept dummy variables are additional variables added to this study. In this situation, the intercept dummy variable is UNEMPLOYED. The presence of UNEMPLOYED is represented with a 1 and causes an increase in the intercept, which translates to an increase in the probability of welfare. When describing this relationship on a graph there are two parallel lines and the difference between them is caused by the slope dummy variable. Both lines have the same slope and the probability gap of being on WELFARE remains the same at all levels. This is not the main difference between someone who is unemployed and someone who is employed. This supports the claims made through interaction term analysis in the previous paragraph. However, while the simple regression analysis supports the hypothesis, there could be other confounding variables that underlay such correlation seen between WELFARE and EDUC_REV. If these possible confounding variables are correlated with both WELFARE (controlling for EDUC_REV) and EDUC_REV, then it could make EDUC_REV an endogenous variable, indicating that EDUC_REV does not necessarily cause the decrease in the probability of an individual on welfare. To test this claim, a multiple regression analysis was run, including both EDUC_REV and a variety of other possibly confounding variables, for their possible effects on WELFARE. The results showed that the three variables with the largest effect on WELFARE were BLACK, MALE, and UNEMPLOYED. These are variables created within the data set describing an individual's race, gender, and employment status, respectively. All of these are strong contenders for possible confounding variables and the true reason the regression effect on welfare was observed, and therefore put EDUC_REV at risk of being an endogenous variable (Courtney, 1996; Bakas, 2014; Arranz, 2004). A full list of the additional X-Variables tested along with the multiple regression output can be found in Table 10 . That being said, this is not enough evidence to conclude that education levels are definitely an endogenous variable when describing the probability of receiving welfare. These possible confounding variables could be further analyzed if a more in-depth regression analysis was performed in future studies. V. Results After the data had been completely cleaned and verified for OLS assumptions, the regression of EDUC_REV on WELFARE was run. This regression showed the noncausal effect that years of completed education have on the probability of receiving welfare. If the hypothesis holds true, the Least-Squares Regression Line should have a negative slope, denoting that the more years of education an individual completes, the less likely it is that the individual receives welfare. The output for the regression analysis, as well as the full, scatter plot showing the Least Squares Regression Line for EDUC_REV against WELFARE, can be seen in Table 8 and Table 9 of the appendix. However, these figures can be summarized by the equation for the sample regression: WELFARE_hat = b1 + b2 EDUC_REV t-statistic = -14.27 WELFARE_hat = .015 - .001 EDUC_REV n = 145,431 (SE) (8.08e-4) (5.68e-5) p-value = 0 *** The most important value within the sample regression line for the hypothesis is -.001, or the slope of the regression line denoted as b2. Since b2 is a negative value, there is a negative correlation between the number of years of completed schooling (EDUC_REV) and the reception of welfare (WELFARE). While this value seems too small to have any real effect, it is still statistically significant. This is because the 99% confidence interval for b2 does not include zero because the standard deviation is extremely close to zero based on the large sample size. A hypothesis test at the critical level of .01 was also run to see if the value generated for b2 could be equal to zero. This test gave a critical value for b2 of -14.27 and a probability of B2 being equal to zero of zero. These results lead to the conclusion that it is statistically significant that as EDUC_REV increases, WELFARE decreases within the regression. In conclusion, while increases in education could have a small effect on the probability of relying on welfare, it is still a statistically significant effect. However, this does not prove that increases in education will decrease the probability of relying on welfare since ceteris-paribus does not hold true for this collected data set and a causal relationship is not established. This regression analysis supports the hypothesis that as an individual's education increases, the probability that said individual will rely on welfare as a source of income decreases (since b2 is a statistically significant negative number). By applying these findings, it was determined that as an individual’s years of completed schooling (EDUC_REV) increases by 1 year, the probability that the individual will receive welfare (WELFARE as a dummy variable) decreases by .001 or 0.1%. This is because the slope of the linear regression model, with a dependent dummy variable, is -.001 and the functional form analyzed is a linear probability model. While this relation is not inherently strong, and years of completed schooling do not have a large impact on the probability of receiving welfare, it is still statistically significant. Within the regression, b1 is also statistically significant. The value of b1 in this sample regression line is .015, or an applied .15%. By applying this value to the context of the study, it was found that the probability of an individual receiving welfare given that they have completed zero years of schooling is .15%. This number is positive so it is technically feasible and within the domain of the study. However, it is extremely unlikely that an individual has received zero years of schooling and is also eligible to receive welfare (Stephens, 2014). For this reason, the value of b1 was not a focus within these results. VI. Conclusion As stated above, this study shows a minor, yet the statistically significant, effect of EDUC_REV on WELFARE. These results indicate that there is evidence to support a possible relationship between higher levels of completed education and lower chances of an individual receiving welfare in the future. The thought process behind this regression is that individuals with higher education are more likely to land better jobs and therefore make more money, thus decreasing their need for welfare. While focusing on the simple regression model for the majority of the paper, important results when controlling for endogeneity through a multiple regression model were also found. This multiple regression analysis was performed while controlling for multicollinearity. Since none of these variables share a strong correlation (r > .8) with each other, it is okay to run a regression model with all of these X-Variables. The full correlation results can be seen in Table 11 of the appendix. AIC, BIC/SC, and R_Squared were also analyzed and are summarized in Table 12. Since the multiple regression model has more X-Variables, it has a larger potential to explain any variation in Y and is likely to be a better fit for the data. Even with the introduction of these additional X-Variables, the initial variable tested in the multiple regression analysis, EDUC_REV, was still statistically significant, as seen in Table 10 . Thus, even with controls for endogeneity, there is still a statistically significant negative correlation between the highest level of completed education and the probability of receiving welfare, only strengthening this paper’s claims. In relation to previous studies in part II, this study aligns with London’s (2006) conclusion that welfare recipients who have received a higher education degree have a lower probability of receiving welfare in the future, with the assumption that both genders fit into the conclusion. However, to what extent education attainment is beneficial to both genders and race remains questionable since the data lacked suitable information to investigate how omitted variables might have affected the relationship between the education level attained and the probability of receiving welfare. This paper has also failed to reproduce the findings that Pacheco & Maloney (2003) found. This paper did not control the age and time of welfare received by the recipient, whereas Pacheco & Maloney (2003) did. In addition, Pacheco & Maloney (2003) factors in the background of the welfare recipient’s parents, such as their income received from welfare, educational background, and race. This study, on the other hand, did not factor family characteristics into the regression model. This paper also failed to reproduce the results that Hernaes et. al (2017) produced because the nature of the data is different from Hernaes et. al (2017). First, Hernaes et. al’s (2017) dataset had the location of each welfare recipient’s municipality. The location variable allows Hernaes et. al (2017) to determine whether the welfare recipient was in a municipality that has stricter welfare policies or not. Second, Hernaes et. al (2017) was able to capture each municipality’s level of conditionality through survey responses collected in a report by a research institute. These are some of the features that the data, unfortunately, do not possess. This paper supports the theory that there is a correlation between the highest level of education completed and the probability of receiving welfare. Thus, more educated individuals are less likely to be dependent on welfare. In a broader context, policymakers could use this information to find more effective means for increasing social mobility, rather than investing heavily in welfare payments. Since there is possibly an inverse relationship between education and welfare, the federal government could create a new program to subsidize education rather than simply making payments to disadvantaged citizens. This would provide an economic incentive for individuals who were previously on welfare to attend school, making the entire nation more educated and more productively efficient as a result (Brown et al, 1991). However, while this paper could be used from a policy perspective, there are some drawbacks. The relationship between education and the probability of welfare is not proven to be causal after this analysis. This is because the ceteris-paribus condition does not hold true throughout the data and regression. In addition, this dataset has a limited scope regarding population characteristics. The dataset indicates the highest education level attained by the individual but does not indicate when they achieved that education. For example, some individuals might have dropped out of high school during their youth and returned to complete their high school degree after a long period of time. If that information is also provided in the dataset, that would open new frontiers on how education-level attainment influences the probability of receiving welfare. Before any change is enacted, especially on a governmental level, first proving a causal relationship would be recommended. This paper merely lays the framework for possible studies regarding welfare analysis in the future. This paper did support the hypothesis that as education levels rise, the probability that an individual becomes dependent on welfare decreases. Through the regression analysis, it was determined that there is a small, yet statistically significant, difference that education has on the probability of receiving welfare in the future. This trend could be utilized by policymakers to stimulate education as a means of reducing welfare dependency, creating a population that is not only less dependent on welfare payments, but more educated, and more productive as a result. Note: see "Full Editions," Volume IV Issue I for appendix. VIII. References Arranz, Jose Ma, and Muro, Juan. "Recurrent Unemployment, Welfare Benefits and Heterogeneity." International Review of Applied Economics . 18, no. 4 (2004): 423-41. Arulampalam, W. "Unemployment Persistence." Oxford Economic Papers . 52, no. 1 (2000): 24-50. Bakas, Dimitrios, and Papapetrou, Evangelia. "Unemployment by Gender: Evidence from EU Countries." International Advances in Economic Research. 20, no. 1 (2014): 103-11. Bick, Alexander, Fuchs-Schündeln, Nicola, and Lagakos, David. "How Do Hours Worked Vary with Income? Cross-Country Evidence and Implications." The American Economic Review. 108, no. 1 (2018): 170-99. Brown, Phillip, and Lauder, Hugh. "Education, Economy and Social Change." International Studies in Sociology of Education. 1, no. 1-2 (1991): 3-23. Cliff, Aiden, Rupp, Matthew, Lieng, Owen. “ A Study on the Relationship Between Education and Probability to Receive Welfare Assistance.” Boston University (2020): 204 Courtney, ME. "Race and Child Welfare Services: Past Research and Future Directions." Child Welfare. 75 (1996): 99. Gooden, S. (2000). Race and Welfare. Journal Of Poverty , 4 (3), 21-24. https://doi.org/10.1300/J134v04n03_02 Haveman, Robert, and Timothy Smeeding. "The Role of Higher Education in Social Mobility." The Future of Children 16, no. 2 (2006): 125-50. Accessed April 28, 2021. http://www.jstor.org/stable/3844794 . Hernæs, Ø., Markussen, S., & Røed, K. (2017). Can welfare conditionality combat high school dropout. Labour Economics , 48 , 144-156. https://doi.org/10.1016/j.labeco.2017 . 08.003 Hoffman, Saul. "Marital Instability and the Economic Status of Women." Demography 14, no. 1 (1977): 67-76. Johnson, D. (2019). What Will It Take to Solve the Student Loan Crisis. Harvard Business Review. Retrieved 29 April 2020, from https://hbr.org/2019/09/what-will-it-take-to-solve-the-student-loan-crisis . Kim, Hwanjoon. "Anti‐Poverty Effectiveness of Taxes and Income Transfers in Welfare States." International Social Security Review. 53, no. 4 (2000): 105-29. London, R. (2005). Welfare Recipients' College Attendance and Consequences for Time-Limited Aid. Social Science Quarterly , 86 , 1104-1122. https://doi.org/10.1111/j.0038-4941.2005.00338 . London, R. (2006). The Role of Postsecondary Education in Welfare Recipients' Paths to Self-Sufficiency. The Journal Of Higher Education , 77 (3), 472-496. Retrieved 28 April 2020, from https://www.jstor.org/stable/3838698 Pacheco, G., & Maloney, T. (2003). Are the Determinants of Intergenerational Welfare Dependency Gender-specific. Australian Journal Of Labour Economics , 6 (3), 371-382. Retrieved 28 April 2020, from https://www.researchgate.net/ publication/46557521_Are_the_Determinants_of_Intergeneration al_Welfare_Dependency_Gender-specific Stephens, Melvin, and Yang, Dou-Yan. "Compulsory Education and the Benefits of Schooling." The American Economic Review. 104, no. 6 (2014): 1777-792.

The Captain and the Doctor: On the Enchantment of Modern Men George LeMieux Author Alexander Gerasimchuk Fatima Avila Editors Though we be on the far side of the world, this ship is our home. This ship is England. Introduction Modern man is lost. He is not home to himself. He lacks the longings that great men once had. While Nietzsche, Rousseau, or Burke might better articulate or explore this problem, I intend to explore how it might be remedied, a possible antidote to our modern poison. From the Western canon, I have identified three such antidotes or rather three figures who might re-enchant the modern man, the man of the democratic age. They are the vanguard of Marx, the conqueror of Nietzsche, and the disciple, which is first constituted Biblically but later in Toqueville among others. I shall conduct this search through the metaphor of a ship’s captain, in this case, Captain Jack Aubrey as depicted in the celebrated series and film Master and Commander , which I will briefly outline. Before that outline is given, I will first justify this metaphor by the virtue of captaincy itself (despite the fact I would shoehorn this favorite film of mine into anything). Then in the aftermath, I will examine these three figures as our “captains.” In this examination, I hope to reveal that modern man may only be enchanted, or at least enchanted to humanity’s benefit, by a disciple. For our captain, only the disciple offers a path that does not self-destruct and looks beyond worldly motivation. A Metaphor Since there is a long and storied history of philosophers making use of the ship and other nautical nomenclature as metaphor for their sophisticated views on man, government, and what other nonsense comes to their minds, I see no reason to deviate from the tradition. For what is better than a ship with captain and crew? She, like her nation, must suffer through trial and tribulation, storm and battle. She must adjust her sails so that she catches the wind but not let loose so much as to rip her masts apart. She must have a rigid hull built to withstand cannon and carronade, but she must also have flexibility, lest the changing temperatures and humidity crack her hull. She must be led by a captain, strong and decisive in his command. Yet he must not be a tyrant. He must court the hearts of his men so that he may win their will. If not, his men will mutiny. The uninspired crew would have no other reason to entertain the otherwise insufferable conditions of life at sea. Indeed, I do think this will be a fitting metaphor. The Captain Captain Jack Aubrey of His Majesty's Royal Navy is a man caught between two worlds, between two times. Behind him is the aristocracy of old: kings, queens, lords, ladies, and government by the few for the many, at least ideally. In front of him stands modernity: merchants, naturalists, revolutions, counter-revolutions, Napoleon, the new world, America, and democracy. Such is the world of Captain Aubrey as depicted in Patrick O'Brian's novel and Peter Weir’s film Master and Commander: The Far Side of the World. Jack is a man of tradition. He respects the Crown. He reads his scripture. He loves his country. Jack’s hero is none other than Duke and Admiral Horatio Nelson, a brave and sturdy man who dies defending his love of king and country. And yet Jack sees his idols, his pillars crumbling. He has witnessed the chaos of the revolutions in France. He holds the Burkean sentiment that it is the modern radicals that “despise experience as the wisdom of unlettered men; [...] they have wrought underground a mine that will blow up, at one grand explosion, all examples of antiquity, all precedents, charters, and acts of parliament. They have ‘the rights of men.’” It is this modern threat with its rights and revolutionaries that is epitomized by the two foils of the film. The first foil is the Acheron —the ship of the modern age. She is at the forefront of naval technological advancement. Her hull is braced by three layers of live oak and white oak, making her near impenetrable for any ship of her class. She is the largest of any frigate built, able to carry more guns, yet also more aerodynamic, “heavier, but faster spite it” (Weir, Collee). In every way, she outclasses the H.M.S Surprise , Jack’s nimble but aging frigate. And where is the Acheron built? Boston. While Peter Weir had the financial sensibility to make the antagonist of the film French, i.e. Acheron , Patrick O’Brian’s ship was called U.S.S Norfolk . It is with this name that the dichotomy O’Brian intended is much clearer. It is the new world and the old world, His Majesty and Mr. President. And the new world is winning. The second foil is not a figure of oak and iron but of flesh and bone. Doctor Stephen Maturin is the ship’s surgeon and a savant of a surgeon he is. He is also a naturist, collecting, diagraming, and recording the various species he encounters on the ship’s voyages. Upon the ship’s travel to the Galapagos Islands, the parallels to the young Darwin are evident. More important, however, than any of this, he is Jack’s best friend. Despite sharing little common interest, much less a common worldview, Jack confides in Stephen what he confides in no one else. Stephen, in turn, voices his dissent to Jack, when no crew member nor officer would otherwise dare. He is both his greatest ally and greatest challenger. He is the check to Jack’s ambition and the prosecutor of his reason. He is the liberal to Jack’s conservatism. He echoes the voices of democracy, of the social contract, and the danger of tyrants. His respect for Jack comes not from his title or station but from how he leads, how he governs. It is Stephen who most quickly becomes the radical, the revolutionary, when Jack steps out of line. The Jack we see at the film’s beginning is willing to die on the hill of order and naval tradition. He is unable to see anything but the objective of his mission. Stephen and even the other officers are unable to go as far. To Jack’s credit, it is his daring and force of will, despite insurmountable odds, that makes him a great captain. In his pursuit of the Acheron , Jack takes risks that make his moves unpredictable and effective; his crew calls him Lucky Jack for a reason. But those risks do not come without their costs, even if Jack is lucky more often than he is not. Eventually, Jack carelessly pursues the Acheron into a storm and loses a man and a mast in the process. Still, Jack does not turn tail, despite Stephen’s pleas. He refits and refocuses. Only by the film's end does Jack reform and he does so not through reasoning but out of his friendship with Stephen. When Stephen is injured in an accident on board (a marine shoots him while aiming for a bird), Jack sends his ship ashore to one of the Galapagos islands instead of continuing his pursuit, likely to his detriment. This act of compassion, as it turns out, is the saving grace of the Surprise. Not only is the Acheron spotted on the far side of the island, but Stephen inspires Jack on how to capture her. While Jack's act of compassion does not separate him from his ideology, it reveals a complexity in his nature. In not letting his warrior-like nature subjugate the other parts of his conscience, Jack demonstrates his command of self, making him a good captain in more ways than one. His compassion for Stephen, despite their differences, allows him to occupy a middle ground between old and the new, between those of high and low station, between those conservative and radical. Despite their differences, Jack and Stephen end their days together with music, with a duet, playing the cello and violin as the Surprise sails into the sunset. Looking at this time and this day, in this new world, one must wonder if such bonding, such good feeling, such balance between the conservative and the liberal is possible. Every day the position of the radical, of the accelerationist, becomes more compelling even to the conservative. In America, the rigging and line that once held hull and sail together have frayed and torn, not in the harshest winds but in their daily use. The physical lines that once held men together are now virtual, connections in the cloud and the internet. These lines between men were once tangible things; now, there are few of these left. The conservative now must ask himself what he intends to conserve and if he is capable of such conservation. With conservatives far to the right, liberals far to the left, and a confused chasm in between, can those old ropes hold society together any longer? Perhaps, it is time to cut the rope. Perhaps, it is time for both right and left to become radical. Or, perhaps, there is faith to be had in those old ropes. Perhaps, there could be a man to renew their strength, reorganize them, and apply a fresh coat of tar to protect them. Perhaps, there might be a man who could tie new ropes without cutting away the old. Is there such a captain for this ship of modernity? Is there a Jack who can reason with the moderns, take heed of their desires but not be dragged off course? What does such a captain look like? The Captain’s Virtue Before one can talk of any mystical quality a good captain must have, one must first talk about his primary obligation, his duty, his vocation. For if this station is not sound in virtue, the metaphor is not fit for its goal. A captain, such as Jack, is the leader of a warship and of its crew. He would not be a good captain if he could not sail, navigate, or command the ship in battle. He must understand every part of his command and responsibility. It was for such reasons that those men who became captains most often started their time at sea from their early teens as Midshipmen, who were responsible for commanding gun crews of sailors twice their age. It is this good practice, of physical strain and tangible purpose, that makes the vocation virtuous. Virtue is not found in sophistry or the professing of morality but in good works and deeds. Both Rousseau and Marx recognized that the “sensible” men of the world are not the magistrates but the “workers” and the “people.” In this way, the captain is a unique station. It is a position that reaches downward to the grit and servitude that is required but reaches up toward order and inspiration. On one hand, a captain must stand amongst his sailors and with his marines facing the enemy, taking with them every shot fired, equally as likely to be impaled by shrapnel and splinter, equally as likely to take grapeshot from a swivel gun, equally as likely to take a cannonball straight through his gut. On the other hand, a captain must reach upward. He must engage in strategy, diplomacy, and negotiation. He takes his orders from admirals, parliament, and the King. He must, with his officers, stand apart and govern the crew, making sure he does not fraternize with them or become too social. He must whip those who are insubordinate. And it is he who gives the parting sermon after his men die in battle. The captain is both above and below, a man who mediates between king and country, between God and his men. Vanguard For Marx, the nature of our captain is clear. He must be a vanguard, a man who can reach from the high to the low, from bourgeois to proletariat, a man who has the means to lead the proletariat to “acquire political supremacy” and “ constitute itself the nation” (Marx 488). The vanguard can not be of the lower classes as they do not hold the means of production or own sufficient property. The vanguard will not be the bourgeois socialist who wants “all the advantages of modern social conditions without the struggles and dangers necessarily resulting from them.” That man would not lead nor fight in the “impending bloody conflicts” that the revolution requires. But the captain might. He, by virtue of his practice, gains access to the epistemic standpoint of the working man. He can call his men into battle because he will be in that battle himself, because he will stand in front, with pistol and cutlass in hand, because he knows their plight and their struggle. Yes, the captain might be the perfect vanguard, if he had the disposition and the courage required to lead the revolution. But no vanguard will heal or reinspire the whole nation. He will take the radicals he agrees with and burn the rest. The ideal vanguard may be the captain, the general, or some other man of higher but not so noble station, that comes down to act on behalf of the proletariat. But the unifying captain is, in the root of his position, opposed to such a severing. More fit, would be the treasonous first officer who leads a mutiny against the captain and the remaining loyal officers. To be a vanguard is to be a “slash and burn” farmer who wreaks devastation on the present vegetation so that the soil may be made fertile again. There will be no healing, under the vanguard. Conqueror Then perhaps the captain, who must fight to re-enchant our new world, must be a conqueror. The conqueror does not require a revolution, or at least not an ideological one, for the conqueror has no need for the traditional radical who operates on moral principles. He is not the vanguard who cries out to the poor that they must liberate themselves. The conqueror only asks for good men, inspired to fight for their home and fatherland, inspired to make something more of what they have been given. The conqueror rises in rank and comes to lead a nation because of his proven success on the battlefield. This captain inspires not because of his pleasant sailing or wise words but because he sinks ships. Nietzsche asks “[m]ust the ancient fire not some day flare up [...] More: must one not desire it with all its might.” Is it not blood that would surely wake the modern man from his slumber, wake the animal instinct inside of him? Perhaps the true conservative can only believe that “antiquity incarnate” arises through a conqueror, a superman, a Napoleon. And yet one must ask of Nietzsche, what is to happen after the conquest? What is to happen after one has conquered all he can or has been defeated? What was Napoleon to do, having failed in Russia? What was Alexander to do when he lay sick and dying in his bed? What is left to hold a nation together when the expansion has stopped and the wars have come to an end? How is a conqueror to at last govern his people? If the measure of man’s vitality is only to be strength and victory, then there will be no man who finds purpose in times of peace. When the soldier again becomes the carpenter after his service is done, he must now aspire to be the superman of carpentry. He must strike down all other table builders and door makers in his path if he is to achieve vitality. He will feel not for his fellow man, now that he does not need him to protect his flank or cover his advance. He will be a frustrated and lonely man, who, in his attempted rationalization to maximize his will and vitality, will frantically look around every corner to become the carpenter of all carpenters, betraying every man who gets in his path. Nietzsche might retort that one should not care for the carpenter, for all carpenters are weak men who failed to rise to a higher station. But if one is to build a society, does one not need the carpenter? Would it not be better to be his friend so that he may more willingly and caringly craft one’s furniture? Perhaps Nietzsche thinks that forcing the carpenter to build a chair would be better to maximize the will than to engage in normal transaction or to politely ask him. Society needs carpenters; a ship needs sailors. Neither will run well if every request is made out of threat or a difference in power. Sure power may be unequally distributed among men, and men will surely wield that power to their advantage, but every interaction need not be a Melian Dialogue . No unification of society, no mending of wounds, could ever take place in such a one-dimensional existence. Even if, for but a fleeting moment, conservative and liberal may be united by the fires of war, such a state is only temporary. While the ancient fires may rise again, they may just as quickly die. For all Napoleon was, how many more revolutions and fragile republics followed? There was no remnant of antiquity to build upon. Instead, it was democratic man who, upon the rubble of Europe, raised his new throne. In his time, Tocqueville correctly surmised that democracy would be here to stay: “I think that in the long run, government by democracy shall increase the real strength of society.” While “slave” in its morality, democracy is dominant in its presence. Its practitioners are no longer just the carpenters or even the priests; they are the captains, the generals, the senators themselves. While European antiquity lay unaware, the strength and size of America, of democratic power, grew. “Something that passed unnoticed a century ago now strikes the attention of all.” Now, antiquity not only lacks the popular momentum to overcome the democratic age, but it lacks the strength. If there is to be a man who rekindles the flame of the West, he will not be a conqueror who slays democratic man. He will be a democratic man himself. And What for God? Purposely absent from the mind of Marx’s vanguard and Nietzsche’s superman is the Kingdom of God. Nietzsche and Marx are the archetypes of, as John Courtney Murray would categorize them, “the postmodern atheist”. The post-moderns not only leave God out of their government, philosophy, and science as the moderns do; they actively strike Him out, act against Him, and demonstrate how He cannot exist. The postmodern is offended that a God could exist and (in Marx’s case) allow for so much scarcity, so much evil, or (in Nietzsche’s case) deprive man of his freedom, the will, that makes man human. God, if he exists, is either a tormenter, imprisoner, or both. Nietzsche further declares that the morality man claims to have derived from God, the morality of the Christian and the Jew is the greatest perversion of the natural order: strength and weakness. Good and evil, concepts of vengeful weaklings, invert the true “morality” by which man once lived and should live again. Of Marx’s and Nietzsche’s cases, Nietzsche’s is the stronger. When one eliminates God from the worldly equation, one must also eliminate the morality that came with Him. Marx may claim scarcity is the great evil, but this concept of evil only comes through sympathy for the suffering of others. What is the evil of inequality or greed or a dominant bourgeois class if there is no concern for fellow man? From where does the humanist goodness, ascribed by Marx to the elimination of suffering, originate? Without an order, ordained above and outside by divine authority, there can be no objective good. No worldly cosmodicy is sufficient to prove an objective good. If one’s ultimate goal is “good” for the nation, one cannot look to Nietzsche for a cure; the concept of good is, in fact, part of the disease. But if one looks to Marx, one cannot find a source of good. Therein, the postmoderns are fruitless. And democratic man seems to agree. The true moral plague is that democratic man is not looking for goodness but instead assumes it. The modern atheist does not kill God but walks away from Him. In His absence, he does not search for truth or morality but merely replicates the idea of good that was passed down to him. He imitates, but his imitations, as they are not rooted in the source, are imperfect: bastardized (Murray and Nietzsche agree). He might even hold some personal religious sentiment but will not act on religious conviction. He does not mix the personal with the external world. He will work, govern, and wage war but will never do so in the name of God. He lives as if God does not exist. This … breed says in effect that, since he cannot know what God is, he will refuse to affirm that God is. But this stupidity, one may well think, surpasses that of the idolater. It is not merely an implicit refusal of God; it is an explicit denial of intelligence. The essence of God does indeed lie beyond the scope of intelligence, but his existence does not. It is this modern man—the man who does not deny God but shoves him aside—that has become commonplace. This modern man feels neither the warm light of heaven nor the scorching hellfire below. He wanders in a cold fog, blind, deaf and dumb. He lingers in the cave only seeing shadows of the truth. Because he does not see the source of the light, he assumes there is no source and does not search for it. It is this modern man who must be re-enchanted. Disciple So how is our captain to deal with the moderns, with the Dr. Maturins that now sail aboard every ship? What is he to do with those who synthesize values of democracy and the equality of man but do not acknowledge the creator who created them equally? Thankfully, the modern agnostic, despite his lack of reason in comparison to the Nietzschean, has not yet thrown off his moral yoke. In some ways, he still feels a connection to the world beyond the material. There are yet some embers left to kindle. There are yet men left to kindle them. There is hardly any human action, however private it may be, which does not result from some very general conception men have of God, of His relations with the human race, of the nature of their souls, and the duties to their fellows. Nothing can prevent such ideas from being the common spring from which all else originates. If man is to truly be re-enchanted—to be inspired and given lasting direction—he must look to that only thing which is transcendent, that is not merely of time and matter. If there is ever again to be unity amongst men, there must be unity with their creator. There must be disciples to show us the way. When man has been enchanted, even democratic man, it has been with and through religious spirit, fostered by disciples and prophets. These men once walked among us. These were the men in between God and humanity, Heaven and Earth, men who heard His voice and acted on His will. They were Moses and Abraham and David and Paul and Peter. God even revealed Himself to man in mortal form, in and through man’s pain and flesh. And yet, despite all of these, man’s faith remains weak. The disciples' task is never finished. He may never stop, for if he does, man is quick to forget and quick to lose his way. He will lose himself in the desert, and never find the promised land, his true home, his self. The disciple must be an ever-present and ever-constant reminder of God. The captain, disciple in his most righteous form, has some divine spark, some glint in his eye, some Promethean fire in his bosom that animates bravery and fortitude. The captain calls his men to voyage into the unknown, across the far side of the world. He calls his men to fight for a home that long disappeared behind a horizon last seen thousands of miles ago. He brings together those born across the empire, those who share little, and those who resent much. The duty the captain must call his men to cannot be incentivized with the stuff of the earth. He can promise them no amount of riches or glory among men to keep them steadfast. There is something the captain must awaken in his men that moves their spirits, their souls, guiding them toward something not here attainable. Only manna sent down from upon high can quell a spiritual hunger. And so the Captain must be like Moses, the interlocutor between man and God—newly the interlocular between conservative and liberal. He does not make the manna nor the law in the heavens, but he does transmit them. He walks down from Sinai to deliver to those below. He understands the plight of his crew, the doctor, and the common man, but he does not let them build golden calves. He has ambition but he does not raise towers of Babble; he does not push onward without cause. Where have these disciples gone? Where is Moses to be seen? Who upholds the commandments given from on high? Might it not be the lack of disciples but man who is the problem? Have there been one too many golden calves built in town squares, one too many towers of Babylon raised to the mockery of Heaven? Are there enough ears today willing to hear a sermon, enough lips willing to say a prayer? I contend there are. While the world may not be presently enchanted, there have been moments, glimpses, of enchantment. There was Reagan who stood in the way of the communist threat with his quick wit but mild manner. There was Dr. King who appealed to the heavens, preached to the masses, and marched hand in hand with the persecuted. There was Churchill who looked the devil right in the eye and spat back at him. There was Lincoln who looked over a battlefield and made a promise those men would not die in vain. There was Washington who led his soldiers, served his time, and ceded his throne. It was these disciples that reminded man of himself, of his nature, of his longings. They called upon God, evoked a higher duty, and bound men to each other. They knew that “[r]eligion [...] imposes on each man [...] obligations toward mankind, to be performed in common [...] and so draws him away from thinking about himself.” Like a captain, those disciples, who were fit to suffer, suffered in common with their men when they could have stood afar. Dr. King marched with his men, was imprisoned for them, and died for them. Reagan too took a bullet for his nation, although he fortunately survived. Lincoln, in his service and his stress, aged himself twenty years in the span of four and was assassinated shortly thereafter, giving the last full measure of his devotion. Washington lost battles for months on end in the bitter cold until he found success in a Christmas night attack. Oh, the joy nations will feel when leaders acquire such courage again when they call upon the heavens as they did not so long ago. Oh, they will know that feeling that gathered hundreds of thousands on the National Mall, that mustered the men who crossed the Delaware, that had black and white Union soldiers singing “Glory, Glory, Hallelujah” as they marched surely to their deaths at Fort Wagner. Only then can man come home to himself. Conclusion Who is our captain to be? What direction would we have him take our ship? Must he not be both a man of the people and a man of the elite, a democratic man who still has a touch, a memory in him, of that antiquity, that nobility, that honor of old? Still, he is not the vanguard of the proletariat, for the vanguard is a mutineer hellbent on revolution, not a captain. Neither is he the conqueror, for the captain must govern his ship beyond the rush of battle. He must lead his crew through those many times at sea which are dull and mundane. He must care for his men beyond their use in warfare. He must be selfless because that is what God calls him to be in times of struggle, a disciple who looks upward before he looks onward. But if those fires are ever to rise again, if the trumpet must once again cry its song of battle, the captain must be ready. He must again be simply a man of his trade, a good seaman and a good officer. He must dexterously maneuver his ship, out-sail, and outsmart his opponents. And when he must call for cannon fire, he must know what to cry to his men. He must have their best, not just for him, but for their God, their nation, and their fellow man. JACK - Want to see a guillotine in Piccadilly? CREW- No! JACK- Do you want to call Napoleon your king? CREW- No! JACK- Want your children to sing The Marseillaise? CREW- No! JACK- Mr. Mowett, Mr. Pullings, starboard battery! References Burke, Edmund, et al. Select Works of Edmund Burke: A New Imprint of the Payne Edition. Liberty Fund, 1999. Marx, Karl, et al. The Marx-Engels Reader. Norton, 1978. Murray, John Courtney. “The Problem of God Yesterday and Today.” Georgetown University Library, 1963, library.georgetown.edu/woodstock/murray/1964c. Nietzsche, Friedrich Wilhelm. On the Genealogy of Morals. Translated by Walter Kaufmann and R. J. Hollingdale, Vintage Books, 1989. Rousseau, Jean-Jacques. The Major Political Writings of Jean-Jacques Rousseau: The Two Discourses and the Social Contract. Translated by John T. Scott, The University of Chicago Press, 2014. Tocqueville, Alexis De, et al. Democracy in America. Harper Perennial Modern Classics, 2006. Weir, Peter, and John Collee. Master and Commander: Far Side of the World. Twentieth Century Fox, Aug. 2001.

Kyu-hyun Jo Cause, Causation, and Multiplicity: A Critique of E. H. Carr’s “Causation in History” Kyu-hyun Jo Abstract This paper will assess three central components of Edward Carr’s lecture ‘’Causation in History’’ in What is History? First, Carr does not show causation’s real function of distinguishing between various types of history; the kinds of causes a historian employs describes the nature of their historical inquiry. Second, Carr’s notion of “accidental causes” is oxymoronic because accidents are unpredictable for any historical actor. There is no logic to explain why unexpected accidents had to happen for historical actors from their viewpoint. Therefore, its contrast with ‘’rational causes’’ is misleading. Finally, however important causes are in formulating historical interpretations, causes do not determine a historian’s interpretation. 1. An Outline of the Main Arguments The explanation of causes in historical phenomena—explaining how historical events occurred by examining and describing the reasons behind their occurrence—is perhaps the signature hallmark of History as a Social Science. Yet, how does a historian know what a cause is and how should he or she explain the cause? This paper will provide a critique of Edward Carr’s methodology in his lecture “Causation in History,’’ collected in his seminal book, What is History? I will first assess Carr’s discussion of determinism, then discuss his distinction between accidental and rational causes, and finally, analyze how examples function throughout the lecture to highlight his arguments. From such examination, I will emphasize the function of historical causality within Carr’s framing of History as a scientific process. After examining Carr’s logic on historical causality, I will conclude with three main arguments. First, while Carr shows the necessity of causal explanations in historical analyses, he does not crucially show that the real importance of causes in historical explanation lies in their power to determine subdivisions in fields of historical research. Second, Carr’s distinction between “accidental causes’’ and “rational causes’’ is misleading because “accidental causes’’ is an oxymoronic concept. Accidents occur unpredictably and unexpectedly from a historical actor’s perspective, and it is impossible to accurately judge why an accident had to occur, unless a historical actor involved in an accident should miraculously resuscitate to directly inform the historian of the accident’s details. Moreover, if the fundamental purpose of a historical cause is to provide a logical explanation to the occurrence of historical phenomena, Carr, in conceiving “accidental’’ as an opposing concept to “rational,’’ is basically comparing illogical and logical causation in history. However, if “illogical’’ means “that which cannot be explained logically,’’ then it is questionable how an “illogical cause’’ is actually an explanatory cause. It is possible to explain that an accident became an accident, even if it is much harder to determine why an accident exactly occurred. Insofar as there is an explanation, however unsatisfactory the quality of the explanation may be, explaining how an accident came to be called as such, still qualifies as being logical, or having the capability to be explained with reasonable statements. In other words, the contrast between accidental and rational causes in historical explanation is misconstrued because “accidental causes’’ is an oxymoronic concept. Finally, while Carr may be correct in emphasizing the importance of causes in historical interpretation, he is mistaken in assuming that causes alone dictate the structure and content of historical analysis. The search for historical causes is only necessary for the sake of providing diverse angles of historical analyses; historical causes are not so important to exclusively determine and decide the entire content of a historian’s interpretation. It is the historian’s liberty to interpret facts about an event and then determine what the important causes of an event may be, but historical causes alone do not possess the great power to determine the direction of the historian’s interpretation. Rather, it is interdisciplinary historical analysis, which provides a rationale, a justification for why certain causes have better explanatory causes for a certain historical event than others, which ultimately in- forms the direction of a historian’s logic. The art of performing meticulous and exact historical interpretations involves adopting interdisciplinary methods, and only after the invocation of interdisciplinary methods to provide a rationale for establishing a hierarchy between causes can a historian perform interpretations. 2. A Brief Literature Review and the Significance of “Causation in History” A close analysis and an examination of Carr’s conception of causality and his ideas is necessary because there has yet to be a systematic study of Carr’s “Causation in History.” The majority of the secondary literature on What is His- tory? are book reviews that concentrates on commenting on the book’s overall structure and its main argument that History is a dialogue between the past and the present. This literature either mentions Carr’s discussion of historical causality solely in relation to his main argument, or ignores it altogether (1). For example, in the most recent comprehensive discussion of philosophies of History and historiography, the author closely analyzes Robin Collingwood’s emphasis on human ac- tions as the subject of historical inquiry is closely analyzed as a conditional theory for historical causation. Though Carr was a major critic of Collingwood’s views of History in general, neither Carr’s “Causation in History” as an independent work nor What is History? is given sufficient attention (2). Critical studies of Carr’s ideas regarding History have concentrated on his pursuit of objectivity and positivism, or his conceptualization of History as a study of causes. Ann Frazier (1976) argues against an absolute positivist view of History. She asserts that insofar as a historical narrative is a “reconstruction from present experience of what might have happened in the past,” it is impossible to absolutely determine what “actually happened in the past” (3). In other words, Carr’s vision for an objective and a pure History devoted to verifying past events with exactitude is untenable and impossible to realize. Geoffrey Partington (1979) criticized Carr’s “moral positivism and moral futurism” in favor of replacing them with relativism to better account for differences in time and place in which a historical event occurred when making a historical judgment (4). Most recently, Ann Talbot (2009), while comparing Carr’s view of chance and necessity with that of Leon Trotsky, concluded, “History is no longer a study of causality but is determined by the propensities of the historian” (5). In short, the secondary literature has engaged with various aspects of Carr’s view of History and concentrated on how historians write about the past and how recent interpretations of History have abandoned Carr’s concern for causality. However, the secondary literature, in particular Talbot, does not explain why Carr’s search for the role of causality in the writing of History is outdated, missing the central value of “Causality in History” as Carr’s most definitive statement on what History is as a science, for it is in this lecture where a truly scientific and methodical answer to the title of Carr’s book actually appears. A critical examination of Carr’s conception of historical causality is necessary to show why it is outdated or, as I noted earlier, there are three major deficiencies in Carr’s logic about historical causality. In “Causation in History” Carr develops the most methodological and structural argument about the nature of historical causality and criticism against historical determinism, which taken collectively, is actually devoted to explaining why History is a science, rather than explaining causality’s place in History for its own sake. Carr’s views about causality in History are essentially concerned with how causality functions in History to give its scientific character, not whether History’s entire academic identity is simply a study of causation. It is in this particular lecture where Carr’s understanding of History as a science in terms of approaches and methodology is most clearly expressed and where a genuinely structural analysis of History as a science—how historical causation reflects the scientific nature and essence of History—is most lucidly given. In short, this particular lecture deserves a close analysis because it explains why and how History functions as a science: by ordering facts through causality to transform historical fact into historical knowledge. How History becomes under- stood as History to a historian is perhaps the best method to know how history be- comes transformed into professional History. This paper intends to highlight the importance of causation within the question, “What is History?,” later evaluating Carr’s ability to frame historical inquiry as a scientific process through causation and causality. 3. Carr’s Main Ideas on Historical Causality Carr opens his discussion about historical causation with the observation that the historian “commonly assigns several causes to the same event’’ (6). However, the historian is bound by “a professional impulse to reduce it to order, to establish some hierarchy of causes which would fix their relation to one another’’ to decide which cause should be “the ultimate cause, the cause of all causes’’ (7). In other words, Carr believes that a multiplicity of causes serves a secondary function of letting the historian rationally prioritize a single cause that produced an event. From this discussion of the historian’s need to identify an order to historical causes, Carr argues that “historical determinism’’ and “chance in history’’ are “red herrings’’ which obstruct the logical flow of historical causation and proceeds to show how they are not part of a proper historical logic. “Historical determinism’’ is “the belief that everything has a cause or causes, and could not have happened differently unless something in the cause or causes had also been different’’ (8). In other words, “historical determinism’’ assumes that the occurrence of every phenomenon in life is dependent on a single cause unique to that particular phenomenon such that even the slightest alteration in the cause would necessarily produce a different phenomenon. However, Carr sees “historical determinism” as both unsatisfactory and un- realistic because it does not recognize the unpredictable vicissitudes of human behavior and actions According to Carr, the choices people make defy strict classification as either a matter of free will or logical determinism. He believes that various forms of human behavior and actions can arise from both free will and determined causes, arguing that historians are flexible in understanding human actions to arise from both sources (9). From this reasoning, Carr does not entertain the view that historical events occur “inevitably,’’ unless “inevitably’’ is qualified to mean that antecedent causes would have to be different for an event’s outcome to be radically different from what was expected (10). Since Carr is uncomfortable with the notion that historical events occur in a vacuum, it is unsurprising that he also finds explanations relying on “chance’’ or “accidents’’ unsatisfactory. Not only are accidents unexplainable through “historical determinism,’’ but accidents are also causal interruptions to a string of events which a historian wishes to investigate. In other words, the occurrence of an accident is not a license with which a historian can argue that there was no clear cause for an event to occur; an accident is merely an obstacle preventing the historian from focusing on a chain of causality which clearly awaited the historian’s discovery. Of course, Carr is aware that it might be possible for accidents and chance events to happen in history, for such occurrences are not only minor, but are continually compensated by other accidents or chance events, and “chance” might be a “character of individuals’’ (11). In other words, the randomness of accidents is possible because an accident is by nature an unexpected event and the forms in which it may occur are varied and diverse, and may be influenced by the unpredictable variety of personalities of every individual. Yet, Carr finds these apologetic defenses of accidents and chance events unsatisfying because accidents and chance events are often “seriously exaggerated,’’ or perceived to “accelerate or retard’’ historical progress, a sentiment which Carr dismisses as mere “juggling with words’’ (12). Moreover, he thinks that “chance events’’ are “natural occurrences’’ which complement each other is merely an euphemism to claim that there are events in life we cannot comprehend. Carr believes that those who use accidents in their theories have granted themselves the undeserved liberty to excuse themselves from the tedious business of rigorously investigating causes of an event. Such a person, in Carr’s view, is “intellectually lazy’’ or possesses “low intellectual vitality’’ (13). In other words, because accidents are also induced via human activity and actions, Carr does not believe that accidents truly occur unexpectedly or without any causation. Insofar as accidents can be caused by some faults in human personality or will, these faults, however inherently various, deserve to be studied as causes behind the accidents they create. The historian must observe and analyze accidents just as he or she would investigate any other “normal’’ political, social, or cultural event and ponder on why the accident occurred or whether it could have been avoided or prevented at all. So how does a historian pay proper attention to historical causes and formulate a causal relationship between historical facts? For Carr, it begins with the realization that there is little to distinguish between “historical’’ and “unhistorical’’ facts such that it is always possible for the latter to become the former (14). For example, someone living in 1066 and directly witnessing the Battle of Hastings might record that the battle “is taking place,” but once a historian agrees with the witness who claims that it was important that the battle occurred, the historian preserves the fact that the battle occurred in the past and has historical importance by simply stating the same fact in the past tense: “The Battle of Hastings clearly occurred in 1066.” Yet, the murkiness of the distinction does not mean that all causes are to be treated equally, for Carr believes that there are “rational’’ and “accidental’’ causes. The former can be applied to diverse countries, eras, and conditions, which warrants generalizations. By contrast, “accidental’’ causes, which have to be specifically devoted to explaining how an accident as a particular event in a specific time, location, and circumstances, cannot be generalized. An accident occurs under particular conditions and is fundamentally a result derived only from the particular conditions and therefore “teach us no lessons and lead to no conclusions’’ (15). In other words, rationality for Carr is synonymous with generality, while “accidental’’ causes are limited in their generality because they can only be comprehended only within the specific contexts they had occurred. The more important point is that “rational causes’’ have purposes borne from human motivations, whereas “accidental causes’’ do not have an objective. With that said, such a distinction does not mean “accidental causes’’ can be dismissed. Regardless of the type of cause, Carr believes that insofar as historians are expected to make interpretations about them, they are issuing value judgments, and causality is “bound up with interpretation,’’ for the act of assigning causes is itself a judgment. Moreover, because history is a purveyor of tradition, history is obligated to be a record of “past habits and lessons of the past’’ for future generations (16). Due to the arbitrary and selective nature of historical time, Carr concludes by arguing that historians must habitually ask “whither’’ along with “why?’’ (17). The audience for whom the historian writes is as important as personal and private reasons for which the historian writes history. Carr believes that the historian’s search for causation necessarily implies a search for an ultimate cause which can clearly answer why a phenomenon occurred, and insofar as a historian is searching for the ultimate cause, “historical determinism’’ is unsatisfactory because it disregards the importance of multiple causality in ac- counting for the unexpected and unpredictable nature of historical events. Carr also finds the treatment of “chance’’ or “accidental causes’’ as synonymous with “no causation’’ as unsatisfactory, because they are just masking a historian’s laziness or unwillingness to scrutinize historical events very closely to find a logical causation between them. Finally, regardless of whether a cause is “rational”—has the ability to be generalized—or is “accidental’’—happens by pure chance or as an outcome of unexpected events—distinctions between them are not very important because causality in general must inform a historian’s interpretation, which, in turn, is a form of value judgment. The possibility of a “subjective’’ causality is not an excuse to not treat “accidental causes’’ or “rational causes’’ unequally, for the division of time, which is the basic element of a historian’s thinking, is a subjective category which is bound to change depending on the nature of a “future’’ a historian is interested in addressing. As long as the future is subject to change, so will the perception of “past’’ and “present,’’ which is why a historian must be well aware of the purpose for which he or she desires to write history and the audience for whom the historian wishes a work to have a lasting influence. Logic is important to maximize the delivery of rhetorical clarity, for it is the essence of an argument’s organization. Yet, because logic is a general description of a reasoning’s supposed trajectory, logic needs to be supplemented with proper examples to illustrate and convince others that the trajectory is an accurate and rational one. This section has shown how Carr’s logic about historical causation could probably be considered rational; the next section will examine and analyze Carr’s use of examples to determine whether there is sufficient rhetorical strength in the logic to convince the reader that the logic is traveling on its proper and designated route. 4. Carr’s Use of Examples and Their Logical Compatibility with His Main Points This section evaluates Carr’s usage of historical examples in illustrating his main themes and arguments, offering a critique about the propriety of the examples in relation to the points they are making. In particular, it will concentrate on Carr’s examples drawn from the Russian Revolution and the accident of Robinson. This section will conclude that while his use of these examples is sound because he effectively illustrates the importance of unpredictability in historical causation to a historian’s thought process, the Revolution and the accident of Robinson do not greatly support Carr’s main theoretical argument because they do not show how and why a particular hierarchy of causes is necessary for one example but not the other. Carr uses episodes from the Russian Revolution to illustrate his opposition to historical determinism. There are several problems with Carr’s use of the Russian Revolution as an example to counter the assumptions of historical determinism. Fundamentally, the example does not show how Carr would be able to choose his “ultimate’’ cause behind the Revolution’s origins. While it is clear that multiple causes must be considered to establish the complexity of the event and there- by highlight its importance, Carr does not show how a hierarchy of causes can be derived from a consideration of multiple causes. What he actually wishes to show by discussing the Russian Revolution is that “historical determinism” is not a proper historical logic because it essentially engages in counterfactual reasoning, which is not germane to the historian’s critical aim of determining the past as it is. Against historical determinism’s charge that a historian may not consider other alternatives while focusing too much on one cause, Carr argues that supposing that Stolypin had completed the agrarian reform or that the Bolsheviks did not win the Russian Revolution are not relevant to historical determinism, for the determinist would simply look for causes other than ones which actually occurred to argue that different causes would have different outcomes. Hence, Carr suggests that the suppositions have “nothing to do with history,’’ because counterfactual assertions cannot be proven with any certainty with documented evidence and are non-historical (18). The problem is that Carr never really identifies the precise kind of historical interpretation for which his example from the Russian Revolution is meant to offer support. If the suppositions he made are not “historical,’’ then the real question is, which suppositions should be deemed “historical?’’ Refutation by negation does not necessarily lead to clarity; it only serves as a proof of what an opposing argument cannot be, rather than proving the essence of the opposing argument. More- over, because the basic theoretical argument against “historical determinism’’ is that historical events have multiple causes and do not occur in a vacuum, Carr’s example should have shown how a genuine historical argument can be fruitful by considering multiple causes. After all, the real problem Carr has with “historical determinism’’ is that it assumes that historical events were bound to happen with- out any particular value ascribed to the events’ circumstantial causes. Since Carr is uncomfortable with the unscientific and unhistorical nature of the philosophy, it would have logically made more sense for him to show how historical logic operates in a coherent and powerful manner such that it could not be easily dismissed by proponents of historical determinism. Hence, it would have sufficed to show how causation and causes operate in a historical analysis rather than a proving how “historical determinism’’ has a faulty logic, since the fact that there is a deficiency in an opposing logic does not necessarily imply that an alternative logic must be better simply because it does not have that deficiency. The other problem with Carr’s use of the Russian Revolution is his assumption that the supposed currency of the Russian Revolution as a “modern historical’’ problem has greater importance than “older’’ events such as the Norman Con- quest or the American Revolution. Carr believes that there is a greater desire to remember “options’’ still available for a more recently concluded historical event than much older ones. Carr claims that the expression of diverse passions from non-historians makes it hard for them to accept conclusions of a historian who merely recounts an event as it happened (19). Carr does seem to show why “historical determinism’’ is popular, but his analogy does not necessarily prove why “historical determinism’’ is an unhistorical logic. All events eventually get forgotten to certain degrees in which some facts are going to be better known than others, but it is primarily a historian’s scholarly curiosity which determines the importance of a historical event. Since every historian must have different reasons for believing that a historical event is important, the only impediment with regard to time would be the availability or lack of primary sources rather than a poverty of a historian’s imagination or will to realize innovation. “Older’’ events were once “modern’’ and therefore, importance is inherently a subjective standard which arises from the question of how well individuals remember events. People do remember events which are closer to their immediate memories better than older ones in terms of general details, but squabbling over how alternative causes behind an event might have changed the actual outcome is not necessarily the only reason for which a “modern event’’ must be remembered better than an older event. Christopher Columbus died believing that he had discovered “India” instead of the Caribbean, but the fact that the person might engage in a “historically deterministic’’ debate about how the course of history might have been different had Columbus really landed in North America does not necessarily mean that the person would not engage in historical determinism about other historical events, especially if the person has a passionate interest about them. Chronological distance has no definite correlation with interest because the latter is not necessarily dependent on time but rather on this person’s intellectual curiosity regardless of the event’s currency to the immediate present. Furthermore, thinking historically is a capability, not a matter of predilection. Even if that person remembers the IMF Crisis better than Columbus’s discovery of the Caribbean, it does not follow that “unhistorical’’ suppositions such as “if Columbus had set sail for Africa instead, he would have never discovered the Caribbean” are not relevant to historical thinking. A “cause’’ is not some given concept or model; one has to think through a selection of reasons behind an event to determine which reasons were essential and which ones were merely auxiliary or unimportant in precipitating the occurrence of a phenomenon. Counterfactual reasoning can help a historian think through a rationale for why a supposed cause is actually a noteworthy one; the only caution is to only think through counter- factual claims, not write them down as part of the actual historical reasoning. In other words, the clarity of memory does not necessarily lead to more “historically deterministic debates’’ because logical clarity is independent from the question of whether that logic is “historically deterministic.’’ It is perfectly logical to assume that if Columbus had not been adept at sailing when he was young, then he would have not made the voyage to the Caribbean, for one is only thinking about the causal logic of actions in a given situation and time period without describing the historical consequences of those actions. Thinking about historical events does not always have to imply that one is only thinking about history in terms of chronology, for situational logicality is also important to fathom causality in action, which is what gives contextual meaning and significance to time. Moreover, “historical determinism’’ is an attitude about a particular event or a specific set of events for which a different outcome would have been likely had causes been also different from ones which were originally suggested. Why assume that a desire to adopt such an attitude is stronger with a modern event than a more chronologically distant one? The expression of a particular attitude is not necessarily dependent on how new or old an event is, and chronic difference between a historical event and the individual who is remembering the event may vary ac- cording to the individual who decides to remember it. Yet, emotional attachment to a particular event need not inversely relate with chronological distance because reasons for recollection are far too varied to summarize merely as a function of time. As long as “modern’’ is a relative term expressed from the viewpoint of certain individuals and groups, there will be no rigid standard to determine which memories constitute “modern history.” Moreover, if the historian’s task is to select an “ultimate cause’’ of a particular event, how can a historian be so sure that there is an “ultimate cause’’ without ranking a supposedly “historically deterministic’’ cause? The danger of falling into “historical determinism’’ is not a good reason to avoid considering hypothetical claims, because a historian can always change hypotheses into positive statements by searching for relevant primary and secondary sources to test whether or not there is sufficient evidence to prove its validity. The suitability of a historical cause’s use as part of a historical argument is first and foremost dependent on how reliable that cause is. Carr’s other main concern about historical causality is the disturbing use of the concept of “accidents’’ in history as synonymous with the idea of “no causation.’’ The primary example that he uses to illustrate his critique is “Robinson’s accident.’’ Carr gives a hypothetical example of Robinson, who was crossing the street to buy cigarettes but was unexpectedly struck and killed by an oncoming car. However, if the driver was intoxicated, was driving a car with defective brakes, and hit Robinson in a dark alley where barely anything was visible, what was the actual cause of the accident—Robinson, the defective brakes, the dark alley, or the drunk driver? Instead of answering his own inquiry, Carr states that if two passers-by were to give the opinion that Robinson was killed because he was a heavy smoker, and that had he not gone out to buy the cigarettes, there would have been no accident, they would be employing a “kind of remorseless logic found in Alice in Wonderland and Through the Looking Glass .’’ Carr concludes by remarking that such hypothetical reasoning is not a mode of thought appropriate for history (20). The main deficiency he finds in the concept of “accidents’’ is that an “accident’’ is also an historical event. It is therefore subject to a historian’s analysis of preceding causes leading to the occurrence of the accident. In other words, “accidents’’ cannot escape a historian’s scrutiny just because they seemingly occur without any single clear cause. However complex an accident may be, Carr believes that there is still a hierarchy amongst causes behind an accident which allows the historian to discern between primary causes and auxiliary or negligible ones. The historian’s ability to discern “relevant facts’’ from “irrelevant facts’’ until there is a “rational quilt of knowledge,’’ represents an approximation of a historian’s working mind (21). Unfortunately, Carr does not give a clear answer to the critical question, how does this discernment actually work in practice? There are two ironic errors that Carr commits in telling this narrative. First, despite Carr’s attempt to show why “accidents’’ are still valid elements to consider in historical thinking, he chose the wrong type of example; his example is purely unhistorical. We are only present- ed with a sequence of actions within one ‘historical’ moment rather than several different yet interconnected events across a wide span of time. When historians consider an accident and its causes, they always consider the accident’s relative importance to other events, figures, or conditions. To declare that an event is “historical’’ is to designate a relational quality which suggests that an event has a “historical significance’’ which can describe the event’s relationship or value by connecting with other events, figures, or conditions. If one is ever inclined to declare that a single event alone is historically significant, it can only happen because one presupposes that the event is already well-known because of its relationship with preceding or simultaneous events. For example, from Archduke Ferdinand’s viewpoint, his assassination by Gavrilo Princip was an accident. However, before investigating the causes of the assassination, the historian must establish a rationale to explain why studying the assassination is important. In the case of Archduke Ferdinand, the historian, using a bit of hindsight, can argue that the assassination began a massive wave of violence which rattled across the European continent and ignited the sparks of World War I. By contrast, in Carr’s example, we are not given a reason to believe that studying Robinson’s accident is historically worthwhile. In other words, because Carr did not explain the “historicity’’ of Robinson’s accident, we are not presented with a credible reason to believe that this is a historical event. Carr’s second error is that if we consider Carr’s reason for invoking Robinson’s accident as an example, the example does not illustrate a necessity or method to find multiple causes in historical analysis. If a historian’s prime objective in search- ing for multiple causes is to search for an ultimate cause for a historical phenomenon, then Carr ought to have shown how a historian might approach Robinson’s case as a historical phenomenon. His conclusion that a historian engages selectively with causes is not actually a literal answer to any of his two-part question: 1) How does a historian choose multiple causes? and 2) How does a historian actually select an “ultimate cause’’ from those multiple causes? This is because there is no reason to assume that there must be a single cause for Robinson’s accident at all unless Robinson himself or the driver told the police that there was actually one cause to the accident. Even if the driver had told the police that there was only one cause, it is purely the driver’s own opinion which may or may not be corroborated by other witnesses or circumstantial evidence. From an unassuming observer’s point of view, there is no exact means to verify a sequence of events and pinpoint a singular cause because the observer did not encounter Robinson’s accident in real time along with Robinson. Insofar as this difference between an observer and Robinson exists, there will always be a gulf between speculations and the actual truth. Indeed, because of this gulf, the real moral of Robinson’s accident ought to have been that searching for multiple causes is necessary for a historian to account for every possible explanation of a phenomenon, since the point of finding possible causes of an accident is to establish that an accident can be explained to convince people that the accident can be perceived as an accident. Carr’s argument that one should establish a “hierarchy of causes” implies that there is a particular cause which outranks others in terms of importance. However, there is no such thing as an absolute verification of a truth’s minute details for the historian, unless, very rarely, absolute verification is a necessary condition to prove the soundness of his or her main arguments. A historian is obliged to consider as many aspects of a past event, but no one can know every single detail to get a complete and impeccable picture of an event. The historian has the right to exercise a liberty of imagination based on primary sources and eye-witness accounts, but the historian must also understand that his or her tools to unearth historical facts also delineate the parameters of epistemological certainty. Moreover, Robinson’s example also poses the question of how a historian deter- mines a cause of an accident as an accident, a process that is limited by the quantity and quality of evidence one can find. Since the parameter of what constitutes historical knowledge is bound to change depending on which sources this historian can find, Carr is actually unable to answer the first part of his question. Further- more, because the parameters of knowledge are at the mercy of the availability of historical sources, an attachment to the belief that there must be an ultimate cause is both unrealistic and false, which is why Carr is never able to give a clear answer to the second part of his question. Historical causes are not tangible and therefore cannot be visually compared with each other. Of course, if a historian is writing an autobiography and writes a history of his or her life from what he or she remembers, then, there might be some liberty for the historian to rank causes and choose the ultimate one. In such a case, there is no basis from which another historian can ask why the causes were ranked in one way but not another, because every mind has but one master. The absence of a hierarchy among causes does not imply an absence of certain- ty or that historians ought to be skeptical about everything they encounter. To the contrary, there are undeniable truths in history such as the Holocaust or Russian pogroms of the 19th century. Rather, acknowledging a multiplicity of causes al- lows for a holistic consideration of multiple dimensions of a historical event from which causal explanations can be drawn, which actually prevents a historian from engaging in “historical determinism.” If the objective of studying a historical event is, as Carr claims, to search for one cause with absolute explanatory power, then the historian is actually engaging in ‘historical determinism’ because such an objective reflects the idea’s actual essence. Hence, Carr’s opposition to “historical determinism,’’ which was precisely because he believed in the multiplicity of causes, does not logically follow from invoking Robinson’s example. Furthermore, the witnesses in Robinson’s accident were actually reflecting Carr’s faith in the multiplicity of causes, so the next task was for Carr to show how he could select his ‘ultimate cause’ for explaining why Robinson died. Instead, Carr vaguely suggests that the historian has to be selective about his causes without explaining the end to which this selectivity has value. Hence, Robinson’s example is actually a Straw Man argument because the original purpose for which the example was mentioned does not become clear until Carr supplies a rationale for justifying a hierarchy of causes. As for how and why the hierarchy fundamentally exists, Carr never gives a clear answer. Therefore, Robinson’s death merely illustrates an argument about an element which is not extant in any of Carr’s arguments prior to his discussion of Robinson’s death. 5. Three Central Problems with Carr’s Methodology in “Causation in History’’ In this concluding section, I will identify three central problems with Carr’s method which will serve as a summary of this paper’s main arguments. First, Carr’s notion of a hierarchy of causes and its importance in historical explanation is unfortunately quite nebulous because he never specifies the purpose be- hind the existence of the hierarchy, ignoring the true function of historical causes as a form of scientific processing. Second, Carr’s distinction between “rational” and “accidental” causes is not valid because regardless of an event’s nature, multiple causes are necessary to account for inherent complexities in any historical event and such causes ultimately serve as evidence for a historian’s claim, which means that the more causes a historian can find, the more reliable and believable a historian’s account becomes. On the one hand, multiple causes are necessary to describe different facets of a phenomenon; a historian will summarize his or her main arguments to show readers how those facets constitute the “wholeness’’ of a historical fact. On the other hand, there needs to be a multiplicity in the kinds of causal analysis a historian uses to approximately position arguments within a given subfield of History. Finally, Carr is wrong to suggest that causes determine a historian’s interpretation because the former is just a means for which the historian has the freedom to determine an end. Causes are merely building blocks with which a historian constructs an independently designed interpretation. With regard to Carr’s questions about how a historian chooses multiple causes and selects an “ultimate cause” among them, I argue that the only certainty a historian can have comes from ascertaining that the nature of a cause aligns with the field in which it must be accurately used. When a historian asks the question, ‘Why was Archduke Ferdinand assassinated?’ the historian implicitly means that, in general, he or she is looking for political causes specifically related to nationalist motivations behind the assassination and its impact on the outbreak of World War I, rather than cultural or social causes behind the rise of nationalism in a general sense. An argument can be made that such distinctions can be interchangeable, since Gavrilo Princip’s association with the Black Hand was a culturally motivated expression of a desire to express Serbian nationalism. However, “political’’ and “cultural’’ cannot be so liberally applied in an interchangeable manner because they are merely generic labels conceived under the assumption that historians and the general public know that such a distinction can exist. A historian may find out that Gavrilo Princip preferred Serbian circuses to Austrian ones, but one does not use this cultural fact to describe anything with sufficient certainty about Princip’s personal decision to assassinate Ferdinand, even if there is nothing mentioned in primary sources about it. The transformation of a fact into a cause is actually a fixed relationship, in which a fact can become a cause, but a cause alone can never become a fact. The historian’s designation of an occurrence as a cause reflects a personal belief that an element within a historical figure’s character or a historical event has some reasonable degree of explanatory power. History is, in general, filled with facts, but it is the conditional possibility of several facts turning into believable causes of a historical phenomenon which truly excites the historian. Causes are essentially facts whose relationship amongst themselves and the phenomenon which they wish to explain is firmly and convincingly established by a rich array of primary sources. Facts which hardly need any source-based proof are not likely to become causes because they are generic and mundane enough to be independent of any historical situation. In short, what Carr really means by “a hierarchy of causes’’ is that not all causes are created equal. The real problem is that Carr never really demonstrated what a hierarchy of causes is. While it may not be possible to definitively identify which types of causes matter more than others, Carr ought to have at least shown how a hierarchy among causes can be conceived. Yet, the real heart of the matter is that Carr could not actually show his audience that a hierarchy among causes exists because there is no singular standard of a “hierarchy,’’ other than what a scholar perceives through a meticulous reading of the relevant historical literature. That Carr could not provide a concrete hierarchy strongly suggests the impossibility of doing so because different hierarchies of causation matter for different subfields of History. Movement of capital, markets, and industrial structure in the early 18th century matter more as direct causes be- hind the Industrial Revolution than as causes behind the death of the Avant Garde in the late 20th century. The difference in subfields also translates to differences in particular “states of the field,” or the variance in the levels of academic discourse about various historical topics, leading to different developments in varying facets of historical inquiry. The nature of primary or secondary sources a historian must search for necessarily depends on the questions the historian wishes to answer in relation to how certain historical topics have been addressed in the existing scholarly literature. In other words, a search for primary or secondary sources is a dependent variable of “current’’ historical scholarship because the main function of amassing historical information is to facilitate a productive and meaningful scholarly debate. This debate, in turn, will invite future generations of historians to construct new angles and roads along which the debate must continue. Moreover, because proving causality in historical analysis can only be done through a meticulous examination of primary and secondary sources, it follows that the richness in illustrating historical causality is dependent on the availability of sources. In short, ascribing a strict sense of a hierarchical notion of historical causality is impossible because of three main variables: multiple causes and multiplicity in the kinds of causes, a rigid relationship between facts and causes, in which only the former can transform into the latter, and finally, differences in subfields and varying conditions in historiography, which imply that a historian must pragmatically conceive of a hierarchy of causes which reflects the availability of primary and secondary sources and their ability to cogently deliver a progressive view or methodological contribution to the existing scholarship. The second major problem with Carr’s method is his misconstrued distinction between “rational’’ and “accidental’’ causes. An “accidental’’ cause is a misnomer because no cause can arise without a reason. Even the most unexpected events have clear causes because searching for causation is essentially identical to search- ing for reasonable connections previously ignored or overlooked. Furthermore, if Carr himself acknowledged that ‘accidental’ causes need to undergo strict academic scrutiny as much as “rational’’ causes, then what he really means is that a scholar must have the same approach and attitude toward “accidental’’ causes as he or she has toward “rational’’ or normal causes. Yet, Carr does not illustrate how a historian actually investigates “rational’’ causes because he is interested in comparing “accidental’’ causes with “rational’’ ones rather than demonstrating how a historian uses each type of cause to con- struct a historical analysis or make an observation. In practice, Carr did not have to make a distinction between the two causes. A historian can propose rational explanations for supposedly accidental causes, and once this is done, there is no difference between “rational’’ and “accidental’’ causes. I will illustrate my point by comparing Caesar’s crossing of the Rubicon as a “rational’’ event, and Pierre Curie’s carriage accident as a literally “accidental’’ event. I will show how these two events deserve equally serious scholarly attention because they all involve the same process of investigation, regardless of an event’s nature. Caesar’s decision to cross the Rubicon would be a rational event because the crossing itself is a “reasonable’’ action in that a man mounted on horseback can cross a river because he has the will and means to do so. Such an action can be expected, for regardless of what the Roman Senate thought, Caesar only had two choices: defy the Senate by crossing the river or obey the Senate and let them limit his actions. Caesar’s decision to cross the Rubicon was not “surprising’’ as an action in itself; neither would the decision not to cross be surprising, unless Caesar somehow died for reasons unrelated to the crossing. By contrast, Pierre Curie’s carriage accident is not a rational event because the exact circumstances are open to much speculation. We do not know so many de- tails about how Marie Curie’s husband died, but it would hardly matter whether the driver of the carriage or Pierre Curie was drunk or whether Curie was jogging when the driver lost control of the carriage and hit Curie at break-neck speed. What remains true independent from causes is that it was an accident because neither Curie nor the driver would have expected to run into each other, for they were no mutual acquaintances. According to Carr, the rationality of a cause does not affect its historical investigation, making both “rational” and “accidental” causes garner the same approach. Although Carr never defines what a “rational’’ event is, since human beings are responsible for creating events, it follows that what is rational is what can be expected within the realm of reasonable human behavior and thought. If the primary function of historical causes is to explain why a phenomenon, regardless of its nature, occurred, then identifying how an accident became an accident is in itself an explanation, no matter how unexpected or unforeseeable the accident must have been to the people involved in it. However, regardless of how much we know or do not know about Caesar or Pierre Curie, the principles of research remain identical. A historian must first amass all records on the crossing of the Rubicon and Pierre Curie’s accident, gather any witness testimonies to corroborate on controversial or obscure aspects of each case, perform a theoretical analysis of causes and speculations, and finally, arrive at reasonable conclusions based on the existing evidence. The rationality of the research process which is common to both events is what makes a study of the two events rational, for the nature of an event does not necessarily reflect or dictate the nature of the means with which one ought to study each event. If accidents, like rational events, also have causes, then Carr ought to have shown how “accidents’’ could be considered the antithesis of rational events. An accident is unexpected, but is not irrational, for every cause of an accident is borne from actions which the individuals involved consider rational. If two speeding cars collide, it could be an accident borne from the drivers’ disregard for the speed limit, or from one driver’s inebriation. Still regardless of whether it is due to mis- handling the car or personal flaws, none of the causes are irrational. Disregarding the speed limit or drinking heavily may have been a mistake, but neither of these activities are incapable of having a logic ascribed to them, for a historian can still argue that committing these mistakes, regardless of their severity, contributed to the occurrence of the accident. Insofar as all actions have causes and motives in their creation, the historian is obliged to study them with an eye towards collecting all relevant facts, an action unrelated to how rational or irrational a historical event may seem. It is because, as I argued through the example of Caesar crossing the Rubicon and Pierre Curie’s accident, no elements are beyond the reasonably expected scope of human behavior. Regardless of whether an event was planned or turned out to be an accident, what remains constant in both cases is that there are various actions a person can take at a particular time, and every action will have a distinct set of reasons. Carr’s distinction between rational and “irrational’’ causes is therefore, a faulty comparison, for there is no clear reason given to believe that accidents are inherently “irrational,’’ and because historians can also surmise about causes behind accidents insofar as accidents are human-induced events. The final point of this paper is that a historian’s personal selection of causes does not dictate a singular direction of interpretation. Establishing causation and providing interpretation are independently creative activities conjoined by the necessity to give coherence to a historian’s general argument. Carr seems to believe that a historian is reflecting private opinions through a selection of causes, but the selection is only the means to the ultimate end-to generate a unique interpretation which does not necessarily reflect what the causes themselves have to say about a topic. Causes in and of themselves reflect no emotions; until the historian judges the causes to be positive or negative in nature in relation to the argument he or she wants to make from the causes, causes are merely guidelines and building blocks to the overall argument which gives the essential structure to the historian’s logic. Causes merely reflect a historian’s judgment about a possibility in believing that a phenomenon happened in one direction. The real essence of the historian’s argument lies in what the historian thinks about the phenomenon, not the causes. The historian’s attention must not be limited to understanding how a car’s assembly line malfunctioned, but be extended to observe how the car as a finished product qualitatively suffers as a result of faults in the assembly line. Carr’s argument about causes might be feasible if a historian is trying to find out the causes behind a historical tragedy, but even in this case, the historian’s real argument is about proving one can see that it was a tragedy. For example, if the sinking of the Titanic was truly due to a crash into an iceberg, and a historian proves that indeed it was so, the moral of the research is not just that “a ship hit an iceberg and sank.” Rather, the moral is that because of this linkage, one can conclude that it was a terrible accident and a tragedy. Even if a historian should conclude with identifying the iceberg as the cause of the tragedy, the identification of the cause does not dictate the interpretation of the phenomenon because interpretation is not about identifying what or why something happened. Instead, interpretation is concerned with what one should observe from the structure of a historical phenomenon that emerges from identifying the cause behind the phenomenon. Identifying causes alone does not make the study of History interesting; one needs to show how causes function to produce original observations about a holistic phenomenon that emerges from showing a causal relationship between or within a series of linked phenomena. Once a general picture of a historical phenomenon emerges, every historian can have a glimpse into how the phenomenon got concluded, no matter how many diverse facts about it are unearthed. Yet, the most interesting question in historical research is not what happened, but how an event unfolded to produce a particular result. In answering “how,’’ every historian is bound to focus on diverse and specific causes to explain the general outcome. Most historians will not focus on what the importance of a particular cause is simply by analyzing the cause in its own terms but on what that cause means in relation to a web of other multiple causes. Furthermore, since a cause is but one element in a historian’s interpretation of relations between phenomena; what are termed “causes’’ were actually phenomena happening in real time for historical actors. Therefore, the originality of historical interpretation does not arise simply from cherry-picking elements from a single phenomenon to serve as “causes’’ but in linking multiple phenomena into one grand narrative. In creating this grand narrative, the historian’s goal is to show how the phenomena relate to each other, and therefore to produce an original view about how to understand the relationship. What Carr’s arguments do show is that a search for causes and causation is worthwhile because every historical cause originally begins from ascertaining historical facts, which in turn, helps a historian discover and rationally explain new discoveries. Moreover, historical causes need to delineate boundaries between various subfields in History to assure that each field employs appropriate causes which best explain a phenomenon under scrutiny. Furthermore, a proper search for historical causation must not engage in a distinction between ‘rational’ and ‘accidental’ causes because all causes are valuable insofar as they serve the primary function of explaining what happened and why an event occurred. Insofar as the historian’s duty to tell the true sequence of actions behind an event remains valid for all rational or accidental incidents, a historian must concentrate on finding causes to fulfill a cause’s fundamental purpose. Finally, causes are building blocks to facilitate an original and interesting interpretation of a historical event, but causes alone do not possess the power to determine the entire direction of an interpretation. An incisive eye for finding accurate explanations must combine with a historian’s unique imagination and vision to recreate a believable “image’’ of a reality that corresponds closely to the truth which the historian found. The combination can only come about smoothly if a discovery of causes and an original analysis of the significance of the discovery are independent and not concurrent activities of an inquisitive scholarly mind. A respect for a cause’s individuality that is distinct from a historical fact, a respect for a cause’s explanatory prowess rather than its rational or accidental nature, and a separation between the discovery and interpretation of causes are essential to the pursuit of History as a rigorous, liberal, and original science. Endnotes 1 Bernard Barber, “Review of What is History? by Edward Hallett Carr,” American Journal of Sociology, Vol. 68, No. 2 (September, 1962), 260-262; Seymour Itzkoff, “Review of What is History? by Edward Hallett Carr,” History of Education Quarterly, Vol. 2, No. 2 (June, 1962), 132-134; Jacob Price, “Review of What is History?: The George-Macaulay Trevelyan Lectures Delivered in the University of Cambridge, January-March 1961 by Edward Hallett Carr,” History and Theory, Vol. 3, No. 1 (1963), 136-145; Patrick Gardiner, “Review of What Is History? by E. H. Carr,” The Philosophical Review, Vol. 73, No. 4 (October, 1964), 557-559. 2 Aviezer Tucker, “Causation in Historiography,” in Aviezer Tucker ed., A Companion to the Philosophy of History and Historiography (Chichester, United Kingdom: Wiley-Blackwell, 2011), 101. 3 Ann Frazier, “The Criterion of Historical Knowledge,” Journal of Thought, Vol. 11, No. 1 (January, 1976), 66-67. 4 Geoffrey Partington, “Relativism, Objectivity, and Moral Judgment,” Journal of Educational Studies, Vol. 27, No. 2 (June, 1979), 125-139. 5 Ann Talbot, “Chance and Necessity in History: E. H. Carr and Leon Trotsky Compared,” Historical Social Research, Vol. 34, No. 3 (2009), 95. 6 Edward Hallett Ibid (New York: Pantheon Books, 1961), 116. 7 Carr, What is History?, 117. 8 Ibid, 121-122. 9 Ibid, 122-123. 10 Ibid, 126. 11 Ibid, 133. 12 Ibid, 137. 13 Ibid, 134. 14 Ibid, 135. 15 Ibid, 141. 16 Ibid, 142. 17 Ibid, 143. 18 Ibid, 127. 19 Ibid, 136. 20 Ibid, 138. In the actual passage, he calls it the “Dodgsonian mode” after the author of Through the Looking Glass. 21 Ibid, 136. References Barber, Bernard, “Review of What is History? by Edward Hallett Carr,” American Journal of Sociology , Vol. 68, No. 2 (September, 1962), 260-262. Edward Hallett Ibid (New York: Pantheon Books, 1961). Frazier, Ann, “The Criterion of Historical Knowledge,” Journal of Thought , Vol. 11, No. 1 (January, 1976), 60-67. Gardiner, Patrick, “Review of What Is History? by E. H. Carr,” The Philosophical Review , Vol. 73, No. 4 (October, 1964), 557-559. Itzkoff, Seymour, “Review of What is History? by Edward Hallett Carr,” History of Education Quarterly , Vol. 2, No. 2 (June, 1962), 132-134. Partington, Geoffrey, “Relativism, Objectivity, and Moral Judgment,” British Journal of Educational Studies , Vol. 27, No. 2 (June, 1979), 125-139. Price, Jacob, “Review of What is History?: The George-Macaulay Trevelyan Lectures Delivered in the University of Cambridge, January-March 1961 by Edward Hallett Carr,” History and Theory , Vol. 3, No. 1 (1963), 136-145. Talbot, Ann, “Chance and Necessity in History: E. H. Carr and Leon Trotsky Compared,” Historical Social Research , Vol. 34, No. 3 (2009), 88-96. Tucker, Aviezer, “Causation in Historiography,” in Tucker, Aviezer ed., A Companion to the Philosophy of History (Chichester, United Kingdom: Wiley-Black- well, 2011), 98-108. Previous Next

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