Eleanor Ruscitti God Save the Fish: The Abyss of Electoral Politics in Trade Talks—a Brexit Case Study Eleanor Ruscitti “The EU is continuing to make demands that are incompatible with our independence... we cannot accept a deal that doesn’t leave us in control of our own laws or waters” ~ Boris Johnson on December 20, 2020 (1-2). Abstract During the “exit negotiations” between the United Kingdom (UK) and the European Union (EU), the relatively economically insignificant fishing industry received a disproportionate share of not just UK media attention, but global press as well; not to mention an array of political machinations, which almost halted a free trade agreement between two of the world’s largest trading partners. This evaluation seeks to understand why such disproportional influence existed. Why were both the EU and the UK coming to blows over something as seemingly innocuous as fishing, and willing to risk the most significant trade agreement in recent European history? Existing subject matter literature cites history and symbolism as the main factors that brought fishing into the limelight, almost killing a multi-billion-dollar trade deal between these two primary trade partners. While this paper concurs with existing analysis, it finds further illumination in the murky waters of electoral politics. It argues that the Conservative Party brought fishing to the trade talk surface to demonstrate that they were protecting a disenfranchised industry while aiming to convey the benefits of Brexit to maintain votes and prevent Scottish secession. More broadly, this paper sheds light on the potential ramifications that domestic politicians have on free trade agreements, especially in this new global populist era where the leverage of the disenfranchised is key; an affirmation of the American colloquial- ism that “all politics is local” (3). I: Introduction A Fishy Paradox From many perspectives, most of the Brexit drama did not make sense. From an economic point of view, it made more sense for the United Kingdom (UK) to remain in the European Union (EU) to keep access to the European Single Market (Single Market) and their largest and longest trading partners, especially in an era of increasing globalization. However, even though the vast majority of expert opinions concluded that leaving the EU would be economically disastrous for the UK, in the summer of 2016, its citizens voted to leave. Brexit was not just about economics, though. It was a reaction of nostalgia and entrenchment vis-à-vis a world that was rapidly becoming more interconnected with the EU leading the way. As the offshoring of lower productivity sectors of the economy and the development of more technologically advanced goods and services providers sailed ahead, once-thriving industries were no longer key to the economy. These changes left many in the UK workforce feeling stranded in an unnavigable wake of market disruption, while Brussels charted a course toward ever-increasing globalization. The disenfranchised felt as though they were under the thumb of Brussels, having to abide by laws that they believed were unfavorable to the UK. A rather sentimental notion of sovereignty and the call for “taking back control” resonated within certain portions of the British populace. Their goal was to withdraw from their largest economic market to regain full regulatory control yet maintain access to the Single Market via a free trade deal that represented over 40 percent of its exports (4). When the time came to negotiate this free trade deal, economic reasoning took a back seat, again. As the final days of the deal approached, most of the negotiations had been settled. However, over a dinner of pumpkin soup, scallops, and steamed turbot with mashed potatoes (a not-so-subtle nod to the feud) UK Prime Minister Boris Johnson and EU President of the Commission Ursula von der Leyen almost derailed the entire deal for the seemingly economically insignificant fishing industry (5). Johnson left the dinner asserting that “very large gaps remain between the two sides (regarding a fishing deal) and it is still unclear whether these can be bridged.” Von der Leyen said that “we understand each other’s positions. But [we] remain far apart” (6). With only 15 days left to seal the deal, and no consensus on fishing in sight, many were left confused and frustrated. The fishing industry employs roughly 12,000 workers out of a UK workforce of over 33 million (excluding the processing industry, which employs a larger portion); represents 0.1 percent of British domestic output; 0.2 percent of EU GDP; and accounts for just 0.8 percent of total EU-UK trade (7, 8, 9, 10). It produces a little more than £1 billion of the total £300 billion worth of UK exports. It seemed that the UK was effectively putting at risk over 99 percent of its trade with the EU to defend an industry that accounted for a mere fraction of the world’s sixth-largest economy. Even Harrods in London contributes more to the British economy (11). Many questioned why the British government was prepared to risk the most important trade negotiations in recent British history over an industry that barely even touches the economic needle, let alone moves it. Literature Review Academics and journalists alike, such as Professor Anand Menon (12), Jeremy Phillipson (13), Sophia Kopela (14), and Stijn Billiet (15) tried to address the paradox, but the vast majority failed to account for the genesis of the paradox by failing to consider the role of elections and electoral politics. Professor Menon argued that the British government’s focus on the repatriation of fishing rights was instrumentally relevant because it was symbolic and represented a commitment to the “left behind.” Menon asserted that the media’s amplification of the issue brought it to relevance, and in a sense, forced Johnson to act (16, 17). Other scholars, such as Craig McAngus, Christopher Huggins, and John Connolly concluded that since fishing was one of the most Europeanized policies for the UK, it would receive the most attention throughout the trade talks (18, 19). On par with the rest of Brexit, the answer lies in convoluted domestic politics rather than economic reasoning. As mentioned in previous analyses, the fishing industry was perceived as a symbol for the wider movement fueling Brexit: “taking back control” and revitalizing a domestic industry that was lost under the heel of the EU boot. Politicians focused on it in order to create an image that the government was helping the citizens, and particularly, the disenfranchised (20). The cause for this might not be just because of the media’s influence, as per Menon’s analysis, but rather because of a synergistically strong confluence of the Scottish fishing lobby, an upcoming Scottish general election, and the Conservative party’s political agenda. II: Why Do Politicians Protect and Amplify Certain Industries in Free- Trade Agreements? Theoretical Frameworks: Lobbying Influence and the Self-Serving Politician There are a multitude of theories regarding the significance of certain industries in trade talks, often finding answers in lobby groups and politicians’ electoral objectives. Typically, democratically elected/appointed officials ultimately determine trade agreements. As theorized by Robert Putnam in 1988, the politics of trade agreements are often a two-level game in which public sector officials/politicians are simultaneously in negotiations at both the international and the domestic levels (21). Putnam assessed that domestic groups pressure the officials to adopt favorable policies and, in turn, these officials seek to amplify their power by developing relationships with these groups who offer support via votes or campaign contributions (22). Politicians then go to the international level and seek to maximize their ability to satisfy domestic pressures while balancing the needs of their international partners (23). Following Putnam’s two-level game theory, Gene Grossman and Elhanan Helpman introduced special-interest politics into the analysis, analyzing profit-maximizing lobbying groups. They found that, “lobbies seek to curry favor with politicians who covet their financial support... seeking to maximize the aggregate welfare of the lobby groups’ members” (24). As the politician’s objective is to maximize their own political welfare––which often relies on having a large number of contributions––they champion the policy of those who donate the most. In other words, those who donate the most have purchased the most access to influence during trade talks. Sometimes, though, the most influence comes from industries that do not have deep pockets. In 1982, Arye Hillman assessed why politicians put their support behind declining industries that have little special-interest money and/or little economic or voting influence (25). Hillman found that politicians protect and promote declining industries for self-interest motives to maximize political support, rather than for altruistic ideals, as the industry will still typically decline even with protection (26). However, a strong influence of a declining industry may not solely manifest from a politician’s political agenda. In “Entry and Asymmetric Lobbying: Why Governments Pick Losers”, Richard Baldwin and Frederic Robert-Nicoud use Grossman and Helpman’s 1994 pressure group approach to conclude that while government policy is influenced by pressure groups that employ expensive lobby- ing tactics, losers (such as declining industries) lobby more diligently through less expensive means (27). They concluded that it is not just the government that picks the losers, but rather it is also the losers that pick the government (28). The Fishing Industry as a “Loser” Lobbyist It is helpful to use Grossman and Helpman’s campaign finance lobbying, Hillman’s self-serving/re-election interests, and Baldwin’s and Robert-Nicoud loser lobbying framework to contextualize the fishing paradox. To begin, one must view the fishing industry as a lobbyist and Johnson as a political welfare maximizer. However, the fishing industry is not the lobbyist illustrated by Grossman and Helpman. After analyzing over 7,000 donations to both Conservative Party and Unionist Party between 2016-2020, the Scottish Fishing Federation and the National Federation of Fishermen did not appear to make meaningful contributions to the party. Several material contributions came from the fishing towns, yet such donations did not correlate with the amount of influence achieved. From 2016-2020, of the £169,449,385 donated to both parties, only £275,950 came from relevant coastal towns––roughly 0.163 percent (29). It is a bit of a conundrum, as according to Grossman and Helpman, the more robust sectors that donate the most would receive the highest levels of government support. When applying Baldwin and Robert-Nicod’s theory, though, it becomes clear that the fishers were not campaign contribution lobbyists, rather they were “loser” lobbyists who were loud and deliberate. They saw the Brexit movement as their policy opportunity and harnessed their symbolic nature to make themselves quite relevant in final trade talks. Concurrently, Johnson acted as a political welfare maximizer. When applying Hillman’s theory, the declining fishing community became relevant to the Conservatives, who hoped to maximize political support for electoral gains, re-election, and legacy. The newly formed Johnson administration needed to amplify an easy-to-understand industry that resonated with Brexit supporters and exemplified regained sovereignty. But it is often overlooked that the Conservatives also needed an industry that could help maintain the Tory Scottish Parliament seats and form a bulwark against the growing post-Brexit Scottish independence movement. The industry that conveniently and succinctly represented these values was the Scottish fishing industry. To see how this fits together, the story of Brexit and the fishing industry should be traced. First, we will examine the path to Brexit and the ways in which fishing––particularly the Scottish fisher––was influential from the beginning. Then we will scrutinize the trade talks and the political machinations of each actor. We will see that the political endgames of politicians are apparent in trade talks and domestic electoral gains often materially influence their tack as they adjust for the ever-changing political winds. III: A Deep-Seated History Part 1: How Did the UK Get to Brexit? An Overview of UK/EU Relationship: A Troubled Beginning As Professors Vivien Schmidt and Jolyon Howorth note, “Brexit was, in many ways, an accident waiting to happen” (30). The UK and the EU always had an am- bivalent relationship––a noncommittal half-in, half-out—in which the UK has been referred to as the “awkward partner” that never really embraced the deeper political, cultural, and ideological ambitions of her partners across the Channel. In the aftermath of WWII, the European Coal and Steel Community (ECSC) was created in 1951 to ensure stability across the continent by linking economies. While the UK embraced the idea of a united Europe, she saw herself as a separate entity––not just physically, but culturally as well. She was an island empire on which the sun had never set. But as the empire declined in stature and size during the post-war recovery period, she realized that in order to achieve her global ambitions in the new post-imperial world, she may find herself in a useful position to be the bridge between the US and the new ECSC: the European Economic Community (EEC). After two prior attempts, the UK finally joined in 1973 under Tory Prime Minister Edward Heath (31). However, Euroscepticism reigned from the get-go. Labour leader Hugh Gaitskell argued that a federal Europe would mean the “end of Britain as an independent European state” and promised to hold a referendum if elected (32). Two years later, in 1975, Labour formed a government under Harold Wilson and held the UK’s first EU referendum (33). Although closely divided, the UK would vote “Yes” to a united Europe, with the then-Europhile Conservative leader Margret Thatcher leading the way for the Conservatives, while Labour remained extremely divided over the subject (34). Thatcher’s Europhilism, however, was short-lived. A staunch supporter of the Single Market, Thatcher ultimately changed course due to the contentious Common Agricultural Policy (CAP) and its budget contributions (35). She felt that the UK contributed more than its fair share of funding. Rhetoric of losing power and control to Brussels became common in her speeches and while her Eurosceptic agenda and rhetoric would ultimately become her downfall, it planted the seed for a growing anti-Europe movement that divided both parties internally (36). This seed later found its political moment amongst the disenfranchised in 2016 after a Conservative political opportunist called another EU referendum in hopes of bridging a divided Tory Party and securing a re-election win. Divisions within the Tories regarding Europe had been brewing since the Thatcher years, and were proving to be problematic for David Cameron’s upcoming general election as the rise of a relatively new right-wing populist party, the UK Independence Party (UKIP), began siphoning off the Conservative Eurosceptic votes. Hoping to mitigate Tory Europhile defections, Cameron promised an EU membership referendum if re-elected, believing that the party would vote to remain (37). The result was a complete miscalculation as he underestimated just how powerful Euroscepticism had become. The country split into two camps: Leave vs. Remain. The Remain campaign took a negative approach, focusing their argument on the economic consequences of a vote to leave (38). As mentioned, however, Brexit was not about economics and, as such, it did not resonate at the doorstep. The Leave campaigns led by Boris Johnson and former UKIP leader Nigel Farage took a more emotional, visceral approach that resonated well with the disenfranchised who felt that the globally interconnected EU was the source of all their problems. They had seen their employment opportunities evaporate as the industrial sector left the country and viewed the EU as their scapegoat. The campaigns of Vote Leave and Leave.EU tapped into this discontent, arguing to “take back control” of a trade by creating their own trade deals, revitalizing declining industries, and bringing jobs back to Britain (39). The Take Back Control mantra percolated throughout the country and was succinctly exemplified with the vignette of the fishing industry. The fishing industry perfectly embodied the Conservative Leave movement––it was an industry key to the British identity, but was disenfranchised and felt powerless and expendable, and held deep-seated resentment towards Europe. This resentment was a manifestation of an EU policy known as the Common Fisheries Policy (CFP) that seeks to conserve fishing stocks and ensure fair competition in European waters by setting catching quotas for European fishing vessels based on 1983 catch activity (40, 41). The EU can determine quotas in each boundary as the policy requires that each member state pool its sovereignty and open its Exclusive Economic Zone (EEZ) to all member states, creating a ‘European Water’ and overriding the UN Convention on the Law of the Sea (42). To understand why the British held deep resentment towards this policy, one must understand the fishing wars. Part 2: Fishing Wars To Control or Not to Control, That is the Question As an island nation, Britain has had an obsession with claiming ownership and sovereignty of its waters, at times to the point of belligerency. Fishing has always been key to British identity, especially Scottish identity, which makes it a rather sensitive topic. The tension between the Island and the Continent regarding the open seas dates back to the Anglo-Dutch wars and grew throughout the Anglo-French rivalry and crescendoed with the infamous 1950s-70s Cod Wars where the UK and Iceland faced off over British access to the rich cod waters off the coast of Iceland (43, 44). These violent showdowns repeated throughout multiple decades, with Iceland almost leaving NATO and falling into the Soviet orbit (45). The clash ended with the UK’s long-distance fishing fleets losing access to Iceland’s lucrative fishing grounds followed by a sharp decline in fishing industry revenues. Around the same time, the UK joined the EU and was required to join the contentious CFP. The UK’s fishing industry was wary about entering the CFP and pooling access to its waters, relinquishing control over its EEZ. Academics, politicians, and journalists alike wondered why the Heath government did not try to negotiate an opt-out of the CFP––an action for which the UK is famous––or even negotiate a better deal for the UK (46). The answer circles back to Iceland. When the UK lost its long-distance access to Iceland, there was little inshore activity to replace it as the nation had become so dependent on the white fish from the more northern seas (47). British fishers were not fishing near the British coast. As such, most of the quota rights for inshore fishing went to the French, Dutch, and Danish fishers during the accession negotiations (48). The Resentful Fishers This did not sit well with the fishers, particularly the Scottish fishers, who watched their industry decline just as the EU gained access to UK waters. When asked about Britain’s entrance into the CFP, Scottish fisher Baden Gibson insisted that: “The EU and its fisheries policy have destroyed businesses beyond fishing... If you fish outside of your quota the penalties can be fierce— my worry would be that I would lose my boat and then I would lose everything. I realize that there must be quotas, but it should be fishing organizations who set those quotas” (49). Fishers felt a loss of control and that the government sold them out for access to the Single Market. This was further exacerbated when it came down to ownership of the quotas. Over the years, more and more foreign entities started to own Brit- ish fishing fleets, with 50 percent of all English quotas “owned” by British-flagged ships that were actually Spanish, Dutch, or Icelandic; that is about £160 million worth of England’s fishing quota (50, 51). The feeling of loss of control was palpable. It must be noted that it was not necessarily Brussels causing the decline. Rather, it was overfishing and advances in technology that prevented fishers from achieving previous catching thresholds as well as the aftermath of the Cod Wars that prevented them from fishing in certain areas. Another factor was the rise of multimillion-dollar fishing companies in the UK (52). Nonetheless, British fishers did not see it this way. From their perspective, the correlation was objectively clear: the UK fishing industry thrived before EU membership, but as part of the EU, it died at the hands of the quotas. Reforming the Common Fisheries Policy Calls were made by the fishing industry to reform the CFP, and in 2014, the European Commission tried to do so, putting forth reforms that would increase the labor market mobility of fishers (53). These schemes were criticized as they did not consider the local and cultural factors enough and did not give countries sufficient control over the quota issue. The reforms adjusted the European Maritime and Fisheries Fund and allowed member states to manage 89 percent of it, while the European Commission would manage 11 percent (54). However, that still did not fix the unpopular element of being too distant and top-down with rules dictated by Brussels, far away from the UK and even further from understanding the local fishers’ needs (55). The fishers wanted a greater say in fishery management; they wanted to decentralize the decision-making structures as they felt like bystanders in decisions that impacted them greatly. Part 1: The Referendum Brexit as a Policy Window for Fishers The EU referendum was the fishing industry’s “policy window” under Leave’s rally cry of “Take Back Control.” It was finally time to expel the European vessels from British waters and manage their fish stocks independently. Rather than lobbying via campaign contributions, as Grossman and Helpman’s theory predicts, the fishing industry-aligned more with Baldwin and Robert-Nicoud’s theory of lobbying diligently through less expensive means. In this case, the less expensive means came in the form of a new 21st-century campaign tool: social media. UKIP’s Nigel Farage teamed up with the campaign group Fishing for Leave (FFL) to storm social media and conduct demonstrations, calling for the UK to leave the EU and leave the CFP. To make a public display of discontent and grievances a few days before the referendum, Farage led a 35-boat flotilla of fishers up the Thames, asserting that “today’s flotilla is not a celebration or a party but a full-throttled protest. We want our waters back” (56). He also said that “one thing I can promise you, is that you are about to hear a lot about the fishing industry” (57). They were vociferous lobbyists who would become a key electoral constituency for the Conservatives. The hope, and promise, was that leaving the EU would allow the UK to reclaim fishing dominance and sovereignty over their territorial waters, which would, in turn, see fishing communities thrive again with replenished stock and the return of jobs. On June 26, 2016, the referendum was held, and the UK voted to leave 51 percent to 48 percent. The fishing industry, as predicted, was a firm supporter, especially the Scottish fishers (58). A pre-referendum survey indicated that 92 percent of Scottish fishers intended to vote to leave (59). Fishing communities such as Banff and Buchan voted for Brexit, with around 54 percent voting to leave, but were outnumbered by the rest of Scotland who largely voted to remain (60). They were a small, disenfranchised group within a larger community that found a policy window and representation within the Brexiteers. They would become incredibly important to the Conservatives who needed to keep a seat at the team in Scotland. Part 2: The Trade Talks The Conservative’s Seat at the Scottish Table: The Rise of the Politically Important Scottish Fishers The Scottish fishers were Brexiteers, but that did not necessarily mean they were pro-Tory. After Heath’s historic 1973 betrayal of fishing, Scotland’s northeast fishing community channeled its anger by voting with the pro-independence, social democratic Scottish National Party (SNP) for the following decades. The Tories were treacherous in the eyes of the fishers, best underscored by the 1973 quote from a UK civil servant: “In light of Britain’s wider European interests they, the Scottish fishermen, are expendable” (61). While the Scottish Tories initially lost the community’s trust, gaining it back was easier than one may think as the Scottish fisheries did not ideologically align with the rest of Scotland and the SNP. Leading up to the referendum, Scottish scholar Dr. Craig McAngus conducted a survey of Scottish fishers’ demographic characteristics as well as their political, social, and constitutional attitudes. McAngus found that they were: (1) a unionized industrial working class made up of mostly middle-aged men with standard grade qualifications who value self-sufficiency and sense of freedom to succeed in their profession and take on a libertarian ideology that is skeptical of state intervention; (2) very Eurosceptic, portraying themselves as “victims of an overly bureaucratic and unsympathetic governance regime,” and would lean towards the Conservative Party rather than the Labour Party whose values of collectivism and socialist principles conflicted with their notion of an unsympathetic governance regime; (3) differing from the rest of the Scottish population in that they tended to trust the UK Government more than the Scottish Government, which seems contradictory at first given Heath’s 1973 betrayal for access to the Single Market, however, their support relates to the Scottish independence movement. As the Scottish Government is currently led by the SNP, and as the fishers tend to be more British-unionist, conflicts often arise between the secession-seeking Scottish government and the union-seeking fishing industry. How the British Government Attempted to Divert Fisher’s Support Away from SNP to Scottish Tory via Brexit Scottish independence from the UK has been a divisive topic ever since Scot- land joined the UK in 1707. In a 2014 independence referendum, Scotland voted to remain in the UK, 55 percent to 45 percent, but the debate never settled. Scot- land’s First Minister Nicola Sturgeon continued to push for another referendum, rather than receiving additional devolved powers from Westminster (which had been done in the past as a way for Westminster to circumvent Scottish independence). After the Brexit referendum, her calls for independence grew louder than ever as the majority of Scotland voted to remain in the EU––62 percent to 32 percent. Sturgeon argued that it was undemocratic for Scotland to be “dragged out of the EU against its will,” demanding another independence referendum–– indyref2––and then hoping to re-join the EU.62 But, to hold another referendum on Scottish independence, the UK’s Prime Minister must grant formal permission and the newly minted PM Boris Johnson did not support such. Johnson and other supporters of a unified UK argued that the 2014 referendum was a once-in-a-generation opportunity––a phrase Sturgeon campaigned on back in 2014––and asserted that under this reasoning, another referendum should not be held for another 40+ years. On the horizon, however, was the upcoming May 2021 Scottish Parliament election, thus Johnson and his Scottish Tory counterparts were finding themselves in a political pickle. Opinion polls saw a sizable shift from a slight majority of pro-independence voters in 2019 to a solid majority in 2020. Analysts attributed this shift to Brexit, and also to Sturgeon’s handling of the Coronavirus, which many believed had been better than Johnson’s. With polls indicating that the SNP was on course to win an overall majority in the May 2021 Scottish Parliament election, polling expert Sir John Curtice said that the country “seem[ed] headed for a significant clash between the UK and Scottish governments over whether another independence referendum should be held” (63). Conservatives started to worry that if they lost their Scottish Tory seats to the SNP, the Scottish Parliament would be comprised mostly, if not all, of the SNP. Scottish Tories would lose their voice in the Scottish Government, and Westminster would have to grant an independence referendum if asked, or risk being further branded as undemocratic. There was, however, a Brexit-supporting Scottish constituency that could potentially save the Scottish Tories: the Scottish fishers. As mentioned previously, fisheries have been caught between supporting the SNP and the Tories for decades. The fisheries voted SNP in the years after Heath’s “betrayal,” as the then-SNP Leader Alex Salmond sought to bring Scotland out of the CFP (64). During the 2014 independence referendum, Salmond made fishing a material role in the SNP’s campaign, asserting that if independence was gained, fishing would be the #1 national priority and would have direct representation in the EU (65). The issue, however, was that the fishers wanted out of the CFP, not more EU representation, which is what Salmond was campaigning for. As a result, SNP lost a large majority of the fisheries in the 2015 Scottish Parliament election. The hemorrhaging of fishing votes continued when the Brexiteers campaigned to “Take Back Control” during the 2016 EU/UK referendum. The 2017 Scottish Parliament elections saw a loss of fishing votes from SNP to Scottish Conservatives. The Tories increased their hold from one seat in 2015 to 13 in 2017, gaining the northeast fishing community seats as per figure 11 (66, 67). Figure 11 (68) Yellow indicates SNP seats, orange indicates Liberal Democrats, red indicates Labour, and blue indicates Scottish Tory. Brexit was the perfect opportunity for the Conservative Party to regain both the fishers’ trust and seats in the Scottish Parliament. Once they regained that support, they could potentially prevent independence by keeping the vote. The game was not over, though. The SNP made it its goal to regain coastal communities by illustrating that the Tories could not be trusted in looking out for Scotland’s best interests.69 Conservatives then countered by making fishing a key part of the “exit-negotiations.” A Hiccup: When May did not prioritize the Fisheries After the referendum, Cameron stepped down and Theresa May assumed Tory leadership in 2016. May called a snap election in 2017 in hopes of increasing her party’s slim majority in the lower house and having a stronger mandate to negotiate a Brexit deal with the EU. However, due to a resurgent Labour Party, May did not gain a majority and had to form a confidence-and-supply agreement with ten MPs of Northern Ireland’s Democratic Unionist Party (DUP) (70). That being said, May did gain some Scottish coastal seats due to the 2017 surge in Scottish Tory support. Suddenly, Scottish fishers––as well as the DUP––became one of the preeminent interest groups for May’s coalition, as they were some of the few who kept her party from anemic minority status. Appeasing them and creating and maintaining trust would be necessary to get her Brexit deal approved and to keep Scottish Parliament seats. May proceeded with her Brexit plans and announced a Fisheries Bill to take back control of British waters and remove fishing quotas after the country with- drew from the EU (71). This pleased the fishers, but as 2017 progressed, the EU countries whose fishing industries were heavily dependent on access to UK waters became worried that access to the waters would be completely severed and that the EU would set an undesirable precedent for its member nations. Denmark claimed it had historical rights to fish in British waters dating back to the 1400s, while other EU countries claimed that the UN Convention on the Law of the Sea stated that countries must respect each other’s “traditional fishing rights”, and the ability to access British waters fell under traditional rights (72). In March of 2018, then-Brexit Secretary David Davis and the EU’s Brexit Negotiator Michel Barnier announced that the UK and the EU had agreed on a Brexit transition deal. However, to achieve the deal, the UK partially conceded its fishing contentions: fisheries would be required to follow the CFP rules until the end of the December 2020 Brexit transition period (73). The UK fishing industry was infuriated. Bertie Armstrong, CEO of the Scottish Fishermen’s Federation, said, “This falls far short of an acceptable deal. We will leave the EU and leave the CFP, but hand back sovereignty over our seas a few seconds later... Our fishing communities’ fortunes will still be subject to the whim and largesse of the EU for another two years” (74). Again, Nigel Farage protested on a fishing boat floating along the Thames outside of Parliament while chucking dead haddock into the river. SNP leader Nicola Sturgeon took to Twitter hoping to sway the fishers back over to the SNP stating: “This is shaping up to be a massive sellout of the Scottish fishing industry by the Tories” (75). The thirteen Scottish Conservative MPs announced that the deal was like “drink[ing] a pint of cold sick” and assured that they would be prepared to vote against their own party if they did not see a return to full control of British waters as “the EU does not care about Scottish fishermen and neither do the SNP government who wants us to re-join the Common Fisheries Policy and the EU” (76). A sense of betrayal was palpable, and May’s fellow Conservative politicians started to understand that prioritizing fishermen would need to be on their political agenda. May would go on to put forth two other Brexit deals but was met with sound political rejection. In June 2019, she stepped down and Boris Johnson assumed leadership in July. The Hiccup Continues: Johnson Learning to Prioritize Fish With May’s Brexit failure in the rearview mirror, Johnson was keen on steering the UK out of the EU. However, after May’s perceived slight, he found little support amongst the Scottish Conservatives and fishers. In August, Scottish Tory leader Ruth Davidson resigned. She worried that a Johnson government would boost support for independence, given that his hard-liner Brexit stance stood in complete opposition to the majority opinion of Scotland and the SNP (77). Johnson, however, had a different agenda; one that was keen on maintaining the union and appeasing the fishing industry was one way of doing so. In July 2019, Johnson made his first visit to Scotland and pledged that fishing access would not be sacrificed in the new Brexit deal.78 The Scottish fishers welcomed his rhetoric, with Bertie Armstrong stating, “We have been looking for a straight and direct answer and that’s exactly what we have got... Scottish fishing’s sea of opportunity lies on the other side of Brexit” (79). Additionally, Johnson assured fishers that he would “strengthen the union” and pledged £300 million for boost- ing growth in the devolved nations (Scotland, Wales, and Northern Ireland) as a way to try to counteract critics who said his no-deal strategy would break up the UK (80). Among those critics was Nicola Sturgeon, who branded Johnson as the “last prime minister of the UK” (81). After a series of controversial events in the Fall of 2019––proroguing Parliament and then withdrawing the whip from 21 MPs (effectively expelling them from the party)––Johnson was left with no majority in Parliament and found it impossible to get Brexit legislation through. He enacted the Benn Act to extend the divorce date from October 19th, 2019 to January 31st, 2020, and then called a snap election for December 12th, 2019. While Johnson took a strong stance against Scottish independence, his attention to fishing seemed to wane during the snap election. Johnson did keep Scotland in his sights, but most of his attention was to mainland England, hoping to gain back the English voters who defected to Labour in 2017 (82). He visited Scotland once during the campaign, where he delivered the Scottish Conservative manifesto and claimed that Scotland was “paralyzed” by the SNP. Johnson asserted that “a vote for the Scottish Conservatives is a vote to stop a second independence referendum and to get Brexit done... Only a vote for the Conservatives will stop the SNP’s plans to break up the UK” (83 , 84). However, given that May lost many British votes to Labour in 2017, he also needed to prioritize issues that were of interest to larger voting blocs, such as the NHS, the police, and the British education system. To do so, as is now second nature to many politicians, Johnson harnessed Twitter to connect with constituents. On Twitter, Johnson spoke less about fishing and more about those three campaign stances. In total, Johnson tweeted 62 times regarding his campaign agenda on those issues, while only tweeting about fishing five times and Scotland nine times. Figure 13 (85) Illustrates the number of times Johnson Tweeted about a specific subject: 5 times about fishing; 9 times about Scotland; and 62 times about the NHS, policing, and schooling. With much focus on Johnson’s campaign, fishers in coastal Scottish towns were growing worried that fishing was not his top priority. These fishers became more apprehensive and began questioning Johnson’s true intentions: “There’s a calculation that the fishing industry is making that there’s a heavy risk they will get sold out on the way out of the EU, just like they did on the way in” and that maybe “the SNP might get a better deal for Scottish fishing from the EU” (86) especially since Johnson “changes his mind like the weather” (87). A growing number of fishers were unsure whether Johnson would protect the fishing industry or divert his focus towards other aspects in the UK during the trade talks. Election day came, and while Johnson won the largest Parliamentary majority since Thatcher in 1987, he lost several crucial seats in Scotland, which resulted in a small swing back to the SNP, who won 48 out of 59 seats (88). Although a tabloid journalist, Torcuil Crichton provided some thoughtful insight by noting that Scottish Tory 2017 gains were halved in 2019, and any further “betrayal” of the fish- ing industry “will fuel the independence argument and undermine the principles Brexit was fought on” (89). Suddenly, the importance of Scottish independence began to sink in. Johnson needed to show Scotland the benefits of staying in the UK and that Brexit was good for Scottish communities. The fishing industry was the perfect political tool for this end. Johnson could argue that he was going to secure them a good deal, stand up for the disenfranchised against an “overbearing” Brussels, and bring back the domestic industry. He could argue that the UK’s government was paying attention to Scottish needs and, as such, Scotland should stay in the UK rather than back the independence-preoccupied SNP. It is for this reason that fishing was greatly amplified during the trade talks. The Tories needed to secure the Scottish fishing industry a good deal––the rare Scottish industry that embodied the Brexit movement, had yet to back SNP fully, and were against independence––or else potentially be forced to consider calling an independence referendum. Fishing was the fulcrum for Johnson’s political leverage. The Talks and the Deal With the general election behind him and the risk of Scottish independence at the forefront of his mind, Johnson entered the trade talks as a strong counter to Macron and other EU officials who wanted the status quo ante . The issue has now come full circle, back to the famed scallop and turbot dinner on December 9th, 2020, when Johnson and von der Leyen sat down to hash out the final open issue. Britain demanded 80 percent of the EU’s catch to be returned to the UK, but reduced this to 60 percent as a compromise; the EU countered with 20 percent (90). The UK demanded that this transition would take no longer than three years, while the EU asked for a 14-year transition period, which they then reduced to seven. The EU asked for its fishing vessels to be able to fish in the six-to-twelve-mile zone from the British coastline, but the UK insisted that EU vessels be banned from this zone. Von der Leyen left the dinner saying the two sides remained “far apart” (91). The whole trade deal was on the line, with only a few days to go. Finally, on Christmas Eve, after four-and-a-half years of bitter negotiations and only a week to spare before the UK would crash out of the EU, they came to a deal. The 1,200-page document was passed by MPs on December 30th, 521 to 73, and it goes as follows: The transition will be phased over five and a half years, during which EU vessels will still be able to fish in the UK waters. During the adjustment period, EU quotas will decrease by 15 percent in the first year, and then two and a half percent for the following four years. That means by year five, the UK will regain 25 percent of the current EU catch in British waters; Fish will continue to be traded between the two parties with no tariffs imposed; After the five-year adjustment period is over, the UK and EU will enter annual negotiations to determine the quota of fish that EU vessels are allowed to catch in UK waters (92). Johnson announced the deal while wearing a fish patterned tie and praised it as a great deal in which fishers would see their hauls increase from half of the fish quota in British waters under CFP, to about two-thirds by the end of the adjustment period (93). However, neither the fisheries, the French, nor the other EU nations, saw it this way. A deal had been made, but the saga was far from over. V: Conclusions Summary of Findings While fisheries were the “losers” that lobbied hard to grab the government’s attention initially during the Brexit campaign (much like Baldwin and Robert-Nicoud’s theory), it appears that the Conservatives needed the fishers during the exit negotiations and thus took a hard position on access to UK waters, not for social merit, but rather for their electoral and political gains (much like Hillmen’s theory). Matt Bevington, an analyst with the UK in a Changing Europe, pointed out that Johnson saw fishing as one of the few areas where the government would be able to score a “win” to tout as evidence of Brexit’s success (94). Barrie Deas, CEO of the National Federation of Fishermen’s Organization, said that the fishing industry was a “litmus test’’ for Brexit since we will not know most of the effects of the Brexit deal for many years, but the effects for fishing will be realized immediately (95). The Guardian journalist Daniel Boffey noted that fisheries were important to Johnson as he needed to show some benefit of Brexit to Scottish communities as Sturgeon was ramping up her demands for another independence referendum (96). In a similar vein, Denis Staunton of the Irish Times emphasized that North East Scotland is now essential to Johnson’s electoral constituency and will play an important role in the Scottish independence debate over the next few years (97). However, if he remains unable to please the Scottish fishers, the SNP may snatch up those who feel expendable to the Tories. This will again potentially embolden the independence movement since no politician wants to be known as the last Prime Minister. Lessons Learnt While the deal itself was a “Christmas miracle” to the Tories, in many respects, its aftermath has not been so merry. Johnson was unable to provide the fishing industry the deal that they wanted, and more importantly, that they were expect- ing. While the Scottish Tories matched their 2016 performance in the May 2021 Scottish elections, the fishing debacle still plagues the Johnson government with many lessons to be taught to future politicians (98). Hoping to illustrate the UK government’s commitment to the disenfranchised and their commitment to taking back control from the EU, many promises were made. These promises, however, were not plausible, let alone achievable––especially in regards to the fishing industry. Now, the Scottish independence movement has re-emerged, with the SNP harnessing the fishing failure as another reason for why they should leave the UK. Electoral politics influenced the amplification of the industry during the talks. In so doing, it amplified a delicate social, economic, and political bond that is about to snap. However, the main lessons scholars may glean from this case study is the extreme influence of domestic electoral politics in trade agreements: 1. An industry being economically insignificant does not mean that it will be insignificant in the international arena. Not everything in trade talks distills down to economics. More likely than not, declining domestic industries will be protected in trade talks for political purposes. 2. That is not to say, however, that economics is not influential. Johnson was a champion of the industry throughout the trade talks, but ultimately, he had to secure a deal that would allow European vessels access to UK waters for a limited time in order to salvage a trade relationship. In other words, economic interests were prioritized over politics towards the end of the talks. As Barrie Deas said, “It’s what we always feared... When you get to the endgame in the negotiations it becomes a binary choice and economics prevails over politics. I think that’s what’s happened and it’s really not good news.” Ultimately, for better or for worse, Johnson needed a deal (99). 3. Politicians often pick easily understood industries to get their message across. While much of the fishing industry is quite complex, once dissected, its disenfranchised status is not. Johnson harnessed the underserved with a message centered around one question: “what does Brussels know about potholes in London?” His intent with the fishing industry was to illustrate an example of him protecting locals to show (1) that Brexit can be a success and (2) that he was fighting for the British (and Scottish) industry. Fishing was an industry that many people could understand as it portrayed Brussels as treating them unfairly with “draconian quotas.” It would have been difficult if, for example, Johnson had tried to highlight intellectual property rights; few people would latch on to that due to its highly technical nature. Here, success revolves around clear messaging, which is something the Remain camp struggled to achieve. In the eyes of the Brexiteers, these were local fishers––the heart and soul of the UK, even if they were no longer as economically significant––being taken advantage of by Brussels. Fishers also happened to be politically right-leaning and resided in the “hostile” territory of Scotland. As the world enters a more global epoch, there has been a greater emphasis on interdependence and trans- nationalism, which often glazes over domestic factors. But, as former Speaker of the House of Representatives Tip O’Neill (D-MA) famously quipped: “all politics is local,” or, rather, “all local politics are global,” especially in free-trade agreements. Constituents care more about what is happening on the home front, rather than what is going on in Brussels. They care about how Brussels affects them at home more than being in an economically efficient partnership with the EU. 4. Thus, as Putnam theorized in 1988, international negotiations are a two-level game in which domestic groups pressure the government to adopt favorable policies, as the politicians seek to amplify their power by consulting coalitions of these groups. The politicians then go to the international level and seek to maximize their ability to satisfy domestic pressures while balancing the needs of their international partners. However, the need to get reelected and to preserve legacy presides over the strategy they bring to the negotiation table and the industries they choose to protect. Electoral politics is at the heart of all politics, especially in free trade arrangements. Future Research It has been eight months since this paper was originally completed, and fishing still remains top of the fold. The UK and France are in continuous disputes, threatening sanctions and denying each other licenses to harvest in each other’s seas. To understand this continued conflict, scholars and politicians must look at the EU’s perspective as well as the British perspective. While this paper sought to understand why British politicians amplified the fishing industry during the talks, the UK was not its only amplifier. Just as with the UK, fishing is an economically insignificant industry for the EU overall, yet it continues to be amplified by EU member states. From the EU’s perspective, British waters have fish that are the staple of the European diet: herring, mackerel, sole, and shellfish (100). Herring and mackerel are Denmark’s most popular seafood, and it would be impossible to catch their quota if they could no longer fish in UK waters. This would devastate Denmarks’ industry, culture, and customs. For France, on the other hand, it is more about political weight, similar to what we saw in Scotland with Prime Minister Johnson. As journalist John Lichfield pointed out, “The north of France, around Boulogne, is hugely important for the presidential election in 2022... The regional president... might well be one of Macron’s main rivals at that time, so [Macron] needs to be seen to be supporting what is already a struggling area economically” (101). Additionally, the EU was determined to not set an undesirable precedent. They could not let Britain dictate access to such waters, which could potentially portray the EU as weak to other countries trying the same. This was one of the reasons the EU insisted that the previous level of access to UK waters be maintained, and why Phil Hogan, the EU’s Trade Commissioner, assured Johnson that if he wanted to gain access to EU financial markets, the UK would have to allow EU vessels in British fishing waters (102) Both sides took hardline positions for their constituents, thinking that they were doing their best while also serving their political agendas. Now, though, both British and EU constituents and their businesses are the ones suffering from the fallout of the deal. As stated by Olivier Lepretre, the head of the Hauts-de-France regional fishers association, they want to move on with their lives: “Fishers really don’t care about the politics” anymore, “they just want to work, to go to sea” (103). But, Brexit always was, and still is, a political initiative at its core, and as such, the politics remain. The continued fishing feud illuminates much larger and more profound structural relationship issues that will play out over the next few decades as the two former partners navigate these uncharted waters and tack against the political winds. Endnotes 1 Robert Fisk, “Boris’s Last Push for Brexit Sees Him Kissing Fish and Posing for Selfies as New Poll Gives Leave the Narrowest of Leads,” The Sun (The Sun, June 22, 2016), https://www.thesun.co.uk/news/1326026/boriss-last-push-for-brexit-sees-him-kissing-fish-and-posing-for-selfies-in-a-gruelling-final-day-of-campaigning/ . 2 Raf Casert, “EU-UK Trade Talks Floundering over Fish as Cutoff Day Nears,” Associated Press , December 20, 2020, https://apnews.com/article/brexit-europe-global- trade-boris-johnson-europe-94ead6da2c46c87efc51328893cd3590 . 3 Thomas Phillip “Tip” O’Neill. 4 Avery Koop, “Visualizing the UK and EU Trade Relationship,” Visual Capitalist, February 9, 2021, https://www.visualcapitalist.com/visualizing-the-uk-and-eu-trade- relationship/ . 5 Adam Coghlan, “Breaking Bread Over Brexit With Fish in Brussels, a Short Story,” Eater London , December 10, 2020, https://london.eater.com/2020/12/10/22167244/no-deal-brexit-fishing-boris-johnson-ursula-von-der-leven-dinner . 6 Daniel Boffey, “The Brexit Brussels Dinner: Fish and Frank Talk but No One Left Satisfied,” The Guardian, December 10, 2020, https://www.theguardian.com/politics/2020/ dec/10/the-brexit-brussels-dinner-fish-and-frank-talk-but-no-one-left-satisfied . 7 Elena Ares et al., “UK Fisheries Statistics,” House of Commons Library, November 23, 2020, https://commonslibrary.parliament.uk/research-briefings/sn02788/ . 8 Reuters Staff, “PM Sold out Fish in Brexit Trade Deal, Fishermen Say,” Reuters, December 26, 2020, https://www.reuters.com/article/uk-britain-eu-fish/pm-sold-out-fish- in-brexit-trade-deal-fishermen-say-idUSKBN2900KG . 9 Kat Haladus, “Fisheries: An Industry That’s Worth 0.1% of the UK’s GDP Is Holding up the Talks,” UK Customs Solutions, December 23, 2020, https://ukcustomssolutions . co.uk/2020/12/23/fisheries-an-industry-thats-worth-0-1-of-the-uks-gdp-is-holding-up-the- talks/. 10 Matt Bevington, Professor Anand Menon, and Professor Jonathan Portes, “Fishing: Why Is It Such a Tricky Issue in UK-EU Negotiations?” UK in a Changing Europe, November 10, 2020, https://ukandeu.ac.uk/explainers/fishing-why-is-it-such-a-tricky-issue-in-uk-eu-negotiations/ . 11 British Sea Fishing, “Brexit and Britain’s Fisheries,” British Sea Fishing, January 20, 2021, https://britishseafishing.co.uk/brexit-and-britains-fisheries/ . 12 Anand Menon and UK in a Changing Europe Team, “Fisheries and Brexit,” The UK in a Changing Europe , June 2020, https://ukandeu.ac.uk/wp-content/uploads/2020/06/ Fisheries-and-Brexit.pdf . 13 Jeremy Phillipson and David Symes, “‘A Sea of Troubles’: Brexit and the Fisheries Question” 90 (2018): pp. 168-173, https://doi.org/10.31230/osf.io/fxnqj . 14 Sophia Kopela, “Historic Fishing Rights in the Law of the Sea and Brexit,” Leiden Journal of International Law 32, no. 4 (2019): pp. 695-713, https://doi.org/10.1017/s0922156519000438 . 15 Stijn Billiet, “Brexit and Fisheries: Fish and Chips Aplenty?” The Political Quarterly 90, no. 4 (2019): pp. 611-619, https://doi.org/10.1111/1467-923x.12748 . 16 Tom McTague, “Why Britain’s Brexit Mayhem Was Worth It,” The Atlantic (Atlantic Media Company, December 24, 2020), https://www.theatlantic.com/international/archive/2020/12/brexit-trade-deal-uk-eu/617509/ . 17 Anand Menon and UK in a Changing Europe Team, “Fisheries and Brexit”. 18 Craig McAngus and Christopher Huggins, et al., “The Politics and Governance of UK Fisheries after Brexit.” Political Insight 9, no. 3 (September 2018): 8-11, https://doi.org/10.1177/2041905818796570 . 19 John Connolly et al., “The Governance Capacities of Brexit from a Scottish Perspective: The Case of Fisheries Policy,” Public Policy and Administration , January 2020, https://doi.org/10.1177/0952076720936328 . 20 Matt Bevington, Professor Anand Menon, and Professor Jonathan Portes, “Fishing: Why Is It Such a Tricky Issue in UK-EU Negotiations?” 21 Robert D. Putnam, “Diplomacy and Domestic Politics: the Logic of Two-Level Games.” International Organization 42, no. 3 (1988): 427–60. https://www.jstor.org/stable/2706785 . 22 Corneliu Bjola and Ilan Manor, “In the Long Run,” In the Long Run, July 19, 2018, http://www.inthelongrun.org/criaviews/article/revisiting-putnams-two-level-game-theory- in-the-digital-age-domestic-digita/ . 23 Eugénia da Conceição-Heldt and Patrick A. Mello, “Two-Level Games in Foreign Policy Analysis,” Oxford Research Encyclopedia of Politics, 2017, https://doi.org/10.1093/acrefore/9780190228637.013.496 . 24 Gene Grossman and Elhanan Helpman, “Trade Wars and Trade Talks,” Journal of Political Economy 103, no. 4 (1995): pp. 678, https://dash.harvard.edu/bitstream/handle/1/3450062/Helpman_TradeWars.pdf . 25 Arye L. Hillman, “Declining Industries and Political-Support Protectionist Motives.” The American Economic Review 72, no. 5 (1982): 1180-187. http://www.jstor.org/stable/1812033 . 26 Hilman, 1186. 27 Richard E. Baldwin and Robert-Nicoud, Frédéric, “Entry and asymmetric lobbying: why governments pick losers.” PSPE working papers, March 2007. Department of Government, London School of Economics and Political Science, London, UK. 28 Ibid. 29 Data collected by Eleanor Ruscitti via the UK Electoral Commission donation reports from 2016-2020, http://search.electoralcommission.org.ukcurrentPage=1&rows=10&sort=AcceptedDate&order=desc&tab=1&open=filter&et=pp&isIrishSourceYes=true&isIrishSourceNo=true&prePoll= false&postPoll=true®ister=gb®ister=ni&optCols =IsAggregation . 30 Vivien Schmidt and Jolyon Howorth, “Brexit: What Happened? What Is Going to Happen?” Politique Étrangère, no. 4 (2016): pp. 123-138, https://doi.org/10.3917/pe.164.0123 . 31 Ibid, 4. 32 Kevin H. O’Rourke, “A Short History of Brexit: from Brentry to Backstop,” in A Short History of Brexit: from Brentry to Backstop (London: Pelican, 2019), p. 74. 33 James Walsh, “Britain’s 1975 Europe Referendum: What Was It like Last Time?” The Guardian, February 25, 2016, https://www.theguardian.com/politics/2016/feb/25/britains-1975-europe-referendum-what-was-it-like-last-time . 34 Ibid. 35 Pan Pylas, “Britain’s EU Journey: When Thatcher Turned All Euroskeptic,” Associated Press, (January23,2020), https://apnews.com/article/64855d1ff67454443db5132bdfb22ea6 . 36 Ibid. 37 Vivien Schmidt and Jolyon Howorth, 7. 38 Ibid, 4. 39 Jorge Martins Rosa and Cristian Jiménez Ruiz, “Reason vs. Emotion in the Brexit Campaign: How Key Political Actors and Their Followers Used Twitter,” First Monday 25, no. 3 (March 2, 2020), https://doi.org/10.5210/fm.v25i3.9601 . 40 European Commission, “The Common Fisheries Policy (CFP),” European Commission, 2015, https://ec.europa.eu/fisheries/cfp_en . 41 Andy Forse, Ben Drakeford, and Jonathan Potts, “Fish Fights: Britain Has a Long History of Trading Away Access to Coastal Waters,” The Conversation, March 25, 2019, https://theconversation.com/fish-fights-britain-has-a-long-history-of-trading-away-access- to-coastal-waters-112988 . 42 Convention on the Law of the Sea , New York, 10 December 1982, United Nations Treaty Series, pg. 40. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e. pdf 43 Thomas Wemyss Fulton, “The Fisheries,” in The Sovereignty of the Sea: an Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters; with Special Reference to the Rights of Fishing and the Naval Salute (London: William Blackwood and Sons, 1911), pp. 25-57. https://www.gutenberg.org/files/54977/54977- h/54977-h.htm . 44 Keith Johnson, “So Long, and Say Thanks for All the Fish,” Foreign Policy, February 28, 2020, https://foreignpolicy.com/2020/02/28/fishing-uk-european-union-brexit-trade- talks-cfp/ . 45 Ibid. 46 Dan Roberts, “‘We Have Been Hijacked’: Fishermen Feel Used over Brexit,” The Guardian (Guardian News and Media, March 23, 2018), https://www.theguardian.com/politics/2018/mar/23/we-have-been-hijacked-fishermen-feel-used-over-brexit . 47 Ibid. 48 Ibid. 49 Serena Kutchinsky, “Is Nigel Farage the Fisherman’s Friend?” Newsweek, June 27, 2016, https://www.newsweek.com/eu-referendum-brexit-fishing-policy-nigel-farage- scotland-snp-473435 . 50 John Litchfield, “Ukip Is Wrong: British Fishing Answers to Westminster Not Brussels,” The Guardian, April 6, 2018, https://www.theguardian.com/commentisfree/2018/apr/06/ ukip-british-fishing-westminster-brussels-brexit . 51 Oliver Barnes and Chris Morris, “Brexit Trade Deal: Who Really Owns UK Fishing Quotas?” BBC News, January 1, 2021, https://www.bbc.com/news/52420116 . 52 Keith Johnson, “So Long, and Say Thanks for All the Fish.” 53 European Commission, “The Common Fisheries Policy (CFP): the essentials of the new CFP,” 2015. 54 Ibid. 55 Craig McAngus, “A Survey of Scottish Fishermen Ahead of Brexit: Political, Social and Constitutional Attitudes,” Maritime Studies 17, no. 1 (2018): pp. 41-54, https://doi.org/10.1007/s40152-018-0090-z . 56 Daniel Boffey, “UK Fishermen May Not Win Waters Back after Brexit, EU Memo Reveals,” The Guardian, February 15, 2017, https://www.theguardian.com/environment/2017/feb/15/uk-fishermen-may-not-win-waters-back-after-brexit-eu-memo-reveals . 57 Severin Carrell, “Nigel Farage to Lead pro-Brexit Flotilla up Thames,” The Guardian, June 3, 2016, https://www.theguardian.com/politics/2016/jun/03/nigel-farage-pro-brexit- flotilla-thames-eu-referendum-leave-campaign . 58 Chris Morris and Oliver Barnes, “Brexit Trade Deal: What Does It Mean for Fishing?” BBC News, January 20, 2021, https://www.bbc.com/news/46401558 . 59 Craig McAngus, “A Survey of Scottish Fishermen Ahead of Brexit: Political, Social and Constitutional Attitudes.” 60 The Newsroom, “Scottish Constituency of Banff and Buchan ‘ ̃Voted for Brexit’,” The Scotsman, November 22, 2016, https://www.scotsman.com/news/politics/scottish-constituency-banff-and-buchan-voted-brexit-1462018 . 61 Kevin McKenna, “Scotland’s Fishermen Feel a Sickening Sense of Betrayal Yet Again,” The Guardian, March 24, 2018, https://www.theguardian.com/uk-news/2018/ mar/24/scotland-fishermen-betrayal-peterhead-brexit . 62 “Scottish Independence: Will There Be a Second Referendum?” BBC News (BBC, March 22, 2021), https://www.bbc.com/news/uk-scotland-scotland-politics-50813510 . 63 Ibid. 64 Scotland Correspondent, “SNP Tries to Dump EU Fisheries Policy” (The Times, March 31, 2010), https://www.thetimes.co.uk/article/snp-tries-to-dump-eu-fisheries- policy-7b8tnlq3gw5 . 65 Scottish Government, “Scotland’s Future and Scottish Fisheries,” Scottish Government, August 14, 2014, https://www.gov.scot/publications/scotlands-future-scottish-fisheries/pages/2/ . 66 “General Election 2017: Former SNP Leader Alex Salmond Loses Seat,” BBC, June 9, 2017, https://www.bbc.com/news/uk-scotland-scotland-politics-40212541 . 67 “General Election 2017: SNP Lose a Third of Seats amid Tory Surge,” BBC News, June 9, 2017, https://www.bbc.com/news/uk-scotland-scotland-politics-40192707 . 68 Ibid. 69 “Letters: Tories Could Not Be Trusted to Negotiate in Good Faith in Independence Talks,” HeraldScotland, November 11, 2020, https://www.heraldscotland.com/ news/18864349.letters-tories-not-trusted-negotiate-good-faith-independence-talks/ . 70 Ibid. 71 Ibid. 72 British Sea Fishing, “Brexit and Britain’s Fisheries.” 73 Ibid. 74 The Newsroom, “Fishing Industry’s Anger as UK and EU Strike Brexit Transition Deal,” The Scotsman, March 19, 2018, https://www.scotsman.com/country-and-farming/ fishing-industrys-anger-uk-and-eu-strike-brexit-transition-deal-318889 . 75 Ibid. 76 Jenni Davidson, “Brexit Deal for Fisheries like ‘A Pint of Cold Sick’, Conservative MP Douglas Ross Says,” Holyrood Website, October 4, 2019, https://www.holyrood.com/news/view,brexit-deal-for-fisheries-like-a-pint-of-cold-sick-conservative-mp-douglas-ross- says_13762.htm . 77 Libby Brooks, “Scottish Tories Still Anxious over Johnson’s Impact on the Union,” The Guardian, July 23, 2019, https://www.theguardian.com/politics/2019/jul/23/scottish-tories-still-anxious-over-johnson-impact-on-the-union-independence-ruth-davidson . 78 Tom Peterkin, “Boris Johnson Pledges That Access to Fishing Will Not Be Sacrificed in New Brexit Deal,” Press and Journal, July 30, 2019, https://www.pressandjournal.co.uk/fp/politics/scottish-politics/1807666/boris-johnson-pledges-that-access-to-fishing-will-not-be-sacrificed-in-new-brexit-deal/ . 79 Ibid. 80 Rowena Mason and Libby Brooks, “Boris Johnson Heads to Scotland to Deliver £300m Pledge,” The Guardian, July 28, 2019, https://www.theguardian.com/politics/2019/jul/28/boris-johnson-heads-to-scotland-to-deliver-300m-pledge . 81 Ibid. 82 Tim Ross, “Boris Johnson’s Tories Abandoned Scotland to Win Their Big Victory,” Bloomberg, December 23, 2019, https://www.bloomberg.com/news/articles/2019-12-23/how-johnson-s-tories-ditched-scotland-to-rule-a-divided-kingdom . 83 “General Election 2019: Boris Johnson Claims Scotland ‘Paralysed’ by SNP,” BBC News, November 26, 2019, https://www.bbc.com/news/election-2019-50561993 . 84 Reuters Staff, “Boris Johnson to Tell Scotland: Vote Conservative to Stop Independence Bid,” Reuters, November 6, 2019, https://www.reuters.com/article/us-britain-election- scotland/boris-johnson-to-tell-scotland-vote-conservative-to-stop-independence-bid-idUSKBN1XG333 . 85 Data collected by Eleanor Ruscitti via Boris Johnson’s Twitter account 86 Alistair Grant and Rohese Devereux Taylor, “Constituency Profile: Fishing for Votes in Scottish Coastal Communities,” HeraldScotland, December 1, 2019, https://www.heraldscotland.com/news/18072191.general-election-2019-fishing-votes-scottish-coastal- communities/ . 87 Ibid. 88 “Results of the 2019 General Election,” BBC News, https://www.bbc.com/news/election/2019/results . 89 Torcuil Crichton, “Why Scottish Fishing Rights Are a Brexit Deal Breaker in EU Trade Talks,” Daily Record, October 15, 2020, https://www.dailyrecord.co.uk/news/.politics/scottish-fishing-rights-brexit-deal-22850163 . 90 British Sea Fishing, “Brexit and Britain’s Fisheries.” 91 Ibid. 92 Chris Morris and Oliver Barnes, “Brexit Trade Deal: What Does It Mean for Fishing?” 93 Harry Taylor, “Kipper Tie: Boris Johnson Sports Fish Symbol in Brexit Message,” The Guardian, December 24, 2020, https://www.theguardian.com/politics/2020/dec/24/net-gains-boris-points-up-his-ties-to-the-fishing-industries . 94 Jeremy Kahn, “A Fine Kettle: How Fishing Became the Issue That Could Sink a Post- Brexit U.K.-EU Trade Deal,” Fortune, October 15, 2020, https://fortune.com/2020/10/15/fishing-rights-brexit-u-k-eu-trade-deal/ . 95 Barrie Deas, “Opinion Piece,” NFFO, October 9, 2020, https://nffo.org.uk/news/opinion-piece.html . 96 Daniel Boffey, “Catches, Quotas and Communities: the Key Fisheries Issues at Stake,” The Guardian, October 17, 2020, https://www.theguardian.com/business/2020/oct/17/catches-quotas-and-communities-the-key-fisheries-issues-at-stake . 97 Denis Staunton, “Johnson Covers Brexit Win on Fish to Show He’s ‘Taking Back Control’,” The Irish Times, December 4, 2020, https://www.irishtimes.com/news/world/uk/johnson-covets-brexit-win-on-fish-to-show-he-s-taking-back-control-1.4426956 . 98 “Scottish Election 2021: Conservative Match Best Scottish Election Results,” BBC News (BBC, May 8, 2021), https://www.bbc.com/news/uk-scotland-scotland-politics-57042432 . 99 Dan Roberts, “‘We Have Been Hijacked’: Fishermen Feel Used over Brexit.” 100 Laura Hughes, “Brexit: Why Fishing Threatens to Derail EU-UK Trade Talks.” 101 Lucy Williamson, “Brexit: Why France Is Raising the Stakes Over Fishing” (BBC, October 13, 2020), https://www.bbc.com/news/world-europe-54526145 . 102 British Sea Fishing, “Brexit and Britain’s Fisheries.” 103 Jon Henley, “French Fishing Industry Divided over Sanctions on UK Trawlers,” The Guardian (Guardian News and Media, November 1, 2021), https://www.theguardian.com/business/2021/nov/01/french-fishing-industry-divided-over-sanctions-on-uk-trawlers . 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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

Noah Cohen Breaking Big Ag: Examining the Non-Consolidation of China's Farms Noah Cohen Abstract Over the past two decades, China’s policymakers have implemented numerous reforms intended to promote the emergence of scale farming enterprises. Nonetheless, contrary to demographic predictions, China’s farm economy remains dominated by smallholders (小农/小型农场) and virtually untouched by “big ag” (大农/大规模农场) as evidenced by a mean farm size of 0.6-0.7 hectares. This paper seeks to explain why China has not significantly transitioned to scale farming despite market liberalization. Using empirical evidence derived from data on land rental markets before and after the implementation of the 2011 Land Certificate Program 《中华人民共和国土地管理法实施条例》, I find that land tenure insecurity has not been solely responsible for limiting scale farming. Rather, China’s farm sizes have likely been constrained partly by unique policy conditions that lead to smallholders renting out their land to other smallholders, who subsequently do not further scale up due to other distortions that disincentivize mechanization, including labor surplus and plot fragmentation. These findings may have wide-ranging implications for the future efficacy of China’s efforts to optimize its rural land policy strategy. Introduction Over recent decades, the issue of farm size has loomed large for the world’s policymakers and the environmental movement alike. To many economists, large- scale farming is an emblem of market efficiency, enabling millions of rural workers to move out of agriculture into higher-growth sectors. For others, enormous mechanized farms are emblematic of the unstoppable encroachment of “big ag” on the farm economy; they connote lost rural jobs, decimated communities, monocultural commodity dependence, and ecological ruin. In countries like China, where land tenure systems are being continuously invented and reinvented ad hoc to support economic and social objectives, the clash between these two conflicting narratives of scale farming is more than just an ideological battle between family farmers and big business. Rather, it is a surrogate of a broader set of political questions about social optimality that have come into particularly stark relief for China as globalization has forced the nation to strike a balance between economic competitiveness and self-sufficiency. The stakes are nothing less than how daily life is lived for hundreds of millions of people. Partly as a result of both centuries of traditional labor-intensive land-use practices and decades of land policy designed to build a self-sufficient food system, China’s farms are today among the world’s smallest, at an average of roughly 0.6 hectares (1). As of 2010, 70 percent of China’s farmland was occupied by “small- holder farms” (<2 ha) (小型农场) (2), compared to 30 percent for East Asia and below 5 percent for upper-middle-income countries globally (3). These average farm sizes continually decreased until at least 2007 (4). They have since stabilized and begun to slightly increase, but to this day there are no indications of “a systemic shift toward large-scale farming for the typical farming household” (5). While decreasing farm size is unusual for middle-income developing countries, it is especially extraordinary for countries with China’s demographics. Countries typically begin to rapidly adopt scale farming once they reach the turning point’ where the agricultural labor force begins to decrease due to the increasing availability of off-farm jobs (6). With rapid urbanization and a low total fertility rate (7), China has long since reached this turning point: its rural population has decreased by roughly 36 percent since 1992 (8), while its number of “rural employed persons” (农村劳动人口) has been decreasing since 1997 (9). Meanwhile, census data shows cultivated land decreased only 0.2 percent over five years, debunking the popular narrative that farm sizes have contracted due to farmland being lost to urban development projects (10-11). This appears, at first glance, to be a contradiction. If the same amount of land is being cultivated, but the number of farmers is decreasing, how can this not ipso facto imply farm consolidation? Perhaps the most striking thing about China’s farm size trends is that they have persisted through several rounds of rural land tenure reforms that eliminated nearly all direct policy barriers to land transactions and consolidation. A robust debate continues among scholars about the ideal scale of farms in a Chinese topographic and economic context, with many arguing that land rights provide critical social insurance to rural residents and that traditional “dual-intensive” smallholder farming practices (小规模畜-禽-鱼饲养和菜-果种植家庭农场) are well-suited to modern China’s need for both land-efficient farming and crop diversification (12). Nonetheless, China’s top policymakers appear to see farm non-consolidation as a major labor efficiency issue that threatens to inhibit economic growth (13). To attempt to solve this issue, the government has implemented a series of reforms, including the 2011 Land Certificate Program, to make it easier to transfer land rights. While past studies have indicated that these reforms have increased household-level land renting, it remains unclear whether these increases have translated into any large-scale land consolidation (14). Globally, land economists have noted the potential impact of several factors on farm sizes, with significant literature dedicated to the relationships between land documentation (15), mechanization (16), and off-farm employment (17). For China specifically, few studies have investigated the causes of farmland non-consolidation beyond the household responsibility system (HRS 家庭联产承包责任制). The HRS is a policy instrument that equitably distributes land to every rural household, and, until recently, allowed for the periodic “redistribution” of land to preserve this equity; as such, many have assumed it sufficiently explains land remaining unconsolidated (18). While the HRS helps explain why Chinese farms have generally tended to be small, it cannot explain why farms have barely even begun to scale up several decades into land tenure liberalization. Indeed, the HRS makes China an ideal case study for how rural land markets develop when starting from a condition of de facto complete land equality. Structure This paper proposes one model to explain how China’s farmland remains unusually unconsolidated despite land market liberalization. Specifically, I theorize the HRS as a policy instrument that enforced an initial market condition of there being no scale farms. I then propose that given that initial condition, existing models of scale farming development can be deconstructed into two functions: (1) whether people enter the land rental market and (2) the land rental behavior (e.g. total quantity of land rented) of those who do enter the land rental market. Based on this model, I find that while policies that improved land tenure security led to more people entering the land rental market, there is no evidence that they caused those who rented land to rent more land. This finding suggests that tenure insecurity has not been solely responsible for non-consolidation. Rather, although the number of land transactions is increasing, most land continues to be transferred locally from smallholder to smallholder rather than to outside large companies, due to irregular market forces caused by China’s unique land policies. Further, most farms remain non-mechanized, likely due to both farm labor surpluses and plot fragmentation. This non-mechanization disincentivizes smallholder renters from scaling their operations up into scale farms, which constrains consolidation. To examine both the context and global relevance of China’s experience with land markets, I begin with a historical land policy overview. Then, I examine several hypotheses for China’s land non-consolidation, which I organize into three broad categories: (1) barriers to land rental market participation, (2) relative incentives to smallholder-to-smallholder transfers (or disincentives to smallholder-to-company transfers), and (3) disincentives to smallholder land renters scaling up. I then test how variation of each factor correlates with land rental behavior, using data on households from villages that either had completed or had not yet started, implementing the 2011 Land Certificate Program (LCP 《中华人民共和国土地管理法实施条例》) as of 2015 (19). Finally, I discuss the possible implications of my findings for China’s land policy strategy. Institutional background Land tenure in China: a historical overview China has a unique and complex history of land tenure that often goes unappreciated by Western observers. This history has been shaped by two defining characteristics of modern China: a rapidly growing population and a sharply limited amount of arable land. These characteristics necessitated an agricultural strategy that prioritized ‘land efficiency’ (maximizing output per land) over ‘labor efficiency’ (maximizing output per labor). Indeed, as the population began to grow faster than urbanization could keep up, labor-intensive agriculture emerged as a useful way to “absorb” surplus labor (20). As agricultural technology improved, Chinese farmers began to adopt a “dual-intensive” farming strategy: technology was used not to reduce labor, but to increase output per land (21). This strategy has been credited with facilitating China’s world-class agricultural yields, which remain among the world’s highest by output per acre of arable land (22). Under agricultural collectivization during the Mao era, dual-intensive agriculture largely continued despite the removal of boundaries between plots, surprising economists who had expected economies of scale to emerge (23). China’s rural reforms in 1978 revolutionized the land tenure paradigm, but preserved incentives for dual-intensive farming. The right to work (collectively owned) land became the right to operate land. Crucially, however, the village committee remained the legal proprietor of all the land, and households’ right to retain it was conditional on meeting agricultural production quotas. Under this household responsibility system (HRS), the village contracts several non-contiguous parcels of land out to each of its households, equitably distributed by household population, for a given renewable term, currently 30 years (24, 25). When the term expires, the village can “redistribute” the land to correct for changing household sizes over the contract term, and, until recently, could take land away from a household that was leaving it idle (26). Households retain their own agricultural income, except for taxes paid back to the collective. This system ensures that all of China’s limited farmland continues to be used efficiently, and that land distribution remains equitable, with all households having the right to retain any land they can use for farming. While the HRS provides an invaluable social safety net for a rapidly growing population and facilitates the maximization of domestic agricultural output, it poses significant obstacles to China’s new goal of maximizing national labor productivity (27). On the most basic level, limitations on land rights impose obvious limitations on land transfers, making it difficult for farmers who could make more money off-farm to leave agriculture (28). Given that villagers cannot fully own their land, they cannot sell their land; they can only rent it out or subcontract it for the remainder of their lease term (29). Village government proprietorship of land has given rise to further frictions. Until recently, village governments had to sign off on transfers (30), giving village leaders significant power over what kinds of transfers could occur and to whom. Many villages regularly violated the prescribed contract terms by conducting “reallocations” of villagers’ land even within the con- tract period (31). These reallocations made farmers hesitant to rent out their land, the fear being that doing so would signal the land was no longer needed (32). Finally, until 2011, most land contracts were not formally certificated; the resulting limited land tenure security discouraged renting out to strangers, with whom no informal social contracts existed to motivate contract compliance (33). To resolve such problems, the central government has introduced several reforms to improve tenure security and liberalize the land market. Two especially noteworthy programs stand out. The first, the 2002 Rural Land Contracting Law 《中华人民共和国农村土地承包法》, clarified that villagers had the right to transfer their contract land either by renting out (出租) or by “subcontracting” (转包) the remainder of their contract term, while explicitly banning most reallocations (34). Subsequently, the 2011 Land Certificate Program (LCP) reasserted commitment to the 2002 regulations while introducing formal land documentation for every rural household. Some contended that large-scale land consolidation was only a matter of time as a result of these reforms (35). However, the fact that farms have not meaningfully consolidated decades later suggests otherwise. Potential constraints on consolidation: Several hypotheses 1. Structural barriers to entering the land rental market 1.1 Land tenure insecurity Perhaps the most common explanation of China’s farmland’s non-consolidation is that persistent land tenure insecurity continues to discourage land transfers (36). This explanation would suggest that, while recent reforms have improved the conditions for consolidation, rental markets remain constrained largely because the new policies have not yet been universally implemented or enforced. Despite the central government’s obsessive efforts to recalibrate land policy, this explanation is plausible, as village governments’ compliance with national land laws vary (37). This pervasive noncompliance is evidenced by the significant number of reallocations that have continued to occur well into the 2010s despite reallocations having been essentially outlawed by the 2002 Rural Land Contracting Law (38). Despite these implementation lags, each round of reform has demonstrably had some impact. When the pilot of the LCP had extended to roughly half of China, farmers from villages where the LCP had been decreed were more likely to rent land (39). However, it remains unclear whether reforms’ impact has been to increase scale renting or just to spur lots of non-scale renting. If tenure insecurity were solely responsible for non-consolidation, we would expect the local implementation of reforms to positively correlate not only with rental participation but also with rental scale. Thus, a more granular assessment of how land reform implementation has affected rental market dynamics may elucidate the extent to which tenure insecurity has constrained scale farming. 1.2 Hukou system 户籍制度: Emigration without land renunciation The Hukou System, which splits the Chinese population into “urban” and “rural” residents, is another widely theorized source of non-consolidation. Over recent years, an unprecedented number of rural Chinese residents have migrated to the cities (40). Yet many of these migrant workers cannot get their rural hukou registrations (农村户口) changed to receive social benefits from their new municipalities, nor do employers typically offer them basic social protections (41). Only 22 percent of migrant workers have “basic pension insurance” (低保), while just 17 percent have un-employment insurance (42). Thus, most migrants choose to keep their land rights as a fallback (43). To some theorists, this trend is the end of the mystery of China’s farm sizes: these retained landholdings simply remain idle, perhaps being casually tended by an aging family member (44). Thus, it is possible that while the rural population is decreasing, the number of rural landholders is not, precluding consolidation. Indeed, this seems to be the popular conception both outside and within China (45). However, evidence suggests this is unlikely to be happening en masse. For instance, China’s land is remarkably productive given how much of it is barely arable. The country’s average cereal yields per hectare regularly rank among the top-few G20 countries–including those with far more prime farmland–and far exceeds most of its regional peers (46). If most of the thirty percent of China’s farmland contracted to migrant households were near-idle, the remaining farmland would be by far the most productive land on the planet, which is implausible (47). Moreover, output has not decreased with the emergence of migration since the 1990s; rather, it has increased comparably to or more rapidly than that of peer countries, again making it improbable that idle land is massively increasing (48). Finally, the persistence of reallocations, which Krusekopf finds most often occur where village demographics have recently changed, indicates that migrants typically cannot leave land idle without it being redistributed (49). Thus, it is incredibly unlikely that land abandonment alone can account for farm non-consolidation. Yet the question remains: what, then, happens to migrant households’ land when they leave the village but do not renounce their land? 2. Relative disincentives to land rentals to outside scale farming companies 2.1 Cheap rent prices reduce barriers for local renters The data suggest that for most of China’s migrant households, renting their land out is the solution of choice. For migrant families to fully allocate their labor capital off-farm while keeping their land rights for social insurance, they must somehow keep their land under cultivation to meet HRS quotas, lest they risk the village government reallocating their land (50). This need can essentially only be fulfilled by renting; thus, it is unsurprising that households with more migrant workers tend to rent out greater proportions of their land (51). Given China’s remarkable recent rates of rural emigration and non-agricultural job growth, the expected result of this dynamic is an extremely high supply of land for rent, likely leading to unusually low land rental prices. Wang’s data confirms this conjecture: 62 percent of land “rentals” (农村地租), including 53% of those to non-relatives, were rent-free (52). While rent-charged rather than rent-free transactions slightly increased from 2000 to 2008, the mean yearly rent charged when rent was charged decreased over the same period, from 272 to 222 yuan/mu (53). Even with these low prices, supply of land for rent continued to outstrip demand. While 25 percent of households expressed “willingness to rent out” land for a below-market 200 yuan/mu, a dramatically lower proportion of households actually found takers (54). The result of this “buyer’s market” is that Chinese smallholders, unlike most of the world’s smallholders, can afford to rent—which many do. Due to still-inconsistent land tenure security, Chinese farmers typically prefer to rent to their neighbors, with whom informal social relations may provide recourse if land disputes occur, rather than to companies or to strangers from outside the village (55, 56). Thus, the feasibility of local smallholder-to-smallholder renting leads to such transactions dominating the rental market: as of 2008, 85 percent of rented out land was rented to farmers within the contract holder’s own village (57). This tendency toward local renting has persisted even with rental market expansion and reform. From 2000 to 2008, a period over which renting participation nearly doubled, the percentage of rental contracts that were informal rather than written decreased from 96 percent to 89 percent (58). However, over the same period, the proportion of rentals to “non-kin” (非亲) rather than “kin” (亲) did not change (59). Given that it is unlikely that many people would choose to rent their land out to outside companies with no formal contract, this likely indicates that it was not rentals to outside companies, but formal rentals to close social relations, that increased most substantially with the recent expansion of land rental markets. 2.2 Disincentives for scale farming companies to rent or subcontract land Even when farmers transfer their land rights for the remainder of their lease term, they most often transfer to other nearby farmers. As of 2013, 58 percent of full-lease-term transferred farmland by area—and the overwhelming majority of such transfers by count—was transferred to other farmers rather than to companies, cooperatives, or others (60). Only 9.6 percent of transferred farmland was transferred to companies.61 Because farmers who transfer their land rights permanently presumably do not care what happens to their land once they sell it, the predominance of smallholder-to-smallholder transactions indicates the presence of not just supply-side, but demand-side barriers to scale transfers. Smallholder farmers entering the transfer market cannot singlehandedly explain why farmers who permanently transfer their land do not choose to transfer it to scale farming companies (which could presumably pay more than smallholders), given that, for such transfers, trusting the recipient is no longer a factor. This implies that scale farming companies must be choosing not to rent land, or, equivalently, that Chi- na’s land economy precludes many scale farming companies from penetrating the Chinese market. One likely demand-side contributor to the dearth of outside-scale renters is that it is simply not worthwhile for companies to rent or subcontract land given China’s policy conditions. Given that land is merely leased rather than owned, the long-term returns for non-residents to establish scale farming operations may not be worth the considerable fixed costs. Moreover, renting 0.1 hectares of detached land may be gainful for smallholder renters, but is unlikely to be very useful to most scale farming companies. Due to the non-contiguous plot distribution under the HRS, one cannot rent corporate-scale stretches of contiguous land without contracting with dozens, or even hundreds, of farmers who hold conjoining plots. It is thus unsurprising that, according to Huang, most scale transfers to companies involve village governments organizing the transfer of the entire village’s land at once (62). However, this is only possible when none of the village’s households still rely on agricultural employment—or when those who do can be convinced to become wage laborers on the land they own—which is rare (63). Thus, companies can rarely obtain enough contiguous land to warrant the nontrivial fixed costs of scale farming enterprises. Whether scale farming is constrained more by the opportunity for local farmers to rent land or by disincentives to outside companies taking on land is difficult to precisely determine, though examining the impact of village per capita incomes on rental markets will help elucidate the impact of cheap rent prices. Regardless of the reason, it is evident that the vast majority of rental transactions occur locally and between smallholder farmers. 3. Disincentives for local land renters to scale up: Non-mechanization Even if China’s land rental market is constrained to local smallholder-to-small- holder transfers, it is not obvious that this should prevent farms from consolidating. The U.S. farm economy is a prime example: even though mean farm sizes have ballooned to hundreds of times those of China, 96 percent of US farms remain “family farms” rather than corporate entities (64). Smallholder renters can only be responsible for the dearth of scale farms if conditions have disincentivized these smallholder renters from further scaling up their operations over time. The most plausible explanation is China’s unusually low levels of agricultural machinery. While many studies have indicated that scale farming is generally associated with mechanization, China’s persistent non-mechanization despite rapidly increasing rural wealth is not well understood (65). With that being said, several factors unique to China may be disincentivizing machinery investments, and, therefore, limiting scale farming. Plot fragmentation is one such likely disincentive. The HRS divides villages’ land into plots, often of less than 0.1 ha, and contracts several of these plots to each household. To ensure that each household’s land is equally arable, the village committee assesses the quality of each parcel and allocates an equal proportion of “good” and “bad” parcels to each household (66). Due to China’s mountainous terrain, which often causes the farmland within a given village to vary dramatically in quality, many households are thus given several completely noncontiguous plots (67). This extreme fragmentation essentially neutralizes the economies of scale associated with mechanization (68). To give one provocative example, from 1980 (when much farmland was still collectivized) to 1988 (when much land was on plots of less than 1 hectare), the percentage of farmland “under mechanized operations” decreased by 5.8 percent despite unprecedentedly rapid rural income growth (69). Such trends continue today: Tan70 finds that rice farmers from China’s Jiangxi province with more fragmented land had higher labor costs but lower tractor costs, indicating they were less mechanized. Alternatively, it may be that China’s land renters do not mechanize simply because their labor-to-land ratio under the HRS land distribution gives them no reason to. Most of China’s rural households still have lower marginal returns to labor than the prevailing non-agricultural wage rate, indicating labor surpluses—which is to say, they do not have enough land to need as many on-farm workers as they have (71). Why these households’ “surplus laborers” continue to farm even though they could make more money from non-farming work is unclear (72). Nonetheless, it is evident that these households have enough labor capital to take on significantly more land while remaining land-efficient without needing to mechanize. It is important to note that most smallholder land renters may not have the ability to purchase machinery. As previously mentioned, a primary driver of land rent- ing among Chinese smallholders appears to be the extraordinarily cheap avail- ability of local land for rent (73). As such, the typical Chinese land renter may not have the means--or the desire--to make large fixed investments into agriculture. Given the ever-evolving nature of China’s urban work opportunities, renting land may simply be households’ way of temporarily allocating their labor capital more efficiently, without incurring fixed costs or financially committing to agriculture long-term. Such households would be willing to rent up to, but not beyond, the maximum land they could manage without machinery given their labor endowments, thus precluding the transition to scale farming. The size distribution of land renters’ landholdings illustrates the salience of this hypothesis. Of the land renters from the sample used for the present study, 83 per- cent had total landholdings, including land they were renting, of less than 30 mu, or 2 hectares [Fig. 1].74 While labor efficiency varies for different types of farms, 2 hectares can typically be farmed land-efficiently by a family of four—roughly Chi- na’s mean household size—without machinery (75). It is likely no coincidence that 85 percent of households from the same sample had zero “agricultural asset” value (76). Even households from villages where the LCP had been completed rarely exceed- ed these labor-intensive-friendly farm sizes: only one of the sample’s 48 land renters whose villages had completed the LCP had more than 20 mu of landholdings, further indicating that barriers to scale renting exist independent of land tenure security (77). Fig. 1 (78) It is not necessarily possible to determine the causal relationship between rental land holding and mechanization due to reverse causality concerns: not having enough land to need machines may discourage mechanization, and not having machines may also discourage renting an amount of land that cannot be farmed without machines. However, given the fixed nature of machinery costs (those who currently own machinery most likely did not buy it within the past year), examining the relationship between machinery ownership and year-to-year land renting behavior change may provide some insight into the impact of non-mechanization. Methodology Data sources To test how each of these sets of factors may be influencing land transfer behavior on what levels, I examine data on households that had either completed or not yet started implementation of the 2011 Land Certificate Program by 2015. Specifically, I use Probit/Tobit regressions to examine the relationship between various measures of land rental markets and LCP completion, machinery ownership, and village per capita income. Probit regressions are used to regress on binary variables (i.e. household likelihood of renting land), whereas Tobit regressions are used to estimate linear relationships between “censored” variables where not all “zero” observations can be considered equivalent (i.e. the amount of land that a household rents, a variable which does not consider that some non-renters rent out land). The data used for this paper was collected by the Center for Chinese Agricultural Policy. It was originally used for Zhang’s investigation of the early impacts of the LCP on land rental markets (79). Several households were surveyed from each of 100 randomly selected villages distributed across China. The dependent variables used for the present study were households’ land renting participation (yes/ no), intensity (percent of the household’s total contract land rented), and amount (mu) (80). LCP implementation was conceived of as a “treatment” variable, which is to say, its causality is unidirectional (LCP implementation could cause more people to rent, but more people renting probably could not make LCP implementation more likely) (81). Other data collected included machinery ownership (log asset value) (82), off-farm migrant workers and off-farm local employment (by the number of household members), and village per capita income (yuan). Control variables included household head education, gender, and age, original contract land (mu), and county location. Two new variables were created for the present study. 2014 rent % measures the household’s 2014 land renting intensity; I derive this from dividing 2014 renting quantity by contract land. This enables testing of 2015 renting intensity controlling for 2014 intensity, which functionally approximates year-to-year renting intensity change. Rented 2014 simply measures whether 2014 land renting quantity was greater than zero; this similarly enables examination of 2015 rental market participation controlling for 2014 participation. Theoretical framework While Zhang (83) finds LCP completion was correlated not only with the likelihood of renting land, this measure may be insufficient, because, with most transfers being of similar scale with quantity rented (not controlling for whether one rented land), one’s land renting quantity is strongly correlated with whether one rented land (84). Thus, the fact that the LCP impacted quantity rented does not tell us whether mean land renting quantity increased because more people rented land, or because a few people started renting larger amounts of land. The former result would support the smallholder-to-smallholder hypothesis, whereas the latter would indicate nascent scale consolidation and thus imply that tenure insecurity was directly holding back the consolidation of scale farms. To reflect the need to isolate which variables impact whether the individual rented land versus how much land was rented by the individual, the basic demand-side model of land rental intensity and amount: can be deconstructed into the following two specifications: Where Y = land renting amount/percentage, R = whether one rented or not, LCP = whether the village had completed the LCP, M = asset value of agricultural machinery (log yuan). Essentially, equation (2) tells us the likelihood that someone will rent land given their levels of other factors. Equation (1) tells us how much land they can be expected to rent given their levels of other factors, including whether they rent land. Therefore, holding constant Ri = 1 (by limiting the sample to those who rented land), equation (1) now tells us how much land those who rent land can be expected to rent given their levels of the same other factors from equation (2). Then, what this deconstruction does is separate each independent variable’s impact on the household’s total land rental quantity or percentage into 1) its impact on whether they rent land, 2) its impact on how much land they rent, or what percentage of their land they rent if they rent land. Regression results (truncated) (85) Table 1. Impact on the likelihood of renting land Table 2. Impact on renting quantity (mu), intensity (percent of contract land rented) for only those who rented Discussion Impact of LCP LCP completion is positively correlated with land rental market participation [Table 1]. However, for rental market participants, it is not significantly correlated with how much land they rented [Table 2, col 1], what percentage of their land they rented [Table 2, col 3], land renting quantity year-to-year change [Table 2, col 2], or renting percentage year-to-year change [Table 2, col 4]. This suggests that, while the LCP increased the total number of land rental transactions, it did not necessarily impact the size of the transactions that occurred. This does not necessarily mean the LCP did not improve incentives for scale farming; for instance, improved land tenure security would likely have increased prospective corporate renters’ confidence that they could keep the land they rent- ed for the specified term. However, these results provide no evidence that the LCP more significantly facilitated scale renting than it did smallholder-to-smallholder rentals. This provides further support for the hypothesis that while land tenure insecurity may constrain the emergence of rental markets, other constraints on scale renting exist that tenure insecurity cannot account for. Moreover, the demand-side impact of land tenure insecurity on scale renting is likely to mirror the impact of limited-term leases since both similarly decrease the length of time that people, especially non-village residents, can expect to keep their rental holdings, disincentivizing renting by operations that require high fixed costs. Thus, the non-correlation of LCP completion with rental scale may suggest that drivers of smallholder-to-smallholder renting other than limited-term leases, including diseconomies of scale due to fragmentation and cheap rent empowering local renting, likely contribute to non-consolidation. Impact of machinery Machinery ownership is strongly positively correlated with renting land by nearly every measure: whether one rented land [Table 1], how much land one rented if they rented land [Table 2, col 1], what percentage of one’s land one rented if they rented land [Table 2, col 3], land renting quantity year-to-year change [Table 2, col 2], and renting percentage year-to-year change [Table 2, col 4]. Although causal implications of the rental-machinery relationship cannot necessarily be determined, it is noteworthy that renting quantity year-to-year change is positively correlated with machinery ownership. Because it is unlikely that most machines were purchased within the past year, this may suggest that those who purchased machinery subsequently began renting more land, rather than vice versa. This indicates machinery non-ownership may be constraining scale rent- ing. On the other hand, when controlling for 2014 land rental market participation , machines were not correlated with 2015 participation, which may indicate that machinery purchase did not prompt an increased likelihood of entering the rental market [Table 1]. This supports the hypothesis that, due to labor surplus- es enabling farmers to expand their landholdings without needing to mechanize, machinery non-ownership does not constrain rental market participation—it just constrains how much land renters rent. Impact of village per capita income There is no evidence that village income level is correlated with rental market participation [Table 1], the quantity for those who rented [Table 2, col 1], or intensity for those who rented [Table 2, col 3]. This may support the hypothesis that cheap land rent prices have made renting land widely financially accessible. Moreover, controlling for total landholdings, village income level is not correlated with machinery ownership [Table 6]. While past studies have proposed wealthier households having more off-farm employment may be responsible for machinery investments not rising with rural incomes, the present study controls for off-farm employment (86). This result, therefore, gives credence to the idea that machine ownership is constrained not by insufficient financial capital, but by disincentives to mechanization. Specifically, machine use is likely disincentivized by labor surpluses and plot fragmentation. Conclusion Many interconnected factors contribute to China’s dearth of scale farms; however, the way these factors interact is not well understood. By deconstructing the existing models of how various factors impact China’s land rental markets, we can more clearly observe the specific dynamics that constrain scale farming. The findings of this paper offer a more granular, though still not comprehensive, model of these processes. Specifically, (1) the LCP improved rental market participation, but there is no evidence that it increased the scale of renters’ rental holdings, indicating that tenure insecurity may constrain rental markets but cannot solely account for non-consolidation. Further, (2) machinery ownership may spur increased land renting quantity, though not necessarily increased renting participation, indicating that households may not need machines to rent land but they do need them to rent at scale; (3) machinery purchase seems to be mainly constrained not by financial capital but by incentive structure; (4) village incomes do not seem to significantly impact rental markets, which may suggest rent prices have become cheap enough to no longer be a barrier to renting. Together, these findings suggest that a policy environment that incentivizes smallholders and disincentivizes companies to rent land, along with a land tenure structure that disincentivizes smallholder renters to mechanize, helps to constrain the expansion of scale farming. China’s experience shows that under the right set of structural conditions, land market liberalization need not necessarily give rise to the large-scale consolidation and corporatization of farms, a finding that may be encouraging to proponents of both liberalization and local food systems. Indeed, while there are some indications that China’s top policymakers had hoped to facilitate the development of large-scale farming companies through land tenure reform, the current trends offer arguably even more cause for optimism. First, given that smallholder-to-small-holder rentals have been accelerating, the typical Chinese farm will increasingly move further down the U-shaped curve of total societal costs of farming by farm size, even if most renters continue to rent 2 hectares or less (87). Moreover, these low-level rentals may be slowly mitigating the labor surplus problem. With the expansion of urban work opportunities, more farmers will rent their land out to their neighbors, causing the remaining farms to converge toward allocative efficient sizes (absent machinery) for their respective households’ labor endowments. Finally, Huang notes that China’s increasing need for crop diversification may turn the plot fragmentation that persists under the HRS into a boon rather than a liability (88). While major problems persist, China may be moving toward an enviable equilibrium: maximum agricultural output, crop diversity, fewer environmental externalities, with the countryside not only “absorbing labor” but also providing critical social insurance to those with rural hukou s (89). Globally, food security is increasingly under threat from many unprecedented sources, including global supply chain disruptions and climate change (90). These threats call for countries to renew their commitments to ensure they can sufficiently and sustainably feed their own populations. Countries with low land endowments per capita face unique obstacles to realizing sustainable self-sufficiency; China’s farm economy exhibits such challenges even independent of its distinctive policy conditions (91). Given these unique challenges, it is worth interrogating whether the same labor-optimizing strategies used by countries with more land and fewer people, where maximizing land efficiency need not be paramount, really represent the optimal rural development model for “land-poor” countries like China. Time will tell whether China’s current combination of liberalized land markets and structural deterrents to the establishment of large corporate farms will survive ongoing political challenges, and, if so, whether it will prove beneficial to the welfare of the country’s rural population. Appendix Table 3. Impact on the likelihood of renting land (expanded) Table 4. Impact on rental quantity (mu) for those who rented (expanded) Table 5. Impact on rental intensity (% of contract land) for those who rented (expanded) Table 6. Impact of village incomes on mechanization Table 7. Impact of whether one rented land on how much land they rented Endnotes 1 Lowder, Skoet, and Singh, “What Do We Really Know about the Number and Distribution of Farms and Family Farms Worldwide?”, 11. 2 Wu et al., “Policy Distortions, Farm Size, and the Overuse of Agricultural Chemicals in China,” 7012. 3 Lowder, Skoet, and Raney, “The Number, Size, and Distribution of Farms, Smallholder Farms, and Family Farms Worldwide.” 4 Huang and Ding, “Institutional Innovation and Policy Support to Facilitate Small- Scale Farming Transformation in China,” 228. 5 Ji et al., “Are China’s Farms Growing?”, 48. 6 Masters et al., “Urbanization and Farm Size in Asia and Africa.” 7 Cai and Lu, “Take-off, Persistence and Sustainability,” 215. 8 “Rural Population - China | Data.” World Bank. 9 “China Statistical Yearbook 2016,” section 4.2. 10 Ibid, section 8.23. 11 Landesa, “Summary of 2011 17-Province China Survey’s Findings.” 12 Huang, “China’s New-Age Small Farms and Their Vertical Integration.” 13 Cook, “Surplus Labour and Productivity in Chinese Agriculture.” 14 Zhang, Cao, and Bai, “The Impact of Land Certificated Program on the Farmland Rental Market in Rural China.” 15 Deininger, Impacts Of Land Certification On Tenure Security, Investment, And Land Markets. 16 Wang et al., “Wage Growth, Landholding, and Mechanization in Chinese Agriculture.” 17 Huang, Liangliang, and Rozelle, “The Effect of Off-Farm Employment on the Decisions of Households to Rent out and Rent in Cultivated Land in China.” 18 Wu et al., “Policy Distortions, Farm Size, and the Overuse of Agricultural Chemicals in China,” 7012. 19 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program on the Farmland Rental Market in Rural China.” 20 刘江，“近5年农民工收入年均增8.8% 累计培训农民工超1亿人次.” 21 Huang, “China’s New-Age Small Farms and Their Vertical Integration.” 22 Ibid. 23 Special thanks to Professor Louis Putterman for this insight. 24 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 25 “Notice of the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council on Further Stabilizing and Improving Rural Land Contracting Relations.” 26 United States Congressional-Executive Commission on China, “Ownership with Chinese Characteristics.” 27 Zhan, The Land Question in China. 28 Cook, “Surplus Labour and Productivity in Chinese Agriculture.” 29 “Decree of the President of the People’s Republic of China (No. 73) Law of the People’s Republic of China on Rural Land Contracting.” 30 United States Congressional-Executive Commission on China, “Ownership with Chinese Characteristics.” 31 Brandt, Rozelle, and Turner, “Local Government Behavior and Property Right Formation in Rural China,” 629. 32 United States Congressional-Executive Commission on China, “Ownership with Chinese Characteristics.” 33 Ma et al., “Tenure Security, Social Relations and Contract Choice.” 34 “Decree of the President of the PRC (No. 73) Law of the PRC on Rural Land Contracting.” 35 Ji et al., “Are China’s Farms Growing?” 36 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 37 Teets and Hurst, Local Governance Innovation in China, 21. 38 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 39 Ibid. 40 “China Statistical Yearbook-2016,” section 4.2. 41 Wu et al., “Policy Distortions, Farm Size, and the Overuse of Agricultural Chemicals in China.” 42 刘江，“近5年农民工收入年均增8.8% 累计培训农民工超1亿人次.” 43 Wu et al., “Policy Distortions, Farm Size, and the Overuse of Agricultural Chemicals in China.” 44 Ibid. 45 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program,” 3. 46 World Bank, “Cereal Yield (Kg per Hectare) - selected countries | Data.” 47 Ibid.; author’s calculation. 48 World Bank, “Crop Production Index (2004-2006 = 100) - Selected Countries.” 49 Krusekopf, “Diversity in Land-Tenure Arrangements under the Household Responsibility System in China.” 50 Ibid. 51 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 52 Wang, Riedinger, and Jin, “Land Documents,” 223. 53 Ibid. 54 Ibid., 226. 55 Ma et al., “Tenure Security, Social Relations and Contract Choice.” 56 Macours, “Insecurity of Property Rights and Social Matching in the Tenancy Market,” 898. 57 Wang, Riedinger, and Jin, “Land Documents,” 223. 58 Ibid. 59 Ibid. 60 Huang, Guan, and Jin, “Scale Farming Operations in China,” 196. 61 Ibid. 62 Ibid. 63 Ibid. 64 MacDonald, Korb, and Hoppe, “Farm Size and the Organization of U.S. Crop Farming,” 47. 65 Wang et al., “Wage Growth, Landholding, and Mechanization in Chinese Agriculture.” 66 Wu et al., “Policy Distortions, Farm Size, and the Overuse of Agricultural Chemicals in China.” 67 Tan, Heerink, and Qu, “Land Fragmentation and Its Driving Forces in China.” 68 Hu, “Household Land Tenure Reform in China,” 177. 69 Ibid., 178. 70 Tan et al., “Do Fragmented Landholdings Have Higher Production Costs?” 71 Cook, “Surplus Labour and Productivity in Chinese Agriculture.” 72 Cook proposes that quotas may contribute to agricultural over-employment by forcing households to dedicate enough labor capital to farming to meet quotas during the most productive seasons. However, it is equally plausible that farm labor surpluses primarily result from the limited supply of off-farm jobs. 73 Wang, Riedinger, and Jin, “Land Documents,” 223. 74 Data from: Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” Author’s calculation. 75 Cook, “Surplus Labour and Productivity in Chinese Agriculture,” 21. 76 Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 77 Data collected by the Center for Chinese Agricultural Policy. 78 Ibid. 79 For details on the study’s sampling strategy, data collection methods, technical variable definitions, etc., see: Zhang, Cao, and Bai, “The Impact of the Land Certificated Program.” 80 While potentially useful data was collected on land rented out as well, it seems to have been skewed by data collection limitations: the study seems to have disproportionately sampled those families who were present within the village (or who could be readily reached by phone). Thus, it includes very few migrant families who rented out 100% of their land. Therefore, I only use the data on land renting rather than land renting out. 81 Ibid. 82 The original study’s results regarding machinery ownership were skewed by log transformation issues with the “agricultural assets” variable, which measured log of asset value by 10,000 yuan. Because most farmers who had machinery had less than 10,000 yuan of machinery asset value, the data contained many negative values of this variable for machinery owners, whereas non-owners were coded as zero value. This issue was fixed for the present paper by transforming nonzero values to give a log of asset value by yuan, rather than by 10,000 yuan. 83 Ibid. 84 See table 7 (appendix). 85 See Appendix for full. 86 Wang et al., “Wage Growth, Landholding, and Mechanization in Chinese Agriculture.” 87 Duffy, “Economies of Size in Production Agriculture,” 389. 88 Huang, “China’s New-Age Small Farms and Their Vertical Integration.” 89 刘江，“近5年农民工收入年均增8.8% 累计培训农民工超1亿人次.” 90 Vermeulen, Campbell, and Ingram, “Climate Change and Food Systems.” 91 Huang, “China’s New-Age Small Farms and Their Vertical Integration.” Bibliography Altieri, Miguel A., Clara I. Nicholls, Alejandro Henao, and Marcos A. Lana. “Agroecology and the Design of Climate Change-Resilient Farming Systems.” Agronomy for Sustainable Development 35, no. 3 (July 1, 2015): 869– 90. https://doi.org/10.1007/s13593-015-0285-2. Brandt, Loren, Scott Rozelle, and Matthew A. 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Neti Linzer Can Pascal Convert the Libertine? An Analysis of the Evaluative Commitment Entailed by Pascal's Wager Neti Linzer While Pascal’s wager is commonly approached as a stand-alone decision theoretic problem, there is also a crucial evaluative component to his argument that adds oft-overlooked complexities. Though we can formulate a response to these challenges by drawing on other sections of the Pensées, an examination of an argument from Walter Kaufmann highlights enduring difficulties with this response, leading to the conclusion that Pascal lacks the resources to convincingly appeal to the libertine’s self-interest. I. Introduction Pascal’s wager, an argument due to the 17th-century mathematician and philosopher, Blaise Pascal, is generally analyzed as a self-contained, formalizable problem, embodying one of the first applications of decision theory (1). In short, it calculates the expected utility of believing in God against that of not believing, and concludes that, inasmuch as rationality entails maximizing expected utility, i.e. making the decision that will most likely lead to the most preferable outcome, it is rational for us to believe in God (2). This is a “wager” insofar as we cannot know with certainty that God exists, and the most we can do is gamble on the fact that He does. But what I will argue is that the wager argument presupposes a certain evaluative commitment, which Pascal’s targeted audience, the ‘libertine,’ notably lacks (3). The libertine is someone who does not believe in God, and whose value system is instead oriented towards earthly, bodily, happiness. I claim that for someone thus constituted, Pascal’s wager fails to be convincing. The wager, however, is only one part of Pascal’s never-finished apologetic project, the preliminary notes of which are organized in the Pensées, meaning ‘Thoughts.’ I will show that if we examine some of the other arguments Pascal makes throughout the Pensées, then we can formulate a response to this objection on Pascal’s behalf. As Pascal describes her, the libertine is deeply unhappy when she thinks about the contingencies of the human condition, and she therefore values activities which entertain her and divert her from these disturbing thoughts. In his description of the libertine’s condition, Pascal p erforms something of a Nietzschean style ‘revaluation’ of this approach to life: it includes a destructive phase—in which Pascal argues that the libertine’s values are based on false p resuppositions—followed by a constructive phase—in which Pascal presents the libertine with a more attractive evaluative framework. Once she is in this new cognitive space, the libertine is p repared to be persuaded by the wager. I argue, however, that inasmuch as there are alternative ways for the libertine to revalue her mortality, Pascal fails to make an argument that will necessarily appeal to her self-interest. Drawing on the work of the 20th-century philosopher Walter Kaufmann, I argue that the libertine can instead revalue her mortality by embracing it, by recognizing the way in which the fact of her death is precisely what makes her life worthwhile. And while Kaufman’s approach certainly might also fail to be convincing it at least offers a viable alternative, and has two advantages over Pascal’s: (i) it draws on known facts (our mortality) rather than theoretical possibilities (an immortal soul), and it does not require any kind of wager. The upshot is that, while thedestructive phase of Pascal’s ‘revaluation’ may have been successful, the success of the constructive phase is dubious. As an appeal to the libertine’s self-interest, the wager falls short. The first section of this paper presents the objection to Pascal’s argument, the second section develops a response on Pascal's behalf, and the final section presents enduring difficulties with Pascal’s argument by introducing Kaufmann’s alternative approach. II. The Libertine’s Objection to Pascal’s Wager Crucially, Pascal’s wager is written in a language that the libertine will understand—the language of self-interest. We can summarize Pascal’s argument by saying that the libertine’s current lifestyle can, at most, offer her finite happiness: “what you are staking is finite.” If she gambles on belief in God, however, then the libertine opens herself up to the possibility of gaining infinite reward, and, as Pascal puts it, “all bets are off wherever there is an infinity.” As long as there are not infinitely greater chances that God doesn’t exist, than that God does exist, then, Pascal urges the libertine that, “there is no time to hesitate, you must give everything.” Pascal thereby appeals to the libertine’s instrumental rationality by identifying what it is that the libertine intrinsically desires—namely, her own “beatitude” (4)—and then by arguing that in order to truly satisfy this desire, the libertine must wager on belief in God (5). But there is a catch: the infinite happiness guaranteed by God is incomparable to any form of finite happiness that the libertine now enjoys. This is certainly true after the libertine accepts the wager, since belief in God demands that the libertine radically transform her lifestyle, substituting the dictates of her own will for the dictates of God’s. But I will argue that choosing to accept the wager requires the libertine to undergo what is arguably an even more dramatic transformation: she must transform her value system. This is because the wager does not just promise the libertine more happiness, but rather, it promises her qualitatively different happiness. And the wager only works if the libertine values this sort of happiness. It is true that Pascal never specifies what he means by “an infinite life of infinite happiness,” but inasmuch as he believes that it is the result of a life of faith, we can assume that he is referring to a traditional Catholic conception of heaven. Consider, then, the following reply in the mouth of Pascal’s libertine: an infinite life with God sounds absolutely miserable! First of all, inasmuch as my happiness is derived, at least in part, from the enjoyment of bodily pleasures, I cannot imagine being happy without my body. Happiness means hunting expeditions, games of cards, lavish feasts, and good company—where can I find those in heaven? Moreover, God promises to unite with believers in heaven. But why should I want to unite with God? You are offering me something that satisfies absolutely none of my desires. My life would not be better if God existed, even, (and this is crucial), if God rewarded me as a believer! Pascal’s wager works by presenting the libertine with a gamble: if God exists, there will be infinite happiness for those who believe and infinite misery for those who do not. This is because God promises to reward believers by uniting with them in heaven, and punishing non-believers by burning, or otherwise punishing them, in hell. But from the libertine’s perspective, there is no gamble: the prospects of heaven and hell are both unattractive, and since we are dealing with infinite amounts of time, they are both infinitely distressing prospects. There is therefore nothing worth gambling on. We might try to assure the libertine that once she is a believer, she will desire eternal life in heaven. We often persuade people to do something by promising that they might enjoy it, even if right now they cannot understand why. To take a mundane example, you might happily follow the recommendation of a friend to try a new food, even if you cannot imagine what it would be like to eat it. True, the stakes of this decision are qualitatively lower, but the same epistemic uncertainty seems to be at play: you cannot know whether you appreciate this food until you taste it, and you also cannot know whether you value a relationship with God until you attempt to build one. Inasmuch as wagering on the food does not involve any sort of evaluative transformation on your part, wagering on God might be the same way. But, there is a disanalogy between the two cases. Pascal is presenting the libertine with a certain decision matrix in which Pascal assigns an infinitely positive value to heaven and an infinitely negative value to hell (6). In order for the libertine to assign the same values to the given outcomes in the matrix, she must transform her evaluative framework, so that this-worldly happiness is no longer her highest value. The case of the new food, however, does not require a transformation of this sort. You know that you will either like or dislike the food, and you know that you value eating food that you like and disvalue eating foods that you do not like. Of course, there is still a gamble involved in trying the food since it is impossible to know how you will feel about its taste (7).But crucially, this puts you in a position that is analogous to the libertine considering Pascal’s wager only provided that she has already made the necessary evaluative transformation. It does not put you into the position of a standard libertine, who values her current happiness above all else, and therefore does not see anything to gamble for. Let’s describe a case that would be more analogous to the wager. Henrietta is a principled ascetic, meaning that she values abstention from earthly pleasures to whatever extent possible. As such, she adheres to a strict diet of only bread and water. She has sworn off earthly pleasures and adheres to a strict diet of bread and water. Suppose that her cousin, Henry, a food connoisseur, wants to convince her to try some caviar. He knows that he has never tasted caviar before, but he argues that, given her expected utility calculations, those who eat caviar enjoy it so much that he stands to gain more than lose from trying the caviar. But of course, even if Henrietta thought that Henry’s calculations were correct, they would be meaningless to her. As a matter of principle, she does not value the sensual pleasure provided by eating delicious food. Therefore, the experience of enjoying the food might be even more negative for Henrietta than the experience of disliking it, inasmuch as she has moral disdain for sensual pleasure. Henry’s calculations will only be persuasive if Henrietta abandons her current ascetic values and adopts a more hedonistic lifestyle. This is similar to the situation that the libertine finds herself in when presented with Pascal’s wager. Just as it would be meaningless to convince Henrietta to eat caviar by convincing her to abandon her ascetic lifestyle, to suggest that the libertine will desire heaven if she is a believing Christian is to reformulate the challenge rather than to address it. By formulating the libertine’s challenge this way, we realize just what Pascal’s wager requires: before the libertine can decide to wager on God’s existence, she must first revolutionize her evaluative framework, performing what the philosopher Friedrich Nietzsche would refer to as a “revaluation of values,” i.e. a complete reversal of her normative commitments. At present, a religious lifestyle is not in the libertine’s self-interest; the libertine’s conception of happiness is tethered to her physical existence in this world, and therefore she will not be moved by promises of her soul being rewarded in another world. Now that we have established that the libertine must be induced to reassess her values before she can be persuaded to wager on God’s existence we must ask: does Pascal present the libertine with such an argument? III. Pascal’s Revaluation There is an inherent challenge in trying to influence someone to “revalue their values”: namely, identifying which values one can appeal to in formulating the argument. Generally, pragmatic arguments like Pascal’s wager take the agent’s values as a starting point, and then proceed to demonstrate that a certain action will do a better job at furthering the agent’s values. But if we use values as a starting point, how can we cogently provide someone with practical reasons to adopt a wholly new evaluative framework, without invoking the very values that they do not yet possess? To see how we might formulate a “revaluation” without recourse to other values, we can draw inspiration from Friedrich Nietzsche, whose philosophical undertaking was just that: a revaluation of all values. In his work, Nietzsche’s Revaluation of Values: A Study in Strategies, contemporary Nietzsche scholar, E.E. Sleinis, analyzes the various strategies that Nietzsche uses to achieve his evaluative revolution. One strategy that he discusses, “destruction from within,” undermines a certain value by revealing that it is internally inconsistent (8). This undermines the value on its own terms. There are a few different permutations of this strategy. One, which Sleinis refers to as “false presuppositions,” aims to show that “the value requires a fact to obtain that, as it turns out, fails to obtain.” In attacking the factual, rather than the evaluative component of the value system, Nietzsche is able to undermine it from within, without recourse to other values. For example, Nietzsche devalues “disinterested contemplation as the ideal of aesthetic contemplation” by arguing that humans are simply incapable of disinterested contemplation. We cannot disengage from our passions, emotions, and other interests when we contemplate works of art. “We can put this point in more graphic terms,” explains Sleinis, by arguing that “the pure aesthetic contemplator is a fiction" (9). In what follows, I will demonstrate how Pascal launches a similar attack on the libertine’s value system by arguing, in a parallel manner, that the happy libertine is a fiction. As mentioned, the wager is merely a part of Pascal’s broader apologetic project, and it is within this broader project that Pascal employs this Nietzschean revaluation strategy. There are many notes in the Pensées devoted to bemoaning the wretchedness of the libertine’s condition, and arguing that man simply cannot be happy without God. And while we do not know where Pascal would have placed these ideas (if at all) in his final work, we can still argue that, Pascal’s intentions aside, they do an excellent job preparing the libertine to be receptive to the wager. Once Pascal convinces the libertine that her approach to life was premised on a false presupposition, he is able to urge her to gamble on a new one. Pascal undermines the libertine’s approach to life—happiness derived from entertainment or diversions as the ideal of happiness—in the same way that Nietzsche undermines disinterested contemplation as the ideal of aesthetic contemplation: he shows that humans are incapable of achieving happiness through their diversions (10). While traces of this argument are evident throughout the Pensées , Pascal’s most sustained argument for it appears in his section “Diversions.” After examining this argument, we will turn to the possibility of an alternative response on behalf of the libertine in the spirit of philosopher Walter Kaufmann. Pascal presents us with an imagined dialogue, presumably between a believer and a libertine, in which the libertine explains her approach to life: “is not happiness the ability to be amused by diversion?”(11). For the libertine, to be happy is to be entertained. We can understand some of the more perplexing behaviors of people if we realize that their underlying motivation is to divert and entertain themselves: “those who philosophize about it, and who think people are quite unreasonable to spend a whole day chasing a hare they would not have bought, scarcely know our nature.” People do not hunt because they want the kill, but rather, because hunting provides them with entertainment. Pascal argues that all men, even kings who are in “the finest position of the world,” are miserable, “if they are without what is called diversion” (12). The reason that we value diversion, explains Pascal, is because it allows us to avoid confronting all of the unpleasant features of our condition. We do not seek “easy and peaceful lives,” because those would force us to think about “our unhappy condition” (13). The “unhappy” quality of our condition is delineated in the believer’s reply to the libertine; the libertine asks whether happiness is not the ability to be amused by diversions, to which the believer replies, “No, because that comes from elsewhere and from outside, and thus it is dependent, and subject to be disturbed by a thousand accidents which cause inevitable distress” (14). All of the activities with which the libertine happily amuses herself are all highly contingent, and are made easily inaccessible by any number of factors that are necessarily out of the libertine’s control. Moreover, all of the libertine’s amusements are necessarily ephemeral, so that even if they are miraculously undisturbed by illness or accident, they will inevitably be disturbed by death. This is the primary source of the libertine’s inconsolable misery in Pascal’s conception—no matter how much happiness she derives from her activities in this world, her impending death constantly threatens to rob her of everything. As Pascal puts it, man “wants to be happy, wants only to be happy, and cannot want not to be so. But how will he go about it? The best way would be to render herself immortal, but since he cannot do this, he has decided to prevent himself from thinking about it” (15). Thoughts of mortality thwart the libertine’s ability to enjoy the world around, and so the libertine blocks out these thoughts with diversions. In Pascal’s example, the libertine hunts vigorously for a hare that he would never buy, because while “the hare does not save us from the sight of death...the hunt does” (16). All of this explains how Pascal can argue, in the spirit of Nietzsche, that valuing the happiness derived from diversions as the ideal of happiness falsely assumes that humans can find happiness in diversions. Pascal demonstrates that they cannot. Our diversions are inevitably “subjected to be disturbed by a thousand accidents, and this causes inevitable distress” (17). Crucially, the distress is inevitable ; even if we spend most of our time completely amused by diversions, the fact that our source of happiness is external and contingent puts us in a constant state of instability. We are rendered eternally dependent on factors beyond our control and are therefore powerless to console ourselves in the face of adversity unless the universe conspires to offer us diversion. We might wonder if Pascal’s case is overstated. Couldn’t the libertine seek happiness through something more substantial than a mere “diversion,” like, for example, self-fulfillment? I think that for Pascal the answer is no. This is because death robs any pursuit–even the pursuit of self-fulfillment–of enduring meaning. As Pascal puts it: “the final act is bloody, however fine the rest of the play. In the end, they throw some earth over our head, and that is it forever” (18). The libertine can only be satisfied if she does not think about the “final act” that will undermine “the rest of the play,” and because of this, all of her pursuits, even those that appear most meaningful, are really attempts to distract herself from this sobering fact. Pascal suggests that if the libertine actually confronted the truth of her condition, she would desist from all of her pursuits–even her desire for self-fulfillment–because they would no longer mean anything. That the libertine seeks to distract herself from the contingency of her condition with something that is itself contingent, is, I think, sufficient to undermine the libertine’s approach to life. But Pascal goes even deeper in exposing the problems with the libertine’s approach. He writes that, “The only thing that consoles us for our miseries is diversion, and yet this is the greatest of our miseries. For it is mainly what prevents us from thinking about ourselves, leading us imperceptibly to our ruin” (19). The libertine’s pursuit of diversions makes genuine self-knowledge impossible—if she is always distracting herself, she will never take the time to understand herself and her condition, and search for a more reliable and stable form of happiness. How can we say that someone is happier the more diverted they are, if someone who is diverted is also wholly alienated from herself? (20). It is this consideration that motivates Pascal’s famous observation that, “man’s unhappiness arises from one thing alone: that he cannot remain quietly in his room” (21). As Pascal sees it, diversion as source of true happiness–much like Nietzsche’s detached contemplation–is, indeed, a fiction. Pascal has induced a value crisis in the libertine by rendering what she previously valued—the amusements of earthly life—fundamentally meaningless. So what now? Left to live without diversion, Pascal explains, “we would be bored, and this boredom would lead us to seek a more solid means of escape” (22). I will argue that Pascal asking the seeking libertine to consider the possibility of an immortal soul is, in a certain sense, similar, to Nietzsche’s imagined demon presenting the possibility of eternal recurrence–i.e the doctrine that our live will be repeated infinitely many times into the future. Nietzsche presents this as a mere possibility , the consideration of which is nonetheless capable of inspiring an evaluative transformation in his readers (23). Entertaining the possibility of eternal recurrence hopefully inspires us to seek meaning in the lives that we are living on earth, rather than placing all of our hopes on a life after death. Analogously, before the wager, Pascal does not expect the libertine to believe in the immortal soul as a metaphysical fact , but he nonetheless presents it to her as an attractive possibility, powerful enough to reorient her life. If the possibility of an immortal soul isn’t even on her radar, then the wager argument cannot even get off the ground. But Pascal believes that considering this possibility will induce the libertine to seek God, the wager will then point out that doing so maximizes her expected utility, and eventually she will be certain of God’s existence (24). What makes the libertine’s condition so unhappy are all of the external threats that face her at every moment, the most debilitating of which is her own death (25). The libertine’s old approach was to avoid confronting this reality. As Pascal puts it, “as men are not able to fight against death...they have it into their heads, in order to be happy, not to think of them at all.”What Pascal offers the libertine is a solution that is truly sustainable: instead of valuing distractions from our mortality, we can value that which denies it altogether . We can reject that part of us that gets piled with dirt, since it can only make us unhappy, and instead we can embrace our immortal soul (26). Pascal presents this as a dazzling, metamorphic possibility, writing that “the immortality of the soul is something so important to us, something that touches us so profoundly, that we must have lost all feeling to be indifferent to knowing the facts of the matter” (27). Inspired by the possibility of an immortal soul, we are primed to be receptive to the wager, which tells us that if we want to maximize the expected outcome for our soul, we must gamble on God’s existence (28). If we now believe that it is through taking care of our immortal soul that we can transcend the misery of our bodily condition, the wager will indeed have a powerful pull on us. Inasmuch as the libertine’s challenge is escaping the misery of her contingent condition, Pascal presents the possibility of the immortal soul as a powerful alternative to the use of amusements and diversions. But is this alternative persuasive? The weakness in Pascal’s argument is noted by Sleinis in his analysis of Nietzsche’s parallel argument: “pure possibilities may have some capacity to exert pressure on our choices, but this capacity can in no way be equal to that of known actualities” (29). There is, however, a limit to how influential a mere possibility can be. If you know that a certain consideration that is motivating you to act, is only possibly true, then you won’t feel like you have a decisive reason to act. Pascal is confident that if we take the possibility of an immortal soul seriously, then we will eventually be led to believe it as an actuality. The problem, however, is whether we can take it seriously enough for this epistemic transformation to occur. This doesn’t mean that Pascal’s argument can not work at all, it just means that its practical success will likely be limited to libertines with certain psychological constitutions (i.e. it will be more persuasive to someone with a credulous disposition than to someone with a skeptical disposition). IV. Walter Kaufmann on Our Misery So far, we have seen that Pascal’s wager requires a certain evaluative shift on the part of the libertine, and that certain sections of the Pensées can be read as making an argument for that shift. But there is a weakness to part of this argument, namely, the plausibility that a mere possibility can inspire a dramatic revaluation. What I would like to consider, therefore, is an alternative response to the libertine’s crisis of value that would allow her to retain her current theoretical framework, but nonetheless allow her to transcend the apparent miseries of the human condition. We can read Kaufmann as addressing the libertine at the same stage that Pascal is—once she has accepted the futility of her diversions but does not know how else to cope with her unhappy condition—and arguing that the libertine can embrace her mortality rather than try to escape from it. Examining Kaufmann’s argument helps us to appreciate the way in which Pascal’s wager falls short as a straightforward appeal to the libertine’s self-interest. At most, the wager offers the libertine one way to escape her misery, but the libertine may find Kaufmann’s ideas more persuasive. While for Pascal, the libertine is unhappy if she is left to ponder her mortal condition, Kaufmann argues that this is not so; in fact, it is our mortality that renders our lives here worthwhile. The libertine considers herself miserable because she will not live in this worldforever, but Kaufmann urges her to consider how miserable she would be if she did . It's true that death is frightening for those who “fritter their lives away,” but “if one lives intensely, the time comes when sleep seems bliss” (30). Meaning, that if the libertine embraces all that this-life throws at him, then she will welcome death as a much-needed rest. One cannot live intensely forever. This argument might seem a bit problematic. After all, it is not clear why a simple good night’s sleep (or two) would not suffice for the one who lives intensely—why should she crave eternal sleep? The answer to this lies in the second argument that Kaufmann makes, namely, that without an eternal deadline we would not be able to live our lives as meaningfully. Our impending death offers a perspective that would otherwise be impossible. Kaufmann describes the way in which the threat of death motivates us to live vigorously: “the life I want is a life I could not endure in eternity. It is a life of love and intensity, suffering and creation, that makes life worthwhile and death welcome.” Death “makes life worthwhile” b ecause it encourages us to carve out lives that are indeed worthwhile. For example, “love can be deepened and made more intense and impassioned by the expectation of impending death,” meaning that our desire to be with someone we love is made all the more acute by our knowledge that we cannot be with them forever. When the libertine worries about the fact that she may one day lose her beloved, she need not retreat from these thoughts—either by seeking diversion or by entertaining the possibility of an immortal soul—but rather, as Kaufmann advises, she should embrace them. The fact that she may never see her beloved again is all the more reason for the libertine to express her love more eloquently and fervently than she ever would have if she was not worried about losing her beloved. It is not just that such intensity and p assion would be impossible to sustain in an infinite life, but rather that in an infinite life we could never achieve it in the first place. Death offers a perspective on life that, contrary to what Pascal argues, makes our lives in this world vibrant and precious. Pascal writes that, “As men have not been able to cure death, wretchedness, ignorance, they have decided, in order to be happy, not to think about those things” (31). But Kaufmann argues that it is precisely by thinking about her own death that the libertine can be inspired to live in a way that makes her happy. Perhaps this is why Ecclesiastes muses that “it is better to go to the house of mourning than to the house of feasting”—proximity to death provides the living with an invaluable lesson to truly “take to heart” (32). The libertine desperately avoids confronting her mortality, when in fact, thinking about death makes her life better right now: “one lives better” says Kaufmann, “when one expects to die,” and takes advantage of the time she has (33). This is not to deny the tragic reality that death often visits too early, but rather, to suggest that inasmuch as this is not always the case, we are, as philosopher Bernard Williams puts it, “lucky in having the chance to die” (34). Pascal might still counter that even if contemplating our death imbues our lives with urgency and significance, belief in the Christian afterlife also accomplishes this inasmuch as our conduct in this life determines how we fare in the next. But this argument will have no sway over the libertine at the stage of the argument at which we are now encountering him—when she does not yet believe in God. And what Kaufmann’s argument has demonstrated is that the libertine does not need to wager on God’s existence in order to live life meaningfully and passionately. While the Wager asked the libertine to revalue her values–which, as we have seen, is a non-trivial requirement–Kaufmann speaks directly to the evaluative commitments that the libertine already has. In a way, Kaufmann uses mortality in the same way that Pascal uses immortality: to redeem us from our misery by impressing upon us the urgency and significance of our lives. It’s true that Kaufmann and Williams don’t consider the possibility of an afterlife that is equally as exciting–if not more exciting–than earthly existence. There is, after all, no reason to assume that when we die we lose our ability to exercise agency. But the point is simply that they offer a way of seeing life on earth as meaningful regardless of what comes afterward. This is in sharp contrast with Pascal’s picture in which life on earth is miserable unless it is redeemed by belief in the afterlife. This is not to say that Pascal is wrong per sé; it is possible that Kaufmann would have lived a better life had he sought God and embraced religion. It is possible that he is currently b urning in the depths of hell, wishing his philosophical reasoning had taken a different turn. But this is of no consequence. What I am arguing is that Pascal is wrong to assume that the libertine’s mortality leaves her irredeemably miserable; Kaufmann offers an alternative perspective, whereby the libertine’s mortality is precisely what redeems her life and makes it worthwhile. Crucially, Kaufmann’s argument does not ask the libertine to entertain any theoretical p ossibilities like Pascal’s does, and it never requires that she make a wager of any sort. The libertine might still prefer Pascal’s argument, and therefore choose to see “the final act” as “bloody.” But as we have seen, she might choose to welcome death as a “blissful sleep.” And if Pascal cannot convince the libertine that mortal life is miserable, then he cannot get her into the evaluative mindset to be receptive to the wager. V. Conclusion The success of Pascal’s wager as an appeal to the libertine’s self-interest depends on his ability to convince the libertine to change her evaluative framework. At least at the outset, the possibility of an infinite life with God in heaven will repel rather than attract the libertine, giving her no reason to “wager all she has” (35). If we study the wager against the backdrop of Pascal’s broader apologetic project, however, we find the resources to persuade the libertine to “revalue her values.” This argument takes place in two stages. First, Pascal shows the libertine that the premium she places on amusements and entertainment falsely presupposes that they can truly make her happy. Pascal argues that they fail to do so, both because they are external—and therefore “subject to a thousand accidents”—and because they alienate the libertine from herself, making it impossible for her to discover what might truly make her happy. With the libertine’s evaluative framework thus dismantled, the inherent unhappiness of her condition becomes even more acute. Without diversions, she must confront the miserable fact of her mortality head-on. It is in this evaluative vacuum that Pascal offers her a new value that can save her from the misery of mortality: the immortal soul. At this stage of the argument, the libertine will not believe in the immortality of her soul as a metaphysical fact, but in considering this marvelous possibility, she will be encouraged to investigate it. And when Pascal tells her that her soul will fare best if she gambles on God’s existence, she will eagerly oblige. But this need not be the only way to save the libertine from the misery of mortality: Kaufmann suggests that the libertine should embrace and cherish her mortality because it is through the prism of her own death that her life becomes urgent and precious. This approach does not require an epistemic leap of faith like Pascal’s did; it simply requires the libertine to look at the fact of her life in a new light. The upshot is that for those who find themselves moved by Pascal’s polemic against diversions, but unmoved by her appeal to dubious metaphysical facts, there might be a more attractive solution. After he presents the libertine with her wager, Pascal urges that “there is no time to hesitate!” From what we have seen, however, there might be far too much of it. Endnotes: 1 This insight is due to Ian Hacking, quoted in: Hájek, Alan. “Pascal's Wager.” Stanford Encyclopedia of Philosophy , Stanford University, 1 Sept. 2017, plato.stanford.edu/entries/pascal-wager/. 2 While, as Hajek notes in her article, Pascal actually presents three different wager arguments, for the purposes of this paper, I will not discuss the correct interpretation/presentation of the wager. This is because my paper is not so much about the mechanics of the wager, but about the wager as a general strategy to inspire pragmatic commitment to God. 3 For the purposes of this paper, I adopt Pascal’s use of the term “libertine” to refer to his intended audience. This is partially for convenience, and partially meant to underscore that Pascal’s argument is addressed to a specific target audience and is not necessarily applicable to anyone who does not believe in God. As we will see throughout this paper, Pascal’s libertine has a very specific set of values and concern, which at times may even seem unrealistic. Inasmuch as Pascal sees himself as addressing this sort of person, however, this paper will assume that his observations are accurate, and analyze whether Pascal’s argument is successful on Pascal’s own terms. 4 All quotations in this paragraph come from: Pascal, Blaise, and Roger Ariew. Pensées. Indianapolis, IN: Hackett Pub. Co., 2005 pg. 212-13 (S680/L418). 5 Pascal actually argues that there are two things that the libertine desires: the true and the good. However, Pascal argues that we cannot know whether God exists, and therefore “your reason is no more offended by choosing one rather than the other.” Since the libertine only stands to gain in the realm of happiness, and not in the realm of truth (or at least not yet), I focus, for brevity, only on this claim. 6 This is a simplification. Pascal does not mention exactly how we ought to quantify the harm that will come to a non-believer if God exists. It is certainly possible that the harm will be infinite. And since this is the strongest way to formulate Pascal’s wager, I choose to present it this way. 7 The case of trying a new food is interesting in its own right. While it is beyond the scope of this paper to analyze this case, it is worth noting that it is unclear how one might weigh the value of trying a food and disliking it against the value of trying a food and liking it, since there are also different degrees of liking and disliking a food. But I think it is fair to assume that, having had the experience of eating foods that you’ve liked and disliked, you can have a rough sense of the maximum and minimum amount of pleasure that can be derived from eating a food. I would venture to say that trying a food that you love more than any food you have ever eaten, is still not a qualitatively different type of pleasure than eating a food that you really love. 8 Sleinis, E. E. Nietzsche's Revaluation of Values: A Study in Strategies. Urbana: University of Illinois Press, 1994, pg. 168. 9 Ibid. 10 As Ariew notes in his translation, “the word ‘diversion’suggests entertainment, but to divert literally means: “to turn away” or to mislead.” By using this word, Pascal makes his critique implicit from the beginning. 11 Pascal, S165/L132. 12 Quotations in this paragraph come from Pascal, S168/L136. 13 Ibid. 14 Pascal, S165/L132. 15 Pascal, S166/L134. 16 Pascal, S168/L136. 17 Pascal, S165/L132. 18 Pascal S197/L165. 19 Pascal, S33/L414. 20 The libertine says something in this spirit in Pascal, S165/L132. 21 Pascal S168/L136. 22 Pascal, S33/L414. 23 In some interpretations of Nietzsche, the eternal recurrence is actually presented as a metaphysical truth that we must believe in. Inasmuch as I am looking for an example that will parallel Pascal, however, I have chosen to discuss the interpretation that sees it as a pure possibility. 24 Evidence that Pascal believes those who are inspired by the possibility of an immortal soul and genuinely seek God as a result will come to have sure knowledge of her existence can be found in S681/L427. 25 This is not intended to summarize Pascal’s nuanced account of why we are wretched, but rather to encapsulate what it is that the libertine recognizes as “unhappy” about her condition: that is, all of the external factors that threaten her ability to enjoy diversions, the most intractable of which is death. 26 This might seem almost like a pre-wager-wager: wager on belief in an immortal soul, since it provides the potential for immortality rather than on the belief in a mortal soul, since this will lead to a life of misery. 27 Pascal S681/L427. 28 Of course, it is possible that there are other belief systems which include the notion of an immortal soul in an equally attractive way. This is similar to the well-known “many Gods objection” to Pascal’s wager, and while addressing it is not the subject of this paper, it is worth noting its presence. When I argue later on that the argument can work, I mean that, leaving other considerations such as this objection aside, it can work. 29 Sleinis, pg. 173. 30 Kaufmann, Walter, and Immanuel Velikovsky. The Faith of a Heretic. [1st ed.] Garden City, N.Y: Doubleday, 1961 , pg . 386. 31 Pascal S168. 32 Ecclesiastes 7:2. 33 Quotations in this paragraph come from Kaufmann, pg. 386. 34 Williams, Bernard. “The Makropulos Case: Reflections on the Tedium of Immortality.” Chapter. In Problems of the Self: Philosophical Papers 1956–1972 , 82–100. Cambridge: Cambridge University Press, 1973. 35 Pascal, S680/L418. Bibliography: Kaufmann, Walter, and Immanuel Velikovsky. The Faith of a Heretic. [1st ed.] Garden City, N.Y: Doubleday, 1961 . Pascal, Blaise, and Roger Ariew. Pensées. Indianapolis, IN: Hackett Pub. Co., 2005. Sleinis, E. E. Nietzsche's Revaluation of Values: A Study in Strategies. Urbana: University of Illinois Press, 1994. Williams, Bernard. “The Makropulos Case: Reflections on the Tedium of Immortality.” Chapter. In Problems of the Self: Philosophical Papers 1956–1972 , 82–100. Cambridge: Cambridge University Press, 1973. Previous Next

Oliver Hicks The Necessity of Perspective: A Nietzschean Critique of Historical Materialism and Political Meta-Narratives Oliver Hicks Karl Marx and Friedrich Nietzsche both contributed immensely to 19th century political philosophy and laid the foundation for countless revisions, interpretations, and new theories throughout the 20th and 21st centuries. While they share a common goal of exposing hidden, socially constructed restraints in order to liberate the individual, they differ sharply on both the nature of those societal restraints and what liberation actually looks like. I present these thinkers as foils: Marx guided by a normative approach that sees liberation as an inevitable conclusion of current social conditions, and Nietzsche describing liberation as necessary but ultimately ambiguous. Ultimately, I assert that this ambiguity is a necessary acceptance of true liberation that ought to humble any assertion of truth, morality, or rationality. I. Introduction But everything is fair It’s a paradox we call reality So keepin’ it real will make you A casualty of abnormal normality - Talib Kweli, Respiration (1) The above remarks are from a verse of the 2002 duet album Mos Def and Talib Kweli Are Black Star , in which artist Talib Kweli describes his inner-city New York landscape. The broader context of the song speaks to the harsh and often hopeless reality of a low-income Black experience. It begins with a dialogue from the seminal hip hop documentary Style Wars , in which a New York graffiti artist describes a recent work titled “Crime in the City.” The work implicitly asks the audience whether “crime” is all his city has to offer or if it is simply what one chooses to see when examining the New York streets. Kweli contributes his own perspective in the aforementioned line, in which he calls his reality a “paradox” where everything in this world is fair. Thus, nothing can be unfair with the proper perspective, lending itself to the paradox of never being able to pin down what is truly right or wrong. Kweli speaks of inter-gang violence, where young Black men are pitted against each other for the scarce resources present in their desolate environment. Yes, success is good, but at what cost to the broader struggle of their community? The second part of his stanza questions the efforts of anyone in this world to be truly “real,” as Kweli plays with a definition that is so integral to one’s identity in the hip hop community. Hip hop and rap are built around delivering viscerally authentic, or “real,” stories, usually about struggle, persecution, and ultimately perseverance against an adverse world. Thus, “keeping it real” becomes the idealized form of living as opposed to whitewashed versions of struggle or falsified stories for commercial success. But what does “realness” actually entail, and is it captured by this idealization? Kweli would answer that it is less objective than it might seem. Any attempt at authenticity is undermined by another perspective, and thus the vanity that accompanies an allegedly “real” individual instead makes them a casualty: they are not truly real, authentic, nor honest versions of themselves, but rather they are only “real” by an externally defined perspective, one that society wants for them. Kweli is inverting a pillar of rap culture by arguing that what is deemed true “realness” by people in the city is actually defined by the same subjective standards used to define its opposite. Put simply, the inner-city stories to which Kweli is referring are authentic as defined by what is expected of the storytellers: to be hard, cold-blooded, and insensitive to the harsh world around them. But does this produce genuine versions of who these individuals could be given different circumstances? Or are they simply buying into the “abnormal normality,” one defined by social constructs that is ultimately abnormal to whatever their “real” selves might be? The question of authenticity amidst veiling social norms is one discussed by a variety of modern political theorists, all seeking to understand who we are in order to understand who we ought to be—and how we ought to be governed. From descriptions of a primordial state of nature proposed by early contract theorists to Karl Marx’s world-encompassing system of historical materialism, these modern thinkers attempt to sketch out the natural, psychological, and social undercurrents of our behavior. Though Marx was the first to usher in a hermeneutics of suspicion by critiquing existing philosophical norms in search of hidden truths, he did so with the intent of outlining his own normative conception of humanity's goal (or his own end point on the linear timeline that is progress): communism. Decades later, Friedrich Nietzsche claimed “we are unknown to ourselves, we men of knowledge” in his preface to On the Genealogy of Morals. He proposed a philosophy that sought to interrogate reigning value systems that presented themselves as natural or self-evident without replacing them with his own explicit normative solution (2). Nietzsche recognized the limitations of philosophical inquiry while operating within the system he was critiquing. Humans lack a basic sense of what is good as enshrined in the concept of natural law or historical materialism because our entire system of moral values is a product of changing power dynamics. More importantly, we cannot see any semblance of truth unless we shed these artificial moral constructs. The relativity inherent in our ability to make judgements of ourselves and fellow citizens ultimately moves the goalposts of political theory itself: we are no longer moving toward that ideal form with which Plato was so obsessed because we cannot accurately define it. There are no political meta-narratives, no slate of criteria with which we can accurately and objectively identify our deepest human nature—to do so would be to dismiss far too many factors and make far too many assumptions. Rather, we must instead work to interrogate our unwavering beliefs in perceived truths or ideal forms in order to understand how we might escape them as they arise. As shown by Talib Kweli in his aforementioned lyrics, the inability to shed the social, moral, and ethical constructs that surround a particular Black experience raises questions regarding the obscuration of truth and the need for a variety of perspectives. Using Nietzsche’s skepticism of philosophy and morality as a foil for Marx’s historical materialism, I will draw on a number of their works to discuss the validity of any proposed political meta-narrative. First, I will present a brief model for viewing history as forward-facing in the pursuit of a realized ideal form, courtesy of Marx. Then, I will use Nietzsche to reject the notion of an ideal form and instead emphasize the need for perspective to understand any type of truth, political or otherwise, in order to escape the social constructs that mystify this truth and enslave us to normative ideals. II. Historical Progress as Forward-Facing: Marx’s Determinism Marx famously remarked at the beginning of The Communist Manifesto that “the history of all hitherto existing society is the history of class struggles”(3). More importantly, however, was the history that Marx was proposing henceforth. Communism was not just a prescription for the ills of capitalism, but a prediction of the inevitable collapse of the market economy itself: the contradictions intrinsic to capitalist function would ultimately lead to its own demise. Communism would simply be the final and best option for a post-revolutionary society. In this way, Marx lays a deterministic view of human progress. If humanity keeps moving forward as is, we will reach an inflection point; if we actively work to deconstruct the status quo, we will reach that same inflection point sooner. Though bleak, this notion of progress posits its own normative assumption that society is moving forward : ideology has simply masked antagonistic class divides while capitalism exploits them, but we will inevitably overcome this stain on history to usher in a new and better world. This deterministic presentation of history, or historical materialism, is one of Marx’s greatest contributions to political philosophy. Using this dialectical approach, Marx identified two main forces that drive historical change: the division of classes and the division of labor. The evolution of class systems is best articulated in the first section of the Manifesto , where Marx focuses primarily on Europe’s transition from feudal to modern societies, namely bourgeois societies. Feudal societies were composed of complex hierarchies: feudal lords, vassals, guild-masters, journeymen, apprentices, serfs, and more. Among these classes existed a constant dynamic of oppression, wherein higher classes dominated subordinate ones as defined by the material conditions of each (14). Centuries of global exploration, however, produced ever-expanding markets and ever-increasing demand that revolutionized the modes of production and condensed class antagonisms into Marx’s binary: the bourgeoisie and the proletariat. This defined the “Modern Industry” that Marx witnessed in the 19th century, wherein “the modern bourgeoisie is itself a product of a long course of development, of a series of revolutions in the modes of production and of exchange” (5). Underlying this series of class revolutions are developments in the division of labor: first in tribal communities, then ancient communes, feudal states, commercial states, and finally the capitalist state of the bourgeoisie. The division of labor reflects both the growth of the productive capacities of these communities as well as the growth of divided interests among individuals. For example, Marx argues that the division of labor within a nation first leads to the “separation of industrial and commercial from agricultural labor, hence to the separation of town and country… [then] to the separation of commercial from industrial labor” and so on (6). Occurring simultaneously are infinitesimal divisions within these branches “among the individuals cooperating in definite kinds of labor” (7). Ultimately, Marx places the modern industrial state, with all of its complex and specialized divisions, on an historical timeline that inevitably moves toward the maximization of its productive capacities since it is constantly in competition with similarly structured nations. This maximization, however, along with its own internal contradictions, begets its own destruction. The consolidation of “scattered private property” into the consolidation of “capitalistic private property” in the hands of an increasingly smaller elite becomes too heavy to support itself, and the fetters that confine the socialization of labor for exploitation ironically lead to the organization of a massive, oppressed class that revolts against their slave-wage masters (8). This revolution, Marx argues, is a smoother transition than the original consolidation of private property via the socialization of labor, since the latter is the “expropriation of the mass of the people by a few usurpers,” but the former is the “expropriation of a few usurpers by the mass of the people” (9). However, the light at the end of this tunnel that is capitalism and the driving force behind this expropriation of the few by the many is Marx’s concept of “species-being.” As human beings, Marx considers our most basic and fundamental essence to be our drive to engage in productive activity; it is our “working-up of the objective world,” in which “[man] duplicates himself not only, as in consciousness, intellectually, but also actively, in reality, and therefore he contemplates himself in a world that he has created” (10). This creative process, when done freely, consciously, and socially, is what separates us from animals and satisfies our life purpose: we choose what to make and when to make it in order to survive. Capitalism disrupts this process by commodifying labor and subsequently alienating the laborer first from their product, second from their process, third from themselves, and finally from each other (11). As a result, the worker becomes antagonistic to the entire system of private property: they are resentful of the bourgeois capitalist, suspicious of their fellow worker, and disillusioned with themselves, all because of alienation from their species-being. The rediscovery of our species-being is the natural epilogue to the implosion of capitalism. And yet, this conclusion relies on Marx’s own crypto-normativity. Like the early contract theorists who came far before him, Marx is simply making his own normative assumption regarding human nature: we live to create the world around us, and are only satisfied by seeing ourselves in that world. One could argue that the exploitation of this process is a violation of a Marxist natural law, and that a communist revolution is a means of retributive justice. As noble as it may be to argue that communism is the inevitable end point of a history structured by material conditions, Marx’s theory is limited by its own dogmatic assumptions. However, he was not alone in proposing human history as a deterministic teleology. Marx built his theory off the critique of Hegel, who argued a similar conception of history driven by conflicts in ideas rather than material conditions. Adam Smith falls into this same category, emphasizing the ability to improve society through the accelerating efficiency of mutually beneficial economic transactions and production (he even titled his magnum opus The Wealth of Nations —“Nations” being plural to suggest collective benefit in pursuing capitalistic ends). Immanuel Kant believed in the ability of individual societies to develop the faculties of humankind over time, leading again to the upward trajectory of progress and the inevitable achievement of our full potential. However, each of these thinkers suffer from the same flaw: they boldly claim to know the end stage of humanity and the final form to which political philosophy strives while being limited by their own historical context and intellectual horizons. III. Rejection of the Pure Form: Nietzsche’s Response Though his work is filled with a multitude of social and moral critiques, Nietzsche claimed that “the worst, most durable, and most dangerous of all errors so far was… Plato’s invention of the pure spirit and good as such” (12). Consistent with Nietzsche’s long-standing critique of religion was his belief that Christianity had become “Platonism for ‘the people’” by providing an ideal form to which, by restricting one’s indulgences and taking leaps of faith, one could strive and achieve a good moral life. To Nietzsche, however, faith extends far beyond theology: it applies to every corner of philosophy and knowledge. Philosophers’ pursuits of knowledge are done in vain, since each proposes an alleged “cold, pure, divinely unconcerned dialectic” that is, in reality, simply “an assumption, a hunch, indeed a kind of ‘inspiration’... that they defend with reasons they have sought after the fact” (13). A particularly heinous example of this prejudice is Kant’s “discovery” of a new human faculty, one that allowed him to argue man’s capacity to make synthetic judgements a priori . Nietzsche argues this discovery was in fact not a discovery at all, but a lazy leap of faith that compelled him to answer his own questions “by virtue of a faculty” and essentially invent his own causa sui (14). Consequently, Nietzsche argues that we ought to approach knowledge with suspicion. By questioning the value of truth and certainty in the face of their opposites, Nietzsche rejects the idea of proposing a fully contained and explanatory system for any type of knowledge, since “in the philosopher… there is nothing whatever that is impersonal; and above all, his morality bears decided and decisive witness to who he is ” (15). Dogmatic philosophy and its ideal forms, therefore, are less interesting to Nietzsche than the necessity of our belief in them. Rather than ask what our beliefs say, a better question to pose is what these beliefs say about us . By accusing all philosophy of being dogmatic, Nietzsche is drawing attention to the philosophical limitations of any single individual. As such, a new generation of philosophers ought to embrace “the dangerous ‘maybe’ in every sense,” instead putting their faith in possibilities rather than certainties (16). To recognize one’s own inability to offer an all-encompassing system for the world is to endorse the necessity of perspective, the variety of which is the only way to understand the true nature of anything. To deny this necessity, which Nietzsche calls “the basic condition of all life,” is to instead continue the pursuit of that Platonic good spirit or ideal form (17). Rather than working to defend knowledge as we come to understand it, philosophers should be constantly interrogating knowledge in an attempt to free themselves from their own prejudices. In doing so, one rejects the idea of truth as purely objective and “knows how to employ a variety of perspectives and affective interpretations in the service of knowledge” (18). Nietzsche draws attention to the fact that there is no view from nowhere: “there is only a perspective seeing, only a perspective ‘knowing’; and the more affects we allow to speak about one thing, the more eyes, different eyes, we can use to observe one thing, the more complete will our ‘concept’ of this thing, our ‘objectivity,’ be” (19). Put differently, one can liken Nietzsche’s concept of truth to a statue: any singular view of the statue only provides a singular picture of it. The view from the front of the statue will give a completely different image than that from the back, assuming we could even agree upon which is front and back in the first place. A plethora of angles upon which to view the statue, therefore, is necessary to truly understand it since any individual view is inherently limited by their position relative to the object. “Free spirits,” then, unlike those who throughout history have proposed their singular view of the statue as correct, are that new generation of individuals who constantly question their own prejudices and adopt new angles (20). In this way, one could argue that Nietzsche rejects the concept of Truth altogether, and perspectivism becomes a practical tool for understanding the world around us as we develop our own concepts of knowledge. At the very least, Nietzsche seems to suggest that regardless of the existence of any Truth, we cannot even begin to understand Truth unless we prioritize an ensemble of perspectives over any individual one. In doing so, we can use the former to prevent us from being limited by the latter. Once again, Nietzsche’s perspectivism has less to do with its relationship to truth (capital-T or otherwise) and more to do with its relationship to the individual and their inherently limited perspective. This concept of agency and power in the face of social restraints is consistent throughout Nietzsche’s works, and one of the most obvious ties is in his critique of Christianity. Nietzsche makes explicit his disdain for the church in The Genealogy of Morals by arguing that the church itself pioneered a type of slave morality that inherently limits the capability of man by suppressing his instincts. Throughout history, however, this morality was used strategically by the weak (namely priests) to seize some semblance of power from the nobility, whose morality is entirely self-affirming, contemptible towards things outside itself, and emphasizes power over restraint (21). Not unlike Talib Kweli’s description of his catch-22 lifestyle as a gangster in inner-city New York, Nietzsche asks us to consider a bird of prey and a lamb: “there is nothing strange about the fact that lambs bear a grudge towards large birds of prey—but that is no reason to blame the large birds of prey for carrying off the little lambs” (22). In fact, he continues, the lambs would be perfectly well off to regard anything like a bird of prey as evil, since it is the source of violence against them; the bird of prey, however, might view this “somewhat derisively, and will perhaps say: ‘we don’t bear any grudge at all towards these good lambs, in fact we love them, nothing is tastier than a tender lamb” (23). The perspective that is intrinsic to these qualitative judgements of good and evil both undermines their objectivity and highlights a cornerstone of Nietzsche’s philosophy: will-to-power. With regard to Marx, Nietzsche dismisses one of his most basic assumptions using this concept of the will-to-power: … life itself is essentially appropriation, injury, conquest of the strange and weak, suppression, severity, obtrusion of peculiar forms, incorporation, and at the least, putting it mildest, exploitation; —but why should one for ever use precisely these words on which for ages a disparaging purpose has been stamped? Even the organization within which, as was previously supposed, the individuals treat each other as equal—it takes place in every healthy aristocracy—must itself, if it be a living and not a dying organization, do all that towards other bodies, which the individuals within it refrain from doing to each other: it will have to be the incarnated Will to Power, it will endeavor to grow, to gain ground, attract to itself and acquire ascendency—not owing to any morality or immorality, but because it lives, and because life is precisely Will to Power… “Exploitation” does not belong to a depraved, or imperfect and primitive society: it belongs to the nature of the living being as a primary organic function; it is a consequence of the intrinsic Will to Power, which is precisely the Will to Life (24). By arguing that exploitation is not inherently evil, it is easy to dismiss Nietzsche as equally normative with different assumptions. The difference, however, is that Nietzsche’s critique does not lead him to propose a political solution or theorize a political meta-narrative meant to end suffering as he sees it, for that would be replacing one restraining superstructure with another. Will-to-power, according to Nietzsche, is not a facet of human nature that must be complemented by politics nor economics: the will-to-power is a means to finding that solution. It is the unaffected and unfettered ability of truly “free spirits” to escape the confines of “good” and “evil” themselves. As discussed above, no philosopher is truly impartial nor void of their own prejudices, and political meta-narratives such as Marx’s unwavering rejection of exploitation cannot exist to serve their purpose without accepting some degree of dogmatic assumptions. Nietzsche himself is no exception, which is why he hypothesizes these free spirits rather than identifying with them. But continuing to engage in philosophy, particularly political philosophy, without interrogating these assumptions and prejudices is distracting; we cannot begin to construct new worlds until we have deconstructed old ones. Earlier in Nietzsche’s career, we see a similar critique of Christian morals in a different context. In On the Advantages and Disadvantages of History for Life , Nietzsche argues that Christianity seeks to define an end point for humanity by predicting “an end to life on earth… and [condemning] the living to live in the fifth act of the tragedy” (25). By limiting the scope and potential of humanity, Christianity restrains the true potential of the strong and capable, or those who might have the potential to transcend the social or moral limitations they have inherited. Moreover, Nietzsche argues that “Christianity would like to [destroy] every culture which incites to striving further and takes for its motto memento vivere … [it] rejects with a shrug of the shoulders everything in the process of becoming, and spreads over it the feeling of being very late arrivals and epigoni” (26). Though Marx’s calls to action for the proletarian revolution seem counterintuitive to a feeling of being “late arrivals” or “epigoni,” Nietzsche’s critique holds true with regard to Marxism’s crypto-normative, deterministic approach to social organization. Marx provides an all-encompassing system that is meant to both explain and predict the movement of human progress, which owes itself entirely to factors and conditions that are beyond the individual. In a way, this parallels Nietzsche’s diagnosis that we are products of our society to a degree much higher than we realize. The difference, however, lies in their prognosis. Marx believed that the course of these societal effects, namely material conditions, would inevitably lead to the implosion of the status quo that, if properly prepared for, could usher in his optimal form of social organization. Individuals, therefore, might not be “late arrivals” nor “epigoni,” though Marx certainly seems to think that these individuals are entirely at the behest of their own material conditions. The asymmetrical influence that these material conditions have on us—the proletariat being exploited by these material conditions and the bourgeoisie benefitting from them—leads Marx to draw moral conclusions: exploitation is bad and satisfaction of species-being is good . What Marx fails to do is recognize that he is a product of his own material conditions, and so are his theory and determinations of “good” and “bad.” The quasi-utopian society that is only permitted by the revolution is itself borrowing descriptions from the idealized lifestyles of the bourgeoisie. In The German Ideology , Marx suggests that man in a capitalist society is “a hunter, a fisherman, a shepherd, or a critical critic, and must remain so if he does not want to lose his livelihood,” which is true for most working-class individuals. He then adds that in a communist society that same man may “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticize after dinner, just as [he has] a mind, without ever becoming hunter, fisherman, shepherd or critic” (27). The ability to actively satisfy one’s species-being, or to do as one pleases without the alienating incentives required by capitalism, is simply the universalization of bourgeois life—it’s not hard to imagine that these hypothesized jacks-of-all-trades did exist in 19th century Europe, they just happened to be the elite. He who can labor (or engage in any productive activity) without being defined by that labor is a privilege of the ruling class—and one that Marx identifies as good and therefore preferable. In other words, a communist society destroys class conflicts by creating the conditions of one class for all classes. This is not to say that Marx is proposing an egalitarian utopia as his positive project, since he does believe in a relatively heterogeneous society living by the mantra “From each according to his ability, to each according to his needs”(28). Moreover, the concept of class itself is theorized to dissolve post-revolution, but this does not mean that Marx’s ideal conditions for all human beings aren’t plagiarizing the conditions of a single class as observed pre-revolution. When workers own the means of production rather than capitalists, they will have the resources, leisure time, and material conditions to produce in accordance with their species-being and satisfy Marx’s normatively defined purpose (or achieve his own concept of “good”). Like Kant, Marx is creating his own causa sui . A Nietzschean contribution to Marxism might argue, then, that capitalism must be deconstructed in the same way that we might deconstruct Christian morality: not with the intent of replacing these superstructures with our own normative solution, but by interrogating them to essentially see where it takes us. Again, the elusive free spirit is not an indirect, self-congratulatory description of the value of Nietzsche’s own theories, nor is it a pessimistic and nihilistic acceptance that nothing truly matters. Rather, it is a new theory in itself—one that considers the possibilities of a new generation of entirely self-affirming thinkers stripped of their prejudices and social restraints. IV. Conclusion Marx’s ultimate conclusion is that a history of society determined by material conditions leaves us no choice but to reject our current modes of production in favor of a society that complements the satisfaction of our species-being. If we don’t, then capitalism will destroy itself anyway. Marx certainly presents himself as a revolutionary determined to unite the working men of all countries toward a common purpose, but it’s difficult to reconcile this call for individual agency toward a collective purpose with the material conditions that seem to govern us regardless of that agency. Marx’s own logic is, again, itself determined by the superstructures he seeks to identify; he is no more or less a product of them than any of the characters in his theory. The vain assertion of a universal truth that is species-being simply uses his own normative definition of what is good by borrowing language from those who have already determined what is good: the bourgeoisie. Consequently, we see his proposed political meta-narrative, that contradictory principles of capitalism inevitably lead to the realization of human emancipation, is at best incomplete and at worst deeply flawed. In the case of the former, we can at least use Marx’s critique of capital to understand how material conditions have shaped our world views: they can determine incentives, exploit workers based on factors beyond their immediate control, or assign value to both people and commodities. These are invaluable critiques that have wide-ranging implications, but they are nowhere near close enough to providing an all-encompassing system of human behavior. In the case of the latter, however, we are met with the dangerous hubris of which Nietzsche is so suspicious. The true nature of anything can only be understood by simultaneously interrogating our prejudices and assumptions while recognizing the need for multiple perspectives. Truth ought to be sought after, but it is extremely elusive and mystified by social constructs, whether they be political, material, moral, sexual, racial, or otherwise. From a postmodernist perspective, Nietzsche was perhaps prodigal. Today, we live in a pluralist world that is constantly challenging the normative assumptions that structure so much of our interconnected lives. Critical race theory has interrogated the fundamental principles of our facially neutral laws; emerging disciplines of queer and feminist studies have reshaped the way we understand and perform our gender and sexuality; successive generations of increasingly agnostic individuals have undermined religiously-grounded social norms to further liberate the arts and create a vibrant pop culture. Social media alone has become one of the greatest conduits for self-expression and has created channels of communication that the world has never before seen. Everything from college campuses to corporate boardrooms have acknowledged the importance of representation and diversity in order to create more inclusive communities. The 21st century is an era of interrogation that requires one to accept a multiplicity of perspectives. Ultimately, it could be said that we are unified by a common obligation to better understand each other. In a way, Marx becomes the casualty to which Talib Kweli is referring in his verse. The idealization of a satisfied species-being is arguably a normality defined by what is expected of human beings in a capitalistic world: to enjoy their work. It is not difficult to imagine that this is actually abnormal, and the entire concept of labor as we understand it could transform or even wither away in the epochs to come due to technology, climate change, or some other unforeseen development. Nietzsche therefore becomes a critical theorist superseding even Marx, for he seeks to critique not just one superstructure but all the superstructures that limit our ability to define for ourselves what is good, bad, evil, true, rational, or authentic. Political philosophy ought to continue elevating the voices that provide these pointed critiques and encourage generations of free spirits as they come. As Kweli might argue, to truly engage in philosophy is to suspect any normality as actually abnormal, and not suffer as a casualty of its misleading assumptions. Rather, we ought to use these suspicions in the service of life and work towards the most ideal form of social organization we can find while recognizing that there is always work to be done. Endnotes 1 Black Star. “Respiration (feat. Common).” Track 11 on Mos Def and Talib Kweli Are Black Star . Rawkus Records, 1998, CD. 2 Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 451. New York, New York: Modern Library, 1967. 3 Marx, Karl and Friedrich Engels. “The Communist Manifesto.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 473. New York, New York: Norton, 1978. 4 Ibid, 474. 5 Ibid, 475. 6 Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 150. New York: Norton, 1978. 7 Ibid, 150. 8 Marx, Karl, and Friedrich Engels. “Capital, Volume One.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 437. New York, New York: Norton, 1978. 9 Ibid, 438. 10 Marx, Karl, and Friedrich Engels. “Economic and Philosophic Manuscripts of 1844.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 76. New York, New York: Norton, 1978. 11 Ibid, 72-77; Marx describes species-being at length throughout the Manuscripts. 12 Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 193. New York, New York: Modern Library, 1967. 13 Ibid, 202. 14 Ibid, 207-208. 15 Ibid, 204. 16 Ibid, 201. 17 Ibid, 193. 18 Ibid,. 555. 19 Ibid, 555. 20 Ibid, 242-243. 21 Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 472–479. New York, New York: Modern Library, 1967.; Nietzsche describes his master-slave dichotomy of morality throughout the first essay of his Genealogy , though particularly in sections 10, 11, 12, and 13. 22 Ibid, 480. 23 Ibid, 481. 24 Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 393. New York, New York: Modern Library, 1967. 25 Nietzsche, Friedrich. On the Advantages and Disadvantages of History for Life . Translated by Peter Preuss. Indianapolis, Indiana: Hackett Publishing Co., 1980. 44 26 Ibid, 45. 27 Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 160. New York: Norton, 1978. 28 Marx, Karl, and Friedrich Engels. “Critique of the Gotha Program.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 531. New York: Norton, 1978. References Black Star. “Respiration.” Track 11 on Mos Def and Talib Kweli Are Black Star . Rawkus Records, 1998, CD. Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 437–601. New York, New York: Modern Library, 1967. Marx, Karl, and Friedrich Engels. “The Communist Manifesto.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 469–500. New York, New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 146–200. New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “Capital, Volume One.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 294–438. New York, New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “Economic and Philosophic Manuscripts of 1844.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 66–125. New York, New York: Norton, 1978. Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 179–435. New York, New York: Modern Library, 1967. Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 437–601. New York, New York: Modern Library, 1967. Nietzsche, Friedrich. On the Advantages and Disadvantages of History for Life . Translated by Peter Preuss. Indianapolis, Indiana: Hackett Publishing Co., 1980. Marx, Karl, and Friedrich Engels. “Critique of the Gotha Program.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 525–542. New York: Norton, 1978. Previous Next

Staff ~ Vol. VIII | Issue II Editorial Board Editors-in-Chief Aditi Bhattacharjya, Meruka Vyas Philosophy Section Director Politics Section Director Economics Section Director Kal Mehta Lachlan Edwards Alexa Burton Content Team Philosophy Section Evan Duel Henry Moon Bryanna Vianney Gonzalez Zachary Woltanski Logan Matthews Politics Section Sienna Jaroszewski Samantha Gerber Miriam Davison Aaditya Das Narayan Maya Martinez Faith Park Emily Walsh Economics Section Carter Weiss Yallen Pedersen Han Yue Yang Taylor Onyinanya Operations Team Managing Philosophy Editor Managing Politics Editor Managing Economics Editor Web Editor Faith Park Arjun Ray Sophie Rukin Sienna Jaroszewski Founders Julian D. Jacobs '19 Daniel Shemano '19

< Back From Dank to Diplomacy Jasper Finlay Burnside Author Miriam Davison David Lubin Faith Suh-Yoon Park Editors Abstract In 1976, Richard Dawkins introduced the idea of a meme. Like a gene, it could proliferate and spread cultural information. In the subsequent decades, the meme has become a commonplace method of transmitting information online, commonly referencing popular culture. This article takes seriously the power of memes as a device of information warfare. It builds upon previous research conducted in fields from communication to immunology and war studies to argue that memes act as white rabbits, drawing people towards conspiracy theories and misinformation. This article argues from a Realist Constructivist theoretical basis. It assumes that states will act out of self-interest to defend their strategic objectives through memes and information warfare, and that powerful actors will work to construct memes to spread ideas and ideology. However, this article also understands that there are limits to state power and acknowledges that other actors may play a key role in memetic and information warfare. "You can resist the invasion of armies, "You can't resist the invasion of ideas" - Victor Hugo What’s in the meme? Since Dawkins' first description of the meme in The Selfish Gene , various competing definitions have developed with varying levels of helpfulness and colloquial appeal., Dawkins later refined his definition, adding coadaptive ideas, such as law and justice. The same can be said of modern warfare, where memes have evolved alongside other forms of informational attacks. However, this addition fails to deliver a logical distinction. Following Dawkins’ general definitions leads the reader to a strange, undefined no man's land between digital virality and the meme. It is evident that both share some traits; the meme, to be effective, requires a level of virality that allows it to share information. However, it possesses niches which virality does not. For this, it is far more useful to examine the usage of memes in conflict and international relations by using Shifman’s definition, with certain caveats: “(a) a group of digital items sharing common characteristics of content, form, and/or stance, which (b) were created with awareness of each other, and (c) were circulated, imitated, and/or transformed via the Internet by many users.” The final part of Shifman’s definition is the most critical, as it includes an element of virality. Memes share many of these characteristics, most notably the consistent trait of virality, in that they are massively popular. Yet even Shifman’s definition lacks something fundamental about the nature of memetic warfare: memes operate like a mind virus, and once released into the wilds of the internet, they spread, mutate, and adapt much like pathogens. To understand memetic warfare, it is essential to note that after an actor releases a meme, they lose control over how the meme works or functions. It can be modified beforehand and tailored to influence a given subculture or group. After the meme is injected into the internet, it spreads, with its impact being more profound in certain areas than others. It is important to point out that, unlike the Frankfurt School and the hypodermic needle theory, this article does not suggest that culture is homogeneous, or that the observer is passive, as Stuart Hall and other sociologists have discussed. Rather, memetic warfare requires that those observing the meme are active, becoming vectors for the spread of more memes and information to destabilise or disrupt the target state. Before proceeding, it is important to understand that memetic warfare need not be waged within the guise of a traditional declared war. Rather, like other forms of information warfare and the spreading of disinformation, it is waged constantly as actors attempt to undermine others and further their own goals. Critically, actors with the means to do so construct the messages to be conveyed by these memes. Given the ubiquity of computers, global internet access, and the recent proliferation of public A.I. models, an actor of almost any size can, with minimal technical knowledge, start a large-scale disinformation campaign. However, states and other large actors, such as terrorist groups, have the advantage of manpower, computing power, and willingness to counter these attacks. These actors construct the meme and the message behind it, and then spread it across the internet. Theoretical conceptualisation of the meme Soft power: Beyond sharp interpretations of memes, there is also a basis to suggest that memes are foundational in actors' abilities to increase their soft power capacities. This follows Nye’s understanding of soft power as the ideational, economic, and cultural exports of a country that give it influence. Given the proliferation of social media platforms, the ability to create memes that resonate with tens of millions, if not billions, of people is an irresistible prospect for generating soft power. While it is difficult to prove that states themselves have been responsible for the proliferation of memes, memes themselves have become part of the organic creation of culture, which, beyond a certain point, the state cannot control due to limitations in resources. It nevertheless amplifies state influence within the system, allowing them to leverage other states and create images, perhaps for self-preservation among domestic audiences, but also as a manipulative tool. This is because memes are intrinsic to a nation’s culture. Memes, and what is considered to be funny, are linked to the various and inherent cultural views within a nation. Take, for example, the rise of the “keep calm and carry on” meme. While initially this meme had been locked firmly within the British Isles, it was designed to reinforce the idea of Britishness and stoicism. It has since become a global phenomenon and effectively extends British soft power and influence, taking up a similar position to cultural exports that came from traditional media organisations such as the BBC. Given that studies into the cultural impact of memes are in their cultural infancy, it is difficult to argue the significance of this point. However, it is essential to consider which states have the largest presence on social media, which memes (templates) are the most popular, and to explore various interpretations of memes and their meanings. Sharp power: Memetic warfare provides an opportunity for manipulation beyond standard cultural exports. They have, in recent years, played an increasingly important role in the maintenance of US hegemonic power around the world, allowing for the continued export of US culture, as well as the continuation of seemingly liberal values on a global level. Fundamentally, hegemonic powers can spread their cultural values through the use of memes, influencing populations for strategic advantage. These values and norms are constructed by powerful actors, with the hegemonic power acting as the heaviest centre of norm creation. While there is undoubtedly a nature of free-floating, the ideas embodied in memes are linked to constructed cultures. That is to say, the Liberal constructivist conception of decentralised information and values is disconnected from the reality of memes, which are inherently tied to the powerful and their ideational power, which stems both from their military strength and cultural prowess. Memes, therefore, stand as a new form of statecraft, low-cost and enabling powerful actors to use more methods to shift and destabilise the nature of other states. While previously influencing cultures and populations directly was difficult, the democratisation of the internet benefits the strongest actors in the international system, providing them with a mostly passive method of influence. Of course, it would be incorrect to argue that powerful actors have full control over the information space, as individuals do not all bend to the will of actors and are distinctly separate from them in terms of living their lives. However, if a culture has been constructed that believes in certain values, it provides a bank of ideational influences to change the way others think. While much of the action can be state-directed, often, particularly in domestically liberal societies, there is a consistent presence of memetic warfare, not directed by the state, but by universalising ideologies such as liberalism. This argument, however, does not devalue Realism, but rather disputes much of the argument made by neo-realists and neo-liberalists. In the online space, it is difficult to make the argument around state control and action in the same way as traditional geopolitical IR. Of course, liberals may place more emphasis upon non-state actors, such as NGOs or IGOs. However, it is difficult to foresee the need for these organisations to use memetic warfare. While they may attempt to influence actors and populations of the need for their existence, it would be extremely unlikely for the WHO to promote memes that taunt a state or attempt to subvert a domestic political process. This is both because they are largely dependent upon states to provide funding, but also because they are often beholden to state demands for certain actions. The argument can also be made that other non-state actors, such as technology companies, have a powerful role. This is indisputably true. Yet, it is difficult to disconnect these companies from the states in which they are based. This is, as Zuboff has argued, because there has been an increased domestic security integration between states and technology companies post 9/11. Taking this argument further, there has been increased cooperation between companies and states on a national and international security level, which has allowed states to attempt to control the internet and counter its decentralised nature in order to further their own aims. We can see this link most starkly in China, where government intervention in social media platforms is overt, as opposed to the more inconspicuous nature of many Western governments. Having established this theoretical framework, the following sections will apply it to the practical actions of domestic and foreign actors in the memetic battlespace. Using the meme? When discussing memetic warfare, it is essential to recognise that it cannot wholly transform the entirety of a state's political and information systems. Through various pieces of research, it has been established across various fields that culture, and therefore information, is not homogeneous. Furthermore, it would be difficult to make the argument that memes alone would make massive changes. It is impossible for one information device to make such profound changes to the understanding of international actions, or indeed the ability to change the minds of a domestic population. Rather, the meme is intended to find susceptible groups who are more likely to believe what the meme suggests. This is aided by mechanisms within social media algorithms which target retention and aim to keep individuals engaged. It is these features that make well-placed memes easier to disseminate and self-spread, allowing them to have a disruptive capacity. Rather than changing the opinions and minds of individuals, memes act as a white rabbit; they are to be followed down the information rabbit hole, in the hope of changing or modifying the way people perceive the world in some way. Because of the nature of algorithms, individuals who engage with distributed meme content are likely to find more. This is why it is rare to see states creating new conspiracy theories or disinformation through memes, but rather clinging to already conceived disinformation and disruption, which actors may have already created. Memes, therefore, are not a strategy in themselves, but rather a large part of information warfare. Having described what memes cannot do, the question stands: what can memes do? Fundamentally, this is challenging given the diverse nature of memes and their content. Actors have the ability to construct the initial meme, allowing them to craft a narrative that they would like to proliferate. This can help to modify some of the domestic population's perceptions around the state, and typically feed into nationalist feelings in order to provide some basis to their claims, such as British First World War propaganda depicting the Germans as “the hun”. This is just one example of a pre-social media meme designed to change perceptions. However, in a modern setting, it is more useful to examine the Russia-Ukraine war (began in 2014). Fundamentally, while there have been efforts at disinformation and offensive memetic warfare to advance a foreign actor's position, there has been large-scale defensive memetic warfare, which has aimed to maintain domestic security and national identity from external threats. While states wish to push their position on the international stage, they also need to protect their identity and domestic populations. This requires them to produce narratives to insulate or protect themselves from physical and psychological threats from abroad. Of course, it is not a dialectical matter; states can both preserve their identities and their physical security by rallying troops with memetic propaganda. Memes also do not exist in a vacuum; individuals operate on the basis of competing information sources and disputed facts. This means that there is an opportunity for actors to compete for attention with their memes and information warfare. This requires more people power than simple memetic warfare; it requires information updates, constant attention, and resources to be used. There will be competing ideational concepts produced by different actors, which they will directly counter with memes shared by others in an attempt to produce more competitively attractive information to serve their own ends. This entails actors finding specific groups who are being targeted and redoubling their efforts towards them, enabling them to better counter the actions of others. However, it is worth noting that defensive memetic warfare most often takes the form of memes to reinforce national identity. This can be done by pulling on national myths or heroes. For example, following US attacks early in 2025, the Iranian government used images of archers. Fundamentally, these pull on preconstructed notions which are linked to contemporary issues, and draw upon collective memory, which has been passed down generationally. This, however, requires a strong national link between various groups, and for memory to be highly concentrated. Yet, certain groups will likely have weaker connections between the nation and the community for myriad reasons. Take, for example, separatist groups. These may be the most susceptible groups due to more tenuous links to the state; this is the white rabbit. The memes act as a link to continued conspiracy or alternative views, allowing individuals to move into a different understanding of the world because of the vehicle of the meme. The domestic position: Building from the Iranian position, domestic actors will always attempt to reinforce their own images and protect their own standings with their own populations. State actors will often use memes to further the image they are trying to convey. They do this by targeting specific groups with memes, tailoring their message to draw disparate groups into the state’s way of viewing the world. Memes allow state and domestic actors to reinforce the messages they wish to promulgate. They can be distributed through official channels or through bots and other less traditional distributions. Bots can be particularly useful for disseminating information in dubious ways, especially when they cannot be traced due to manipulation, which in turn leads to easier modification of understanding. Bots can be of further use in mass dissemination to multiple groups, which can prove critical in countering foreign actors, particularly when riots erupt. By releasing thousands of rabbit colonies - each with their own particular subtexts and understandings - domestic actors can exert control over certain online spaces to move individuals towards a certain position. It is this same mass dissemination that enables states to counteract the efforts of foreign actors to destabilise them. By using the same tactics, domestic actors are able to reduce the effects of foreign actors. Moreover, using memes allows domestic actors to reinforce their own images and ideology. In pressing their own ideas through memes, they can target those who might be susceptible to influence by foreign actors. This is, however, not an infallible strategy as information warfare can overcome a domestic actor's ability to contain it, usually because of the volume of accounts and devices used to influence populations. While actors can attempt to block individual accounts, this remains ineffective for mass-scale attacks. These counterattacks will target individual subcultures and groups that the state has an interest in preserving from foreign actors. This operates in a similar manner to parties during election campaigns, where memes and messaging are targeted towards specific groups. When examining states such as Russia and China, there have been instances of mass domestic memetic functions designed to maintain popular support. However, there is a difference between democratic regimes and authoritarian regimes. These differences are not merely to do with legal structure, but also with surveillance. Following 9/11, most Western states have developed a digital security apparatus, as outlined by Zuboff and others. Authoritarian regimes have far more expansive social surveillance systems, which enable them to more accurately assess groups and, therefore, target them. This is further aided by state-controlled social media companies, which can enable the censoring of certain terms. In comparison, social media companies in democracies are less incentivised to cooperate with states. As a result, there is a globally critical ideational role to be played by media companies in memetic warfare. Given that these companies are able to set the rules of the game, they have the ability to prohibit certain information or types of information from certain sources. Notably, the state still has leverage over these companies, which allows them to act within domestic and international settings to conduct memetic and broader information warfare. It is also important to note that certain populations may have an increased level of susceptibility. The popularity of a regime will play a large part in the success or failure of a memetic device. If a government is broadly unpopular, it would be difficult for a memetic device to succeed, given that its narrative is unlikely to be believed. This may lead to an increased likelihood of the usage of bots for memetic purposes. Doubtless, the same unpopularity which makes domestic actors' memetic actions less feasible makes the actions of adversarial actors more feasible. This is because memes are reliant upon pre-constructed narratives and ideas. They can simply act like white rabbits, meaning that unpopular actors are less likely to have their interpretation understood. In these instances, foreign actors will likely choose to exploit this unpopularity anonymously. The foreign actor: Foreign actors are never wholly reliant upon memetic warfare to influence others. Memetic warfare comprises a vast array of information war tactics that foreign agents can use to destabilise, alter, or change the way others engage in international politics. Foreign actors may wish to destabilise the political landscape of adversarial states to further their own interests. This, to an extent, explains the nature of information control within states such as China. Governments will seek explicitly to prevent the spread of memes because of the damaging and disadvantageous effects that they can have on domestic populations as they rally against government officials. This partly explains why the CCP moved to remove images of Winnie the Pooh from Chinese social media networks, something which quickly became associated with President Xi and poor leadership from the CCP. This can also be seen with the spread of the Gay clown meme: “Dean Cooper-Cunningham’s visual analysis of the Gay Clown Putin meme in Russia, for instance, demonstrates how this rhizomatic structure of the memescape creates a queer disruptive space for ‘critical political interventions that might challenge [the] international security policy’ of Russia, which relies on the articulation and securitisation of cisheteronormative nationhood.” Because of the nature of memes, they can use humour, which in a sense is highly political, but due to the often satirical nature, it lacks much of the scrutiny and oversight of other forms of information distribution. “Comedy itself is ‘serious politics’ – a productive, imaginative, and relational ‘practice of political resistance in its own right’ that demonstrates individual and collective inclination to contest hierarchies, hold differing opinions, and critically reflect on politics. Consequently, as Brassett argues, humour can (de)legitimate political structures, contest power relations, or encourage reimagination of various aspects of politics and society.” Brassett’s argument provides nuance that helps us to understand the power of the meme. By nature, humour can be disarming, particularly since politics can often appear comical because of its seeming disconnection from the lives of most individuals living within a given polity. Foreign actors can attempt to spread their message through social media channels, using domestic cultural identities to influence subculture groups, attempting to move them further from what their governments wish them to believe. Effectively, foreign actors can reinforce existing discontent through the use of memetic warfare. Foreign actors must ensure that they integrate local culture and customs by paying close attention to historical memory. This means that historical memories of shame and destruction in war are critical to an effective memetic campaign. A failure to heed cultural differences will lead to poorer memetic performance. Foreign actors, therefore, need to spend time tailoring the nature of memes. However, when memes are deployed, it is impossible for actors to control them. They are therefore reliant upon social media algorithms, as much as they are by good design and action. Furthermore, there is a need to consider the volume of memes used. Actors can attempt to flood the zone, pushing an enormous number of memes through bots. Actors wish to control the information space, squeezing out other information and deceiving users into believing their account. By releasing droves of white rabbits, actors are able to systematically take over online space, removing opposition to their ideas. While this will not be completely successful, countermeasures can be deployed both by oppositional actors and by social media companies, which likely cooperate with state actors. HoweverIn addition, sheer volume alone will not convince everyone. Research from Pew has found that only 28% of individuals say that social media is important in keeping up to date with the news. Conversely, a study from Manchester University has found that there is a kind of blind trust in the information which individuals see online. The chances of success are relatively high for foreign actors. Of course, if effectiveness is measured as a percentage of the total population converted to a given belief or led down a given rabbit hole, it will seem less effective. However, the primary purpose of memetic warfare is more about information disruption than wholesale societal destruction. The nature of memetic warfare is not one of a solo strategy of destabilisation, but rather as one combined with various other features of information, traditional war and disinformation. It acts as a powerful enabler for a state's broader strategic actions. Before or during conflicts, we can observe upticks in memetic warfare, when actors attempt to disrupt the information space and reduce individuals' ability to understand what is happening around them. This can be particularly effective when targeting subcultures which are disconnected from central governments. These groups may be oppressed, poor, disparate, or ethnic minorities who do not share the national identity with those in power. Memetic devices offer other actors the opportunity to damage collective identities and shift strategic positions to their benefit. Fundamentally, memes are a device which forwards the needs of foreign actors. Countermeasures While much of this paper might give the impression that memetic warfare is an insurmountable challenge to the state, that would be an overstatement of the power which memes and information warfare have for the state. There are various countermeasures that may be deployed by actors to avoid some of the effects of memetic warfare. At a state level, actors can establish agencies to identify and address misinformation, as well as implement digital literacy programs and logic education. These kinds of passive defence can be exceptionally useful in reducing the potency of the memetic devices. Furthermore, states can set up rapid support agencies to counteract the spread of misinformation online. Of course, more traditional paths such as sanctions and the potential use of force are options to counter the effects of memetic warfare. This does not mean that any of these strategies will be completely effective; however, in the eyes of states seeking to maintain order and domestic legitimacy, it is better than nothing. Given the nature of the internet, direct government action and its effects are severely limited. Most of the countermeasures are limited to and by social media companies. The role of the state is not diminished, but rather that social media companies have to act as an intermediary between the state and memetic devices. There are, of course, differences between authoritarian and liberal democratic states. Where authoritarian states have more control over social media and the internet, liberal regimes may have ideational difficulty with using some of the same tactics. Those who control social media and internet algorithms are able to divert traffic and prevent certain kinds of information from being shared on their platforms, thus, stemming the flow of memetic devices and information warfare. These companies also have the power and the resources, without the review of courts, to ban and disable accounts which appear to be sharing memes or seem to be attempting to share false information. There are also various passive measures that allow states to counteract information warfare. Educating citizens in internet safety, similar to Finland, and ensuring access to reliable information from traditional media sources on both social and traditional broadcast mediums can help dispel false information and enable states to develop passive countermeasures, reducing the impact of constant information warfare. These processes and this education mean that the power of memetic warfare shifts, moving agency from the aggressor to the defender, allowing them to construct countermeasures that can largely banish, in combination with active defences, the worst effects of memetic warfare. While it is still largely dependent upon the ability of governments and organisations to remain popular, there can be a high level of diffusion. Beyond this, companies may revert to recently abandoned practices such as information warnings and labels attached to content. These solutions doubtless raise questions around the nature of liberty and for the internet to be free from control. However, we can already see that internet companies, at the request of states, have acted to curb some of these freedoms and liberties in the name of countering misinformation. The future? Given the nature of the internet and the current state of technology, it seems obvious that some changes will be necessary in the future. With the advent of publicly available generative AI, it will become easier to create memes. Furthermore, while the public has had access to AI for a number of years, states and companies have had access for a little over a decade. AI provides an opportunity for significantly easier memetic and information warfare. The ability to create information and generate lifelike videos (deepfakes) and then disseminate them using AI agents to specific groups, means that there can be increased precision in memetic warfare, as well as wider applicability. Publicly available AI models will allow non-state actors such as terrorist groups to engage in large-scale memetic warfare in ways that we have yet to see. While Daesh, at the height of its power as ISIS (Islamic State of Iraq and the Levant), used videos and messaging groups to recruit individuals, the use of AI-created memes deployed by AI agents will allow groups to target subcultures and more accurately find new recruits. This will doubtless prove to be deeply problematic for domestic policing and will require new levels of regulation and cooperation both within and outside states. It will also allow them to flood the zone, pushing massive numbers of white rabbits, enabling individual small-scale acts to do what previously was only possible for state or large organisational actors. While concepts of the metaverse have largely failed to inspire popular imagination, with MetaMETA largely rolling back much of its investment, should the metaverse begin to encroach upon the real-world experience of individuals, it is possible that memetic and information warfare may become increasingly effective. The increasing amount of time spent in the metaverse would allow actors to influence people and the perception of their reality. If an individual is surrounded for hours per day, not just through a screen, but in their perception of the room they stand in, it is not difficult to imagine that they could become influenced. Furthermore, the idea that immersion in digital zones will increase disinformation is something we have already observed with increased time spent on social media and the internet. Given that individuals' perceptions of reality are altered by screen time, the likelihood that the metaverse will influence them seems almost inevitable. The final, and likely most important development, relates to the fragmentation of the internet. While many will be aware of the effects and nature of the ‘Great Firewall of China’ , around the world today, we see the division of the internet, with countries being split into different zones. While China’s control is the most profound example of this, the demise of net neutrality is spreading globally. The UK's ‘Online Safety Act’ is the most prominent within liberal democratic societies. Government regulation of the internet means that cross-border flows of information will become increasingly obstructed. While this will prove useful for State governments, it may significantly hinder the actions of foreign actors attempting to influence foreign populations. Yet, it also proves to be a dampener for the ability of internet companies to exist, and will likely be subject to much tumult in democratic societies, provided that the public takes notice. Should the internet continue to fragment, due to algorithms and regulation, memetic warfare will likely become more difficult. However, this is far from clear. It is entirely possible that the division of the internet will lead to internal proliferation of memes, and it is important to consider that it only takes one rabbit to lead individuals down the rabbit hole. Case study: Post-2014 Russia/Ukraine conflict: Ukraine: Defensive Memetic Warfare and Soft Power: Since the advent of the most recent conflict in Ukraine, there has been an uptick in the usage of social media and information warfare, both to rally and attack. Broadly, Ukraine has attempted to use memes and informatic warfare around the world, but with particular effect in neighbouring countries and other Western allies, in an attempt to increase international support and gain access to advanced weapon systems. Conversely, Russia has sought to reduce international support and use disinformation both within Ukraine and around the world to increase complexity and further confuse the nature of the conflict on a global level. “Since the annexation of Crimea in 2014, the social media presence of both Ukraine and Russia has been closely scrutinized by researchers in communications, media studies, and human-computer interaction. The separatist movement in the Donbass region has intensified a battle of narratives: both sides employed five contextual frames, namely historical, geographical, religious, ethnic, and political. A popular framework for the analysis of memes relies on identifying the overarching narratives, whereby each meme constitutes a partial element. Boatwright and Pyle studiedstudy 163 tweets by the verified @Ukraine and @Kyiv Twitter accounts posted in February 2022, finding pre-invasion promotional content as well as myth-making. Similarly, Yehorova et al. identifiedidentify different humorous elements in the early wartime tweets. A more structured framework of narrative analysis is that proposed by Stephen Karpman and expanded by de Saint Laurent et al. to include two dimensions: moral quality (benevolent or malevolent) and power (strong or weak). In our study, we employ this framework and the resulting four archetypes: Hero (benevolent, strong); Victim (benevolent, weak); Villain (malevolent, strong); and Fool (malevolent, weak).” Within the conflict in Ukraine, it is easy to see the use of memes as devices to support ideational claims made by states, such as the Russian claim over swathes of territory, as well as ontological ideas about the nature of these states. Relating particularly to the damage done during war, to the concept of safety, security, and nationalism. When states are attacked, it is not merely physical; it is an attack on their identity and ability to continue to exist, as Mitzen has described. It remains necessary for states to defend their core strategic interests at all costs, including ontological goals, in times of conflict. Moreover, these memetic devices are not merely designed to protect, but also to inspire. They are, in many cases, forms of propaganda. This allowed states to reach disparate groups and attempt to improve their connection to the national ideal. They function as traditional propaganda pieces, designed to link to traditional ideas and interpretations of the national myth. This, as discussed above, allows them to be so potent. In times of crisis and conflict, the nature of the meme can shift from a passive ideational idea to something which is designed to strengthen resolve and prevent the faltering of minds with the weight of bombs falling. The best example of the Ukrainian countermeasures is likely NAFO (North Atlantic Fella Organisation), which has been dedicated to countering the spread of Russian information during the course of the war. Many have observed that it is likely the best example of information warfare globally: “Negative historical associations (e.g., with Stalin or Hitler) are often employed. Extreme evilness is attributed to the Russian army… a cartoon shows Russian pilots gloating as they kill Ukrainian babies, a typical atrocity frame employed in propaganda. Even Russian civilians are portrayed as evil: in the rightmost example, they happily play with bloodied toys taken from Ukrainian children.” Memes enable Ukraine to reinforce a shared national understanding of its enemies. Releasing these defensive white rabbits allows for a further level of villainisation, which enables there to be a stronger resonance within the Ukrainian population. This allows for more rallying and an increased uptick in soldiers joining the military due to the damaging image provided by the memes to the population. Furthermore, it allows for the promotion of historical memoriesy in allies, particularly those in Europe. The triggering of these memories allows for the activation of a transgenerational memory, and therefore moves both individuals and governments to act to support the Ukrainian government. The idea of evil, and the framing of Russia as a historical enemy, and the centre of a kind of ideational evil. This idea of memory, and the links to historical circumstance, particularly the unspoken nature of much of the trauma and damage which was experienced, is what makes these memes particularly potent in the international sphere. This is dependent upon shared experience, and a kind of collective memory, or collective cultural understanding, but it is something that Ukraine has mastered during the course of this conflict, enabling it to connect with the diasporic nationalities of Europe. Russia: Offensive Memetic Warfare and Sharp Power: Meanwhile, Russia has continued to use memes within conflict zones.; Iits use in Ukraine is, however, is likely the most advanced. Russia has used various memetic devices to spread disinformation around Ukraine for its own ends. Releasing white rabbits claiming control over various regions in the east, or encouraging individuals to leave or return to certain territories, or inspiring the idea of de-Nazifying Ukraine. Since 2014, Russia has used various memetic devices to undermine accusations by foreign governments. “Russia’s strategic narrative that the 2018 Salisbury poisoning was staged by the West not only deflects accusations of responsibility, but contributes to Russian popular suspicion towards democratic states, presents events as a Western plot to be expected because of Russia’s return as a global power, and mobilises a particular form of domestic patriotism and support for authorities. However, US and European narratives about Russian misinformation and interference can discredit Russia’s other actions that do not involve misinformation, contribute to broader discourses around ‘fake news’ and rising global threats to democracy, and enable particular policy responses. Strategic narratives, as Roselle et al. (2014) argue, should therefore be regarded as a powerful resource, vital to contestation and a complex media ecology, and key to understanding influence.” Memes can be used as a justification and as something which can undermine the accusations from foreign actors, enabling future actions. Similar actions can be seen in Ukraine, where Russia has used memes as part of false flag operations and to direct the domestic and Ukrainian populations. Putin’s domestic popularity at the intensification of the conflict in Ukraine in 2022 meant that memes designed for the Russian population were significantly more influential than they otherwise might have been. 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< Back Free Exercise and Identity in Conflict: The Future of Parental Free Exercise Claims in Public Education Max Choi Author Lucy Kaplan Sienna Jaroszewski Emily Walsh Editors I. Abstract This paper discusses a 2025 Supreme Court case that raised the question of whether elementary public school instruction on LGBTQ+ topics infringes upon the rights of parents who object to their children learning such content. The case Mahmoud v. Taylor serves as a development of religious free exercise and anti-discrimination precedent, extending parental rights established in Wisconsin v. Yoder (1972). However, the case also introduced broader complexities regarding exposure to controversial ideas to elementary school students. In recent cases, the Supreme Court has increasingly ruled in favor of free exercise claimants, so it is no surprise that they ruled in favor of the Petitioners in Mahmoud . Academics and advocates have debated the classroom and judicial implications of granting parents broader discretion to remove their children from curricular instruction. This decision may disrupt the delicate balance between parental free exercise rights and classroom teachings on morals and inclusivity. This essay will begin by introducing the case Mahmoud v. Taylor in detail. It will outline the religious rights guaranteed under the First Amendment and the relevant case law that frames the context of Mahmoud. Then, it will present the arguments of both the Petitioners and Respondents, analyzing how each side seeks to build upon existing precedent. Finally, the paper will assess how the Supreme Court structured its ruling and explore the broader social implications that may follow from their decision. II. Introduction Since 2000, the Supreme Court has generally ruled in favor of religious free exercise arguments against gender identity anti-discrimination. The case Mahmoud v. Taylor presented the question of whether it is a burden upon parents’ religious free exercise rights to compel their elementary-aged school children to participate in classroom instruction relating to gender and sexuality. In 2022, the Montgomery County Public Schools (MCPS) district in Maryland incorporated the use of storybooks relating to sexual and gender orientation into the elementary K-5 curriculum. The school board had initially permitted an opt-out policy in which parents could remove their children from lessons using the books. However, the board removed this policy in March 2023, eliminating the opt-out for parents. A religiously diverse group of parents, including Ukrainian Orthodox, Muslim, Catholic Christian, and Judaic backgrounds, sued the school district on the grounds of religious burden claims. Both the district court and Fourth Circuit ruled in favor of the school district, however, the Supreme Court overturned their decisions. The question then presented to the Supreme Court was whether public schools pose a burden to parents’ free exercise rights when schools compel elementary students to participate in lessons on gender and sexuality. Even more so, the court needed to determine whether exposure to storybooks that contain LGBTQ+ identifying characters constituted such compulsion. In light of their consistent rulings, which have backed religious liberty claims under Chief Justice Roberts and the current conservative majority, the Supreme Court, in June 2025, ruled in favor of the Petitioners’ claims. While the court only issued a temporary order requiring the school district to provide opt-outs, the ruling nonetheless limited the power of school districts to mandate a diverse array of perspectives in the classroom, giving parents a stronger basis to excuse their children from certain classroom instruction under religious reasons. III. Overview of First Amendment Precedent A. Free Exercise and Establishment The First Amendment of the Constitution reads that “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…” Under this clause, individual citizens enjoy the right to practice their religion without interference from the government. Furthermore, the government may not sponsor or “establish” any religion, or favor one over another. To understand how the First Amendment is applied in the context of a school environment, it is important to understand how the interpretation and application of case law has evolved free exercise and establishment rights. Tinker v. Des Moines (1969) established that students do not “...shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker set the precedent that, even considering the special characteristics of the school environment, students still maintain their First Amendment rights on schoolhouse grounds. However, these rights are not unlimited. School officials may restrain constitutional rights on school grounds if “...the students' activities would materially and substantially disrupt the work and discipline of the school.” Parental rights regarding children’s upbringing and education also hold a share of case law. Pierce v. Society of Sisters (1925) decided that through the Due Process Clause of the 14th Amendment, parents may not be forced by states to send their children to public school, nor force their children to accept instruction exclusively from public school teachers. This case recognized parental rights as a broader liberty protected by the Constitution. Then, in Wisconsin v. Yoder (1972), the Supreme Court incorporated the First Amendment to apply to the states, ruling that Amish parents may remove their children from school entirely through religious exemption. The Burger Court wrote that a “State’s interest in universal education, … is not totally free from a balancing process when it impinges on fundamental rights and interests.” While the Wisconsin mandate for child participation in education was compelling, it ignored the Amish community’s right to educate and raise their children according to their belief system. This case saw that the free exercise rights of individuals outweigh a state’s interest in having students attend school beyond eighth grade. Thus, parents maintained the right to remove their children from school beyond eighth grade if school attendance conflicted with the tenets of their religion. In Sherbert v. Verner (1963), the court ruled that a law is rendered unconstitutional if its purpose or effect impedes the observance of one or all religions. This established a new constitutional test which extended strict scrutiny to the Free Exercise Clause: burdens on religious observances must possess a compelling government interest through the least restrictive means. However, in Employment Division v. Smith (1990), Justice Scalia wrote in the majority opinion that individual free exercise rights do not excuse individuals from complying with an otherwise valid law, thus narrowing the scope of Sherbert and weakening free exercise protections overall. This established the Smith test, stating that laws incidentally inhibiting religious practice must be (1) a neutral law that does not target religion and (2) generally applicable to everyone. If both criteria are established, the government does not need to provide a compelling interest under strict scrutiny to justify a law, and a law would be constitutionally permitted even if it burdens religion. However, Smith did not define what it meant for a law to “target religion” in itself. Furthermore, the new Smith test redefined and narrowed Yoder by distinguishing it as a hybrid rights case that involves both free exercise and parental rights. The court’s ruling offered little guidance on how broadly a law would need to “target religion” and to what extent. Lower courts have thus struggled to determine how the Smith test should be applied, and the degree of scrutiny which should be used on free exercise claims. Later cases such as Lukumi have highlighted the confusion of its interpretation. In the Church of Lukumi Babalu Aye v. City of Hialeah (1993), Justice Kennedy wrote for the majority that the City of Hialeah’s “... ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice.” The court ruled that Hialeah passed ordinances which were non-neutral against Santeria's religious observances and were underinclusive to the Santeria Church in the context of this case. By striking down the ordinances under strict scrutiny, the court signaled a willingness to bypass Smith when government action targets a particular faith. In this way, Lukumi Babalu Aye partially revisited the doctrinal pathway that Smith seemed to restrict. Justice Kennedy noted that a law will lack “...facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Here, the court ruled that the aim of a law is also dependent on its context, expanding the Smith test’s definitions of what neutrality and general applicability meant. In the case of Lukumi, the court extended Smith by noting that the city of Hialeah’s ordinances were in response to the church’s religious actions, thus targeting their religion even if religion was not explicit in the law itself. This shed light on the difficulties of applying Smith ’s broad language to specific cases, and would foreshadow later cases where the court would again take a more proactive stance towards free exercise claims, circumventing Smith. A number of cases have also shaped the ways that schools can establish religious practices. In West Virginia v. Barnette (1943), the Stone Court ruled that public schools may not compel students to salute or pledge allegiance to the American flag, nor can schools force individuals to speak a message contrary to their ideological, religious, or political beliefs. Mandating students in schools to salute or recite the pledge of allegiance constituted compelled communicative action that directly conflicted with student and parent free exercise rights. So the court ruled that the school district’s actions unconstitutionally coerced students to speak the government’s message, violating the First Amendment. Engel v. Vitale, (1962) and Abington v. Schempp (1963) further built upon this by ruling that school-sponsored prayers or bible readings, even if voluntary or non-denominational, are unconstitutional. These acts inhibit students’ liberty from religious compulsion. However, in Zorach v. Clauson (1952), the court upheld schools’ abilities to establish hours in which students may leave campus to engage in religious activity. In Clauson, off-campus activity does not constitute an Establishment Clause violation as it does not necessarily coerce students to engage in religious activity. To test for Establishment Clause violations, the Supreme Court in Lemon v. Kurtzman (1971) introduced the Lemon test, where a law must have: (1) a secular legislative purpose, (2) a primary effect that neither advances nor prohibits religion, and (3) an avoidance of excessive government entanglement with religion. This framework was used in Establishment Clause cases until 2022. The Lemon test was abandoned in Kennedy v. Bremerton (2022), where the Roberts Court distinguished that permitting private prayer in a public setting, such as a school’s football field after a game, is not school coercion of students. Rather, it is a free exercise right that school staff and students maintain. Through this case, the court shifted religious doctrine and replaced the Lemon test with the history and traditions test. In other words, the court established the framework of evaluating whether the government is coercive in a way that resembles historical establishments of religion, and the extent to which religious expression aligns with the American free exercise tradition. Notable cases have also established boundaries or expansion of rights regarding religious liberty and public funding. Blaine Amendments are provisions in many state constitutions that prohibit the use of public funds to support nonsecular institutions. However, in Trinity Lutheran Church v. Comer (2017), the Roberts Court ruled that government funding and services cannot be denied based on an institution’s religious status. Doing so interferes with members’ free exercise rights, as it denies access to public goods and penalizes members for religious affiliation. Then, in Espinoza v. Montana Dep’t of Revenue (2020), the court ruled that the State of Montana may not deny generally available public funds to a parent who wishes to send their children to a religious private school. The court further reaffirmed these concepts in Carson v. Makin (2022), when the State of Maine denied funds to be used to send schoolchildren to religious institutions. The court held that excluding publicly available programs from individuals based on the use of funds for religious purposes violates both the Free Exercise Clause and the Establishment Clause. While the previous cases discuss the Supreme Court’s evolving Free Exercise and Establishment Clause doctrines, Mahmoud v. Taylor also holds implications regarding LGBTQ+ discrimination colliding with religious precedent. Obergefell v. Hodges (2015) first considered the recognition of gay marriage protections under the Due Process Clause of the 14th Amendment. Justice Kennedy wrote that the Due Process Clause “promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Here, the court had recognized gay marriage as a liberty. However, the court did not recognize the right to marriage as a constitutionally enumerated freedom established by due process. In other words, Obergefell recognized same sex marriage as a constitutional liberty, but it did not resolve how this right interacts with competing religious claims. Before Obergefell, in Boy Scouts of America v. Dale (2000), an adult member of the Boy Scouts organization had his membership revoked after the organization discovered he was homosexual and a gay rights activist. The suspended member sued under the New Jersey Law Against Discrimination (LAD), and the New Jersey Supreme Court ruled that Dale’s membership must be reinstated. After the case was appealed and argued to the U.S. Supreme Court, the Rehnquist Court recognized that “...States have a compelling interest in eliminating discrimination…” on the basis of gender and sexuality. However, the ruling also stated that “...public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message.” This case directly addressed the question of anti-discrimination against gay individuals and the right to expressive association. The court maintained that the Boy Scouts, being an expressive organization, could not be compelled to include the member if doing so would contradict their organization’s expressed values. This case, while it did not explicitly balance religion against anti-discrimination, demonstrated how the court may value other First Amendment rights over anti-discrimination. Similarly, in Masterpiece Cakeshop v. Colorado (2018), a bakery owner refused to make a wedding cake for a gay couple, citing his religious opposition to gay marriage. The couple took their complaint to the Colorado Civil Rights Commission, which charged the cake shop with discrimination under the Colorado Anti-Discrimination Act (CADA). The Supreme Court had to reconcile the religious rights of the owner and the compelling interest that the state had in protecting gay marriage. Like in Lukimi, Justice Kennedy stated that “...the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” The court ruled that the owner’s religious rights were violated because of targeted conduct by the state. The Commissioner of the Colorado Civil Rights Commission had made remarks about religion which the court found “as inappropriate and dismissive comments showing lack of due consideration…” for the bakery’s claims. The court noted that the State of Colorado had demonstrated religious hostility towards the baker through its comments, which ultimately led to the court ruling in the baker’s favor. Yet, the court did not rule on whether the baker had the right to refuse service based on religious claims. The case left the question of this conflict with the Free Exercise Clause open, as it did not outweigh free exercise and anti-discrimination against one another. Similarly, in Fulton v. Philadelphia (2021), the City of Philadelphia banned Catholic Social Services from placing children into foster homes. Catholic Social Services had refused to place children into homes with same-sex couples, thus leading the city to terminate the service’s contract. Here, the court applied the Smith test to determine whether Philadelphia’s actions were neutral and generally applicable. The Roberts Court applied strict scrutiny and found that the “...provision is not generally applicable as required by Smith” as the City Commissioner had discretion to pick and choose exemptions as to who can receive foster home status. Thus, the court ruled that the city had no compelling interest in denying Catholic Social Services status. The court held that the city had violated the free exercise rights of Catholic Social Services by excluding it from the foster care system for its religious beliefs. While Smith initially confined the scope of religious exemptions, Fulton and Lukumi demonstrated the court’s inconsistent application of Smith’s precedent. Yet, the court still had not addressed the conflict of how anti-discrimination laws weigh against free exercise rights. Finally, in 303 Creative LLC v. Elenis (2023), a website designer refused to create marital websites for gay couples, citing it was against her religious beliefs. In this case, Justice Gorsuch wrote that the Colorado Anti-Discrimination Act was unconstitutional, as it compelled “...an individual to create speech she does not believe.” While Masterpiece avoided a broad ruling on free exercise against anti-discrimination claims, Fulton and 303 Creative indicated the court’s willingness to constrict Smith and strike down generally applicable laws when they conflict with religion. Furthermore, Masterpiece, Fulton, and 303 Creative all demonstrate that the court leans towards religious free exercise over anti-discrimination laws. These cases gave insight for the direction the court would eventually rule. They demonstrated that the court’s jurisprudence had to balance the collision between adherence to anti-discrimination laws and religious beliefs, often leaning towards the latter. These precedents provided a foundation for the Petitioners’ arguments. As they based their claims within the court’s recent religion-privileging rulings, the Petitioners sought to extend parental and free exercise doctrinal trends. IV. Arguments for Petitioner A. Free Exercise Burden First, the parents established the court’s precedent in recognizing parental rights over their children’s upbringings. They laid out the court’s history in allowing parents to have a say in selecting their child’s education through Espinoza v. Montana Dep’t of Revenue and Meyer v. Nebraska. They then cited Pierce, noting the court held that “...a law mandating public education violated ‘the right of parents to choose’ for their children an ‘appropriate mental and religious training’ in a private religious school.” The Petitioners continued by citing the Barnette case, “...emphasizing that ‘compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation’ ‘fails to accord full scope to the freedom of religion…’” Here, the parents asserted a broader conception of coercion that treats exposure of children to the LGBTQ+ books as religiously objectionable. By making children sit in on lessons that present LGBTQ+ identities, the Petitioners argued that schools compel an impressionable endorsement of such ideas, even without explicit verbal affirmation. Furthermore, the Petitioners argued that by claiming ideas of gender and sexuality as a fact of life, it coerces elementary students to believe ideas contrary to the religious beliefs of their parents’ upbringings. Most notably, the parents drew a parallel between the facts in their case and the Yoder case. The parents asserted that “...subjecting their children to instruction contrary to their religious beliefs could ‘endanger their own’ standing before God ‘and that of their children.’” As it was ruled, the Amish faced a burden on their free exercise rights over their children’s religious upbringing by having to send them to school after the 8th grade. Similarly, the Petitioners here claimed that “...in response to the Petitioners’ requests to opt their children out for religious reasons, the Board ultimately prohibited that religious exercise.” The Petitioners treated Yoder as affirming religious parental opt-out claims as a broad constitutional right. As a result, the Petitioners claimed they can no longer “...direct their children away from religiously objectionable instruction on gender and sexuality.” Furthermore, the Petitioners argued for an expansion of the rights set by Yoder. As Yoder only applied to religious objections beyond the 8th grade level, Mahmoud v. Taylor sought to broaden parental opt-out rights beginning with K-5 elementary schools. The Petitioners also noted that their claim was supported by the history and traditions test outlined in the Kennedy case. The parents contended that children lack the maturity to comprehend gender and sexuality, and that they are the most prone to making ill-considered decisions as a result. They added on by claiming that Yoder outlined its ruling “...based on the student’s age”and “the realities of adolescent development…” The Petitioners used this to illustrate that Yoder had recognized the need to protect children from exposure to topics appearing controversial to parents. Additionally, they argue that “...further ‘exposing… children to worldly influences’ would substantially interfere with the religious development of children.” The Petitioners fitted this into a Kennedy-Yoder framework by demonstrating that jurisprudence has maintained a history of granting parents the right to protect their children from topics that conflict with their religion, as it would impair the religious development of a child. B. Non-Neutrality and General Applicability Next, the parents claimed that MCPS’s actions regarding the removal of the opt-out policy are targeted at religion and thus fail the generally applicability requirement under the Smith test. The parents claimed that under Fulton, “The existence of a ‘formal mechanism for granting exceptions…’” is a discretionary policy which was used in this case to burden the parental religious upbringing of their children. Furthermore, they claimed under Kennedy, government policies that “...include categorical exceptions that treat religious requests for accommodation differently than ‘comparable’ secular requests” also fail the general applicability prong. In the case of MCPS, the parents claimed that the removal of the opt-out policy is based on an arbitrary system of discretionary classification, similar to the system contested in Fulton, to incorporate discussion of sexuality into the K-5 curriculum. The parents also used the Lukumi framework to claim the removal of the opt-out policy as biased. They claimed that “Masked discrimination can be shown through ‘the effect,’ ‘design,’ and ‘net result’ of a government policy.” The Petitioners argued that the Board’s abrupt notice to withdraw the opt-out option solely for the LGBTQ+ storybooks—an area with an abundance of religious controversy—burdens predominantly religious families. Additionally, the Petitioners argued that under Masterpiece Cakeshop, “‘Official expressions of hostility to religion,’ especially when ‘not disavowed’ by the decisionmaker ‘ at any point…’ are also inconsistent with what the Free Exercise Clause requires.” Here, the parents asserted that Board members made open comments expressing such hostility to the parents, and at no point were they ever disavowed. Pulling from Lukumi and Cakeshop, the Petitioners argued that repealing the opt-out system was a form of religious discrimination and hostile targeting of opposing views. C. Interpretation of Strict Scrutiny Finally, the parents claimed that the removal of the opt-out policy does not satisfy strict scrutiny. They argued that MCPS’s interests in a desire to promote inclusive civic values should not succeed when placed against the history and traditions framework. Parents have historically maintained a strong presence in guiding their children’s moral and civic upbringing. Even if the school district held a compelling interest in wanting to ensure a safe learning environment, the Petitioners claimed that “an interest unjustified by history or tradition is presumptively not compelling” as the Board has not demonstrated classroom disruption as a result of the religious opt-outs. Thus, the Board has an obligation to continue its opt-out policy. V. Arguments for Respondent A. No Established Cognizable Coercion In response, the Respondents alleged that the Petitioners’ misinterpreted the standards of coercion. The Respondents asserted that there is no cognizable burden on religion that constitutes true coercion. They argued that the Petitioners omit from their analysis that coercion is “...government action that ‘deters or discourages’ religious beliefs or practice…” Under this construction of coercion, the Respondents moved to demonstrate that “...public-school students and their parents are not cognizably coerced by students’ exposure in the classroom to religiously objectionable ideas.” In other words, the Respondents argued that cognizable coercion must involve the discouragement of religious beliefs and that mere exposure does not constitute such. They reject the claim that MCPS overlooked parents’ sincere beliefs about which the storybooks violated their religious rights. Rather, they asserted the evidence that parents are “...not cognizably burdened by virtue of their belief… that their children’s exposure to ideas in public schools conflicts with their obligation to raise their children in accordance with their faith.” Citing Barnette, MCPS focused on how the court clarified that “...parents and their children would not have been cognizably ‘coerced’ if the students were ‘merely made acquainted with the flag salute…” Here, the Respondents distinguished this case from Barnette in which flag saluting was merely an exposure to an idea when it was performed in schools. Flag saluting only became coercion once students were required to communicate acceptance of the ideas. Where Barnette involved coercion by compelling students to engage in communicative action, the Respondents in Mahmoud contend that students were merely required to engage in passive listening. The Respondents used this framework to distinguish that they were not undermining the religious beliefs of the parents by merely exposing students to the storybook characters. The Respondents then moved to counter the Petitioners’ interpretation of compulsion. Whereas the Petitioners argued that the storybooks compel their children to learn about gender and sexuality at the elementary level, the Respondents claimed that the storybooks “...merely introduce students to characters who are LGBTQ or have LGBTQ family members and those characters’ experiences and points of view.” In other words, MCPS’s policy contemplated only exposure to certain identities rather than explicit instruction or coercion resembling Barnette that would force children to change their beliefs about gender and sexuality. By contrast to the Petitioners, the Respondents claimed that coercion only arises when students are forced to adopt or affirm ideas. They distinguish that the Petitioners misinterpreted Barnette, and that Barnette instead would have “...approved of instruction through which elementary-school students are ‘merely made acquainted with’ material to which their parents object.” The Respondents drew a different interpretation of the Barnette framework, asserting that exposure to controversial ideas such as the ones posed by the storybooks are constitutionally permissible. The school district maintained that the storybooks served a broader purpose for lessons on mutual respect, consistent with the school’s “obligation to promote civic virtues…” established in Ambach v. Norwick. The school district also affirmed the Sixth Circuit ruling in Mozert v. Hawkins County Board of Education that held the court has “...never taken the ‘significant step’ of ‘imposing on school boards the delicate task of satisfying the ‘compelling interest’ test to justify each instance of not dealing with students’ individual, religiously compelled, objections.’” The Respondents argued that if Hawkins County were overturned, that “public schools simply cannot accommodate opt-outs and create alternative lesson plans any time these or countless other religiously objectionable concepts arise…” B. Opt-Out Precedent MCPS claimed that Yoder is distinguishable from what the parents assert as the extent of parental rights to control the upbringing of their children. The district claimed that the parents in Yoder made a convincing claim of coercion, whereas the parents in the case at hand have not. They claimed that the Petitioners “seek to pick and choose among curricular elements at public schools in which they have chosen to enroll their children.” Meanwhile in Yoder, it was “...compulsory ‘high school attendance with teachers who are not of the Amish faith… [that would] expose the plaintiffs’ children to ‘worldly’ influence in conflict with their beliefs.” The Respondents thus distinguished the difference of removing a child from schooling holistically, rather than from individual classroom instruction. They argued that the Petitioners “...ignore this fundamental aspect of Yoder , [which] ‘strongly showed’ that the challenged law prohibited the plaintiffs from imparting their religion to their children at ‘home…’” In contrast to Yoder , the district showed that the Petitioners do not refute the claim that the exposure to classroom materials interferes with their ability to freely impart their religion on their children at home. Therefore, the Respondents did not see Yoder as a comparable precedent to evaluate the Petitioners’ claims. Instead, the school district confines Yoder to specifically pertain to withdrawal from school entirely as opposed to individual classroom lessons. C. History and Tradition The Respondents claimed that the Petitioners’ analysis of the history and traditions test is incorrect. They claimed that the Petitioners relied on “...the historical treatment of ‘instruction on gender and sexuality…’ [which] is beside the point because the storybooks are not used for such instruction.” The Respondents continued by asserting the correct application of the history and traditions test “...is that of courts approving public schools’ denial of parental opt-out requests.” The Respondents listed various state-level cases rejecting parental requests to excuse children from individual lessons. They note that courts have recognized the impracticality of allowing parents to pick and choose the curriculum of their children, and that it “would be a power of disorganizing the school… rendering it substantially useless.” D. Policies Are Both Neutral and Generally Applicable The Respondents asserted that the no-opt-out policy “...treats religious and secular conduct the same.” The school district contested that “...the conduct MCPS forbids (opt-outs from the storybooks) is not religious, nor is the conduct MCPS permits (opt-outs from the health-education curriculum) secular” as opposed to the opposite claims made by the Petitioners. Additionally, MCPS granted all requests for opt-outs from sex education but none for English Language Arts (ELA) curriculum including the challenged storybooks. Furthermore, MCPS also contends that the no-opt-out policy is not discretionary, unlike in Fulton. Given this, the school district maintains that the Petitioners are not being singled out for any harsh treatment, nor does the Board of Education’s history “...compromise[s] the general applicability of its no-opt-out policy….” Unlike the Petitioners’ arguments based on Lukumi and Cakeshop, the Respondents rely on the Smith framework and emphasize that their policies apply equally to all ELA content regardless of viewpoint. Therefore, the school district asserts that neutral and general applicability is satisfied under Smith. VI. Direction of the Court On June 27th, 2025, the Roberts Court ruled in favor of the Petitioners. The court granted a preliminary injunction for Montgomery County Public Schools to continue the opt-out policy. In other words, the court mandated that the status quo—the opt out policy— continue while the case moved back to the lower courts. Given the Roberts Court’s previous ruling in 303 Creative, Masterpiece Cakeshop, and Fulton, this was expected as the court has consistently placed parental religious exercise as a higher priority than many other rights. The ruling substantially expanded parental free exercise rights within the Yoder framework. During the oral arguments, several justices posed questions about what it meant for children to be exposed to controversial material, such as the storybooks, as opposed to what it means for their beliefs to be actively coerced. Justice Barrett, who joined the majority in favor of the petitioners, raised the point during the oral arguments that “Presentation of an idea as fact, such as telling students that ‘this is the right view of the world,’ … is different from exposure—such as telling students that ‘some people think’ a particular thing.” Justice Gorsuch built upon this by claiming that a teacher telling children a normative stance on a subject goes beyond mere exposure. In the context of the storybooks, Justice Gorsuch implied that teaching children that views are hurtful or non-inclusive meets the definition of coercion against the Petitioners’ religions. Justice Alito also sided with the parents, noting that “...under the county’s current policy a school can teach children moral principles that are ‘highly objectionable to parents and they can’t opt out.’” These questions alluded to Justice Alito’s majority opinion, ruling that the storybooks presented to elementary students in MCPS “...are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected” which Yoder found unacceptable. The majority rejected the Respondent’s interpretation of Yoder, which they saw unnecessarily “confined Yoder to its facts.” Ultimately, the storybooks’ biased presentation of ideas and values led the majority to understand their compulsory exposure to students as a threat to parental religious upbringing. Mahmoud v. Taylor had the potential to directly address the conflict between school discretion to expose children to certain perspectives and free exercise rights. The court instead focused narrowly on the context of the case. Alito stated that the court could not accept “...the Board’s characterization of the ‘LGBTQ+-inclusive’ instruction as mere ‘exposure to objectionable ideas’ or as lessons in ‘mutual respect.’” This poses the question of what schools should consider as mere exposure against religious infringement going forward. However, no precedent or doctrine was established to determine how to evaluate these types of cases. The court had rejected the Respondents’ interpretation of Barnette that coercion only occurs when students are forced to accept ideas that are contrary to their religious beliefs. While Barnette dealt with the type of coercion that required students to make affirmations against their religious beliefs, Justice Alito asserted that Free Exercise Clause protections do not exclusively apply to this specific context. The court has “held that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children.” Here, the majority expanded the definition of coercion in the classroom. Coercion may extend beyond mere affirmation of ideas. The exposure of LGBTQ+ identifying characters to students is a subtle form of coercion which directly conflicts with parental religious childrearing. In her dissenting opinion, Justice Sotomayor argued that the court “has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim.” She argues that simple exposure to ideas contrary to one’s beliefs does not directly nor indirectly compel an individual “to give up or violate their religious beliefs.”However, Justice Alito disagreed with this interpretation of the Free Exercise Clause, and saw it as too narrow. “The dissent sees the Free Exercise Clause’s guarantee as nothing more than protection against compulsion or coercion to renounce or abandon one’s religion.” Rather, the majority saw that the First Amendment’s protections extend to less obvious forms of coercion. The issue raised by the storybooks in Mahmoud is what Alito and the majority view as subtle coercion. During his questioning in the oral arguments, Justice Kavanaugh seemed unconvinced by the Respondent’s argument that opt-outs are administratively infeasible. He brought up the point that eliminating opt-outs seem inconsistent “...when ‘every other school board has opt-outs for all sorts of things.’” This concern was affirmed in the court’s ruling, claiming “the Board cannot escape its obligations under the Free Exercise Clause by crafting a curriculum that is so burdensome that a substantial number of parents elect to opt out.” VII. Social Implications A. LGBTQ+ Books in Schools The implications of the court siding with the Petitioners may raise questions about how much control parents can maintain over their children’s exposure to LGBTQ+ topics in the classroom. Since 2021, “‘Parental rights’ bills, [have sought] to increase parents’ ability to control their children’s access to information about race and racism, comprehensive sexuality education, and discussions of sexual orientation and gender identity.” Specifically, “...school boards and parent groups have increased their efforts to ban books from school and public libraries, with a special focus on books that discuss LGBTQIA+ identity.” The question of the LGBTQ+ identity in conflict with parental beliefs and religious rights persists, especially after the court’s ruling in June. The court’s ruling may preserve parental childrearing control by giving them more say in their children’s curriculum. However, the court’s ruling also creates challenges on how schools will approach lessons on inclusivity to young students. In her dissenting opinion, Justice Sotomayor stresses the civic importance of teaching children how to live in a multicultural society in harmony with ideologies such as those presented in the storybooks. “Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents’ religious beliefs.” On the other hand, many parental rights advocates would claim that state police powers are “...limited to what is ‘plainly essential to good citizenship,’ such as literacy, numeracy, and civic knowledge. Controversial sexual ideologies don't meet this bar.” There still remains a lingering debate between parents' rights and LGBTQ+ advocates as to whether learning about the LGBTQ+ identity furthers or hinders civic virtues, and the extent to which it should be included in classroom material. It seems that with the ruling, at least at the elementary level, lessons exposing students to LGBTQ+ identity do not imperatively further civic knowledge in the classroom. This ruling still leaves questions as to how inclusivity is defined in teaching students civic morals, and how LGBTQ+ identity plays a role. Critics of the majority opinion would argue that exposure to LGBTQ+ identity should play a larger role in children’s education. They “...contend that [measures reducing exposure to LGBTQ+ identity] infringe on children’s right to education and undermine the state’s responsibility to provide comprehensive and inclusive education.” In Florida, Governor Ron DeSantis signed the “Don’t Say Gay” law, which Pro-LGBTQ+ supporters claim is aimed to “...chill the discussion of LGBTQ issues in public schools.” Pro-LGBTQ+ activists and student plaintiffs may claim “...(1) First Amendment claims for violations of a student’s right to receive information and (2) Fourteenth Amendment claims for Equal Protection violations.” The ruling in Mahmoud v. Taylor could have potentially served as a “...binding precedent that guides lower courts in assessing a right to receive information claim.” However, given the narrow scope of the majority opinion, the case does not provide a clear guiding precedent that can be applied in other cases. B. Exigency of the Classroom Justices Kagan, Sotomayor, and Jackson raised concerns over what parental dictation could mean for public educational curricula. Justice Sotomayor, in her dissent, noted that “The crucial word in the constitutional text is ‘prohibit,’ for it makes clear ‘the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’” The dissenting justices’ attempted to bring the expansion of the Free Exercise Clause into question by asserting that the purpose of the Free Exercise Clause should solely be to protect individuals from religious coercion rather than accommodate the individual for their practices. Essentially, they see the majority’s expansive interpretation of the Free Exercise Clause as an overreach of what constitutes religious rights. However, the majority refuted this by alleging that under the dissent’s interpretation, “...even instruction that denigrates or ridicules students’ religious beliefs would apparently be allowed.” Notably, “the parents’ proposed rule would have a wide sweep, giving them broad discretion to opt out.” Justice Kagan also expressed concern that such a ruling would permit parents to “...decide that it is unfair for their children to have to leave the classroom to avoid the materials to which they object, leading to a challenge to the materials themselves.” For instance, after the State of Florida banned Advanced Placement Psychology in high schools, the American Psychological Association claimed that “understanding human sexuality is fundamental to psychology, and an Advanced Placement course that excludes the decades of science studying sexual orientation and gender identity would deprive students of knowledge they will need to succeed in their studies…” Giving parents broader leeway to parse out subjects from their children’s curriculum based on their objections could undermine the integrity of certain curricula. The court’s ruling is presumably narrow enough to encompass only elementary lessons on LGBTQ+, gender, and sexuality-related topics. However, it still leaves questions as to how much latitude schools have to teach lessons on civic knowledge or inclusivity at the elementary level. Furthermore, many critics have expressed concern over the ruling’s impact in establishing safe learning environments and teaching students to treat one another with respect. Some scholars suggest the inclusion of picture books or story books with LGBTQ+ characters could “...help children develop tolerance for different lifestyles…” Thus, critics were wary of the precedent that the outcome could set for viewpoint discrimination against topics on gender, sexuality, and exposure to LGBTQ+ perspectives. Previously, Justice Brennan noted in Keyishian v. Board of Regents that “The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’" However, other scholars assert that even the most knowledgeable teachers can have difficulty guiding elementary-level conversation and curiosity surrounding perceptions of sexual identity and gender. C. Equal Protection LGBTQ+ activists argue that the “Don’t Say Gay” laws, “violate the Constitution’s equal protection guarantees, regardless of what level of scrutiny applies to them.” They recognize the potential for viewpoint discrimination that would target the LGBTQ+ experience. The Mahmoud case does not directly address such a question of equal protection nor does it determine if laws against LGBTQ+ viewpoints count as viewpoint targeting. However, the majority’s ruling for parents’ rights could still hold future implications for viewpoints of the LGBTQ+ community to be taught in schools. While schools still maintain the power to teach civic lessons on inclusivity— including on gender and sexuality in a literary context—parents may now remove their children from these lessons. This raises the question of the extent to which parents may remove their children from various lessons that interfere with their religious upbringing. VIII. Conclusion The Supreme Court ruled in favor of the Petitioners in Mahmoud v. Taylor setting the precedent that parents maintain the right to opt their children out of classroom instruction pertaining to LGBTQ+ characters in storybooks. The Roberts Court expanded upon Yoder, thereby giving parents broader discretion over the information to which their children can be exposed. While this ruling did not serve as a revolutionary doctrinal shift to free exercise and parental rights jurisprudence, it continued the court’s trend of giving greater weight to free exercise rights in school environments. It reaffirmed that schools must accommodate when elementary lessons interfere with parental religious exercise rights. Questions regarding how hybrid rights, general applicability and non-neutrality are to be defined under the Smith test remain unanswered by this decision. Furthermore, the ruling presents unanswered questions as to how education on civic values can occur within schools when parents are granted more power over their children’s exposure to potentially religiously disagreeable viewpoints. Finally, the decision furthers a trend among First Amendment cases in which free exercise rights are favored over LGBTQ+ perspectives and viewpoints. IV. Bibliography Primary Sources U.S. Const amend. I. U.S. Const amend. XIV. Boy Scouts of America v. Dale , 530 U.S. 640 (2000). Carson v. Makin , 596 U.S. 767 (2022). Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520 (1993). Engel v. Vitale , 370 U.S. 421 (1962). Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990). Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020). Fulton v. City of Philadelphia, 593 U.S. 522 (2021). Kennedy v. Bremerton School District , 597 U.S. 507 (2022). Keyishian v. Board of Regents , 385 U.S. 589 (1967). Lemon v. Kurtzman , 403 U.S. 602 (1971). Mahmoud v. Taylor, 606 U. S. ____ (2025) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , 584 U.S. 617 (2018). Obergefell v. Hodges, 576 U.S. 644 (2015). Pierce v. Society of Sisters , 268 U.S. 510 (1925). School District of Abington Township v. Schempp , 374 U.S. 203 (1963). Sherbert v. Verner, 374 U.S. 398 (1963). Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969). Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S. 449 (2017). West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943). Wisconsin v. Yoder , 406 U.S. 205 (1972). Zorach v. Clauson , 343 U.S. 306 (1952). 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). Brief for Petitioner, Mahmoud v. Taylor , No. 24-297 (U.S. Mar. 3, 2025). Brief for Petitioner, Mahmoud v. Taylor , No. 24-297 (U.S. Mar. 3, 2025). Secondary Sources American Psychological Association. “Sexual Orientation and Gender Identity Are Not Being Discussed in Many Florida High Schools, Survey Finds.” Press release, June 6, 2023. https://www.apa.org/news/press/releases/2023/06/sexual-orientation-gender-identity-florida-high-school . Cassaro, Thomas M. “LGBTQ Parent Concerns and Parent–Child Communication About the Parental Rights in Education Bill (‘Don’t Say Gay’) in Florida.” Family Relations 73 (2024). Howe, Amy. “Supreme Court Likely to Rule for Parental Opt-Out on LGBTQ Books in Schools.” SCOTUSblog . April 12, 2025. https://www.scotusblog.com/2025/04/supreme-court-likely-to-rule-for-parental-opt-out-on-lgbtq-books-in-schools/ . Mahmoud v. Taylor , Oyez, www.oyez.org/cases/2024/24-297 . Moschella, Melissa. “Nonreligious Parents Have Rights Too; In Mahmoud v. Taylor , the Supreme Court Should Hold That No Declaration of Faith Is Required to Opt Children Out of Sexual Indoctrination Lessons.” Wall Street Journal , April 21, 2025. ProQuest. Petterson, Hadyn. “Blaine Amendments: An Overview for Religious Educators.” Napa Legal Institute, October 6, 2025. https://www.napalegalinstitute.org/post/blaine-amendments-an-overview-for-religious-educators . Pohlman, Zachary. “Oral Argument: Mahmoud v. Taylor – Petitioners.” The Federalist Society . April 5, 2025. https://fedsoc.org/commentary/fedsoc-blog/oral-argument-mahmoud-v-taylor-petitioners-supreme-court . Pori, Bella Mancini, and Edward Stein. “Multi-Generation Queer Families: Foregrounding the LGBTQIA+ Children of LGBTQIA+ People.” Georgetown Journal of Gender and the Law 26 (2024). www.law.georgetown.edu/gender-journal/in-print/volume-xxvi-issue-1-fall-2024/multi-generation-queer-families-foregrounding-the-lgbtqia-children-of-lgbtqia-people/ . Reingold, Rebecca, et al. “SCOTUS Takes Up Inclusive Education: Mahmoud v. Taylor in a Global Context.” April 16, 2025. https://oneill.law.georgetown.edu/scotus-takes-up-inclusive-education-mahmoud-v-taylor-in-a-global-context/ . Rosky, Clifford. “Anti-Gay Curriculum Laws.” Columbia Law Review 117 (2017). https://columbialawreview.org/content/anti-gay-curriculum-laws/ . Smolkin, Laura B., and Craig A. Young. “Research Directions: Missing Mirrors, Missing Windows: Children’s Literature Textbooks and LGBT Topics.” Language Arts 88, no. 3 (2011). https://www.jstor.org/stable/41804253 Previous Next

< Back Mine Provides the Coffin Philip Maxson Author Samantha Gerber Maya Martinez Eleanor Triedman Editors Abstract To stay below 2.0 °C of anthropogenic warming, the globe must push for the rapid development of clean energy technologies. To mobilize this development, a significant emphasis is being placed on critical mineral extraction for green energy and national security purposes. However, this extraction has been shown to have significant detrimental human rights effects. This paper analyzes the role critical minerals have in clean energy, and the role China plays as the dominant producer/processor of critical minerals. Theoretically, this paper posits 4 categories of human rights violations: (1) Environmental Issues, (2) IPLC Rights, (3) Labor Issues, and (4) Violence. By drawing on Kara’s (2023) fieldwork in Katanga, as well as various NGO (Amnesty International, Human Rights Watch) reports, Government Reports, and UN documentation, this paper uses the Democratic Republic of the Congo as a case study to examine human rights abuses in the cobalt mining supply chain through storytelling. This paper suggests that the energy transition must be coupled with policy tools to address human rights abuses, ensuring the globe commits to not just a clean transition, but a just transition. The paper suggests three focus areas to help couple the clean energy transition with a just transition: Shared Governance and Legalized ASM, Shared Prosperity and Economic Benefits, and Effective Due Diligence. Introduction: Critical minerals have increasingly been the focus of domestic and international policy within the United States. Since taking office in 2025, U.S. President Donald Trump has directed significant focus on the acquisition of critical minerals and the national security imperatives of critical mineral access. In February, controversy surrounded a proposed U.S. bilateral agreement with Ukraine, wherein Ukraine would pay back U.S. aid and military assistance by signing over rights to their critical mineral deposits; which, according to the most recent estimates, total $126 trillion worth. Following, on March 20th, the President signed an executive order increasing domestic production of minerals under the guise of national security.,Additionally, on April 24th, the White House signed an executive order directing the Department of Commerce to “pursue the exploration and exploitation of deep-sea resources both within the U.S. exclusive economic zone (EEZ) and areas beyond national jurisdiction.” Critical minerals have become part of a broader policy goal of the Trump Administration to “Unleash American Energy,” and to localize critical mineral mining and processing within the United States. But the fascination with critical minerals is increasing around the globe, with many countries seeking to increase access to these vital resources. The control of critical minerals has become a national security priority for many countries in the “West.” Their use in technology, specifically weapons and security tech, as well as infrastructure and manufacturing, has made securing access to mining rights, processing strength, and stockpiles a critical defense strategy against unanticipated demand spikes or supply chain disruptions. Currently, China has global control over critical mineral mining and processing, which has left countries such as the U.S. and the EU wary of supply chain risks and security. As a result, many countries have sought to expand their control over these sources. And, the increasingly rapid cycle of commodity use in the 21st century has led to a clear spatial expansion of extractivism across the globe. This expansion of the critical mineral extraction and processing industry is increasingly dangerous for local actors. Human rights abuses, sexual violence, child labor, and environmental destruction are rampant throughout extractivist industries; especially those that are linked to critical minerals. Despite this, critical minerals are also positioned as vital for a clean energy transition and a post-carbon world. This paper seeks to explore the connection between critical minerals, the global supply chain, and human rights abuses. First, this paper traces the need for critical minerals in the clean energy transition and the role of China’s control over resources. Following, this paper goes in depth into the political ecologies of the extractive industry and the violence inherent in critical mineral extraction. By focusing on the Democratic Republic of the Congo as a case study, this paper details how histories of colonialism and resource extraction have been exacerbated by the clean energy transition, and how on-the-ground local ethnographic knowledge can provide critical information on the violence of extraction. Finally, this paper concludes with policy recommendations for the industrial and political world of the U.S., while acknowledging the multifaceted and opaque nature of extractivist violence. This paper hopes to contribute to the ongoing literature surrounding a just clean energy transition. What Are Critical Minerals? Critical minerals (also called ‘critical materials’ and ‘green metals’) are elements necessary for advanced technologies central to our contemporary lives. They are vital for the twin–green and digital–transitions, as new technologies utilise far higher amounts of minerals than more traditional technologies. For example, critical minerals have become necessary for the production of everyday technologies, such as iPhones, device batteries, computer chips, as well as green technologies: solar panels, wind turbines, and battery storage. While often referred to as “critical minerals,” the concept is slightly in flux when it comes to these materials. Elements such as these are predominantly metals, but can be non-metal elements and minerals, as is the case with arsenic (a metalloid). The criticality, in this instance, refers specifically to their vitality for various energy and technological uses, and their risk in the global supply chain. Minerals that have become necessary for our smartphones and batteries, for instance, are considered critical due to their importance in the U.S economy, but also because of the heightened chance of supply chain disruption. Supply chain disruption refers to a vast array of issues, but the most prominent is a small concentration of minerals and global monopolies. For example, ruthenium, rhodium, and palladium are all present in very minimal concentrations as by-products of platinum processing; they can, then, experience disruption of the supply chain due to how limited production capabilities are. Additionally, some minerals are market concentrated at the processing stage, such as copper, cobalt, and lithium as China holds over 40% of the global smelting and refining capacity. Critical minerals can also be viewed in contrast with “traditional minerals,” which often have well established extraction and refining processes and supply chains; gold, nickel, and coal all fit within the more traditional mineral model, but notably have very little place in a green energy transition. Our use of critical minerals is expected to increase drastically as a result of the clean energy transition. To put emissions on track with the Paris Agreement would require a significant scaling up of clean energy deployment across the globe. Annual installation of solar photovoltaic cells, wind turbines, and electricity networks must expand by about 3x their current levels by 2040. In the same period, electric car sales must expand 25x over. As a result, our reliance on critical minerals will increase. A typical electric car requires 6x the mineral inputs as a traditional car, and an offshore wind plant requires almost 9x the mineral resources as a gas plant of the same capacity. Additionally, the construction of wind farms and electric cars uses seven different types of minerals, while a natural gas power plant and a conventional car use only two. While demand forecasts do fluctuate over time, the best estimates show that, to reach net Zero demand is expected to triple for copper and cobalt, more than triple for zinc, and grow more than fivefold for lithium and manganese. Since 2010, our mineral demand per new unit of power generation capacity has increased by 50%. Suffice to say: the clean energy transition means a shift to a material-intensive system from a fuel-intensive system. China’s control over critical minerals China is the dominant player in global mineral processing. It holds a majority of rare earth elements, and dominates the midstream (processing and refining) and downstream (manufacturing) stages of critical minerals supply chains. Apart from processing the minerals mined within, China is also the destination for the processing of minerals mined in other countries. Additionally, China is the primary producer of a majority of technologies that come from critical minerals, such as solar PV cells. This vast control over the production and export of critical minerals has shaken other countries. There is concern that the high level of dependence on China for these minerals will create energy security risks. The U.S. and the EU have both grown increasingly wary of this issue and have moved to build out their own critical mineral supply chains and production facilities. Despite this, currently, China still holds a strong grasp on the critical mineral industry. Globally, China refines 68% of nickel, 40% of copper, 59% of lithium, and 73% of cobalt and is by far the world’s leading producer (60% of the global production share, but down from 95% in 2010) and processor of rare earth elements (REEs), such as neodymium, which are used in motor technologies for EVs and wind power technologies. The U.S. The Department of Energy projects that “demand for rare earth elements for wind power alone could exceed the supply for all uses by 1.6 to 3.5 times over. China has also become the globe’s most strategic player in the production of battery cells. They produce 70% of cathodes, which are the most important component and can account for half the cost of a manufactured cell, 85% of anodes, 66% of separators, and 62% of electrolytes. For electric vehicles, China holds 78% of the world's cell manufacturing capacity for batteries and hosts three-fourths of the world's lithium-ion battery megafactories. This makes China the largest consumer of the minerals it refines. Despite the lack of direct domination in mining for critical minerals, China (and Chinese companies) has made several moves to secure raw mineral inputs globally through investments and deals. Chinese firms have moved to make direct investments into international mining projects and companies, and have acquired part-equity stakes in major operations in emerging economies. For example, in 2018, China's Tianqi Lithium purchased a 24% stake in SQM, a major lithium producer in Chile. Ganfeng Lithium has acquired stakes in mining projects in Argentina, Ireland, Chile, and Australia. CATL, a major EV battery manufacturer, has acquired Canada-based Millennial Lithium and stakes in Australian lithium mining companies, as well as copper-cobalt mines in the Democratic Republic of the Congo (DRC). Finally, Suzhou CATH Energy Technologies is investing in a lithium and tin project in the DRC through a joint venture, earning a 24% equity interest. These deals have also been beneficial for cornering partnerships with electric vehicle manufacturers and the industry that requires these minerals. Some foreign automakers seeking to secure supplies have collaborated with Chinese companies, such as Volkswagen, forming joint ventures with Huayou Cobalt and Tsingshan Holding Group to secure nickel and cobalt. In this regard, a company may feel forced to make a deal in partnership with a Chinese firm to secure access to vital minerals. China’s control over critical minerals has also developed a distinct spatial factor. As part of its Belt and Road Initiative, China has taken a distinct interest in African nations for resource extraction. No other country serves as such a dramatic example as that of the Democratic Republic of the Congo. Chinese-backed companies own or have a financial stake in 15 of the 19 cobalt-producing mines in the DRC. In the cobalt supply chain, Chinese control over mining and intermediate production comes almost entirely from outward foreign direct investment (OFDI) in cobalt-producing facilities in the DRC. After purchasing the majority shares of Tenke Fungurume in 2016 and 2017, Chinese-controlled production was over half of the DRC's chemical refinery production. China has shown little desire to show proper due diligence in its critical mineral supply chain. Despite having two legal frameworks to ensure responsible sourcing and compliance with environmental, social, and governance (ESG) standards, regulation is lacking. The China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC)’s Guidelines for Social Responsibility in Outbound Mining Investment and the CCCMC’s Due Diligence Guidance, both call for a commitment to human rights in mining efforts, and to identify, address, prevent, and mitigate risks associated with their activities or sourcing decisions. In actuality, however, these regulations have not been deemed enforceable. And, as this paper will explore later, the global critical mineral supply chain is so opaque that many efforts to ensure proper due diligence fall flat. Human Rights and the Critical Mineral Trade The mining sector has a long history of improper treatment of human rights. From histories of colonialism, blood diamonds, land grabbing that displaces indigenous groups, food contamination that affects nearby communities, and fatal force against workers protesting for livable wages, mining has often failed to be grounded in the principles laid out in the Universal Declaration of Human Rights. The UDHR is the bedrock for standards and principles that govern the mining sector, including the UN Guiding Principles on Business and Human Rights, the Voluntary Principles on Security and Human Rights, and the International Council of Minerals and Metals Mining Principles. And, while many global mining companies have committed themselves to respecting human rights laid out in the UDHR, more work is still needed to ensure a human rights-based approach in mining. For example, despite article five of the UDHR, which states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family,” Mining companies continue to fail to address long-term environmental and health impacts of their commercial activities. Public information surrounding the human rights impacts of critical mineral mining has often been sparse, and used to justify further reliance on fossil fuels. Despite this, focus on the human rights aspect of the clean energy transition is vital for ensuring a just transition for all. A significant portion of critical mineral hot spots are located in countries that are at risk for human rights violations. And, according to a report by the IEA in 2023, over 40% of cobalt, lithium, and copper come from mines with verified human rights abuses. That number, however, is expected to be greater, as human rights abuses are often poorly reported and tallied due to fear of further assaults. Across a majority of mines, there remains a risk for gender based violence (GBV), violence against Indigenous Peoples and Local Communities (IPLCs), environmental degradation, extrajudicial killings, child labor, and a number of other issues. Since the OECD Guidelines for Multinational Enterprises were released, more human rights complaints have been filed against companies in the mining and manufacturing sectors than in any other sector. Due to the spatial realities of mining, human rights abuses become more realized. A majority of mining operations take place in remote areas, with local communities that have poor access to basic standards of living, exacerbating issues. Concerns surrounding human rights violations can most easily be broken into 4 categories: (1) Environmental Issues, (2) IPLC Rights, (3) Labor Issues, and (4) Violence. Environmental Issues: There is primarily concern surrounding the environmental devastation that occurs as a result of critical mineral mining. Most methods used to mine critical minerals today require significant amounts of water for separating minerals, cooling machinery, and controlling dust. Additionally, water contamination from chemicals and mineral tailings is commonplace. Take, for example, lithium extraction. In large areas of Chile, Argentina, and Bolivia – often referred to as the lithium triangle – lithium is acquired through evaporation brine pools in the region's salt flats. This evaporation method uses up to half a million gallons of brine water to extract just one ton of lithium carbonate. And, while the brine water is unfit for other uses, reports have shown that this form of extraction has led to contamination of local freshwater sources and vast depletion of groundwater. In addition to water contamination, ecosystem devastation is commonplace in mining. Just one example is copper, where vast open-air pits carve holes into the crust of the earth, and pollute the air with dust and mine tailings. In a report done by the Business and Human Rights Resource Centre, the leading tracker of mining human rights abuses, environmental devastation makes up almost 29.5% of all tracked violations – the second largest category in their 2024 report. IPLC Rights: The largest category for the report? Infringements on Local Communities. Over 50% of the current critical mineral supply falls in indigenous lands, with 29% of these projects on or near lands over which Indigenous peoples are recognized as managing or exercising some form of control or influence over land for the purposes of conservation. IPLCs are disproportionately at risk for displacement and forced relocation thanks to critical mineral mining. In Indonesia, for example, the PT Vale Indonesia (PTVI) nickel mine has consistently been under scrutiny for its impacts on IPLCs in Sorowako. For more than 50 years, indigenous peoples, local farmers, and fisherfolk have been displaced from their land due to the development of this mine, and reports of harassment by local law enforcement have raised concerns of grave human rights violations. These broader inequities and attacks against IPLC communities are commonplace across mining operations, and thanks to rising demand, more mining is forecasted to take place on IPLC land over the next 50 years. Forced Labor: Forced labor in supply chains is a pervasive issue for the critical minerals sector, and makes up a large amount of human rights violations across the globe. Many miners are paid measly sums – upwards of $1 USD a day for mining – with many being trafficked to their current operation. At nickel processing plants in Indonesia, many workers have been deceptively recruited in China, and once they arrive, they receive a lower wage than promised and work longer hours. Workers regularly experience having their passports confiscated by overseers, having their wages deducted for no obvious reasons, and being subjected to restriction of movement, forced isolation, and constant surveillance. Child labor has also become commonplace across the critical mineral sector. Children as young as six have been made to haul heavy ore, work in narrow and dangerous mines, and come in close proximity to explosives, toxins, and dust; often without proper personal protective equipment. Child miners often work in informal artisanal and small-scale mines, which usually fly under government radars, and leave workers vulnerable to exploitation and dangers. While obviously child labor is abhorrent, the choice is often the lesser of two evils. The choice isn't simply sending a kid to work in the mines or sending a kid to work at school. It's often between putting a kid to work or starving. Violence: Violence is perhaps too broad a category to lump together. It can better be split into its own three distinct categories: Sexual Gender Based Violence (SGBV); torture, cruel and inhumane treatment; and attacks against activists. Women make up upwards of 15% of the global mining workforce, and gender -based inequalities remain pervasive. There continues to be a longstanding masculine dominance in the structures, systems, and policies that make up critical mineral operations. From ‘everyday sexism’ to sexual harassment, assault, and rape, women are subject to gender based violence on an everyday basis. According to the International Institute for Environment and Development, one study that surveyed 12 African countries found that women and girls are exposed to “rape, sexual harassment, sexual exploitation, physical violence, spousal abandonment at the end of their assignment, [and] unwanted pregnancies and abortions” during their time mining. Additionally, economic violence, including failure to promote women and inequitable sharing of resources and income, is pervasive, and harmful gender stereotypes “combine to limit women’s access to resources, capital, education, higher-paying roles, equality in professional and domestic roles, and fair remuneration.” Due to their precarious position, many women often feel forced or coerced to provide sexual favors in exchange for access to work, protection, or payment. Many feel they have no alternative. State forces and paramilitary contractors have repeatedly engaged in cruel and inhuman punishment for dissidents and protestors fighting against mining operations. Workers who protest conditions in the mines are often subject to government repression, arrest, or even slaughter by government forces. In 2016, the Venezuelan government authorized expansion into the Arco Minero del Orinoco, which authorized mining for critical minerals in previously protected lands. Since the authorization, the area has become heavily militarized, and armed groups and criminal syndicates have come to control mining operations and populations. These groups, while the state has turned a blind eye, have consistently been found to be complicit in or committing large-scale human rights violations and crimes against the local populations, including: unlawful deprivation of life, disappearances, extortion, corporal punishment, and sexual and gender-based violence. Additionally, in 2012, during a protest against mining conditions in the Republic of Guinea, state officers fired on protestors, killing 6, and resulting in the unlawful arrest, injury, or torture of 15 others according to the Economic Community of West African States (ECOWAS) Court. Human rights defenders, environmental defenders, and activists specifically bear the brunt of these attacks. While widespread extrajudicial violence against protestors and angry miners is commonplace, activists and defenders experience specific targeted attacks against them and their family members by the state. According to a report by Global Witness, the mining sector has been the main driver of killings against land and environmental defenders. Attacks can include killings, physical violence, harassment, and even SLAPP suits, all of which prove detrimental to the livelihoods and civic rights of activists. Unfortunately, most of these attacks are done by or for the state and go unpunished, fostering a culture of fear for activists. While these human rights abuses are pervasive across the critical mineral industry, no country bears more responsibility than China. Of the mines tracked in the Business and Human Rights Resource Centre report, Chinese-owned mines were responsible for almost a third of violations reported, and almost 80% of direct reports of violence. Additionally, a majority of other mines in the report have some direct ties to Chinese-owned operations or investments. However, due to the opaque nature of the critical mineral supply chain, it is distinctly difficult to track violations back to direct parent companies, and as a result, many more attacks may have had direct ties to Chinese operations. Cobalt: The Blood of the Congo One of the broader challenges in extractivist literature is tracing the connection between the global supply chain and local actors in the commodity chain. The supply chain of critical minerals is often viewed as disconnected and static. As a result, there is a discursive understanding of the actors and interconnections in the critical mineral supply chain. Consistent with Calvão et. al.’s (2023) methodology, the following section of this paper works to place relational and material understanding of natural resource extraction that directly examines the human and social experience through a case study of cobalt extraction in the Democratic Republic of the Congo. By incorporating local, ethnographic knowledge, research, and stories, this section aims to demystify human rights abuses that take place in mining operations. This section draws on Kara’s (2023) fieldwork in Katanga, as well as various NGO (Amnesty International, Human Rights Watch) reports, Government Reports, and UN documentation to illuminate the grave abuses taking place in the DRC. One cannot truly understand the history of Cobalt mining in the DRC without first understanding the nation's history. From 1855 to 1960, King Leopold II embarked on a brutal conquest of the region, laying the groundwork for over a century of genocide, violence, and apartheid. He unleashed one of the more brutal colonial regimes, designed specifically to extract maximum wealth from the Congo and maximum labor from the Congolese people. He turned the territory into a machine. Forced labor, amputations, and genocide under Leopold laid the groundwork for violent extractive industries to run rampant through the Congo. Under the command of Leopold, the Union Minière du Haut-Katanga (UMHK) was founded, and became responsible for copper mining within the country, compelling the Congolese to almost triple their production of copper. Following World War II, the African nations became engulfed in anti-colonial protests. The Belgian Congo’s quest for independence of the late 1950s was led by four charismatic figures: Patrice Lumumba (the nationalist leader) and his three right hands – Joseph Mobutu, Joseph Kasa-Vubu, and Moise Tshombe. Lumumba was elected prime minister in 1958, but the Belgians embarked on a desperate last-minute plan to save the minerals of the Katanga province, and the resulting combat, infighting, and CIA-sponsored coups led to Mobutu seizing control of the country. By 1965, Mobutu had control of the country, renamed it Zaire, and had become a despot in his own right. He nationalized the UMHK under the banner of Gecamines and took direct ownership of the mines. Under his control, the Katanga region became the premier exporter of Cobalt, and the Katanga province became one that many countries sought to seize control of. Following Mobutu’s fall, the Rwandan Genocide, and the two Congo Wars, cobalt had become deeply ingrained in the DRC’s economy. Gecamines experienced a drastic institutional collapse and could no longer pay wages, leading many miners to turn towards artisanal mining. When new leadership under Joseph Kabila took power in 2001, instead of revitalizing Gecamines, the mining code was updated to attract foreign investment, and specifically emphasized Chinese investment with the SICOMINES deal in 2009. Throughout Kabila’s presidency, he continued to engage in wide-scale corruption and kickbacks through Chinese banks, putting his own profit above his people’s. Due to the collapse of Gecamines, artisanal mining surged, and state dysfunction left people with no other livelihoods. The cobalt supply chain has become increasingly informal and dominated by artisanal mining. Creuseurs (diggers) mine by hand in dangerous tunnels or sort tailings from industrial mines. They are searching for heterogenite, a composite of cobalt, copper, nickel, and sometimes uranium. They mine with whatever tools are available, and rarely any PPE. Miners fill large sacks with the ore, which are then tied to ropes and pulled by hand out of the mine shafts, which can be tens of metres deep, or carried up the walls of a large open pit, where miners often fall, breaking their legs or arms. One such case is the story of Tshite and Lubo. Tshite, Lubo’s father, worked every day in a mine at Tilwezembe, making just enough money a day to send his son to school. When Tshite was exiting a mineshaft, it collapsed, shattering his arm. Lubo, despite his father's pleas, was forced to mine to support his family. Lubo began mining under the control of the trafficker Arran, who had upwards of 200 boys locked in contracts and extortive violence at Tilwezembe. When one day Lubo did not return from the mine, Tshite went looking for him. When he arrived, he had guns pointed at him by armed soldiers, and they beat and kicked him while he pleaded, “Where is my son. Show me my son .” After a while, the soldiers took pity on him, revealing that a mine had collapsed, killing 7 of the 40 children in it (almost all of whom had been trafficked by Arran), Lubo included. SAEMAPE, the mine, provided the coffin, but that was all. “I miss Lubo so much. He was my best friend,” Tshite recalls. Similar stories are commonplace in Haut-Katanga. Children are forced to mine in horrific conditions, and many are killed, maimed, or seriously injured in the process. Many of these incidents go unreported as miners may not want to come into contact with the authorities because they are working without licenses in unauthorized mining areas. It is commonplace for miners to die in collapses and to remain there: “They die and are forgotten.” After the heteroginite has been mined, it must be washed. Women and children stand in knee-deep water, contaminated with lead, uranium, and toxic chemicals, washing the dust tailings off the ore. Nothing lives in these ponds. Many miners complain of constant respiratory issues from breathing in the dust, and those washing ore complain of sores and burns from where they must stand in the water. 63% of all workers suffer injury or illness; at artisanal sites, the injury rate reaches 72%. Following the washing of ore, it is delivered to the Negociant, who pays the miner for their product. These negociants then deliver cobalt to depots, which are often upwards of 10 miles away from artisanal mining operations. The introduction of a third-party seller poses risks for distinct inequalities in the mining sector. Negociants offer a fixed price that artisanal miners must accept: usually about $1-$2USD per day's load. However, women are offered lower prices for the same amount of ore – usually only $.80 for a day's work. Women endure significant hardship in the artisanal mining sector. Sexual assault by males in the pit is commonplace. Artisanal miners often drink to distract from the pain and hardship of mining, and drunken rages and assaults have become the norm. Additionally, soldiers and paramilitary forces have been known to assault women, extorting them with the power they wield. Almost every woman in the sector knows someone who has been raped or has been raped herself. But, many have no other alternative. Child labor is pervasive throughout the artisanal mining sector in the DRC. Children make up around 40% of the artisanal mining workforce. Many have been forced to drop out of school to take over mining, as school fees have become too expensive (almost $5-8 a month), or their families are not making enough to support themselves. Children as young as 9 work up to 12 hours a day in the mines, carrying heavy loads, earning very little. Even those who attend school work in the mines during the weekends, on holidays, and in between school hours. On top of the arduous working conditions, children are distinctly at risk of trafficking, sexual assault, and physical assault. To reach the mines, many children must enter mining concessions that security guards patrol – some independent and some employed by the state – who often catch children and physically abuse them. One child, Mathy, described to Amnesty International her experience with the Gecamines’ security guards: “They asked for money, but we didn’t have any…They grabbed my friend and pushed her into a tank containing diesel oil. I was able to run away and hide, but I saw what happened. I cried. I was scared, I ran away and hid, so I saw what happened. ” Children also routinely are extorted by negotiants, guards, and other miners, and forced to pay others to free themselves of harassment, or assault. Child trafficking is also prolific in the mining industry. Due to the increased paramilitary presence of the Mai Mai militias, M23 insurgents, and other members of the 120 active armed groups in the country, paramilitary violence is commonplace. In Le Triangle de la Mort, Mai Mai militai men have reportedly trafficked many children into the artisanal mining sector, forcibly removing them from their parents, or extorting family members with violence. Peter, a young boy from Manono, recounts how Mai Mai militia men “took us from our home… and sold us to a Lebanese man named Ahmed. He made us dig, and he took all of the money. ” Peter escaped from the triangle, but many children do not. The town itself has received its macabre name thanks to the tactics the Mai Mai militia men have used to extort locals to mine. Reports describe torture, murder, and the chopping off of hands and feet – a tactic that is directly descended from Leopold's brutal torture regime. Following the negociant’s purchase of ore, they sell it to Depots, who collect cobalt from artisanal mining and sell it to processors. Almost all depots in the DRC are owned and operated by Chinese nationals. Artisanal cobalt and industrial cobalt are not separated in the Depots, and as a result, there is no way to verify if your cobalt has been tainted by child labor. Eventually, it is bought primarily by CDM, a Chinese-owned smelter and subsidiary of Huayou Cobalt. After smelting, cobalt is shipped to China for further processing and assembly. Of the 70% of the global cobalt supply that comes from the DRC, and although estimates are tricky, it's possible that upwards of 78% of production comes from forced labor. Of that 78%, 92% is sold to foreign-owned entities, with 52% going specifically to Chinese buyers. Policy Recommendations The world is careening towards the mobilization and upscaling of critical mineral production and processing. Bipartisan support backs increasing access to critical minerals for national security and industry uses. Throughout this, though, there remains a persistent cry from human rights activists and protestors urging corporations to do more to prevent gross human rights violations during the scramble for critical minerals. Corporations have committed to several due diligence policies and internal oversight mechanisms to ensure they follow current human rights standards. Despite this, most humanitarian groups claim that due diligence policies are ineffective and humanitarian-washing. International businesses have a responsibility to ensure their practices are upholding international human rights standards. Based on the foundations set out in the UN ‘Respect, Protect and Remedy’ Framework study, these rights include the right to rest, the right to reasonable standards of living, access to education, the right to express oneself, and the right to be involved in decisions affecting one's life., Protection against infringement of these rights comes from two places: the state and the corporation. The state has a duty to protect against human rights abuses by third parties through governance mechanisms such as policies and adjudication. In essence, the state must act to create a legal framework that protects the human rights of its citizens. Businesses have the responsibility to respect the rights of their workers, which essentially means acting with due diligence to ensure rights aren't being violated and provide recompense for victims of rights violations. Despite these responsibilities, it is clear that human rights are continuing to be systematically violated in pursuit of the clean energy transition. The following section details the current international due diligence standards and provides three focus areas to help couple the clean energy transition with a just transition: Shared Governance and Legalized ASM, Shared Prosperity and Economic Benefits, and Effective Due Diligence. Shared Governance and Legalized ASM: One of the primary avenues suggested for advancing the human rights of mineworkers is the legalization of artisanal-scale mining (ASM). Through the legalization of ASM, policymakers hope to ensure that abuses from traders, public officials, or armed groups become less common, and when it does happen, there are legal options for miners. This goal, however, remains misguided. Simply put, the legalization of ASM fails to accomplish its goals: artisanal miners often place more weight on customary law and follow historical social rules regarding mining; artisanal miners are still often not given proper sites to mine on, meaning they must remain tied to corrupt mining companies or bosses; and lastly, it fails to provide artisanal miners with other forms of safer production. More work must be done to formalize practices in dialogue with various stakeholders, miners, and governments to incentivize actors to prioritize human rights. Additionally, larger economic policies must be designed to lift artisanal miners out of poverty and open up other economic avenues to miners. Significant research has shown that the inclusion of affected stakeholders in negotiations around the economic, social, and environmental conditions of mineral exploitation has positive effects on balancing both economic and decision-making resources among stakeholders. For example, Local Benefit-Sharing Trust Funds can be a way to combine democratic decision making, through the use of vertical accountability mechanisms (elections or consultation), and economic benefits for AS miners. One prime example of community-based decision-making aiding in the legalization of ASM is through the Côte d’Ivoire government/village co-management approach for diamonds. Communities take 12% of sales for local development at the expense of allowing the nationalized mining companies to define boundaries for ASM. These agreements “resulted in the formalization of most mine sites and the majority of diamonds registered at the mine level as part of the chain of custody.” Shared Prosperity and Economic Benefits: Critical mineral demand will continue to grow. This growing demand presents an ideal development opportunity for emerging resource-rich economies, if they’re able to utilize proceeds to diversify their economies. However, this opportunity has yet to manifest itself. African countries only possess 1% of the global installed photovoltaic capacity and are estimated to generate only about 40% of the revenue they could potentially collect from critical minerals. Ensuring that prosperity is shared equitably across the commodity chain is vital for ensuring a just clean energy transition. On a more local level, as well, economic and development benefits must be shared. Mining provides a number of value streams into a country: job creation, commodity chain development, and increasing reliance on domestic goods and services, which offers the chance to boost local economies. Additionally, infrastructure developments such as power, water, transportation, education, and healthcare can bring long-term benefits to communities. Through the legalization of shared use of mining infrastructure, extractive industry investments in infrastructure can help close the infrastructure development gap. That being said, extractive industries should continue to operate within sustainable development guidelines and human rights guidelines. This includes, first and foremost, proper wages, decent jobs, and the right to collective bargaining. Co-ownership may be the solution for shared prosperity between miners and the extractive industry. Corporate Due Diligence : Corporate due diligence is challenging in the context of the human rights violations of extractive industries. Due to the complex and extended nature of critical mineral supply chains, even the most proactive companies struggle to determine the origin of their products. Additionally, once a company has become aware of a violation, the solution isn't always to immediately cease business with the responsible party. Stopping trade often brings other forms of harm to the same communities. There are a number of tools available to companies to prevent harm to communities. For example, companies might pay higher prices to those that require miners to wear personal protective equipment. First and foremost, corporations must engage in stakeholder/rightsholder engagement across the commodity chain. Corporations should also engage in capacity building for local communities and workers. This can take the form of vocational training, increasing education access, and upgrading facilities and infrastructure. Additionally, companies must work to address the current transparency issues within the critical mineral supply chain. Companies must ensure human rights tracking across the full supply chain; a task easier said than done. One solid step companies can take to begin this work is rejecting the use of certificates of origin as sole proof of origin for critical minerals. The cobalt supply chain is muddy, and oftentimes, ASM cobalt is mixed with company-mined cobalt. This means cobalt origin data is often unreliable for determining how free from rights violations it is. Rejecting the use of certificates of origin requires companies to spend more time ensuring minerals are free from human rights violations. Additionally, activists, citizen groups, and governments should push for legal requirements of transparency from corporations. Corporations should make data on their supply chain, efforts to reduce human rights violations, and engage in capacity building, and blind spots, publicly available. This accomplishes two goals: first, it requires companies to identify potential blind spots; additionally, it allows consumers to choose between corporations engaging in effective due diligence versus ineffective due diligence; essentially, it provides a financial incentive for proper due diligence. These recommendations are far from exhaustive and are limited in their assessment of effectiveness. However, they offer a strong jumping-off point for future research into remedying human rights violations within the critical mineral trade. More work is necessary to ensure remedies take into account local humanitarian and political contexts and don't cause more harm than good. Conclusion There is a term used by critical scholars in the environmental field: climate colonialism. Our ways of addressing climate change are directly entangled with historical and present-day practices of colonial extraction, ecological degradation, and uneven and unfair international arrangements, which disproportionately negatively affect the global south compared to the global north. This paper has illuminated the ways in which the current extraction industry of critical minerals is directly tied to modern-day colonialism: the global north is tearing up economically developing countries for resources, often breaking bodies in the process, but this time, we’re solving a crisis, so it’s allowed. This paper is not attempting to argue for a deprioritization of critical mineral access; these minerals are necessary for the clean energy transition and are essential for ensuring global warming stays below the 2.0 °C mark. However, the rush for critical minerals must be a just transition, centering the voices of those it most impacts. This transition must be taken with a climate justice and decolonial approach. Proper payment and human rights-centered policies have the opportunity to lift countries out of poverty and directly work to decouple carbon from development. The environmental movement must work to ensure a just transition; without it, we’re just destroying the people who will be the most affected by climate change. Extraction of critical minerals has drastic consequences on the environment and on the people who mine them. We must not destroy the planet in the process of saving it. 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< Back Divergent Colonial Memories Danny Ly Author Aaditya Das Narayan Arjun Ray Amelie Tsao Editors Abstract Both Taiwan and South Korea have a shared colonial past under Imperial Japan and formed post-war authoritarian regimes that eventually democratized in the latter half of the 1980s. Yet, these two countries have extremely divergent perspectives on Japan post-democratization. This begs the question: what factors explain differentiated colonial memories and interpretations of those memories between two former colonies of the same regime? Through a most-similar cross-case study analysis, I argue that cultural and educational colonial institutions were the root of modern-day sentiments toward Japan, as colonial institutions intended to “Japanize” the colonized population in Taiwan were far more successful in eliciting acceptance of colonial rule than in Korea. This meant that post-war authoritarian actors in Taiwan and Korea were constrained in their ability to advance narratives that challenged Japanese cultural hegemony, in the case of Taiwan, or affirmed closer relations with Japan, in the case of Korea. Introduction Both Taiwan and South Korea have a shared colonial past under Imperial Japan and formed post-war authoritarian regimes that eventually democratized in the latter half of the 1980s. Yet, these two countries have extremely divergent perspectives on Japan post-democratization. According to a Gallup Korea poll conducted in 1992, when asked whether they thought Japanese people felt remorseful for atrocities committed during World War II, 80.1%, a large majority of those surveyed, answered “not at all” or “not so much.” In stark contrast, in a poll conducted in 2009 in Taiwan about Japan, 52% of participants responded that their favorite country other than Taiwan was Japan. This begs the question: what factors explain differentiated colonial memories and interpretations of those memories between two former colonies of the same regime? In answering this question, I do not attempt to give an exhaustive reading of Taiwanese, South Korean, or Japanese history, but instead focus on the long-term effects of colonial institutions and their effects on post-war state actors. Through a most-similar cross-case study analysis, I argue that cultural and educational colonial institutions were the root of modern-day sentiments toward Japan, as colonial institutions intended to “Japanize” the colonized population in Taiwan were far more successful in eliciting acceptance of colonial rule than in Korea. This meant that post-war authoritarian actors in Taiwan and Korea were constrained in their ability to advance narratives that challenged Japanese cultural hegemony, in the case of Taiwan, or affirmed closer relations with Japan, in the case of Korea. Resistance that formed in response to these authoritarian narratives on Japan reinforced these differentiated views on Japan and allowed pro-democracy opposition movements in both countries to associate themselves with prevailing societal views of Japan. LITERATURE REVIEW Previous literature on the impact of colonial experiences in shaping modern-day attitudes toward Japan in its former colonies is still developing. Some scholars, especially those conducting comparative analysis of Japan’s former colonies, pay closer attention to pre-war factors. For instance, Lai (2024) compares Taiwanese and Japanese colonial experiences to explain their responses to island disputes with Japan in the 21st century. However, a newer strand of literature in this domain more rigorously analyzes the role of South Korean domestic politics and nationalism as a catalyst for negative attitudes toward Japan. For instance, Jo (2022) argues that contemporary anti-Japanese sentiment in South Korea is rooted within “how South Korean struggles for democracy became bound up in understandings of Japan.” Similarly, Deacon (2024) asserts that the “history war” between South Korea and Japan continues to persist because “each side’s…representations of the other…constitute an important element of their national identities.” This is similar to the approach taken by Taiwanese-Japanese relations scholars, who have similar conclusions on the role of post-war domestic politics in shaping how collective memory is apprehended. For instance, Suzuki (2011) suggests that the brutality of the Kuomintang (KMT) regime in Taiwan, in combination with contestations over Taiwanese national identity during democratization, led to the silencing of narratives of gendered violence under Japanese imperialism. METHODOLOGY To bridge together scholarship on exclusively the colonial period itself and scholarship that covers solely post-colonial regimes, I place analytic weight on both the impact of the colonial period itself and the post-war authoritarian regimes that succeeded it. To accomplish this, I employ a most similar cross-case analysis of South Korea and Taiwan, as these cases are similar in “background conditions,” such as the time range in which they were acquired, the length of the colonial period, and types of post-war regimes, but differ significantly in terms of the independent variable of interest, colonial memory. In acknowledging these similarities, I do not claim that South Korea and Taiwan’s shift from authoritarianism into democracy are identical to one another nor that Japanese domination impacted these two former colonies in equivalent fashions. Rather, I argue that the broad swath of institutional changes in South Korea and Taiwan, from Japanese colonization to democratization, are analogous to one another and fruitful for comparison. In analyzing my case studies, I apply Jo (2022)’s concept of collective memory as “intersubjective understandings of the past,” as well as Bernhard and Kubik (2014)’s concept of mnemonic actors as actors, particularly state actors, that frame the past in terms that “will generate the most effective legitimation for their efforts to gain or hold power.” These mnemonic actors are constrained by “a historically formed repertoire of cultural (mnemonic) forms and themes” that are generated through both state-led institutions that espouse certain narratives about the past and unofficial narratives that are “generated and reproduced within personal networks.” CASE STUDY 1: TAIWAN Following the Qing Dynasty’s loss to Japan in the Sino-Japanese War, Taiwan was formally integrated into the Japanese Empire. After Japan’s defeat at the end of World War II in 1945, Taiwan fell under the control of the Kuomintang (KMT) and became the KMT’s site of retreat after its loss in the Chinese Civil War. For the next four decades, the KMT imposed martial law and curtailed forms of political opposition until democratization in Taiwan occurred in the late 1980s and early 1990s. I argue that throughout this historical trajectory, Japanese influence became deeply entrenched in Taiwanese society during the colonial era, meaning the KMT faced a high gradient in erasing the effects of Japanese imperialism on collective memory. Because of this, resentment from the Taiwanese public built up as the KMT attempted to sinicize Taiwan, which was mobilized against the KMT through opposition and pro-democracy movements near the end of Taiwan’s authoritarian period. A. Colonial Subjugation (1895 – 1945) The imposition of an education system that privileged Japanese customs, language, and knowledge early on in Japanese colonization of Taiwan, alongside a lack of resistance to Japanese domination due to the dependence of Taiwanese elites on Japanese imperial governance, facilitated the success of kōminka policies in Taiwan. An exodus of former Taiwanese elites to mainland China created a new elite class that was “dependent on — and loyal to — the alien regime” due to the opportunities granted to them. The response of Taiwan’s elite class after Japan had acquired Taiwan can be analyzed through the lens of Lake’s (2007) conceptualization of political authority, where a dominant state “provides the order demanded by subordinates” in exchange for acceptance of its authority. Under this framework, Taiwanese elites post-annexation had become reliant on Japanese imperialism to create order and maintain their local authority. Therefore, Taiwanese elites were incentivized to maintain Japanese colonial rule, which constrained the conditions under which elite-led resistance against the Japanese imperial government could occur. This aversion of Taiwanese elites to resistance against Japanese colonization was exacerbated by education policies that mandated conformity to colonial rule. The imperial education system imposed by Imperial Japan onto Taiwan was primarily concerned with teaching the Japanese language and preparing students for public service or business occupations,, magnifying Japanese cultural hegemony in Taiwan and the prestige of conforming to Japanese customs. Although the Japanese education system also inadvertently fueled Taiwanese anti-colonial movements, Tsurumi (1977) argues that the “assimilation message of Japanese education” was mostly accepted and that anti-colonial movements remained “entirely within Japanese legal and constitutional frameworks while fighting for reform.” Thus, the dependence of Taiwanese elites and assimilationist education policy weakened resistance to Japanese imperial policies in two ways: the former created incentives for Taiwanese elites to conform to colonial rule, while the latter developed broad acceptance of colonial rule amongst the Taiwanese population. Because previous cultural policies had reduced resistance to Japanese rule, the implementation and success of kōminka (“Japanization”) policies were possible. These policies were far more restrictive and further entrenched Japanese influence on Taiwanese collective memory. Near the end of Japanese rule over Taiwan, Japan imposed harsh cultural policies that “enforced the adoption of Japanese customs, religion, language, and even names” in 1936. During kōminka, the Japanese imperial government formed specialized language schools that mandated the use of Japanese and large youth clubs to cultivate “civic virtues and public spirit.” As the Japanese war effort during World War II moved southward into Southeast Asia, the imperial government mandated the conscription of Taiwanese men, and created a “girls agriculture volunteer corps” for industrial labor. Although there existed resentment toward colonial rule during this period, Japanization policies were accepted by younger members of the Taiwanese elite and Taiwanese indigenous groups, even those who had previously participated in anti-Japanese violent resistance movements. Thus, kōminka-era policies strengthened the general acceptance of colonial rule built by previous colonial policies, and therefore, entrenched Japanese influence on Taiwanese society. B. Post-War Collective Memory (Post-1945) As a result of the success of Japanization, the KMT experienced immense difficulty in supplanting the legacies of Japanese rule. He (2014) argues that because of restrictions on Mandarin and Taiwanese dialects of Chinese during kōminka, the Japanese language and education had integral parts of the Taiwanese elite identity. Thus, applying Bernhard and Kubik's (2014) theory of memory politics, Japanese imperial cultural policy had expanded “the available set of narratives about the past that constitutes a ‘nation’s heritage.’” Mnemonic actors that wish to propagate narratives post hoc must conform to this “repertoire of ‘traditional forms’” to be “politically effective”. Therefore, because Japanese cultural hegemony during the imperial period had expanded this repertoire, the post-war KMT regime was faced with a high degree of entrenched Japanese influence in Taiwanese society and collective memory. In other words, espousing narratives that challenged the legacies of Japanese colonialism would be more difficult for the KMT. This relationship between Japanese colonial rule and the constraints that it produced for the KMT’s ability to shape collective memory is depicted in Figure 1 below. [Insert Figure 1 Here] Because the KMT faced such a high gradient in challenging Japanese influence, the KMT’s attempt to “sinicize” Taiwanese society in building its legitimacy was met with fierce opposition. Immediately after the end of Japanese colonial rule over Taiwan in 1945, the incoming KMT regime restricted the use of Japanese and mandated the use of Mandarin in its place, eliciting strong resentment from the Taiwanese public through “large demonstrations and riots” in 1947. Outright displays of frustration from the Taiwanese public would decrease following the KMT’s loss in the Chinese Civil War and the beginning of PRC-initiated purges in mainland China, which energized anti-PRC sentiment in Taiwan. However, distrust continued; for instance, in 1951, “politically articulate native Formosans and mainlanders” urged U.S embassy officials to carefully review aid sent to the KMT, claiming the “Nationalists had ‘sighted the gravy train.’” It could be argued that the KMT’s ban on Japanese was similar to the kōminka-era bans on the use of Mandarin and Taiwanese dialects. Thus, under this logic, KMT cultural policies should have been met with similar levels of resistance. However, analogously to the Taiwanese education system’s gradual implementation, which limited backlash against the Japanese imperial government, kōminka policies followed decades of more moderate Japanese cultural policy. Therefore, in comparison to the KMT’s attempts at Sinicization, kōminka did not constitute as heavy a shift from the status quo, explaining why the KMT’s cultural policy was met with more resistance. This resentment, created by Sinicization, fueled opposition movements to KMT rule, causing a propagation of positive sentiment toward Japan during Taiwan’s democratization. During the KMT regime’s gradual liberalization and the beginning of supplementary elections in the 1970s, the dangwai opposition movement appealed strongly to the offspring of Taiwanese elites that had benefited from Japanese rule, as well as members of the working class. As a result, the dangwai movement was able to foster an association between opposition to the KMT regime and fondness toward Japanese colonial rule within Taiwanese collective memory. This affinity with Japan came to a head as the process of democratization occurred in Taiwan during the early 1990s, becoming both a “weapon to address historical grievances under the KMT’s authoritarian rule” and a “celebration of Taiwan’s democratic achievement.” This association between the Taiwanese pro-democracy movement and colonial Japan facilitated the forgetting of Japanese atrocities during the colonial era, further bolstering positive attitudes toward Japan. For example, Suzuki (2011) argues that narratives surrounding the sexual abuse of comfort women in Taiwan during World War II have been supplanted by “memories of KMT wrongdoing” due to the association between anti-Japanese narratives and the KMT regime’s brand of Chinese nationalism. In summary, the effects of both colonial cultural policy and the dependency of Taiwanese elites on colonial institutions caused the KMT to face difficulties in supplanting deeply entrenched Japanese influence. Opposition movements to the KMT utilized the resulting resentment to appeal to the Taiwanese public, creating an association between Japanese colonialism and opposition to the KMT. This relationship between Japanese influence as developed during colonialism and positive attitudes toward Japan in the authoritarian period is shown in Figure 2. [Insert Figure 2 Here] CASE STUDY 2: COMPARATIVE ANALYSIS OF SOUTH KOREA Similarly to Taiwan, Korea was acquired as a protectorate during the turn of the 19th into the 20th century through the 1905 Eulsa Treaty, and then fully annexed into the Japanese Empire five years later. After Imperial Japan’s defeat in World War II, Korea was hastily partitioned along the 38th parallel, and war erupted between the newly formed Republic of Korea (ROK) and the Democratic People’s Republic of Korea (DPRK) that led to the lasting division of the Korean peninsula. Starting with the Syngman Rhee government, South Korea experienced multiple authoritarian regimes for the next four decades, until democratization started at the end of the 1980s.. I argue that, unlike in Taiwan, Korean colonial institutions failed to engender a sense of acceptance amongst the Korean population, resulting in the entrenchment of resentment ininto Korean collective memory. Although the authoritarian Park regime attempted to subvert this perception of Japan, it instead fueled mass demonstrations and the formation of a pro-democracy movement that capitalized on negative perceptions of Japan, resulting in the strengthening of negative colonial memories of Japan during democratization. A. Colonial Subjugation (1905 - 1945): Similarly to the Taiwanese colonial education system, Japanese colonial officials intended Korea’s system to facilitate the assimilation of the Korean population. However, unlike in Taiwan, where education bolstered acceptance of colonial rule with the exception of smaller anti-colonial movements, the Korean education system exacerbated resistance to Japanese rule amongst the middle and upper strata of Korean society. Because of annexation, Korean students whothat had studied in educational institutions in Japan came to understand Japanese rule as a threat, but Japanese education as a necessity in advancing nationalist goals; Wells (1989) argues that Japanthe Japan had become “a haven to Korean nationalists” in the first decade of Japan’s rule over Korea. The Japanese-imposed education system in Korea had thus become a driver of resistance to colonial rule. It could be argued that because education also fueled smaller pro-reform movements in Taiwan, the imposition of a Japanese education system alone cannot fully explain why Taiwanese and Korean responses to colonial rule diverged. While this is true, educational institutions in Korea itself were more developed before its annexation than in Taiwan, and thus, Japanese imperial officials in the first few decades of colonization could not completely impose their educational system upon Korea. As a result, the Japanese education system had to compete with already existing educational institutions, mitigating the legitimacy of these Japanese educational institutions and hamstringing the ability of this system to encourage assimilation in comparison to Taiwan. Thus, Japanese colonial officials in Korea were constrained in their ability to utilize education to their advantage, compared to their counterparts in Taiwan. Because of this, education in Korea had the opposite effect that it had in Taiwan, despite being framed to achieve similar goals. As a result of this failure of the Korean education system to promote assimilation to the same extent that its counterpart did in Taiwan, mass resistance movements mobilized against Japanese rule. Following the release of a Korean declaration of independence, a wave of initially peaceful protests for Korean independence spread throughout Korea in March 1919, which was violently curtailed by April. In response to the March 1st movement, the Japanese government shifted away from explicitly calling for assimilation. It instead began to espouse an ideology of unity between Japanese and Korean peoples and utilized promises of increased opportunities in “education, enterprise, politics, and other realms of public life” to strengthen the legitimacy of its colonial rule. However, because the March 1st movement had made the issue of Korean nationalism salient, even amongst Koreans who were politically disengaged, this response from Japan would fail to root out resentment against colonial rule. A 1930 report written by a British embassy located in Tokyo notes that though these policies reduced outright dissent to colonial rule, discontent toward “Japanese domination and…dependence [of Koreans on Japan]” remained. As a result, unlike in Taiwan, Japanization of Korean society during kōminka would not be as effective due to this entrenched resentment. While kōminka policies in Taiwan were able to appeal to a base of Taiwanese youth despite the violence associated with them, kōminka policies enforced in Korea furthered the resentment already felt by Koreans as a result of the suppression of independence movements. Kōminka-era policies implemented in Korea involved similar restrictions in comparison to those implemented in Taiwan; similarly to Taiwanese cultural policies, kōminka in Korea led to bans on public displays of Korean cultural practices starting in 1937. Furthermore, as the Japanese war effort progressed into Southeast Asia at the same time as kōminka-era policies were implemented, Koreans were coerced into forced labor to address labor shortages, and Korean women were forced into sexual slavery as comfort women. Although Taiwanese people were subjected to forced labor, and Taiwanese women to sexual slavery, the number of forced laborers and comfort women from Korea was far greater than that from Taiwan. The gravity and commonality of this violence committed by Imperial Japan in Korea during World War II, in combination with the already contentious reputation of Japan within Korea pre-WWI, deepened negative perceptions of Japan within Korea. Therefore, unlike in Taiwan, an acceptance of Japanese colonial rule did not entrench itself into the “repertoire of traditional forms,”, unlike in the Taiwanese case. Rather, an overt association between Japanese colonialism and violence did. This process is shown in Figure 3. [Insert Figure 3 Here] B. Post-War Collective Memory (Post-1945) Because of the resentment toward Japan produced by cultural colonial institutions, the shift from the Rhee government’s tough stance on Japan to the Park regime’s more amicable approach led to even greater entrenchment of negative views of Japan within Korean collective memory. Similar to the KMT’s attempts at Sinicization, the Syngman Rhee regime reversed the impacts of Japanization policies that had been enforced during Japanese rule. However, these cultural policies were implemented at a slower rate and to a lesser extent due to geopolitical and economic crises caused by the Korean War. Despite this more lax approach to de-Japanization in comparison to Taiwan, the Rhee regime nevertheless took a hard line on relations with Japan. For example, in 1955, Rhee floated the idea of severing all diplomatic ties with Japan, claiming that Japan had been emboldened by U.S. financial backing. Similarly, in 1956, the South Korean government “persistently refused to go along” with Japan’s claim over Takeshima (Dokdo) island. This contrasted heavily with the succeeding Park Chung-hee regime’s approach to South Korea-Japan relations, provoking open displays of resentment from the South Korean public, especially students, and furthering the resentment that had developed in collective memories of Japan during colonization. Eschewing the Rhee regime’s tougher stance on Japan, the Park regime advanced a form of what Kim (2017) terms “statist, authoritarian…developmental nationalism” that emphasized affinity with Japan and energized discontent from the Korean public. This South Korean developmental nationalism was driven by the creation of a distorted economic system during colonization, which fueled the creation of a small echelon of capitalist elites post-colonization that formed a “mutual dependence” with the Park regime. Therefore, in espousing a “pragmatist” rhetoric on its relations with Japan, the Park regime had failed to create an opposing narrative that could challenge entrenched anti-Japanese sentiment in Korea, like the KMT’s inability to supplant the influence of Japanese customs on Taiwanese collective memory and society. Furthermore, the Park regime’s stance toward Japan did not follow a precedent of previous amicable foreign relations between Japan and the ROK, constraining the extent to which the Park regime could shift public opinion. Because of this, the Park regime’s choice to normalize relations with Japan energized student movements and opposition parties that disapproved of closer South Korea-Japan relations, exacerbating resentment toward Japan. In response to negotiations over a proposed treaty between the ROK and Japan that would normalize relations, over 200,000 middle school, high school, and university students participated in rallies during March of 1964. By September of 1965, more than 3 million people had joined these protests. The sheer number of protestors demonstrates the extent to which the negative sentiment of Japan had entrenched itself into Korean collective memory during the authoritarian period and points to the difficulty caused by this entrenched sentiment in the Park regime’s attempts to change public opinion. Furthermore, the response to the Park regime’s moves toward normalization with Japan demonstrates the creation of an association between opposition to the Park regime and a negative stance toward Japan in public discourse. As a result, opposition parties aligned themselves with pro-democracy activists, which was crucial in reinforcing negative sentiment toward Japan within Korean collective memory. During the late 1970s, due to hikes in the Park regime’s authoritarianism, the minjung populist ideology, which framed South Korea as a state opposed to colonial forces such as Japan and the U.S, became increasingly popular. By 1979, the movement had “become the focal point” of opposition to the Park regime, resulting in the New Democratic Party (NDP) winning a majority of seats in the South Korean National Assembly. Thus, opposition parties such as the NDP played key roles during the South Korean protest movements in 1964-1965 and the democratization movement in the following decade. This allowed progressive politicians who had been involved in anti-authoritarian movements to, as Jo (2022) argues, interweave together “grievances against Japan and grievances against the state” during democratization from 1988 onwards. As a result, formerly opposition politicians reinforced the association between opposition to authoritarianism and a negative stance toward Japan, meaning that the negative collective memory of Japan that had persisted throughout colonization and the authoritarian period continued into the 21st century. The effects of authoritarian-era policies and the ensuing backlash on colonial memory are shown in Figure 4. This association between anti-authoritarian movements and relations with Japan is remarkably similar to the Taiwanese case, despite differences in the outcome on collective memory. In Taiwan, pro-democracy actors utilized an affinity toward Japan to mobilize resistance against an authoritarian regime, while in South Korea, pro-democracy actors utilized resentment toward Japan to accomplish the same goal. Thus, in both cases, democratization reinforced anti-authoritarian resentment and facilitated either an affinity with or resentment toward Japan. [Insert Figure 4 Here] FINDINGS OF COMPARATIVE ANALYSIS Appraising the historical trajectories of South Korea and Taiwan at large, what is immediately apparent is that Japanese colonial institutions differed significantly between the two; in South Korea, cultural and educational institutions were not as effective in “Japanizing” the colonized as deeply as their counterparts in Taiwan. As a result, the bounds of Korea and Taiwan’s “repertoire of traditional forms”, or the intersubjectively accepted historical narratives belonging to these nations’ history, differed significantly between the two. Because of this, the legacies of these institutions constrained the succeeding post-war authoritarian regimes. Applying Bernhard and Kubik's (2014) theory of memory regimes, the Park regime and KMT, respectively, attempted to act outside the bounds of their nations’ repertoire of traditional forms through advancing pro-Japan or anti-Japan policies. This resulted in political failure and the creation of pro-democracy movements that eschewed relations with Japan, in South Korea’s case, or embraced them, in Taiwan’s case. These pro-democracy movements, although oriented in different ways in terms of their stances on Japan, were similarly successful insofar as they reinforced colonial memories of Japan. This focus on colonial institutions provides more explanatory power to existing explanations of the collective opinions of Japan within South Korea and Taiwan. For instance, although some scholars have argued that the threat posed by the People’s Republic of China (PRC) to Taiwan facilitates positive attitudes toward allies like Japan, these explanations fail to fully explain why the South Korean public, who face a similar adversary in the form of the DPRK, does not gravitate toward so easily toward Japan, even when accounting for Taiwan’s unrecognized status. Thus, this comparative analysis contributes to a fuller account of South Korea-Japan and Taiwan-Japan relations in the contemporary context. CONCLUSION The most important factor that differentiated Taiwanese colonial memory from its South Korean counterpart was the effects that colonial institutions had on the acceptance of Japanese rule during colonization. This is because Taiwanese institutions deeply entrenched a positive association with Japan, while Korean institutions entrenched resentment of colonial rule into collective memory. As a result, the post-war KMT regime’s attempts to “sinicize” the Taiwanese population resulted in the formation of an opposition movement that capitalized on the positive collective memory of Japan, while the Park regime’s attempt at fostering closer relations with Japan resulted in the mobilization of an anti-authoritarian opposition movement that aligned itself with an ideology opposed to Japan. During democratization, these opposition-led sentiments prevailed, resulting in differentiated collective sentiments toward Japan across the two countries. Because stances toward Japan became associated with democratization, South Korea’s negative sentiment toward Japan and Taiwan’s generally positive outlook on Japan will persist in the long run. Democratization was a watershed moment for both South Korean and Taiwanese national identity, and therefore, narratives of Japanese colonialism affirmed by pro-democracy movements in both countries are likely to have a lasting impact. However, the fact that democratization had a silencing effect on narratives about Japanese atrocities in Taiwan suggests that sufficient upheaval in domestic politics could result in changes to colonial memory. This is especially important because the People’s Republic of China (PRC) continues to contest “the U.S.-led hegemonic order in East Asia.” In combination with the U.S. Trump administration’s willingness to risk its economic partnerships through a catch-all trade policy, this could create a crisis within South Korea and Taiwan stark enough to facilitate that process. Ultimately, this paper demonstrates the importance of colonial institutions in shaping colonial memory decades down the line and the role of post-colonial regimes in strengthening previously held notions of colonial rule. Thus, future scholarship should seek to more rigorously examine cases where authoritarian regimes had the effect of weakening or subverting colonial memory. 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