Author Name < Back Editorial Board Foreword Tianyu Zhou & Juno Tantipipatpong “And did we not agree that the excellence or virtue of soul is justice and its defect injustice?" In this issue, we welcomed articles that centered around the theme of “political theory as a vehicle of social change.” We’ll first introduce the thematic logic and then proceed with a brief summary of articles. Can PPE theories serve as a vehicle for social change? Since the Axial Age (8th - 3rd century BCE), Vergeistigung , or spiritu- alization of the human mind, was complete among major world civilizations. Based on “rationality and rationally-clarified expe- riences,” humans began to question the current state of affairs, and political theories thus became a preoccupation for the pro- lific minds, not only as a description of how societies and polities are , but as a prescription of what they should become. The Socra- tic inquiries and Plato’s Republic were remarkable in defining, for the first time in the Western tradition, the role of a philosopher in society and polity–that is, to seek justice. Economics as a sci- entific matter emerged as a normative subject on how society may improve by scientific means. Important studies of how PPE theories may serve as a ve- hicle of social change first emerged in the 1920s. In his book, Crystallizing Public Opinion , Edward Bernays proposed a theory that took the “public opinion” of political economic matters as the problematik . The study demonstrated the effect of news and factual information on society are a function of the channels through which they were transmitted. As Bernays himself put, “[the] public relations counsel must lift startling facts from his whole subject and present them as news. He must isolate ideas and develop them into events so that they can be more readily understood and so that they may claim attention as news.” The tension caused by the question of how the logical and evidential basis of ideas may best correspond to their effects on society has haunted intellectuals ever since. The human rights theorists, Marxists, a number of political economists and the New Leftist intellectuals, and many scholars who began such inquiries in the aftermath of the Vietnam War have proposed various theories. In our current issue, authors have discussed topics of vital import in a wide range of fields, from the study of the ethics of ignorance to gender and sexual consent, from political ideology and public discourse to the politics of secularization and religi- osity, and from economic disruption to the meaning of work. We believe these issues are best examined through the lenses of philosophy, politics, and economics jointly. Through our pieces, we wish to illuminate both the diversity of thoughts and advise reflection on how readers might use this knowledge to improve the social conditions. References [1] Plat. Rep. 1.353e, “ἡ μἡν ἡρα δικαία ψυχἡ καἡ ἡ δίκαιος ἡνἡρ εἡ βιώσεται, κακἡς δἡ ἡ ἡδικος”. [2] Jaspers, K. (2017). Vom Ursprung und Ziel der Geschichte (K. Salamun, Ed.). Schwabe Verlag. https://doi. org/10.24894/978-3-7965-4059-2.Recommended translation is Jaspers, K. (2021). The Origin and Goal of History (C. Thornhill, Ed.; 1st ed.). Routledge. https://www.routledge.com/The-Origin-and-Goal-of-History/Jaspers/p/book/9780367679859 [3] “[die] Rationalität und [die] rational [geklärte] Erfahrung (der Logos gegen den Mythos)”. [4] Brown, E. (2017). Plato’s Ethics and Politics in The Republic. The Stanford Encyclopedia of Philosophy (Fall 2017 Edition). https://plato.stanford.edu/entries/plato-ethics-politics/#Rel. [5] Samuels, W. J., Biddle, Jeff., & Davis, J. Bryan. (Eds.). (2003). A Companion to the History of Economic Thought (1st ed.). Blackwell. https://www.wiley.com/en-us/A+Companion+to+the+History+of+Eco- nomic+Thought-p-9780631225737. [6] Bernays, E. L. (1923). Crystallizing Public Opinion . Liveright Publishing. [7] I.e., Vilfredo Pareto and Antonio Gramsci, Quaderni del carcere. Serious scholars of Marxian thought and its history are referred to Kołakowski, Leszek. (1981). Main Currents of Marxism: The Founders, The Golden Age, The Breakdown (P. S. Falla, Ed.; Revised). W.W. Norton & Co. https:// wwnorton.com/books/Main-Currents-of-Marxism/.On human rights, see Jean Quataert, & Lora Wildenthal (Eds.). (2021). Routledge History of Human Rights (1st ed.). Routledge. https://www.routledge.com/The-Routledge-History-of-Human-Rights/Quataert-Wildenthal/p/ book/9781032089669.8 [8] On politics, see T. Ball & R. Bellamy (Eds.), The Cambridge History of Twentieth-Century Political Thought (1st ed.). Cambridge University Press. https://doi.org/10.1017/CHOL9780521563543 On economic thought, see The Cambridge History of Philosophy, 1945–2015. (2019). In K. Becker & I. D. Thomson (Eds.), The Cambridge History of Philosophy , 1945-2015 (1st ed.). Cambridge University Press. https:// doi.org/10.1017/9781316779651.

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. 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Body Ethics: Moving Beyond Valid Consent Christine Chen Author Steve Nam Coco Zhu Rebecca Yang Editors There is little controversy that individuals generally have an interest against intrusion of or interference with their personal domain, which encompasses one’s person—body and mind—and property. For example, we typically think that we are entitled to moral complaint when another person pinches us, kisses us, or looks through our phone without our permission. That is to say, we have a moral right against these kinds of unauthorized interactions. Here, a right is understood as “entitlement (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states” (Weinar). This is not to say, of course, that all interpersonal interactions are impermissible. One key way in which we facilitate morally permissible interactions on a daily basis is by providing, through verbal or sometimes non-verbal communication, valid consent. Present moral theories of consent identify it as an interpersonal justification for an act upon an agent, the consent-giver, from which they would otherwise have moral protection in the form of a duty of the others not to infringe upon their personal domain. Consent releases the consent-receiver from such duty against intrusion or interference and provides an interpersonal justification for the act within the content of the consent. However, our moral intuition suggests that there is something beyond ordinary, valid consent necessary for an act to be morally permissible when the body is involved, like an invasive procedure or sexual intercourse. Indeed, patients sometimes believe that they are wronged by a medical procedure despite having given legally valid consent, which contributes to the deteriorating patient-physician relationship and growing mistrust (Nie et al.). In these cases, are the patients entitled to such complaint? In this paper, I aim to challenge Tom Dougherty’s theory of consent, presented in his book The Scope of Consent, by attempting to identify a second condition for moral permissibility in cases involving the body through a series of hypothetical cases. I posit that, besides a consent-based right against bodily intrusion or interference, agents have an additional preference-based right that entitles them to moral complaint, which is not typically present in ordinary cases of consent that do not involve the body. Defining Consent: Expression of Will View Before diving into cases, I will first define consent as it is understood in this paper. Under Dougherty’s Expression of Will View, consent is a deliberate expression of one’s will (Dougherty 2021, 111). Like forfeitures and waivers, consent provides a way for us to give up moral complaints against others for causally contributing to interference with our personal domain, namely, our bodies and property (Dougherty 2021, 102). As such, consent constitutes a justification for how others can interact with or act within the consent-giver’s personal domain. For the purpose of this paper, I accept Dougherty’s Expression of Will View as the working conception of consent that governs interpersonal interactions. As an evidential account of consent, this view emphasizes the role of available reliable evidence and enhanced reliable evidence, both of which define the validity and scope of consent according to the Due Diligence Principle, which states: Due Diligence Principle. At time t, an action A falls within the scope of the consent that X gives to Y if and only if at t, X gives consent or, prior to t, X has given consent and has not subsequently revoked this consent; at t, the available reliable evidence sufficiently supports the interpretation that X intends their consent-giving behaviour to apply to Y performing A; and at t, the enhanced reliable evidence also sufficiently supports this interpretation. (Dougherty 2021, 149) According to Dougherty, “the ‘enhanced reliable evidence’ is defined as the available reliable evidence, supplemented by any reliable evidence that the consent-receiver has a duty to acquire” (Dougherty 2021, 146); the distinction between enhanced reliable evidence (ERE) and available reliable evidence (ARE) will be explored further in this paper. Thus, for consent to be considered valid, the consent-receiver also has to fulfill their duty to acquire additional reliable evidence that is not presently readily available to confirm and clarify the veracity and scope of the consent-giver’s expression of will. Dougherty indicates in the footnote that the definition of enhanced reliable evidence “focuses on actual phenomena” and “not a counterfactual definition of evidence that someone would have” (Dougherty 2021, 146). The duty here is owed to the consent-giver regardless of what the available reliable evidence suggests or what the consent-receiver believes the additional information would indicate. In other words, the consent-receiver should obtain additional evidence even if there is reasonable belief that any additional information that could be obtained would have confirmed that the behavior falls within the scope of consent. In all of the cases I present below, we can presume that the Due Diligence Principle is fulfilled when consent is verified with a verbal or written follow-up. To bring out our moral intuition of the justifying force of consent, let’s consider the following case of ordinary consent. “Control” Case—Consent to Use of Property Landlord signs a legal contract to lease an apartment but prefers not to do so for personal, non-morally significant reasons—e.g. Landlord has a friend visiting that month and would rather use the apartment for that purpose—and presumably expresses such lack of enthusiasm, either with a verbal aside or in the tone of voice. It seems morally permissible for Tenant to move in, since the given consent is valid and deliberately expressed in the form of a legally-binding contract. In other words, Landlord’s lack of underlying preference is not sufficient to render Tenant’s act of renting the apartment morally impermissible. What about when it involves the body? According to Dougherty and US criminal law, there is no complaint if the consent is valid and freely given by an agent who is of sound mind without coercion. For example, suppose a person gives clear and passionate consent to sexual intercourse with their partner of their own volition while sober and uninfluenced. Criminal law and Dougherty’s view both recognize that she is not wronged by the partner unless the consent is undermined. The partner does not wrong her even if she does not like the intercourse during or after it happens so long as she does not indicate in any way that she withdraws consent. Neither is she considered wronged if she is under the false belief that her consent is invalid. Likewise, obtaining voluntary informed consent from a competent patient is a legal and ethical obligation of the medical practitioner as it permits the administration of the intervention in question. We generally consider valid consent to be sufficient when another agent asks to, say, borrow a pen or enter our office. We cannot successfully sue another person for trespassing after knocking and being given permission to come inside our apartment. However, we do not seem to think that it is morally permissible for the consent-receiver to act on the consent or justify their act with the given consent in some cases. To illustrate this, I present a few hypothetical examples below. Let’s consider a first case of a minimally invasive and reversible bodily intrusion. Warm-up case: People Pleaser Gets a Face Tattoo People Pleaser (PP) consents to getting a face tattoo for what we shall term here, extrinsic reasons—reasons that do not come from one’s own internal desires but rather serves to achieve an external goal like garnering praise or receiving an award such as to make Tattoo Artist (TA) think well of them. PP does this freely and not against their will, with no external social pressure like social stigma while of sound mind, and through a deliberate expression of consent, e.g. a verbal yes. In other words, the consent is unambiguously valid according to Dougherty’s Expression of Will View. However, PP has a preference not to receive a face tattoo, of which TA is somehow aware. Is it morally permissible for TA to give PP a face tattoo after consent was given? Let’s stipulate that there is minimal difference in interest for the Tattoo Artist in either outcome scenarios, other than received payment for their services. There is minimal risk of harm for PP—a tattoo is generally minimally invasive and reversible now—even though the tattoo in question is a face tattoo. Here, our moral intuition seems to suggest that it is not morally permissible for TA to proceed because, simply put, PP does not want to have the tattoos and he knows it. It seems, on first pass, that PP’s lack of underlying preference is the necessary but not sufficient condition additional to consent. Dougherty’s Objection—Consent-Centric view of Interpersonal Justification Argument TA has the obligation of Due Diligence to secure both available reliable evidence, e.g. evidence supporting that PP is very clearly sober and of sound mind – i.e. not visibly inebriated or have lost their faculties – when consenting to getting tattooed, and enhanced reliable evidence, i.e. evidence TA has a duty to actively acquire, e.g. a verbal confirmation from PP to clarify that they indeed knowingly and deliberately consent to a tattoo. If TA has sufficiently performed Due Diligence appropriately given the stake of the act—getting a face tattoo—and the cost of acquiring such evidence, the valid consent should justify this act; PP is no longer entitled to a complaint here. This would be analogous to a case in which the consent-giver, PP, falsely believes that their consent is invalid. Dougherty can agree that it is wrong in this case for TA to give PP a face tattoo. However, he would object that, rather than there being something else that makes tattooing PP morally impermissible, it is because the consent is actually not valid. How can that be? Dougherty asserts that consent is invalid when it is given under unjust social pressure like a misogynistic culture that demands unconditional sex from wives (Dougherty 2022). He could appeal that, in this case, PP experiences social pressure, which is “the exertion of influence on a person or group by another person or group” (American Psychology Association). People generally have a right to be free from this kind of pressure or external influence when making decisions, according to Kant’s Principle of Autonomy (Kant G4: 440). Consent is thus invalid in the Dougherty sense when social pressure is present because, like coercion, it denies the agent one or more options that they are entitled to have. Therefore, PP’s consent to receiving a face tattoo is invalid and TA has wronged PP by tattooing them. However, not all cases of consent for extrinsic reasons involve this unfair denial of options. Here, we would be mistaken to frame PP’s extrinsic reason—people pleasing—as coercion because coercion, by definition, is imposed upon the consenting agent by another agent, which is not present. PP’s “pressure” to consent is self-imposed, which means that this consent is still valid, ceteris paribus. Case 2—Intimate Relations with the Asexual Partner Two individuals, Ace and Bee, initiate a sexual encounter. Ace expresses consent to engage in sexual intercourse with Bee deliberately and freely while sober and of sound mind. However, Ace is asexual and would prefer not to have sex with Bee (or anyone, for that matter). Say, Ace would not mind if the fire alarm goes off as Ace and Bee are about to begin intercourse and interrupts it. Ace simply consents because she prefers not to make Bee think negatively of her. Like in previous cases, Ace’s consent is valid, though there is no underlying preference for the token act. Bee performs Due Diligence to interpret consent based on available reliable evidence and enhanced reliable evidence, which Bee acquires by asking Ace whether she is feeling pressured to consent to sex, to which Ace answers decisively, “No.” Assume that Bee is aware both generally and in this instance that Ace is asexual and prefers not to have sex. Bee proceeds to have sex with Ace because the consent is present and valid. Can we blame Bee for having sex with Ace? Can Ace make a complaint to Bee for acting against her preference? There seems to be something morally unsavory about Bee engaging in sexual intercourse with Ace despite knowing that Ace prefers not to do so even though there is valid, deliberate consent from Ace. Again, valid consent here, though necessary, does not seem sufficient to justify an act of bodily intrusion. So far, our cases have featured minimal interest and risk of harm on both sides. If underlying preference is indeed a necessary but not sufficient condition for the moral permissibility of acts of bodily intrusion, how would increasing the interest for one or both parties interact with the preference condition? Here, I understand interest as the stakes or concern one has in acting or withholding from acting in a given situation or to achieve a given outcome. For example, a student has an interest in maintaining a good grade point average because it is beneficial for future career or academic opportunities. Case 3—Obedient Patient’s Minimally Invasive Elective Surgery Obedient Patient (OP) is advised to undergo laser vision correction—a minimally invasive elective procedure otherwise known as LASIK—by their ophthalmologist. The operation has relatively low risk and marginal benefit for the patient. Let’s assume that the ophthalmologist, while board-certified and knowledgeable, does not exert an overwhelming epistemic authority over OP during the treatment process, i.e., OP does not feel epistemically pressured to follow the doctor’s orders. OP, obedient by nature, signs an informed consent form after the ophthalmologist provides a detailed explanation of what the procedure would entail, along with the potential benefits, risks, and side effects. However, OP disprefers to undergo this surgical intervention, all things considered; OP only consents because they do not want to disappoint the ophthalmologist. For OP, the best-case scenario would be if, after consenting, the ophthalmologist informs OP that LASIK would no longer be recommended or is generally canceled. Having obtained verbal confirmation in addition to written consent, the ophthalmologist performs LASIK surgery. Is this surgery morally permissible? Can OP make a complaint against their ophthalmologist? If valid—and verified—consent were necessary and sufficient for moral permissibility, then the ophthalmologist would have been perfectly justified to perform LASIK, which is not the case. Once again, the violation of the consent-giver’s underlying preference presents a weighty challenge to the moral significance of consent in a case involving bodily intrusion. If the elective surgery case yields ambiguous conclusions, consider the following similar but necessary procedure instead. Case 4—Required Surgery Suppose, now, our Obedient Patient instead consents to cataract surgery, which is required for their health, as they risk losing their vision if they forego the surgery. The procedure is the current standard of care for cataracts, a non-life-threatening but nonetheless serious condition, and OP has been adequately informed of the benefits, potential risks, and side effects such that the Due Diligence principle is fulfilled by the ophthalmologist, the consent-receiver. There is certainly now more interest for OP to comply with medical advice; like any reasonable individual, OP has an interest in preserving—or, in this case, restoring—their vision. However, OP would prefer not to undergo the surgery, all things considered, just like in the elective surgery case. Nonetheless, OP consents to avoid disappointing the ophthalmologist. Given valid and verified consent, and considering the necessity of the procedure to OP’s health and wellbeing, the ophthalmologist proceeds to perform cataract surgery on OP. Is this cataract surgery morally permissible? Can OP now make a complaint against their ophthalmologist? I concede that, to a bystander, OP has every reason to want the surgery, given the overwhelming interest and relatively low risk. Consequentialist theorists would argue that the moral calculus alone is enough to justify the surgery, and consent-centric theorists like Dougherty would cite the valid consent—verified by available reliable evidence and enhanced reliable evidence—to be sufficient for moral permissibility. However, I argue that there is something morally unsavory about disrespecting OP’s underlying preference not to be operated on despite these reasons, as intuitively, we want our preferences to be respected. Simply put, it would be wrong to proceed with the surgery when OP, who is getting the surgery, disprefers the surgery, and OP’s preference should be respected. Here, valid consent is still insufficient to justify this act of bodily intrusion. If this still does not demonstrate that consent alone is insufficient, consider the post-operation scenario. Case 4.5—Post-Operation Suppose OP finds the surgery unpleasant and is angry afterwards. They say to the surgeon, “You knew I didn’t want that. How could you do that to me? You could easily have said, ‘I know you are only consenting to please me; so, although that consent you gave is valid, I won’t go forward.’ Why didn’t you do that?” The surgeon—who has read up on Dougherty and the legal literature—could respond, “valid consent is all I needed to operate on you. Since I fulfilled my duty to acquire consent as well as additional evidence that your consent was valid while acting in your best interest, I did nothing wrong. I did not wrong you.” If the Due Diligence Principle only cares about available reliable evidence and enhanced reliable evidence for consent, and both indicate that the consent is valid and the procedure is within its scope, then, in the Dougherty sense, there is no moral wrong here. However, does it not feel wrong for the ophthalmologist to insist that no wrong was committed? While the ophthalmologist dutifully obtained and verified OP’s consent, something is missing here: namely, they did not act according to OP’s underlying preferences, which I identify as the other necessary condition for moral permissibility in this case. Note that preference seems to play a weightier role in our intuitive moral judgment of the ophthalmologist’s actions than case 3, where the operation is elective. It would seem that the higher stakes that the patient has in the bodily intrusion they consent to is reflected in a weightier consideration of the preferences of the consent-giver. To further illustrate this second condition of agent preference in cases of bodily intrusion, I invite the reader to consider the case of Unenthused Organ Donor (UOD). Case 5—Unenthused Organ Donor UOD is a match for a kidney transplant for a patient with end stage renal disease (ESRD). Upon being contacted for the match, UOD is sufficiently informed of the relevant details of the organ donation procedure and understands that there would be little to no risk or harm to their long-term quality of life. UOD understands that there is a great interest for the ESRD patient to receive the transplant and signs the consent form to undergo the procedure. When prompted, they confirm that they indeed consent freely and without external pressure. However, as the name implies, UOD prefers not to have a kidney removed. UOD consents only because it would look bad to refuse to donate. This is not a case of defective consent in Dougherty’s sense because the reason UOD consents—not wanting to look bad—is not an unjust pressure, as it is self-imposed. The consent is still considered valid. Would it be morally permissible for the doctor on the case to remove UOD’s kidney? I don’t think so. UOD’s preferences are clearly violated, so although they gave valid consent, the doctor is not justified to remove UOD’s kidney. Once again, preference clearly matters for the consent-giver, just as I have illustrated in the series of cases involving the body above. For the People Pleaser, preference mattered when a face tattoo was administered. It mattered for Ace, who consented to sexual relations with their partner. It no doubt mattered for Obedient Patient, who really did not want to undergo surgery despite its necessity. This moral significance of preference persists across the spectrum of interest weightings, from a reversible face tattoo to an organ donation operation, meaning that it is not the weight of the interest that matters in addition to the consent but the preference regarding one’s body itself. Objection—Weightier Interests? So far, I have shown that in cases involving property, like the Landlord case, valid consent suffices for moral permissibility. However, in cases involving the body, it does not. The cases I present posit that underlying preference is the necessary—though not sufficient—condition that makes the difference. One alternative explanation for this difference in the permissibility of consensual interference is that there simply is a weightier interest for the agent when an interaction involves their body. Dougherty would argue that bodily intrusion is more costly for an agent because the body is necessary for survival. It would be intuitive, then, that we should be more prudent when acting on consent that involves the body given the higher stakes for the consenting person. By that logic, individuals may have a similar interest when it comes to their property: there would be a weighty interest in having a large proportion or absolute sum of one’s property interfered with only when they prefer it. If this were true, we would expect to observe an apparent reverse correlation between the cost to the consent-giver and the justifying power of the consent. In minimally intrusive and reversible cases of bodily interference like the face tattoo case, there is minimal interest or harm for People Pleaser to get a face tattoo—it is not too painful, financially costly, does not affect present or future physical or emotional health, assuming we now live in a world where a face tattoo is not deemed socially unacceptable. We would expect that the consent to be asymptotically sufficient for the act’s moral permissibility, which contradicts our initial conclusion. In other words, since interest is low for PP in the tattoo case, we would expect consent-power to be high. Meanwhile, cases of higher-stake bodily intrusion like sexual intercourse or surgery do not minimize the role of valid consent. For example, in the second case of intimate relations, we can generally agree that the stakes are higher than in the face tattoo case, but ultimately, there is still, presumably, little or no risk of physical harm to the consent-giver, Ace. For Bee, there is more interest than in the last case for TA, assuming that allosexual—non-asexual—individuals have some interest in having sexual intercourse with others. The difference in the level of interest for the consent-giver is not reflected in a difference in consent-power in the moral permissibility of the act. Indeed, as the consent-giver’s interest increases, we continually see a restraint on consent’s moral weight in justifying the bodily intrusion. In the LASIK case, OP has a considerable interest in improving their vision, which contributes to their health and well-being. This interest further increases in the cataract surgery case, as delayed intervention could lead to permanent vision damage or even blindness, which OP, like any rational, seeing individual, would want to avoid. On the other hand, while we can acknowledge that the increased interest for the consenting Obedient Patient restricts the justifying force of consent, it does not drown out its role underlying the moral permissibility of the surgery either. OP would not have won a lawsuit, for instance, if they were to sue the surgeon for operating on them with valid consent. OP could only make the case to undermine the validity of the consent on the grounds that their obedience poses a type of pressure akin to coercion, which I have previously shown in the tattoo case to be unsubstantiated. According to Dougherty’s Expression of Will View, OP would have been under the false belief that they gave invalid consent, which does not itself invalidate the consent. If weightier interest were a sufficiently robust explanation for the restriction on consent’s justifying force, we should expect a similar conclusion from the above bodily intrusion cases in a property case. To investigate this hypothesis, I propose a test case involving property in which an agent has weighty interest and compare our moral intuition to the violation of preference with our intuitions regarding previous cases involving the body. Weighty Property Test Case—Stubborn but Conflict-Avoidant Private Company Owner Suppose an agent J owns a one-person private company. As the only employee and owner, J has sole ownership of this firm, so the company is akin to another form of property. J has a weighty interest in this firm because it is J’s only source of income—it generates present cash flow—and has the potential to continue generating monetary value. Now suppose a local chain offers to acquire J’s firm with attractive conditions: J would not only keep the job but also gain the opportunity to reach more clients, make more money, and potentially take over other departments of this future parent company. J signs the contract and verbally confirms this agreement with the legal representative of the chain company. In other words, in the eyes of the law and according to Dougherty, the acquisition of J’s company is justified. Yet, J is very stubborn and disprefers selling the company. J only consents to avoid conflict with the chain legal representative. The chain company executes the signed and verified contract and acquires J’s firm. It would be utterly absurd for J to make a public complaint against the local chain or the legal presentative and say, “you knew I didn’t want to sign the contract! You have wronged me by executing it and acquiring my company!” If the weight of interest for the consent-giver is the only thing that matters, we would not expect to find J’s complaint absurd. After all, J’s company financially supports J and therefore matters a lot to J! Recall that in the cataract surgery case, it was reasonable for the patient to insist that a wrong had been committed when the surgeon proceeded with the operation with valid consent but no underlying preference. This difference suggests that heightened interest does not sufficiently explain why consent alone is not enough when an agent’s body is interfered with while simultaneously being sufficient in property cases like the case of J’s company. This test case suggests that, when it comes to the body, something else has to be present, namely, preference. Objection—Preference as Consent Revocation? Another possible objection would be to assert that consent is preference-based. The lack of underlying preference would be equivalent to the absence of consent or its revocation, which would render the act no longer justified according to the first condition in Dougherty’s Due Diligence Principle (Dougherty 2021, 149). If the consent is revoked, then performing the token act that the consent is meant to permit would be, again, an intrusion of one’s personal domain. Since preference is a subjective, comparative evaluation (Hansson and Grüne-Yanoff), a conception of consent grounded in or functionally equivalent to preference would be categorized as a mental account, which recognizes that consent consists of a certain mental attitude (Dougherty 2021, 23). In other words, an agent’s mental content determines the scope of the consent. An agent can thus alter the scope of their consent or revoke it simply by changing their mind (Dougherty 2021, 33). Since preference is a kind of mental attitude, changing one’s preference thereby effectively either alters the scope of one’s consent or withdraws it entirely. Therefore, the proponent of the preference account would appeal to the lack of underlying preference as either the absence of consent in the first place or a revocation of consent. There are a few flaws with this objection. Firstly, Dougherty himself rejects the Mental View: in The Scope of Consent, he presents four arguments in favor of the Behavioral View over the Mental View, partly by relating consent to promise, which we generally agree requires public behavior (Dougherty 2021, 56). The Behavioral View thus holds that like promises, consent requires behavior to express the intention to release another individual from the duty not to act in such a way that intrudes in someone’s personal domain (Dougherty 2021, 61). Dougherty points out the asymmetry between promises and the mental account of consent. The latter can create, reimpose, and eliminate duties with mere intention. The former, by contrast, requires an act that publicly acknowledges the change in duties and how the two or more agents involved relate to each other (Dougherty 2021, 56). Though I in no way assert that consent is a kind of promise, we can nonetheless intuit from their shared moral currency and role in guiding interpersonal relationships that mere mental attitudes like intentions or preferences are insufficient in creating valid consent between individuals. Indeed, Dougherty’s own conception of consent—the Expression of Will view—rejects the moral or epistemic equivalence between preference and the expression of will; to equivocate these two entirely different concepts would render this objection unsound. Rather, there is something fundamentally different between consent, which, according to Dougherty, is a deliberate expression of will, and preference. The former, while a more undemanding version, remains a Behavior View of consent. The expression of will is a deliberate behavior that authorizes the intrusion of one’s personal domain. It may reflect an underlying preference or it may not. For consent to be valid under this view, preference is not mandatory but behavior is required. Even if we grant the Mental View, the preference account is still problematic. Dougherty argues that only certain kinds of mental attitudes can ground consent (Dougherty 2021, 27). We can find the motivation behind this view in the Autonomy Argument, which “appeals to the idea that consent is an exercise of an individual’s autonomy” (Dougherty 2021, 25). This is initially attractive given that much of consent literature, at least within the clinical world, arose in the aftermath of inhumane human trials in which subject autonomy was grotesquely violated. Since autonomy is partly reflected in an ability to consciously control our moral boundaries (Dougherty 2021, 25), a mental view of consent, conceptualized to maximize the protection of autonomy, should also be “under our intentional control” (Dougherty 2021, 27). However, preferences, like desires, are not necessarily under our intentional control. An agent can be born with a preference against injection needles without ever being subject to one, which supports the intuition that preferences are not always intentional. Therefore, preferences do not inherently generate a mental account of consent, so we should reject the worry that the lack of underlying preferences would somehow have the same moral significance as the absence or revocation of consent. Upshots Granted, in many cases in real life, the consent-receiver will not be in a position to know whether the preference is present. Indeed, sometimes the consent-giver would not even be aware or certain of their own lack of underlying preference until after the act has begun, as many preferences are nuanced, weak, or unconscious. In such cases, the ignorance of such underlying preference—or the lack thereof—would constitute a blameless ignorance of a morally-relevant fact, which would render the violation of the consent-giver’s personal domain blameless. As Gideon Rosen argues in “Culpability and Ignorance”, an agent is not culpable for an act done from moral ignorance if and only if such ignorance itself is not culpable (Rosen 61). I endorse this view and apply it to what would otherwise be culpable acts of bodily intrusions and concede that they, too, are inculpable if and only if the upstream ignorance of the consent-giver’s preference is not culpable. Moreover, there are cases where the consent-receiver fails to realize that the consent-giver has been wronged. For instance, calling back to our earlier case of LASIK surgery, our patient OP consents to be operated on by the ophthalmologist P. In this case, P has fulfilled Due Diligence, having obtained enhanced reliable evidence, and has OP’s patient profile, which indicates that he disprefers surgery, especially ones that do not involve general anesthesia. Yet, through no fault of P’s own, P fails to connect the dots and realize that OP’s aversions to surgery without general anesthesia would make it wrong for P to proceed with the consent. Again, Rosen would take this case as a kind of inculpable ignorance, which renders P’s intrusion blameless. Even theorists who deny that moral ignorance is exculpatory, like Elizabeth Harman, acknowledge that the failure to realize that the wrong-making features of an action make it morally wrong could sometimes exculpate the offending agent (Harman 2017, 117). Dougherty, too, would excuse this kind of intrusion. Since the Expression of Will View is an undemanding version of the Behavioral View, it does not require successful interpretation or communication for the consent to be considered valid (Dougherty 2021, 32); in fact, Dougherty rejects the Uptake Condition, which states that: An action A falls within the scope of the consent that X gives to Y only if Y successfully interprets X’s behaviour as motivated by an intention to release Y from their duty not to perform A. (Dougherty 2021, 78) Therefore, the consent is considered valid even if the consent-receiver is not aware as long as the conditions for validity are met (Dougherty 2021, 79). Nonetheless, even in these bodily intrusion cases where the preference is unknown or misinterpreted, there is still an issue of objective rightness to which the individual being wronged is entitled. We can concede that the consent-receiver acts blamelessly, but nevertheless unjustifiably. After all, we acknowledge that the consent-giver is still wronged insofar as their preferences are disrespected. Yet, since it is done from inculpable ignorance, as I have established, it is blameless. Such acts, according to Rosen, would call for “agent regret” but not moral blame (Rosen 69). Another account of such unwitting violations of the consenting agent’s preference comes from Elizabeth Harman, who proposes a moral category called morally permissible moral mistake (Harman 2016, 366). According to Harman’s conception, there are acts that one should do, all things considered, for moral reasons, but is not morally obligated to do, such that in failing to do them, one makes a moral mistake that is nonetheless permissible (Harman 2016, 373-374). The failure to perform such an act is a moral mistake because there are moral reasons for the agent to not fail to do it. Meanwhile, failing to perform the act is permissible because one is not obligated to perform it; not performing it is not morally impermissible. If we accept that morally permissible moral mistakes as Harman conceives exist, does proceeding with valid consent for bodily intrusion without the consent-giver’s preference fall under this category? Since I accept that valid consent releases the consent-receiver from the duty not to interfere with the consent-giver’s body, acting on valid consent would be morally permissible like in cases involving property, regardless of whether preference is present. Yet, the absence of preference makes it a moral mistake when it involves the body because, all things considered, there are moral reasons why the consent-receiver should respect the consent-giver’s bodily preferences. For the ophthalmologist, for example, to perform LASIK surgery on the Obedient Patient, would be a morally permissible moral mistake. On the other hand, we cannot say that it is a moral mistake for the Tenant to disrespect Landlord’s preferences against leasing in light of the contract, which makes Tenant’s use of Landlord's Apartment morally permissible. Acting with valid consent but without preference in property cases is not a moral mistake and is simply morally permissible. In either account, we can acknowledge that the consenting individual is still wronged despite the sanction of their valid consent without blaming the consent-receiving actor. In cases of bodily intrusion, we should not be in the business of blame but rather focus on protecting and respecting the moral boundaries and dignity of individuals, which is reflected by their preferences. The Due Diligence Principle, Revisited So what does this mean for Dougherty’s conception of consent? Should we abandon the Due Diligence Principle altogether? Of course not. These cases above have revealed that there is something beyond consent—namely, an agent’s underlying preferences—that should also guide and justify the actions of other individuals interacting with or acting within their personal domain alongside consent, not in place of it. One way to remedy Dougherty’s Due Diligence Principle is to acknowledge that, in cases involving the body, from a reversible tattoo to an invasive medical procedure, there is a further question about the consent-giver’s preference. Such preference should be clearly understood as an additional enhanced reliable evidence that the consent-receiver has a duty to obtain, though not a component of consent itself, such that knowing violations of underlying preference about the body are avoided and inadvertent intrusions are minimized. Note that, since Dougherty rejects the Mental View, and I have established that preference is a kind of mental attitude separate from consent, we can presume that Dougherty’s present conception of the Due Diligence Principle does not include information about preference as a kind of enhanced reliable evidence as I propose. Dougherty’s Expression of Will View does not care about preference. Therefore, my account here is a revision of Dougherty’s Due Diligence Principle, rather than a more generous interpretation.Whether an agent has sufficiently obtained such evidence is, of course, a matter of what is epistemically possible in a given situation, and should be evaluated on a case by case basis, as the Enhanced Reliable Evidence Principle suggests. A helpful metric remains the Reasonable Agent Standard common in the legal literature on intimate relations and medical practice, or Dougherty’s suggestion that it be appropriate given the stakes of the consented act and the cost of acquiring the relevant evidence (Dougherty 2021, 144). The important thing is that such due diligence to obtain evidence for the consenting individual’s underlying preference is carried out before the bodily intrusion is consummated. Conclusion In this paper, I have argued that valid consent alone is not fully dispositive in cases involving the body. Instead, a second preference-based right is another necessary condition for the moral permissibility of the intrusion. I have demonstrated through a series of cases that preference, rather than merely the cost to the agent, matters in addition to valid consent and should be respected. I then addressed the upshots relating to epistemic challenges, including ignorance and the failure to realize certain facts. I also outlined two moral accounts of consensual bodily intrusion without preference: a morally impermissible but blameless account under Rosen’s framework and a morally permissible moral mistake account under Harman’s conception. Lastly, I proposed an addendum to Dougherty’s Due Diligence Principle of consent to include one’s underlying preference. Future work should expand upon the moral significance of preference and provide a more conclusive account of what motivates its relevance in cases involving the body. 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Catherine Nelli Interview with Danielle Bainbridge Catherine Nelli Danielle Bainbridge is a professor of theater, African American Studies, and Performance Studies at Northwestern University. Her background is in theater, English, African American Studies, and American Studies. She completed her undergraduate degree at the University of Pennsylvania in 2012 in English and theater and completed her PhD in African American Studies and American Studies—cultural history—in 2018 from Yale. Interview has been edited for clarity. JPPE : I’ll start by asking you to introduce yourself, your background, and your research, as well as the questions you find most interesting or important to explore at the moment. Bainbridge : Right now, my most important questions or areas of inquiry are thinking about the intersections of race, disability, gender, sexuality—like, how do we perform difference on stage? As well as thinking about the important role than performance and theatre and art have played in the establishment of new nations or nationalism. To that end, I’m working on two projects. The first one is called Refinements of Cruelty , and I’m collaborating with NYU press at the moment hopefully to place the book there. The book is about 19th and early 20th century sideshow and freak show performers who were born with physical disabilities and also born into slavery, and the process through which they were doubly subjected to systems of oppression, both as disabled people and also as enslaved Black people. So that book is my primary project. My secondary project is a general history book that’s called How to Make a New Nation . It’s about the performances of nationalism in early postcolonial nation-states. So I’m curious about how things like the professionalization of the Olympics, early TV politics, radio broadcasts, who gets put on the money, and the building of monuments. How these performative objects were used to establish the idea of nation and to recognize nation on an international scale. So those are the kind of questions that I’m thinking about right now. JPPE : Our journal is focused on interdisciplinary scholarship, and I know that what you do is very interdisciplinary as well. I’m curious how your work has benefited from interdisciplinary practices. Bainbridge : My background in every phase of my academic career has been very interdisciplinary. As a double major in college, I was always thinking of the intersections of history, literary analysis, theatrical history, theatrical performance studies, and performance practice. That was where I started to ask these questions and when I was introduced to scholars who were also thinking through that critical lens. And then when I went to graduate school, I was in an interdisciplinary PhD program because African American Studies is a field that encompasses lots of other disciplines. So you think through political science, anthropology, sociology, and history, and you’re thinking about all of these questions at the same time. And American Studies was similarly oriented, even though it was a degree that really focused on cultural history. So, I think that interdisciplinary work became really interesting to me at an early phase of my career. When I was an undergrad, I didn’t think of it as a career, I just thought of it as college. But by the time I started thinking about wanting to be a professor and wanting to teach at the undergraduate and graduate level, I was really curious about how I can bring different kinds of media and different kinds of inquiry in different fields together. Some of that was also influenced by the fact that I’m a practitioner—I’m an artist. I do creative scholarship, digital media work, and digital storytelling like my PBS series Origin of Everything . I have also done some docuseries work with Youtubers and PBS. And I’m currently working on a couple different shows, like some of the Crash Course series through Complexly, which is a company that focuses on making educational media for young people. Right now, I’m really invested in how scholarship can be brought to larger audiences outside of the academy through digital media in a democratic way, where it’s not necessarily about how much you can afford but more about your natural curiosity and desire to learn. I am also a writer. I write for theater, and I’m working on my first documentary that just got funded. I’m always trying to look for new ways to interpret information and translate it for different audiences. It’s appealing to me to think about interdisciplinary work as something that combines disparate fields. I think that sometimes, when we say interdisciplinary, we mean fields that are adjacent to each other, that are touching. But for me, combining theater, digital media, performance, documentary, and mashing these things together makes me excited because it stretches me as a scholar to think about the ways that I could actually benefit people and the way that my work travels through the world. Sometimes when you think in strict disciplinary lines, your work has a narrower reach. And I’m really interested in how I can reach people. I really want them to learn and be excited about the things I present, so I’m always looking for interdisciplinary ways to bring stuff to new audiences. JPPE : What’s the relationship between the scholar and the artist, and what’s the importance of that relationship? Bainbridge : It wasn’t always the smoothest transition. When you enter a Ph.D. program, you’re really there to commit to doing book-length and article-length research. That’s the discipline; that’s what’s expected of you. And I think it’s really important stuff, I mean, I wouldn’t be able to do any of the public-facing work I do if folks weren’t writing books and articles about it because I’m not an expert in everything that I make videos about. And I think that at the heart of our fields, book projects and articles are really the foundation. But I think because I had a background in theater and then went to grad school for more cultural history and African American Studies, it became important to me to continue to express myself. I always say that the difference for me between being an artist and a scholar is that I try to let every project express itself as what it wants to be. If I have an idea for something and I think, “This would be a really fun script,” or, “This really wants to be an essay,” or “This really needs to be in my book,” I try to make those decisions very consciously, about what’s the best way for this information to be shared with a larger audience and what does this piece of information demand of me as a maker, as a creator. There are plenty of things that I think, “Oh, this would make a great 12-minute online video, really punchy, good graphics, and people will be into the question,” and that’s a good primer for folks who are thinking about gender, race, sexuality, ethnicity, international politics, or whatever. Sometimes I have ideas like that, and then sometimes I have ideas like my documentary that I think, “Oh, this really demands a longer look and a more intense focus.” So it all depends on what the archive and that object I’m studying or the subject I’m studying demands, and how best to translate that for people to learn from it. JPPE : What is the subject of your documentary? Bainbridge : I am working on a documentary right now called Curio . In 2018, I was Artist in Residence and also a facilitator and writer of a piece called Curio: A Cabinet of Curiosity , which was based on the research for my book Refinements of Cruelty . It is focusing specifically on the lives of Millie and Christine McKoy who were two conjoined twins born in 1851 in North Carolina, who were touring the world and became international celebrities as freak show performers. So, they would sing and dance and there was also a heavy amount of exploitation and medicalization in their archive. The McKoy twins were who I started researching in grad school when I decided to work on freakshows and the intersections of slavery and disability. So, I am really intimately acquainted with their archive, and I made this performance piece out of it that a group of undergraduate students at the University of Pennsylvania staged. I loved working with those students, I think that they were really game to do a lot of weird stuff with me. I had them learning the handbell, I had them singing songs from the 19th century, they were tied together in a conjoined dress, and they were doing all sorts of really weird and experimental stuff with me. I learned a lot from that process, and I always wanted to rewrite and then restage it. So, in my early days at Northwestern—I came here in fall of 2018 as a postdoc right after the play had opened—I did spend some time with the piece thinking about revamping it. And then, you know, the world turning upside down the next academic year because it was 2019-2020 and COVID happened and all theaters went dark, and there was no opportunity to rethink the work, except in my own head. So I started thinking, wouldn’t it be great if I can make a documentary, because it combined my interest in digital media and my experience making these explainer videos and docuseries. It would be great to do a documentary that combines some of the creative elements of music from the play with traditional documentary storytelling. So, I started working on that idea and thinking it’d be great to do it, especially because it was funny that I started to see this explosion of digital theater overnight since there weren’t any opportunities to perform except on Zoom or through recorded stuff. And I just wanted an opportunity to combine my areas of interest under this same topic, so I pitched it to Northwestern for a research grant and I got some funding. And now I’m going to be working on that for the next year and a half or so, making maybe a 20- to 30-minute documentary that combined some of the elements from the stage production that I thought were really successful along with traditional documentary storytelling, like interviewing the McKoy descendents, looking at archival footage, and you know, figuring out ways to bring that story to life and to a larger audience. JPPE : Theater and performativity are in a rudimentary sense acted and therefore fictitious, but in recent years I think we’ve had a wider awareness that it isn’t that simple. So, how does the theory that you study translate into real world politics, representation, and change? And can you speak about this in relation to your Refinements of Cruelty? Bainbridge : It’s interesting because I’ve always been interested in the work of people like Moisés Kaufman, Anna Deavere Smith—people who do documentary theatre, just because it offers something really insightful and interesting, especially Anna Deavere Smith, I’m a big admirer of her work. So I think, when I write and when I create stuff, I do know where the line between reality and fiction is, I think that’s the first step, but I am also really interested in ways that theater could impact and bring about empathetic and lasting political and social change. I do think that the pieces that we make and things we put into the world have an impact on the way we view representation, on the way we view politics, on the way we view people from groups that aren’t our own. And so, when I’m teaching my students, it’s not just that I want them to be good storytellers, or good creators of fiction. I also want them to be good people, good global citizens, good people who think about the world in really critical and crucial ways. And I think there’s so much to be said for performance in general. Not only the creation of it, but the consumption of it is this huge engine for empathy and huge engine for understanding. So, when I’m making work or when I’m thinking about theater or writing criticism, I’m thinking about it in those ways—specifically about how we can create lasting and sustained social and political change through the creation of art. And I don’t think every piece is for every person. But I do think that there’s a lot that can be done. And a lot of artists are thinking really critically, especially as we’re starting to see new generations of artists making work that’s really critically looking at race and gender, not that these things are new, but that they’re really important questions that are being brought up. I do think there is a history of work making new social movements or new social possibilities for people. JPPE : What is the most impactful example of art that has created or propelled lasting change or social movements? Bainbridge: One of the things I teach is a course on African American theater history that starts in the 19th century and ends with A Raisin in the Sun . And I think most of my students who are young, Gen Z, savvy, politically active folks think of Raisin in the Sun as that old-fashioned play from the 50s that they had to read in high school or early college. And the thing for me about why I staged the class this way that ends with Raisin is that we have all of this activity of Black theatrical innovation and genius that comes before it. We have plays from Black artists in the 19th century, we studied things like slave narratives, we study Frederick Douglass’s oratory, we look at W.E.B. DuBois’s theories of artist propaganda, we look at some of the darker aspects of the representation of Black people like blackface minstrelsy, Vaudeville—you know, performance of minstrelsy as well as early instances of Black people performing in blackface. So we also see some of that as well in this time period. But what I want to chart for my students is the slow progress that we start to see in Black representation from the mid-19th century to the mid-20th century. We start to see improvements in realism, improvements in domestic drama, and then we have this revolutionary moment with A Raisin in the Sun , where it’s this big critical success, but it’s also one of the first plays that we see by a queer, radical Black woman that represents Black people as people and fully human. And so by the time my students arrive at A Raisin in the Sun , you can see that they’re excited, that they say, “Oh my god, finally something that looks like real people, fully fleshed out people.” And I think oftentimes, Hansberry’s work gets read as conservative because it comes from a particular historical moment, but actually, it was this radical revelation in the representation of Blackness on popular stages. And it represents early emerging Pan-African identities through the character of Beneatha, it talks about the role of gender through characters like Ruth and Mama Younger and Walter. We see early integration politics that represent Black desire as not a desire for integration because they want to be in proximity to whiteness or close to whiteness, but because they want greater opportunity for themselves and their children. That subtlety and that keen hand that Hansberry has was so revelatory, and I really like having it at the end of the quarter so that students can finally put it in its context and say, “Oh, this really was a lot different than what came before it. This really is espousing something radical and fresh when you think about what came before it.” So that’s one of my favorite examples, and then I also teach the second half of that course, which is A Raisin in the Sun to contemporary theater. JPPE : What has been your research methodology on the Refinement of Cruelty project, and what has surprised you or not surprised you the most about the process? Bainbridge : As a writer, I write a lot of creative nonfiction, as well. And I was really surprised by what the archive demanded of me in terms of ethics. I'm looking at this archive of people who were exploited, essentially, in multiple ways. And I'm trying to make sense of this story while I'm also having complicated and complex feelings as a Black woman, as someone who has experienced the trials and tribulations of the American healthcare system, and medicalization and fetish, and all of these other things. And so, you know, when I first started the project, it was 2012. So it's been, like 10 years. So that's overwhelming. But I think when I first started the project, I was just surprised by how hard it was for me to look at the material, because I primarily before then had been studying feminist theatre from Jamaica in the 1980s. So it was more celebratory and more self-fashioning, because these women were creating their own stories and writing their own work, deciding what went into the archive. Things about the performers I study largely when they're either against their will or without their consent, at the very least. And so methodologically, I started thinking through two primary questions. The first was, what does it mean to enter something into the archive? What does it mean, to put something on the official record? And the second question was, what are the ethics or responsibility that I have as a Black queer woman telling this story? What do I need to do to make this feel okay? The first question I kind of answered with what I'm theorizing is the future perfect tense of historical recording. The future perfect is a tense that you see in romance languages, like Latin and Spanish, which is the past tense of the future. So it’s, “it will have been.” I started to fool around with that idea because I thought, when you are entering something into the record as a historical actor, as someone who is concerned with history—so say, I have things that I think are historically significant, I entered into an archive—I’m concerned with how history is going to be told 10 years from now, and 15 years from now and 100 years from now, that's why I put it in the archive. I wanted to trace sort of what those impulses were, and why people began to think through those terms. And I thought the archive that I was engaging in, especially because a lot of it is ephemera, and sort of freak show stuff, and things that people think of as lowbrow culture, I was thinking, why would someone enter this in an archive? What's the impetus? And why are they thinking that historians 100 years from now should be able to view this? They put this in a protected place for a reason. And then the second question methodologically, I'm answering was what I'm calling an ethnography of the archive. So it's a lot of auto-ethnographic writing that I do about archival ethics, essentially. And I put that in the project itself and fold it into it itself because I think one of the things that felt unsatisfying to me was speaking in the sort of disembodied historian’s third-person voice. I wanted it to feel as if I was considering the questions of what the archive is demanding of me and my own subject position as a descendant of slaves. And I started doing that writing mostly in grad school to satisfy myself. It wasn't something that I thought would really end up in the project. And then when I saw that people were responsive to it, and that the questions being asked by this ethnography of the archive were leading me somewhere methodologically, I started writing more and more and more and more. So I think you really have to consider what the archive demands of you before you start working. Because if I was working on another archive, or a completely different subject, I don't think I would have the same questions. JPPE : Right, so really considering positionality. Bainbridge : Yes. JPPE : What are the cultural and economic legacies of the freakshow and performance archive that you’ve found? Bainbridge : There are some interesting economic quirks of these archives. In one chapter of my manuscript, I call it the “Alternative Ledgers of Enslaved Labor.” That’s where the economic angle of this archive really becomes most evident. The chapter itself focuses on this really long ledger kept by Chang and Eng Bunker, who are two other subjects in my study. Chang and Eng were conjoined twins, just like the McKoys. They spent most of their life in North Carolina, just like the McKoys, but they were actually born in Thailand, or then known as Siam. They are the twins around which the phrase “Siamese twins” was established, so they are the original so-called “Siamese twins.” This ledger is interesting to me particularly because they are included in my study not because they were enslaved, but actually because they were racialized, BIPOC people who were slave owners. When they retired from the freakshow stage, they invested their money in buying two adjacent plantations, they married two white sisters—each married to one sister—and they divided their time between these two plantations, they owned a few dozen slaves, and they invested all their money in Confederate currency. So ultimately, we all know the historical outcome of this, that Confederate current went defunct. It became valueless after the war ended, and they were forced to re-enter the freakshow stage as performers, essentially to support their family and to support themselves. I’m interested in this ledger, particularly because it’s so detailed and so nitty gritty, but it doesn’t recount any of the expenses of all of the enslaved souls that lived on these plantations. So it doesn’t have a lot of information about the women and men that they enslaved, but it has things like, “gave daughter five cents to repair her gloves,” “25 cents in postage for publicity, five flyers,” I’m sifting through this ledger primarily to think about ways that performance labor is recorded, but slave labor is erased. And I’m also curious about how we think about performance labor through these enslaved performers. So folks, not like the Bunkers, but more like the McKoys and Blond Tom Wiggins and Joice Heth, who are other people who are in my study. I’m interested in how we could reconfigure this as not just performance practices, but thinking about labor because at its heart, slavery is a labor system. It is an economic system—to live in a slave society is an economic system. So I’m thinking through scholars like historian Stephanie Smallwood’s Saltwater Slavery , I’m thinking through things like Jennifer Morgan’s Laboring Women , where they think really intimately about the connection between finance and enslavement and what it means, particularly for Black women. I’m curious about how all these things could be read through performance, where we’re not necessarily seeing these performers do things like pick cotton, or perform housework, or take care of children because they were presumed to be valueless, essentially, because of their physical disability. But many of them ended up becoming the prize of their master’s plantation because their performance labor actually netted more money than they could do any of those domestic tasks or fieldwork. So I’m curious about that relationship and how it can be explicated. JPPE : Switching over to your project on nation and how the nation is imagined and born, what is the relation between literature and performance and the idea of nationhood? How do postcolonialism and Black Feminist Theory interact with, shape, or reflect these ideas and forces? Bainbridge : I first became interested in this topic because I was teaching a class which used to be called State-Funded Theater of the Americas and now is called State-Funded Theater of the US and Caribbean, which looks at state-funded theater from the 20th century after postcolonial movements have started to emerge in the 1930s until about the 1970s. It is concerned with why and how so many states, these newly formed independent nations, as they were entering the postcolonial period, why they were funding theater. That was my initial question that started the idea for the book. What is it about theater or these plays—you know, they’re funding plays by Dereck Walcott about the Haitian Revolution, they’re funding plays by Sylvia Winter, they’re funding plays by lesser-known playwrights and we’re seeing this explosion of work from really important folks who would later become important poets, playwrights, postcolonial theorists, and they’re essentially being put to work by these states making theater? And then at the same time, in the US during the Great Depression, we start to see things like the Works Progress Administration and the Federal Theater Project, which are funding what they’re calling “Negro Units,” in the parlance of the day, of all-Black theater companies that are doing this really interesting work. I was introduced to a book by a scholar named Stephanie Batiste, who wrote a book called Darkening Mirrors . The book is about how these Negro Units of the Federal Theater Project were also thinking about US imperialism and internationalism in their performances because they often staged things like a production of Macbeth that’s set in Haiti or a version of The Mikado that’s set in the Pacific. And they’re doing these really interesting internationalist works, and I was also really taken in by a book called Sachmo Blows up the World which thinks about how Black jazz artists were sent around the world during the Cold War essentially as ambassadors of American identity. I became interested in all of these questions around the same time, which is: why is it important to use art to express national identity or a nationalist identity? I really started thinking about how these works could be connected, and I started to find other examples of how these places, these newly formed nations were thinking about their own national identities. Then the second thing I became really interested in was the professionalization of the Olympics, which sounds completely disparate and sounds like it has nothing to do with it, but basically I wanted to know how the Olympics went from being what was considered an amateur event—so, one of the requirements of the Olympics prior to, I want to say the 1970s or earlier, was that folks had to be amateur athletes, so they couldn’t be making money, either from sponsorship or they couldn’t be involved in professional leagues. And this was supposed to be a leveling of the playing field, but also was a big hallmark of the Olympic Games. As that transitioned to becoming this multibillion-dollar industry with TV ads and Coca-Cola sponsorships and all this other stuff, we start to see some of these newly independent nations start to get this greater recognition beyond the scope of their political impact. So we start to see places like my family’s home country of Jamaica become really famous for track and field, even though on the international politics scale, they weren’t considered a necessarily huge player by other nations because of global anti-Blackness and general disregard for Caribbean politics. So, we see smaller nations get this chance to now be considered competitors of larger nations. Those are the two archives that I started digging around in that made me want to ask these questions, and as I got more and more into thinking about these things, I just started pulling that thread and saying, “What are other instances of ways that nations perform their own identity?” I started thinking about monuments because we were in this endless news cycle of Confederate monuments being torn down and colonial monuments being torn down around the world. And then I started thinking, “Well, what’s another performance that’s supposed to signify something?” And I started looking into the performance and writing of national anthems, who gets put on money, who becomes a national hero, who’s considered an emblem of the nation? And I think all of these questions come because I am a scholar who’s deeply invested in Black Feminist Theory. They come from a Black Feminist perspective because I’m not just concerned with how we perform masculine leadership in new nations. I’m concerned with how all of these disparate things come together, but I’m also curious about the performance of nationalism or the performance of the nation-state particularly because I just haven’t had as many satisfying answers. I have a rule, basically: if I’m in a meeting and I have an idea, I have to be willing to do the thing that I’m suggesting, or else I don’t suggest it, because I hate being that person who says, “It’d be great if someone …would do this.” I have a similar thing with my scholarship, which is: if I have a question and it needs answering, I should probably write it down and write the answer because I can’t wait on someone else to do the project or do the thing. The question of nationhood became really interesting to me, not because I’m so much invested in the idea of the nation-state, but because these early independent countries as they’re starting to formulate their own idea of themselves, are turning to things like parades, and festivals, and literature, and theater, and are funding it at an incredibly high rate in comparison to what we see today. I mean, now it’s hard to get money out of a government to do anything artistic because other things are considered more practical. But it’s curious to me that so many nations are experiencing that same impulse at the same time—they’re saying “Oh, it’s important for us to have anthem, it’s important for us to have a national team at the Olympics, it’s important for us to put on plays and give people a sense of cultural heritage and pride.” It just seemed like too many coincidences not to be something, and that’s really where the idea came from. JPPE : How has the relationship between nationhood and culture and performance in literature or literary methods shifted over time and geography? How have different power systems influenced this? Bainbridge : From what I’ve done in terms of preliminary research and writing the proposal, in the early days of these postcolonial movements, there was a lot of effort made to put a good face on independence. There was a sense of celebration, liberation, where we start to see things like emerging Pan-Africanism, Black Nationalism, a sort of international perspective that’s thinking of people of color and oppressed people as in league with each other, as having shared destinies. And I think that’s really, really fascinating. I also think that as time goes on, and we start to see some of the hangover of postcolonial excitement, we start to see less and less of these performances, at least in my early stages of research for this second project. While there’s this big boom at the beginning of, “we need to have plays and pageantry and all this stuff to celebrate postcolonial identity,” it starts to slowly wane, not necessarily because I think the interest in promoting cultural identity goes away, but because other emerging issues of forming an independent nation come to the fore, things like being recognized internationally, economic downturn, the strength of the dollar—these become more prevalent at the front. As many nations became sort of undermined by the international community, we just see less and less of it. That’s the trajectory that I’m tracing now. Why is there this period of just explosion of creativity? And then the creativity doesn’t go away, the creation doesn’t go away, but some of the funding goes away, and when people are less inclined to put money behind something, it becomes less visible. And now, my work as a historian is to trace what became less visible. JPPE : Did the burst of creativity also come during independence movements? Bainbridge : Yeah, so we start to see them in the line with a lot of independence movements. I start the book with Aimé Césaire’s and others’ formulation of Négritude in the 1930s, which is interesting because Césaire himself is a politician, poet, theorist, global citizen—you know, he’s doing all this stuff. So I start with that, and then I think as time goes on—like anything, creativity is a plant, it needs water to grow, it needs funding to grow, it needs support to grow—we start to see people investing, especially because a lot of these early politicians had a sense of culture and literature that was more acute. They’re reading Marx, they’re reading cultural theory, they’re exchanging ideas, they’re organizing festivals and things together. There’s a lot of shared destiny in their thinking. But I think, because the idea of nation-state often gets framed, especially from a Western perspective, as individualistic—there’s the idea that you have to support and protect the boundaries and borders and we hear that rhetoric all the time here in the US—we start to see that it doesn’t disappear, people are still engaging and writing and making the stuff, but we just see a shift in focus, and I think that’s really where art reaches its limit a little bit. JPPE : How can theory and literature help us understand modern imperialism and the continuing legacies of past imperialism? Bainbridge : That’s really a great question. I’ll reference again Stephanie Batiste’s book because I think she does an excellent and really articulate job of discussing the connection between imperialism and performance. I do think that the work we make in any given historical moment is informed by what’s happening around us. Even if you set a sci-fi thriller in the year 3500, it’s informed by the moment you write it in. We know that implicitly as people who study literature and study performance, but I think it’s also curious as we start to see work now take up that charge but in a commercial sense. The work that I study was primarily funded by governments, and I’m interested in that aspect of things, but I was teaching the Swing Mikado (or the all-Black cast of the Mikado ) to my students a couple weeks ago, and one of them brought up—so I can’t take credit for this—they brought up that it’s really interesting to see that this moment is so concerned with US militarism and involvement around the world, and we’re coming off the wake of World War I, launching right into World War II, and then the Korean War and Vietnam, and we’re seeing all these things. And they made an analogy between the Swing Mikado or the all-Black cast of the Mikado and Hamilton , and how those two things speak to each other. They were saying that if the question of the moment when Swing Mikado came out in the 1930s was emerging US military involvement and imperialism, then the question of Hamilton is the hangover and wake of multiculturalism and what moment we’re in now as a society. And there’s lots to be said about Hamilton , I don’t know if I necessarily need to go down that rabbit-hole, but one thing that I find fascinating about it—and I didn’t see a live production, I saw the Disney Plus recording of the stage version—is that I think the music is actually quite good but I think that what it’s doing in terms of cross-racial casting is actually really confusing and not necessarily as successful as people think. So, I’m curious about that connection because, if the question of that moment was emerging imperialism, the question of this moment is now entrenched imperialism coupled with the hangover of 90s and early 2000s multiculturalism, and the promise of that moment. When I was a kid in the 90s, multiculturalism was everywhere. There was this idea that if we just put people forward enough, if we just represent people enough, if we just have enough TV shows with diverse casts, that will solve the problem of race or solve the problem of classism or xenophobia. And now, many years later, we see the failings of that. But I think the hopefulness of something like Hamilton is directly linked to that movement and that moment. Previous Next

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

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

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

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

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

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

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

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