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A Death Sentence Beyond Death Row: Helling v. McKinney and the Constitutionality of Solitary Confinement Hallie Sternblitz Author Lachlan Edwards Aditi Bhattacharjya Editors Originally written for U.S. Magistrate Judge Zia M. Faruqui & Assistant U.S. Attorney Olivia B. Hinerfeld Abstract On any given day, there are 80,000 to 120,000 Americans living in solitary confinement. Restricted to their cells for twenty-two to twenty-four hours a day, these inmates are deprived of human interaction for days, weeks, years, or even decades. While the practice is intended as a means of protection for the general prison population or vulnerable inmates, researchers have found extreme and irreversible psychological damage in inmates who were placed in an isolated unit for both short and long periods of time. In fact, Dr. Grassian, a psychiatrist at Harvard Medical School, determined that there was a specific psychiatric disorder associated with solitary confinement, which is now referred to as Special Housing Unit (SHU) Syndrome. Others have since found higher rates of suicide, self-harm, violence, and premature death associated with this form of isolation. Though the practice has become a longstanding custom in American prisons, I argue that solitary confinement is unconstitutional, as it violates the Eighth Amendment’s prohibition of cruel and unusual punishment by subjecting inmates to serious and unreasonable dangers to their future health and safety. Through a two-pronged parallel with Helling v. McKinney , a SCOTUS case in which a former inmate successfully defended his freedom from cruel and unusual punishment after being subjected to secondhand smoke while incarcerated, I demonstrate that there is clear precedent for ruling the practice unconstitutional. Here, I employ the Deliberate Indifference Doctrine as well as the previous rulings that informed it to establish the application of Helling v. McKinney to the case of solitary confinement. Finally, I conclude with alternatives that better achieve solitary confinement’s intended outcomes. A timid Boy Scout with a knack for mathematics and writing, Benjamin van Zandt was sentenced to four years in prison for a property crime at age seventeen. While incarcerated, he sought out counseling, coursework, and several other opportunities to fulfill his intellectual potential. After being named valedictorian of his inmate GED program, he eventually enrolled in the Bard College Prison Initiative to begin his college degree. Despite his model behavior, he was caught bringing a piece of bread from the prison cafeteria back to his cell and was immediately transferred to New York’s Fishkill prison as a consequence. There, he was repeatedly harassed, beaten, and sexually assaulted by inmates twice his age, most of whom were seasoned criminals dominating the prison network. Still a reserved adolescent, Van Zandt was immediately preyed upon and coerced into being a carrier of contraband. As a result, he was placed in solitary confinement. Ten days later, he was found hanging from his sheets and shoelaces. Introduction: What is Solitary Confinement? On any given day, there are 80,000 to 120,000 Americans living in solitary confinement. Restricted to their cells for twenty-two to twenty-four hours a day, these inmates are deprived of human interaction for days, weeks, years, or even decades. They are often denied reading material, natural light, visitation, and participation in group activities. Though originally a pacifist Quaker initiative led by Benjamin Franklin the late 1700s meant to be an opportunity for spiritual reflection and moral contemplation, solitary confinement has quickly been weaponized in the U.S. as a disciplinary act meant to maintain order and deter violence within the general prison population. Today, it is common practice to move inmates to solitary confinement for three primary reasons: (1) discipline for nonviolent transgressions, such as possessing contraband or insolence toward a prison official, (2) protection of others due to an inmate exhibiting violent behavior or the threat of violent behavior, or (3) protection of an inmate who is in danger of being victimized by the violent behavior of inmates in the general prison population. Thus, any inmate regardless of their behavior while incarcerated could be subjected to solitary confinement, which is often the case for LGBTQ+, neurodivergent, or mentally ill inmates, as well as inmates of color. In fact, one study indicates that 11% of all black men born in the late 1980s experienced solitary confinement by their thirty-second birthday. This disproportionality partially stems from the bias of prison officials, who often allow an inmate’s race, mental illness, or other identifying factor to dictate their perception of the events. Despite its protective intent, solitary confinement has been shown to amplify rates of violent recidivism. This is a direct result of the mental health issues caused from extreme solitude. Thus, the motivations for placing inmates in Special Housing Units (SHU), a euphemistic title for solitary confinement, are void. However, in this paper, I will focus not on why the U.S. should terminate all solitary confinement units but why it must . Shown through a parallel analysis with Helling v. McKinney , I argue that solitary confinement is an unconstitutional practice, as it violates the Eighth Amendment’s prohibition of cruel and unusual punishment by subjecting inmates to serious and unreasonable dangers to their future health and safety. To support this argument, I will first provide an overview of the inadequacies of legal action taken against the extreme isolation in prisons thus far. Then, I will dive into the case of Helling v. McKinney and its two-pronged application to the practice of solitary confinement. Finally, I will introduce alternative methods of accomplishing the intended goals of SHUs that will facilitate the realization of ruling solitary confinement unconstitutional. Looking through a Legal Lens: Eighth Amendment Implications The Eighth Amendment to the U.S. Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Both the most controversial and most subjective clause, cruel and unusual punishment is at the forefront of modern debates on penitentiary justice. Originally, the phrase was intended to prevent torture as a technique of coerced confession or simply as a punishment. It was also meant to outlaw the use of barbaric instruments and public humiliation in formal sentencing. Today, the amendment is commonly employed for criminal defendants facing excessive bail or lengthy sentences at a young age. However, its use as a preventative measure against torture is often overlooked due to the lack of resources provided to victims subjected to torture during incarceration. However, the tide of Eighth Amendment cases may be shifting towards an inter-prison perspective, which has the potential to include solitary confinement. In the 2012 class action suit Ashker v. Governor of California , thousands of plaintiffs subjected to long periods of isolation in SHUs across the state due to alleged gang membership, 78 of whom spent over 20 years in solitude, sued the governor for violating their Eighth Amendment freedom from cruel and unusual punishment. They eventually agreed to a settlement that required the state to reduce their SHU population both by capacity and maximum sentence length, remove gang membership as a qualification to be placed there, and provide alternatives for those unable to serve their sentence in the general prison population. However, since this settlement, the state of California has repeatedly violated the terms and minimal change has emerged. Similarly, in Jensen v. Thornell (2012), Arizona inmates in isolation units sued for changes to the prison healthcare system, agreeing to a settlement by which the Arizona government had no intention of abiding. As such, the District Court judge rescinded approval of the settlement, bringing the parties back to trial in 2021 with new guidelines for managing medical care and health-related conditions in the state’s isolation units. Along with a handful of others, these two cases show the inadequacy of litigation over the constitutionality of solitary confinement in civil court. Though the plaintiffs may have won their cases, little has been done to reform SHUs, and tens of thousands of people remain subject to these abusive conditions daily. According to UN Special Reporter on Torture Juan Mendez, any time in forced isolation longer than fifteen days is considered abusive by UN standards. Thus, torture and abuse are commonplace within American prisons, as the average SHU inmate spends one to three months in solitude, with the longest remaining there for over forty years. As such, I argue that reform is insufficient; solitary confinement is unconstitutional and must be outlawed. Helling v. McKinney : A Potential Path Forward The Supreme Court has already laid the groundwork for ruling that solitary confinement is an unconstitutional practice under the cruel and unusual punishment clause of the Eighth Amendment. Helling v. McKinney questions whether future health risks imposed by prison officials is a form of cruel and unusual punishment, and thus a violation of an inmate’s Eighth Amendment rights. In a Nevada state prison, William McKinney was placed in a cell with an inmate who smoked five packs of cigarettes each day. As a result, McKinney inhaled unhealthy levels of second-hand smoke, which he argued posed a serious risk to his current and future health. He sued the warden of the prison as well as several other prison officials for violating his Eighth Amendment freedom from cruel and unusual punishment. The federal Magistrate Judge ruled that the Eighth Amendment did not guarantee McKinney’s right to a smoke-free environment, arguing that McKinney failed to prove any serious medical needs that the prison neglected to address. However, the Ninth Circuit Court of Appeals reversed the federal Magistrate Judge’s decision, holding that McKinney should be given a second opportunity to prove that the levels of second-hand smoke constituted an unreasonable danger to his future health. Yet, during the litigation of Helling v. McKinney , SCOTUS ruled on Wilson v. Seiter , a case in which a formerly incarcerated individual claimed he experienced cruel and unusual punishment and sought financial reparations from two prison officials but lost the case because he did not prove the officials had a “culpable state of mind.” The justices held that conditions of incarceration or confinement that are not explicitly outlined in an inmate’s sentencing require a subjective component that comes from the Deliberate Indifference Doctrine. This doctrine was created in Estelle v. Gamble in 1974 in which SCOTUS held, “Deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.” Exerting “deliberate indifference” has been characterized by SCOTUS as a transgression greater than negligence but less than omission with malintent. Thus, the doctrine is rather subjective in application. Nonetheless, a new dimension was added to McKinney’s case. Now, prison officials could be held accountable for a lack of adequate action with knowledge of a serious health or safety risk to an inmate. Appealing all the way to the Supreme Court, McKinney found himself in a battle with the government over whether the Deliberate Indifference Doctrine applied only to current health and safety risks or future risks alike, as his case emphasized the future health issues resulting from extreme inhalation of second-hand smoke. SCOTUS sided with McKinney, affirming his right to sue under the cruel and unusual punishment clause of the Eighth Amendment and the Deliberate Indifference Doctrine. In the majority opinion, Justice Byron White argued that the doctrine in no way specified that it only applied to current health risks and should thus include future health and safety risks as well. As such, McKinney, despite not being sick at the time, successfully demonstrated a violation of his Eighth Amendment freedom from cruel and unusual punishment, as prison officials acted indifferently to his future health. Drawing a Parallel: Helling v. McKinney and Solitary Confinement Helling v. McKinney greatly expanded the rights of vulnerable inmates, as they can now sue for damages that they are likely to experience post-release. When considering the constitutionality of solitary confinement, one can clearly draw a parallel between second-hand smoke and the mental illnesses that directly result from isolation. For one, solitary confinement aligns with the qualifications to employ the Deliberate Indifference Doctrine stated in Wilson v. Seiter ; it is a condition of incarceration not explicitly stated in judicial sentencing. Once eligibility has been established, there are two axioms of Helling v. McKinney that solitary confinement must satisfy in order to prove that victims of SHUs have a reasonable case to sue prison officials for violating their Eighth Amendment freedom from cruel and unusual punishment: (1) solitary confinement poses a serious and unreasonable danger to the future health of inmates and (2) those overseeing SHUs exhibit deliberate indifference to said danger. Future Health Effects of Solitary Confinement Initial research on the psychological dangers of extreme isolation was funded by the Canadian Defense Research Board and eventually the U.S.’s Central Intelligence Agency in the early 1950s to harness a psychological warfare defense to combat the Soviets, who were brainwashing prisoners of war. Led by Dr. Donald Hebb at McGill University, student volunteers were placed in isolation boxes meant to deprive them of all their senses. Each student was to remain in the box for as long as they felt they could, only leaving to use the restroom and eat meals, during which a facilitator of the experiment would guide them. Dr. Hebb expected to observe changes in their behavior over the course of six weeks; however, the experiment only lasted six days. The results were jarring: the students complained of vivid hallucinations, “blank” periods in their minds, inability to write or solve a basic math problem, hyperrealism of external stimuli, new fears, separation of mind and body, and even the sensation of being hit with pellets. Dr. Hebb’s findings have since been weaponized as a punitive practice for convicted criminals. Though, opponents of solitary confinement have reclaimed his work and used it to demonstrate that solitary confinement is in fact cruel and unusual punishment. Since then, more research has emerged specifically studying the correlation between solitary confinement in prisons and mental illness. For instance, a study on incarceration in New York found that inmates in solitary confinement for any length of time were five times more likely to die by suicide and 3.2 times more likely to self-harm than an inmate in the general prison population. Similarly, a California study found that hypertension was three times more common among SHU inmates. Across the U.S., those subjected to solitary confinement for any length of time were 24% more likely to die within the first year after release, including 78% more likely by suicide and 54% more likely by homicide, demonstrating an increase in violence as a result of the very practice that was meant to curb it. Furthermore, they were 127% more likely to fatally overdose on opioids in the first two weeks following release. Similar research has been conducted to determine if short stays in solitary confinement would fulfill the intended purposes while avoiding the detrimental effects; however, this was not the case. One study only included subjects that had spent less than a week in solitary confinement, yet this group had significantly higher death rates from unnatural causes such as suicide, violence, and vehicular accidents than those who had only spent time in the general prison population. Dr. Stuart Grassian, a psychiatrist at Harvard Medical School, concentrated his research on the set of traits emerging in formerly solitarily-confined inmates post-release. After conducting several series of interviews and experiments, Dr. Grassian determined that there was a specific psychiatric disorder associated with solitary confinement, which is now referred to as SHU Syndrome. In a 2006 publication, he outlines the seven key symptoms consistent among nearly every inmate he studied: (1) hyperresponsivity to external stimuli, (2) perceptual distortions, illusions, and hallucinations, (3) panic attacks, (4) difficulties with thinking, concentration, and memory, (5) intrusive obsessional thoughts, (6) overt paranoia, and (7) impulse control. These symptoms are remarkably similar to those found in Dr. Hebb’s isolation experiment in 1951. Moreover, Dr. Grassian notes that this combination of reactions is unique to SHU Syndrome and cannot be found in nearly any other psychiatric disorder. He characterizes the condition as a form of an acute organic brain syndrome. Confirming this research, neuroscientist Huda Akil suggests that solitary confinement can permanently alter the structure of an inmate’s brain, as the functioning and structure of the human brain changes in response to environmental stimuli. As such, solitary confinement for any length of time can cause a distinct health defect that often permanently affects the inmate, even after release. Therefore, solitary confinement fulfills the first axiom presented in Helling v. McKinney , as it poses a significant and unreasonable danger to the future health of inmates. Deliberate Indifference in the Case of Solitary Confinement Wilson v. Seiter , which established that the Deliberate Indifference Doctrine in Estelle v. Gamble applies to conditions of prison confinement, cites Whitley v. Albers in its holding, stating “the ‘wantonness’ of conduct depends not on its effect on the prisoner, but on the constraints facing the official.” Therefore, the second axiom of applying the Helling v. McKinney precedent to the case of solitary confinement, which requires deliberate indifference on the part of prison officials, relies on the ability of prison officials to inhibit the placement of inmates in solitary confinement, which, as shown, is a grave danger to their future health. This proposition is fulfilled in two parts: (1) by demonstrating that prison officials have the capability to terminate or avoid placements in solitary confinement but deliberately choose to place inmates in SHUs and (2) by demonstrating that prison officials are likely aware of the health effects of extreme isolation but choose to exercise indifference. The decision to place an inmate in solitary confinement is almost entirely up to the discretion of guards and prison officials. As stated previously, inmates are sent into SHUs for a vast range of reasons, including for unprohibited behavior like talking back to a guard. As a result, a large portion of inmates in solitary confinement were placed there at the subjective discretion of a prison employee, despite never engaging in malicious behavior that would make them a danger to the general prison population. Instead, many inmates in SHUs are victims rather than perpetrators and are thus subjected to the rights violations of solitary confinement due to no actions of their own. This issue has been especially rampant in New York state prisons, where investigations show that much of the SHU population is constituted by victims of prison guard abuse, which can either be physical abuse or a guard’s abuse of power over the inmate. In fact, one investigation found 160 lawsuits of inmates who were sentenced to solitary confinement by guards who fabricated assault allegations. Often, these inmates were subjected to physical abuse at the hands of prison guards, some even resulting in permanent injury or death. However, this abusive network of guards is largely protected by their membership in an officers’ union, with which the state signed an agreement to allow arbitrators from the union to be the final determinator of an officer’s employment status. This means that when an inmate accuses a guard of abuse or misplacement in solitary confinement, the guard’s peers have the right to reinstate them in their position even if higher prison officials chose to terminate their employment. Consequently, 88% of the guards accused of fabricating reports to conceal abuse in the 160 lawsuits were reinstated in their roles, as only a court can overrule the decision of the arbitrators. This leads to a demoralizing cycle in which inmates are subjected to abuse, isolated from the general prison population, and then denied the ability to hold their abuser accountable, often leading to further abuse if they try. Once a guard places their victim in an SHU, they are usually the only form of human contact the inmate receives, thus leaving the inmate in an increasingly vulnerable position with no resource but their abuser for help. As such, a prison official can exploit their position of authority over inmates and send anyone who threatens that authority, whether it be their victims or someone who simply verbally offended them, to solitary confinement. This is not to say that all guards or prison officials have malintent in their discretion over SHU placement; yet enough are malicious and are protected by the system that the issue must be addressed. Due to the structural nature of SHUs, inmates’ placement in solitary confinement and thus their future health is often in the hands of prison guards who are neither trained mental health professionals nor judges determining the inmate’s sentence. Nonetheless, they are left to use their discretion in a life-or-death matter. As a result, placements in solitary confinement are the deliberate decision of prison officials, satisfying the first criteria of exercising deliberate indifference: the ability to terminate or avoid placing an inmate in a SHU but instead choosing to send or keep them there. Secondly, prison officials must have the knowledge that an inmate’s health will suffer as a result of placing them in solitary confinement in order to show culpability of indifference. This can be addressed by providing evidence that a prison official was aware of a health or safety risk but failed to act to resolve it. As previously stated, every prison official is in the position to act, which in the case of solitary confinement means removing an inmate from an SHU or avoiding placing them there in the first place. However, their knowledge of the risks involved is somewhat more difficult to prove. One way to establish their awareness of the practice’s dangers is through their direct experience working in a correctional facility. Research shows that prison officials are also physically and mentally affected by working in a solitary confinement unit. One study found that SHU correctional staff witness “intense human suffering” such as “smearing feces, ingesting objects, self-injury, violent outbursts” which causes “vicarious trauma” to the official. As a firsthand witness to the deterioration of inmates subjected to solitary confinement, any competent prison guard can recognize that the health and safety of the inmate are in danger as a result of extreme isolation. Furthermore, reports show that prison officials experience significantly increased stress levels when working in solitary confinement, providing them with empirical indicators of the mental risks associated with spending time in an SHU. Additionally, corrections officials assigned to solitary confinement units are at higher risk of heart disease, hypertension, PTSD, and suicide, which are some of the same health risks for isolated inmates. These rates were found to be significantly higher than both the national average and among individuals with other stressful jobs, such as the military or police force. Thus, knowledge of these personal health effects coupled with the visual sight of inmates suffering from the seven symptoms outlined in Dr. Grassian’s research of SHU Syndrome are clear indicators to prison officials of the dangerous consequences of solitary confinement. Moreover, there is a consensus among the American public that extreme isolation can be a danger to one’s health, as 86% of voters support removing inmates from solitary confinement at the first sign of an adverse health effect. This demonstrates that knowledge of the risks of solitary confinement is prevalent throughout the nation’s people, who are largely in consensus about the dangers of the practice. The deliberate indifference doctrine requires that prison officials deliberately choose to place inmates in solitary confinement over other alternatives, which has already been established, and also requires that the officials know that placing an inmate in solitary confinement will have negative health effects. Thus, this common knowledge paired with being a firsthand witness to symptoms of SHU Syndrome establishes that prison officials know the health and safety risks associated with solitary confinement, are indifferent to them, and deliberately choose to not prevent them, therefore satisfying the Deliberate Indifference Doctrine. Motivations to Outlaw Solitary Confinement As shown, solitary confinement poses a serious and unreasonable danger to the mental health of inmates and is a practice in which a prison official must exercise deliberate indifference, thus making it unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. Helling v. McKinney implies that any condition of confinement that puts the future health and safety of an inmate at risk and that a prison official knowingly ignores is a violation of the rights of the inmate guaranteed by the Constitution of the United States. Helling v. McKinney set an important precedent in the litigation of prisoners’ rights; however, solitary confinement remains a common practice in each of the fifty states despite the parallel that has been established. Moreover, based on the research provided, the future health risks of solitary confinement are arguably much more extreme than those of second-hand smoke inhalation, with a disturbing portion of inmates like Ben van Zandt not even surviving their sentence. Yet, being subjected to second-hand smoke has been regarded as a violation of the Eighth Amendment for nearly three decades, and solitary confinement remains commonplace. As such, it is time that SHUs across the nation are put on the stand and examined for their compliance with the Constitution of this country. As Helling v. McKinney stands, solitary confinement should be unconstitutional and must be outlawed. Moreover, solitary confinement is not currently adding any benefit to the functioning of American prisons or the rehabilitation of subjected inmates. The practice is employed to protect the general prison population from violent inmates, protect vulnerable inmates who are common targets among others, or discipline inmates who disrespect the rules or officials that govern the prison. However, solitary confinement does not actually achieve any of its intended goals. Rather, it has been found to exacerbate the very issues it sets out to solve. The vast majority of studies on the effects of solitary confinement on future inmate behavior and inter-inmate violence within the general prison population has reached a consensus that there is no statistically significant correlation. This is true for both crime frequency and intensity. In fact, one study found that solitary confinement increased rates of recidivism post-release. An even stronger correlation was found between time spent in solitary confinement and violent re-offenses, indicating that the community was less safe than it would have been in the absence of the practice. As such, SHUs are not fulfilling their intended goals of reducing inter-prison violence. Instead, they are subjecting up to 120,000 people to irreversible psychological damage on any given day. Alternative Solutions to Solitary Confinement Rather than continue this practice, the precedent set by Helling v. McKinney must be employed to rule solitary confinement unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. However, I acknowledge that inter-prison violence and rule violations must be addressed. I propose three alternatives: specialized units for inmates with mental illnesses, de-escalation training for prison staff, and increased programming. The state of New York has already begun implementing these practices through its Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which was passed in 2021 and went into full effect in 2022. Prior to the ratification of this bill, the state began to reform its solitary confinement units by introducing the Clinical Alternative to Punitive Segregation, or CAPS, program. Instead of being punished for violating prison rules with isolation, inmates who exhibit serious mental illnesses are directed to the CAPS program where they receive in depth counseling, treatment, and rehabilitative intervention. As a result, the rates of self-harm for inmates who otherwise would have been sent to SHUs decreased drastically. Hence, specialized units, whether it be for inmates with mental illnesses or other groups that may be targets in the general prison population and thus require isolation, provide a realistic alternative to solitary confinement that maintains an inmate’s humanity and sociability while providing them the rehabilitative resources necessary to reenter society. Secondly, Crisis Intervention Training (CIT) for prison staff is a crucial method for creating safer communities within correctional facilities. One study found that prison officials who were trained in crisis management had a significantly decreased bias in the distribution of reported incidents. Furthermore, CIT officials were more likely to seek out less common and less severe alternative punishments rather than choose to send an inmate into isolation. As a result, less inmates were subjected to the cruel and unusual punishment of solitary confinement and were instead given the opportunity to rehabilitate themselves and discuss their actions. As such, de-escalation training for prison staff has the ability to change both the inequitable discrepancies and frequency of use that are associated with placement in SHUs. Finally, educational and transitional programming is key to the rehabilitation of inmates, especially those who have spent time in isolation. In one Minnesota facility, there has been a transition away from the isolating nature of solitary confinement towards the rehabilitative intention of placing an inmate in an SHU. This was primarily achieved through three programs: the introduction of Prison To Community (PTC) specialists, a companion program, and accessible treatment resources. For instance, an inmate who needed to be placed in an SHU would be assigned a PTC specialist to meet with them and discuss a plan to re-enter both the general prison population and society. Similarly, they would be given a hired companion inmate from the general prison population who would be screened to sit outside of their cell and keep them company while in isolation. This is beneficial for the SHU inmate and provides employment to the general population of inmates. Lastly, the isolated inmate would be given a variety of reading, audiovisual materials, and assignments related to addressing emotional, psychological, or behavioral issues, prompting the inmate to self-rehabilitate throughout their time in an SHU. While these programs are still not ideal in the sense that they do not eliminate the use of solitary confinement completely, they are a valuable step in transitioning prisons across the country from relying heavily on the practice to maintain order as they do now to terminating the practice in its entirety. These three alternatives provide a realistic path forward in the aftermath of ruling solitary confinement unconstitutional. Though it may require a shift in public attitude on the rights of inmates, the road to ending extreme isolation in prisons is clear and necessary. The case of solitary confinement, though more dire, parallels McKinney’s battle for his future health. 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NYCLU Staff. “The Humane Alternatives to Long-Term (‘halt’) Solitary Confinement Act.” NYCLU, March 7, 2024. https://www.nyclu.org/resources/policy/legislations/humane-alternatives-long-term-halt-solitary-confinement-act. Otterman, Michael. “Codifying Cruelty.” Essay. In American Torture: From the Cold War to Abu Ghraib and Beyond , 42–58. London, UK: Pluto Press, 2007. Pullen-Blasnik, Hannah, Jessica T. Simes, and Bruce Western. “The Population Prevalence of Solitary Confinement.” Science Advances 7, no. 48 (November 26, 2021): 1–9. https://doi.org/10.1126/sciadv.abj1928. Rockwood, Bill, Evan Wexler, and Sarah Childress. “How Much Time U.S. Prisoners Spend in Solitary – Locked up in America.” PBS Frontline, April 22, 2014. https://www.pbs.org/wgbh/pages/frontline/criminal-justice/locked-up-in-america/how-much-time-u-s-prisoners-spend-in-solitary/. 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Politics The European Union Trust Fund for Africa: Understanding the EU’s Securitization of Development Aid and its Implications Migena Satyal A Death Sentence Beyond Death Row: Helling v. McKinney and the Constitutionality of Solitary Confinement Hallie Sternblitz Featured Section Vol. VII | Issue I The Burden of Innocence: Arendt’s Understanding of Totalitarianism through its Victims Elena Muglia Rewriting the Antitrust Setlist: Examining the Live Nation-Ticketmaster Lawsuit and its Implications for Modern Antitrust Law Katya Tolunsky Vol. VI | Issue II Schedule F And The Future Of Civil Service Protections Sasha Bonkowsky Does Social Media Strategy Help Politicians Stay in Power? Comparing the Cases of Modi and Bolsonaro Wendy Wang How Political Instability Unravels Religious Commitment in the Face of Uncertainty Navigating Uncertainty in Political Instability and Religiosity in Post-Arab Spring Egypt and Tunisia Abanti Ahmed Politics Archives Vol. IV | Issue II Refuting the myth of progressive secularism An Analysis of the Legal Frameworks Surrounding Religious Practice in France and Bahrain Bridget McDonald Ronald Reagan and the Role of Humor in American movement conservatism Abie Rohrig Vol. IV | Issue I Predictive Algorithms in the Criminal Justice System Evaluating the Racial Bias Objection Rebecca Berman From Bowers to Obergefell The US Supreme Court’s Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White The Unchurching of Black Lives Matter The Evolving Role of Faith in The Fight for Racial Justice Anna Savo-Matthews Vol. III | Issue II Rural Despair and decline How Trump Won Michigan in 2016 Bess Markel Vol. III | Issue I We The Prisoners Considering the Anti Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States Sophia Scaglion Vol. II | Issue II All Power to the Imagination Radical Student Groups and Coalition Building in France During May 1968 and the United States during the Vietnam War Calder McHugh The Life Cycle of the Responsibility to Protect The Ongoing Emergence of R2P as a Norm in the International Community Maxine Dehavenon PeaceFul Animals A Look into Black Pacifism and the Pedagogy of Civil Rights in American Public Education Jade Fabello Vol. II | Issue I Two Forms of Environmental-Political Imagination Germany, the United States, and the Clean Energy Transition Nathan S. Chael Oedipus and Ion as outsiders The Implications and Limitations of Genealogical Citizenship Claire Holland Partisan Gerrymandering Re-Establishing the Political Question Doctrine in Gill v. Whitford Connor Maag Vol. I | Issue II Transparency and compliance The Strength of EU Lobbying Regulations Abigail Borges Georgian-South Ossetian Conflict Is Secession a Viable Solution? Tathyana Mello Amaral Imagined Isle Irish Catholic Identity in the Restoration Era Nathan Mainster Vol. I | Issue I American Jews The Political Behavior of American Jews A Public Choice Approach to Israel-influenced Voting Jake Goodman Racial Capitalism Racial Capitalism in Post-Apartheid South Africa: Challenging the Fallacy of Black Entitlement under Service Delivery Protests. Olerato Mogomotsi A.S.e.a.n The Long Game: ASEAN, China’s Charm Offensive and the South China Sea Dispute Hisyam Takiudin

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. Acknowledgements I would like to thank my advisor, Professor Gideon Rosen, for his guidance and feedback throughout the junior independent work process. I also want to thank family and friends, especially John Wallar, for providing comments and unrelenting support. References “Cataract Surgery.” National Eye Institute. Accessed December 2, 2024. http://www.nei.nih.gov/learn-about-eye-health/eye-conditions-and-diseases/cataracts/cataract-surgery#:~:text=What%20happens%20during%20cataract%20surgery,be%20awake%20du ring%20cataract%20surgery. Dougherty, Tom. “Social Constraints on Sexual Consent.” Politics, Philosophy & Economics 21, no. 4 (July 26, 2022): 393–414. https://doi.org/10.1177/1470594x221114620. Dougherty, Tom. The scope of consent. Oxford: Oxford University Press, 2021. Hansson, Sven Ove, and Till Grüne-Yanoff. “Preferences.” Stanford Encyclopedia of Philosophy, October 4, 2006. https://plato.stanford.edu/archivES/FALL2017/Entries/preferences/. Harman, Elizabeth. “Morally Permissible Moral Mistakes.” Ethics 126, no. 2 (January 2016): 366–93. https://doi.org/10.1086/683539. Harman, Elizabeth. “When Is Failure to Realize Something Exculpatory?” Oxford Scholarship Online, July 20, 2017. https://doi.org/10.1093/oso/9780198779667.003.0006. Kant, Immanuel. Groundwork of the Metaphysics of Morals. Cambridge: University Press, 2012 “Kidney Transplant.” Kidney Transplant | Johns Hopkins Medicine, May 24, 2024. http://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/kidney-transplant#:~:text=You%20may%20need%20a%20kidney,other%20substances%20from% 20the%20blood. “LASIK.” Wikipedia, November 21, 2024. https://en.wikipedia.org/wiki/LASIK. Nie, Jing‐Bao, Yu Cheng, Xiang Zou, Ni Gong, Joseph D. Tucker, Bonnie Wong, and Arthur Kleinman. “The Vicious Circle of Patient–Physician Mistrust in China: Health Professionals’ Perspectives, Institutional Conflict of Interest, and Building Trust through Medical Professionalism.” Developing World Bioethics 18, no. 1 (September 18, 2017): 26–36. https://doi.org/10.1111/dewb.12170. Rosen, Gideon. “IV-Culpability and Ignorance.” Proceedings of the Aristotelian Society (Hardback) 103, no. 1 (June 2003): 61–84. https://doi.org/10.1111/j.0066-7372.2003.00064.x. “Social Pressure.” APA Dictionary of Psychology. Accessed December 2, 2024. https://dictionary.apa.org/social-pressure. Wenar, Leif. “Rights.” Stanford Encyclopedia of Philosophy, February 24, 2020. https://plato.stanford.edu/entries/rights/.

Racial Capitalism Racial Capitalism in Post-Apartheid South Africa: Challenging the Fallacy of Black Entitlement under Service Delivery Protests. Olerato Mogomotsi University of Cape Town Author Miles Campbell Allie Dolido Sydney Munro Editors Spring 2018 This essay focuses on racial capitalism in post apartheid South Africa, with reference to service delivery protests. I. Introduction There is a domineering narrative within South African white liberal spaces that black people who have failed to escape the shackling cycle of poverty are lazy, incompetent, and sit on their verandas the whole day waiting for a job to fall in their hands (Biko, 2017). This narrative is conventionally understood as ‘black entitlement.’ White liberals erroneously believe that black poor people, who are in fact dispossessed and agentless, do not want to seize the opportunities South Africa has. With reference to the trend and nature of South African service delivery protests in post-Apartheid South Africa, I argue that South Africa has been and still is plagued by systemic racial capitalism that has persisted through South Africa’s transition into democracy. I argue that racial capitalism has manifested through the adoption of a neo-liberal economy, initiated by the Truth and Reconciliation Commission compromise. Consequently, the pre- and post-apartheid impact of a racially segregated and unilaterally white-benefiting capitalist economy is a rash on the black mind which has not seen adequate redress. I will first show how Marxist and Liberal authors have attempted to merge the concepts of race and capitalism. I will then highlight the Marxist and Liberal shortcomings in validating racial capitalism as a comprehensible and historically visible concept. I will then call for a holistic re-conceptualization of racial capitalism that makes up for the Marxist and Liberal shortcomings. This new conceptualization will inform the rest of my argument around the fallacy of black entitlement in South Africa. I will show that even a black majoritarian government has not been enough to correct the historic economic disadvantage that presently plagues the black poor majority. II. Conceptualising Racial Capitalism In this paper, I will make use of the micro and macro levels of political analysis to understand South Africa’s racial capitalism. This analysis will observe the condition of black South African lives over time in order to explain the persistence of racial capitalism from Apartheid until today. Additionally, by addressing inconsistencies in the Marxist and Liberal conceptions of race and capitalism, I will argue that the effects of colonialism and South African oppression politics have integrated racial capitalism into South African society. Liberal scholarship on racial capitalism in the Apartheid era focuses disproportionately on the socio-legal systematic framework of Apartheid to explain the relationship between race and capitalism. This literature almost regards race in South Africa as inherently anti-capitalistic and claims capitalism was incompatible with Apartheid, primarily because “free-market” capitalism requires equality of opportunity and agency (Schneider, 2003). In truth, liberal scholarship on the intersection of capitalism and racism in South Africa is incomplete because it fails to fully account for institutionalized racism, dispossession and the displacement of black people in South Africa. Liberal scholarship has completely ignored provisions made for white monopolized capitalism, so much so that an Apartheid-like economy could persevere constructively for 46 years. The writing of Merle Lipton exemplifies the liberal perception of an intersection between race and capitalism under the Apartheid regime which I critique. Lipton took no issue in disapproving of Apartheid on a moral basis. He argues that the legalized systematic exclusion of black people in South Africa was unwarranted and unsustainable (Hirsch, 1987). Lipton argued that South Africa, if it were to revive any sign of liberties or democracy and have a sustainable capitalist economy, needed to end Apartheid and replace it with multi-racialism (Hirsch, 1987). While admitting that the South African economy relied on the coerced, cheap labor of black people, it seems surprising and somewhat contradictory that Lipton also states that capitalism never required or supported Apartheid (Hirsch, 1987). This point by Lipton, that capitalism never required Apartheid, is incomplete because it fails to recognize the role that racism and white supremacy has had in the distribution of socio-economic resources, as well as with regard to the historical discrepancies of intergenerational endowments for Blacks relative to Whites. Lipton’s form of liberalism does not account for disproportionate endowments of historical value, such as education, property, wealth and capital that has enabled the legalization of a systematic exclusion and deskilling of black people. In particular, Liberal writing about South Africa tends to minimize the impact of the Bantustans. Liberal writers downplay the role of black people’s economic contribution (Murray, 1987). It is undeniable, as Colin Murray says, that the Bantustans excluded 'blacks from rights of access to jobs and housing in white South Africa;' thereby making blacks economic foreigners in their own country (Murray, 1987). There is a strong indication that due to a lack of education and skills, black migrant cheap labor was the backbone of the agricultural and mining sectors of the South African economy. This produced a “whites as owners” and “blacks as laborers” framework of traditional capitalism being practiced in South Africa between the 1960s and 1970s (Schneider, 2003). Thus, it is clear that we cannot discount the impact of systematic exclusion from economic activity in the form of adequate welfare provision, labor mobility and deskilling, which incites consistent wealth creation disproportionately along racial lines. It is the discounting of the abovementioned systematic exclusion that accounts for the incompleteness of the liberal attempt to conceptualize racial capitalism. Alternatively, Marxist scholarship places disproportionate emphasis on capitalism’s need for class creation and reproduction, thus ignoring the role of racial subjugation (SACP, 1987). In historicizing class creation through racial lines, Marxist conceptions completely sidelined the historical impact, nature, and intent of settler colonialism in changing the psychology of South African blackness. While I admit that cheap black labor is a manifestation of racial capitalism, racial capitalism cannot be removed from the narrative of settler colonialism in South Africa. The experience of continual dispossession of blacks from their social and economic endowments is informed by the institutionalization of settler colonialism as bedrock of racial capitalism. Marxist conceptions of racial capitalism in South Africa focused primarily on the issue of Black cheap labor. The economy of South Africa was sustained by black unskilled workers, who were forced to migrate from the Bantustans to South African economic hubs such as Johannesburg to find work (SACP, 1987). The views of neo-Marxist writers, such as Nancy Leong, provide a revisionist yet historically deficient view of racial capitalism, stating that racial capitalism is the “process of deriving social or economic value from the racial identity of another person” (Leong 2013). Leong comments on how liberalism has made blackness a desirable entity, which is to be captured, possessed and used (Leong 2013). While this type of Marxist conception focuses on the importance of race relations in driving capitalism, it still lacks an adequate explanation of why Black people are disadvantaged in a capitalist system. It is arguable that more can be done in the literature to hone in on the extent to which settler colonialism was the fundamental determinant the native’s structural economic exploitation. This may further inform how the subjugation of natives in South Africa became a structurally inherited and sustained method of fostering a type of capitalism which is drawn along racial lines. The South African Communist Party’s “Colonialism of a Special Type Document” fittingly substantiates my argument about this point, as it too claims that South Africa’s capitalism maintained the norm of colonial dominance, where the colonial ruling class (White people) and the oppressed black majority live in one country (SACP, 1987). The structural reinforcement of capitalism by the white owning class has not changed with the changed South African Political climate, which should be seen as a factor solidifying racial capitalism in post-Apartheid South Africa. While racial capitalism occurred in the Apartheid system, it is not reliant on that particular regime. Rather, we must understand that racial capitalism exists today because of the intersection of settler colonialism intent, historical dispossession and the deskilling of black people. Thus, by merging Liberal and Marxists concepts of race and capitalism, I conclude that racial capitalism is best defined as follows: Racial capitalism is a malleable term that defines the conditions under which racial identities are used to reinforce coercive power relations, which are seen in the racialization of socio-economic resources. It is informed by the domination of a particular racial group in order to extract economic gain for the benefit of the dominant class (Leong, 2013). Racial capitalism at its core makes use of racial prejudice as an instrument of maintaining unequal participation in the market resource allocation process by reinforcing systematic dispossession and deskilling of the oppressed race under a typically liberal economy ideological set. III. Racial Capitalism in the New South Africa This above-mentioned definition of racial capitalism recognizes that the birth and persistence of the capitalist economy in South Africa is inseparable from the unjust system of domination encapsulated by settler colonialism and the maintenance of black dispossession. This definition indicates that the black body is considered valuable so long as it can provide labor and be remunerated with subsistence wages. This leads to its commodification. I anticipate that liberal critics of my working definition might find that this conception of racial capitalism is incompatible with the current condition of South Africa post-1994, a country that adopted what is argued as the best constitution in the world, and maintains a predominantly black-ruled democratic state. However, I counter the supposed positive effects attributed to the process of democratization and liberal constitutionalism, by arguing that there was very little redress, which has resulted in the transferal of racial capitalism into the democratic state, even after 1994. I argue this because the South African government, at a pivotal time of regime change, chose to focus on a creating a globalized neoliberal economy rather than leveling the intergenerational effects of distorted socio-economic endowments along racial lines. To assert this argument, I will refer particularly to the period of transition and ten years post-transition into democracy. Additionally, I will address the way in which uncertainty and neoliberal compromises informed economic policy in the period of democratic transition in South Africa. There is a vivid indication of how compromise politics, which played out through the African National Congress (ANC) primary and National Party negotiating agents, is coupled with the consolidation of neo-liberalism and the protection of racial capitalism in South Africa. The ANC initially had hoped to enact radical economic transformation in South Africa. This is evident from the drafting of the Freedom Charter by the ANC and its allies in 1955 to the introduction of the radical “Reconstruction and Development Programme” policy in 1996. In particular, the Reconstruction and Development Programme (RDP) was an ANC document that stated the intent to use the resources of the country to explicitly eradicate Apartheid, moving towards building a non-racialized society (RDP, 1994). The RDP Policy document recognized the effects of “repressive labor policies” under colonialist domination (RDP, 1994). Furthermore, the document also admitted that the economy was built through systemic racial division, and finally recognized that a political democracy could not flourish with the mass of South Africans remaining impoverished, landless and having no tangible prospects for an increasing standard of living (RDP, 1994). Therefore, the ambitions aimed at addressing these observations and conditions around the past and future of South Africa necessarily are ambitions aimed at the eradication of racial capitalism in South Africa. I claim that it is highly probable that if the ANC, in assuming power, had religiously followed the Freedom Charter and the Reconstruction and Development Plan (RDP), racial capitalism would be well on its way to eradication in the foreseeable future. Upon receiving much negative feedback on the RDP plan by organizations such as the IMF and World Bank, the ANC was pressured to put the interests of economic liberalization over racial justice in redressing the impact of historical racialization of wealth creation. This compromise is evident in the 1996 adoption of the Growth, Employment, and Redistribution (GEAR) neoliberal policy, which favored the deregulation of markets and opposed state intervention in the economy (Schneider, 2003). Such privatization clearly ignored the fact that the poor black majority would be made unable to participate, considering there is no substantial effort in GEAR that aims to equitize and equalize the starting positions of black and whites in economic participation (Reddy, 2011). The adoption of neoliberal policy, despite unconvincing theories on neoliberalism and the perfecting nature of capitalism, was a compromise that allowed continued white monopolization with only one or two elements of emancipation for the black poor (Schneider, 2003). In short, the adoption of neoliberal policies after Apartheid protected and consolidated white economic interests. The adoption of an unregulated capitalist market with limited government intervention meant that white people could retain the wealth and endowments they accumulated over 200 years of settler colonialism and Apartheid in South Africa (Schneider, 2003). While it is true that negotiation and compromises during the regime transition made provisions for political emancipation, they did very little in reality to provide sizeable and immediate economic emancipation, leaving South Africa in a crisis of racial capitalism. Despite an attempt at political negotiation and economic compromises, white people still earn five times more than blacks in South Africa, despite the country being majority black (Stats SA, 2017). There is a systemic economic problem, which cannot be removed from the clawing effects of a historically racially discriminating economy; endowments and privileged market access still remain largely skewed to the white minority in South Africa. It is unlikely today that South Africa will be able to get rid of racial capitalism - especially if the government fails to account for the influence of racialized intergenerational endowments. IV. Racial Capitalism as Material Life: Service Delivery Protest and Black Entitlement Service delivery protests in post-Apartheid South disprove the idea that racial capitalism is incompatible with the new black majoritarian democracy. As I have discussed, moderate economic policy approaches to poor black people can, to some extent, be held responsible for the lack of improvement of the material life of black people post-Apartheid. The service delivery protests display the anger in the black living memory of Apartheid, characterized by a feeling of imprisonment under racial capitalism. These protests can be used to explain that the traditional notion of black entitlement must be replaced by a new understanding, which normatively asserts poor black people’s entitlement to decent service delivery from the government. Black entitlement should not imply the unwillingness of black people to be active participants in the free market economy, but rather, black people fighting back the dispossession faced at the hands of their government. The concept of black entitlement is barely developed in existing literature. It is a concept discussed in the early 2000s when the ANC government first attempted to create a welfare state by providing free housing to the poor in the township communities. There were frequent claims that black people were waiting for the government to do everything for them while remaining idle and free riding on taxpayers’ money. Thus, black entitlement has been used to describe a negative character trait which I believe has been fallaciously attributed to the black poor class. I believe that this concept remembers the past with amnesia by ignoring the economic effects of settler colonialism and racial capitalism. By implying that we are all equals today, it wrongly attributes the continuing economic inferiority of black people to their choice to rely on the government rather than uplift themselves. To date, it is clear that neoliberal policies have not benefited those who need economic reform the most in South Africa: The black poor. In 2016, Aljazeera reporter Sophia Hyatt wrote about the living conditions of a 28-year-old woman from the township of Langa in Cape Town. This woman slept on the floor of a small hostel room with her parents, two sisters, and son, and had to use unhygienic and damaged communal toilets a long distance away from the safety of home (Hyatt 2016). This reality is not just hers, but that of over half of South Africa’s population. This low standard of living is common in most townships and slums all over South Africa, which perversely find themselves cheek to cheek with South African economic hubs - for instance, Alexander township borders Sandton, “Africa’s richest square mile”. Despite the government’s mildly socialist attempt to provide basic services, many poor black South Africans still find themselves living the memory and legacy of Apartheid. It is due to these poor living conditions and the constant reminder of the opulence of white monopoly capital that we have seen a large surge in protest action all over South Africa over the last fifteen years. A service delivery protest is essentially public unrest caused by citizens in response to the government’s failure to address their key welfare concerns. The unrest comes in the form of rioting, marching and the general destruction of normalcy in government operations. In the government’s RDP plan, the ANC promised to provide free water, electricity, housing, and education to the South African poor and to create jobs to decrease the 23% unemployment rate (ISS, 2009). However, the government has proven to be highly inefficient in delivering on these promises, resulting in a disgruntled and disillusioned civil society which seeks to express their grievances the only way they believe they will be heard: through the very language of protest that brought black people political freedom under the ANC. Therefore, there is a certain frustration-aggression as put by Ted Gurr, which arises and brings about behavior that has the propensity to be violent (ISS, 2009). As they did during Apartheid, black poor people still have to find employment in urban areas, thus leaving their families in horrendous conditions in slum townships. These people wake up in the early hours of the morning to commute to city centers where they work predominantly in low skilled labor positions, such as cleaning and gardening. Given that their elected government’s policies have done little to improve their living conditions since the end of apartheid, black poor people are increasingly disillusioned with their political emancipation. It is due to these discouraging conditions that poor black South Africans are angry and protest violently all over the country, with what Carl Death terms the return of the imagination of rolling mass action, as seen in the height of civil disobedience in South Africa in the 1980s (Death, 2010). Poor black people have turned to angered demand and mass mobilization to advance their struggle for economic emancipation, replicating the tactics that secured the victory of political emancipation and the end of Apartheid (Death, 2010). This explains the rioting and protesting around dissatisfaction with democratic South Africa, as seen in the service delivery protests. V. A Small Step Towards Conceptualising Black Entitlement as a Response to Racial Capitalism in South Africa It is worth asserting that black people must be entitled to an equal footing in South African economic life. It is also erroneous to believe that the government has adequately addressed the impact of a historically racially segregated economy, law, and society on black opportunities to participate in economic life. The continued underrepresentation and dispossession of black people validate my claim that it is unfair to use black laziness and incompetence to explain black economic inferiority. Rather, racial capitalism must be identified as the cause. However, it is unlikely that racial capitalism will disappear if we do not start viewing black entitlement as a normative prescription - that black people should be entitled to radical economic redress. Black people should continue to feel entitled to adequate services and economic emancipation, as this is the only remaining fuel to the fire of resistance against racial capitalism. To legitimize the concept of racial capitalism as an explanation for South Africa’s present political economy, I recognize that there is one crucial question that needs to be tackled: Will racial capitalism persist over time or was it an isolated historical occurrence? I believe that racial capitalism can explain how historical disparities in endowments necessary for social mobility have generated economic inequality along racial lines. Since white superiority still remains at the core of resource allocation in our society, it is highly unlikely that race-based inequality will dissipate anytime soon, and thus racial capitalism will remain a relevant and powerful explanatory concept. VI. Conclusion By analyzing the intersection of race and capitalism in South Africa, I have shown that both Marxist and Liberal literature fails to account for the historical commodification of black people through racial inequality. While Liberal scholars state that racism is incompatible with capitalism, Marxist scholars erase black suffering at the hands of settler colonialism. The depiction of racial capitalism offered in this paper better represents the complexities of race relations in neo-liberal South Africa. Furthermore, my paper has challenged fallacies around black entitlement by highlighting that racial disparities in socioeconomic endowments have not been redressed. Thus, I have shown that irrespective of regime type in South Africa, racial capitalism has, and still does, dispossess and disempower the black poor, leaving them to feel that demanding economic emancipation through protest is the only way to make their voices heard. References Biko, Hlumelo. "Racist Stereotyping Threatens SA". The M&G Online, 2017. https://mg.co.za/article/2017-04-18-racist-stereotyping-threatens-sa/. Schneider, Geoffrey. "Neoliberalism And Economic Justice In South Africa: Revisiting The Debate On Economic Apartheid". Review Of Social Economy 61, no. 1, 2003: 23-50. doi:10.1080/0034676032000050257. Hirsch, Alan. "Capitalism And Apartheid Capitalism And Apartheid: South Africa, 1910–1986. By Merle Lipton. Aldershot: Wildwood House, 1986.". The Journal Of African History 28, no. 03 (1987): 450. doi:10.1017/s0021853700030243. MURRAY, COLIN. "DISPLACED URBANIZATION: SOUTH AFRICA's RURAL SLUMS*". African Affairs 86, no. 344 (1987): 311-329. doi:10.1093/oxfordjournals.afraf.a097916. "The Path To Power -- Colonialism Of A Special Type". SACP, 1989. http://www.sacp.org.za/main.php?ID=2638#3.1. Leong, Nancy. "Racial Capitalism". Harvard Law Review 126, no. 8, 2018: 2151-2226. History, SA. The Reconstruction And Development Programme (RDP). Ebook. Reprint, SA History, 1994. http://www.sahistory.org.za/sites/default/files/the_reconstruction_and_development_programm _1994.pdf. Reddy, E.S. "Freedom Charter And The United Nations". South African History Online, 2018. http://www.sahistory.org.za/archive/freedom-charter-and-%20united-nations-es-reddy. Writer, Staff. "Whites Earn 5 Times More Than Blacks In South Africa: Stats SA". Business Tech, 2017. https://businesstech.co.za/news/wealth/153485/whites-earn-5-times-more-than-blacks-in-south-af rica-stats-sa/. Hyatt, Sophia. "South Africa's Housing Crisis: A Remnant Of Apartheid". Aljazeera.Com, 2016. https://www.aljazeera.com/indepth/features/2016/09/south-africa-housing-crisis-remnant-aparth eid-160929094237631.html. "The Reasons Behind Service Delivery Protests In South Africa". Polity.Org.Za, 2009. http://www.polity.org.za/article/the-reasons-behind-service-delivery-protests-in-south-africa-200 9-08-05. Death, C. "Troubles At The Top: South African Protests And The 2002 Johannesburg Summit". African Affairs 109, no. 437 (2010): 555-574. doi:10.1093/afraf/adq039. Osterhammel, Jurgen. Colonialism: A Theoretical Overview (Translated By Shelley L. Frisch). Reprint, Princeton: Markus Wiener Pub., 2010.

A Gravity Model of Civic Deviance: Justice, Natural Duties, and Reparative Responsibilities Woojin Lim Harvard College Author April 2021 Abstract: This paper presents a ‘gravity model’ of civic deviance and the principle of reparative responsibilities, addressing the question of when citizens are justified in shirking their civic obligations. Provided an unjust state, I raise the proposal that principled civic deviance (CD) should be, at the very least, permissible to varying levels as determined by a gravity equation. In select cases, I argue that CD may be obligatory. The gravity model, which sets to define the degree of permissible CD, features considerations such as the unfairness of the basic social structure, the individual extent of injustice faced, and the balance of CD-enabling natural duties against CD-restricting natural duties. In responding to one’s natural duty of justice, I claim that reparative responsibilities (RR) consign varying degrees of CD obligations, depending on the individual’s stake in injustice, beneficiary and contributory status, capacity to prevent and respond. Hence, individuals affected by an unjust state may permissibly, or necessarily, shirk their civic obligations only in line with their natural duties and RR. “[O]ne has a moral responsibility to disobey unjust laws.” — Martin Luther King Jr., Letter from a Birmingham Jail What conditions justify a citizen’s deviance from their civic obligations in a constitutional democracy? And more importantly, whom does the scope of justified civic deviance encompass? A common way of justifying uncivil actions is to accept that we are only under a prima facie duty to obey particular laws (i.e. when incivility poses seriously untoward consequences or involves an act that is mala in se) and that we have no such obligation to obey all its laws. When some laws surpass a given threshold of injustice, we may be justified in disobeying those laws. On this justification, some have argued that all individuals who are subject to unjust institutions in some manner should be allowed to challenge injustice by shirking their civic norms of reciprocity. Others have argued that only those who fall beyond the scope of tolerable injustice should be allowed to shirk their civic obligations. So, where should the threshold for justified civic deviance be drawn among members bound to a scheme of reciprocity and social cooperation? Is there a way to account for the level of injustice suffered individually along some sort of tolerability gradient while also extending the scope of justified civic deviance to all those within the broader scope of unjust institutions? In this paper, I explain why an approach that selectively permits civic deviance (henceforth ‘CD’)—proposed in Tommie Shelby’s “Justice, Deviance, and the Dark Ghetto”—has to be reconsidered. I then outline the structure of what I have come to think is the correct one. My most significant response to Shelby’s argument focuses on his failure to offer details on setting thresholds as to when deviant behavior is justified or at least excused. That said, I recognize that the main aim of Shelby’s paper is only to stake out the conceptual grounds for these claims and to illustrate that these are conceptual categories worth mining. I aim to engage further in that mining process and to offer an original contribution to the debate by re-examining Shelby’s threshold account. I introduce what I call a ‘gravity model’ of CD and the principle of reparative responsibilities to permit varying degrees of CD for particular oppressed groups, while sustaining permission for all to exercise CD—provided an unjust social structure, and a positive difference of natural duties wherein CD-enabling natural duties outweigh CD-restricting natural duties. By CD-justified, I will come to mean ~ (CD-forbidden) or CD-permissible, and in select cases, CD-obligatory. This paper is organized as follows. In Part I, I draw upon Shelby’s article, “Justice, Deviance, and the Dark Ghetto” and review some of the basic building blocks of CD. In section 1, I outline Shelby’s Rawlsian justification for CD, and in section 2, I reconstruct his application of CD to the “black ghetto underclass” of the United States. Section 3 is dedicated to pinpointing the inadequacies of Shelby’s view. When only a particular subset of the population is permitted to deviate from their civic obligations, there arises an imbalance of burden-sharing. I claim that it is unfair for those who do not suffer from intolerable injustice (and those who suffer from greater levels of intolerable injustice) to continue upholding reciprocity wherewith unjust institutions, especially if continuing to do so clashes with their natural duties. In Part II, I lay out the elements of what I believe is a more adequate approach. I begin by advancing on Shelby’s conception of the natural duty of justice. In this light, I come to understand CD as that which extends to those within the limits of tolerable injustice, and the differences in the level of intolerable injustice will be accounted for through the gravity model of CD along with the principle of reparative responsibilities (RR). Provided an unjust social structure, all affected individuals are justified in shirking civic obligations but nonetheless remain bound to natural duties and reparative responsibilities. I will finally elaborate on what I take to be the guiding conditions of permissible and obligatory CD, drawing from the modern analytical political philosophy literature. Part I: Reflections on “Justice, Deviance, and the Dark Ghetto” 1. Let me begin with an explanation of the preliminary concepts underlying CD. In “Justice, Deviance, and the Dark Ghetto,” Shelby advances on Rawls’s apparatus of justice as fairness. Shelby builds his argument from the premise that within a liberal framework, justice, at least in part, is rooted in the political value of “reciprocity between persons who regard each other as equals,” bound together under a cooperative scheme for mutual advantage (p. 129, emphasis mine). The social, political, and economic institutions of the basic structure of society fix an individual’s initial position within society, more or less favoring some individuals in the distribution of benefits and burdens—of liberties, duties, opportunities, and material advantages. Given that the basic structure bears an immense and wide-ranging influence over an individual’s lifetime prospects, which are deeply shaped by a social structure each individual did not choose, Shelby argues that the social arrangement should be formed by institutions, i.e., governments, schools, firms, markets, and families, as to provide each individual with a “fair chance to flourish” (p. 130). In this grander scheme of reciprocity, each participant of the social structure has a legitimate claim to a fair chance not to have their life prospects diminished by the social scheme in ways that cannot be justified on impartial grounds. It is in virtue of this groundwork of reciprocity, or the principle of fair play, that ‘civic obligations’ have normative force. As a beneficiary of the primary goods afforded by the cooperative enterprise, each citizen is expected to shoulder an obligation to do their share as the arrangement requires, such that costs and benefits are divided in an equitable way. Citizens then have a duty to bear a share of the costs that are involved in the production of collective public goods. For example, they should pay taxes, obey the law, and so forth. This obligation is owed to those with whom one is cooperating, in order to maintain a fair basic structure. Each citizen of a democratic polity is ipso facto bound to civic obligations as required by the basic institutions. When a citizen evades or refuses to fulfill her civic obligations, she attempts to gain from or exploit the cooperative labor of others (‘free-riding’) without doing her fair share. The law-breaker acquires an unfair advantage over her fellow citizens, and this, in turn, warrants punishment to remove this advantage and re-establish a fair distribution of benefits and burdens among all members of the society. Shelby further claims that an individual’s fair chance to thrive is a necessary condition for reciprocity. Each citizen is bound to civic obligations only “when these institutions are just” (p. 145). Citizens therefore are modus tollens not obligated to submit to unjust institutions, or at least not to institutions that “exceed the limits of tolerable injustice” (p. 145). Institutions that bring about injustice that is so serious as to be intolerable allows special civic permissions for disadvantaged individuals, that is, deviance from civic obligations or—as I term it—CD. Since those who suffer from intolerable injustice have been deprived of their fair share of benefits from the social scheme, they are not bound by the civic norms of reciprocity they have as citizens. As to determine who falls beyond and beneath the radius of intolerable injustice, Shelby proposes the constitutional essentials standard, based on a loose criterion of adequacy. These include the basic rights of a liberal democratic regime, such as freedom of speech, conscience, assembly and association, political rights and other supplementary rights. For all citizens to be provided adequate exercise of these rights, Shelby adds, these rights should be impartially and effectively enforced, not merely codified in law, such that all citizens can have confidence that their rights will be respected by those with institutional power (p. 150). Consider a society wherein constitutional essentials remain unsecured for certain peoples, that is, the social structure deprives certain peoples of their fair share of benefits. Shelby contends that in such a society, those affected by intolerable injustice should not be expected to fulfill the civic obligations demanded by unjust institutions. This is not to say, however, that those affected by intolerable injustice should be released from moral duties altogether. Here, Shelby provides a clear distinction between civic obligations required by all proper citizens, versus natural duties, which unconditionally bind to all moral persons regardless of their associational or institutional ties. Thus, while an individual beyond the limits of tolerable injustice may deviate from civic obligations, at no point in time can any person permissibly abandon natural duties. One striking natural duty that Shelby highlights is the natural duty of justice. Drawing from the Rawlsian project, the two sub-principles of this natural duty are as follows: for each individual (1) to uphold and comply with just and efficient institutions when they do exist, and (2) to support the establishment of just and efficient institutions when they do not yet exist. The ‘positive’ natural duty of justice provides reason for CD, while its ‘negative’ form provides reasons for individuals not to deviate from their civic obligations. 2. Implementing these concepts into practice, Shelby pictures the plight of the black ghetto underclass in the United States. Shelby describes a widely assumed narrative about the urban poor, wherein residents live in the dark ghetto due to their self-defeating attitudes and malicious conduct, and thus violate legitimate expectations for civic reciprocity, including a duty to obey the law and support themselves through licit jobs. Under such misinformed narratives, when the ghetto poor engage in criminal activity (i.e., theft, drug-dealing, prostitution) or refuse to accept menial, low-paying, unsatisfying jobs, these actions appears to be “a failure of reciprocity on their part” (p. 146). Such attitudes call for acts of CD to be characterized as irresponsible lawbreaking and unenterprising criminality, and for such acts to be rightfully prosecuted and punished. Shelby contends that this is the wrong conclusion to draw, however, since the mere existence of the dark ghetto—with its “combination of social stigma, extreme poverty, racial segregation… and shocking incarceration rates”—proves its incompatibility with any meaningful form of reciprocity among free and equal citizens (p. 150). There is sufficient reason to believe that the constitutional essentials standard is not currently met in dark ghettos of the United States. Since the black ghetto poor live under the rule of institutions that exceeds the limits of tolerable injustice, they thereby have a legitimate claim of deviance from civic obligations. That is to say, when the ghetto poor engage in criminal activity, refuse to accept menial jobs, or bear contempt for society, disrespecting the authority of the law qua law, they do not “violate the principle of reciprocity or shirk valid civic obligations” (p. 151). If the social scheme miserably fails to embody the value of reciprocity for a certain group of peoples, those who are deprived of their fair share of benefits from social cooperation should not be required to reciprocate in civic obligations. There exist no valid civic obligations demandable from the victims of intolerable injustice, especially when the unaffected others—albeit unknowingly—profit from the unjust social structure. Again, even if a society is deeply stained by injustice, moral duties remain owed to one another in the form of natural duties. Natural duties, including the duty not to be cruel, to help the needy and the vulnerable, not to cause unnecessary suffering, to respect the moral personhood of others, to help bring about just institutions, must be satisfied in the enactment of CD. Forms of deviant behavior that are compatible with natural duties, for instance, shoplifting and petty theft, may be conceived as permissible. Other extremes of deviance—for instance, some forms of gangsterism, which involves the use of “violence, threats, and intimidation, to forcibly extract money, goods, and services from others... [maiming] and even [killing]” (p. 137)—violate natural duties, namely the duty not to be cruel, not to cause unnecessary suffering, to show respect for the moral personhood of others, etc., and thus are always morally unjustified for all people, regardless of the inequity of a social scheme. On this regard, we may rule out forms of CD that involve mala per se, while still permitting CD acts that involve mala prohibita. To briefly recapitulate, Shelby’s discussion brings into light a discussion of fairness and political obligations. Shelby’s view is that the empirical facts show that the conditions of political obligations do not hold. He proposes that in unfair, oppressive, or unjust social structures, individuals are no longer bound to a scheme of reciprocity, while nonetheless having natural duties. 3. Up to this point, my discussion—and certainly that of Shelby’s—has revolved around the implications of justifiable civic deviance for the ghetto poor, or those beyond the threshold of intolerable injustice. The question now extends to what civic obligations, permissible deviance, and natural duties are to be for those within the limits of tolerable injustice, including the benefactors of the unjust social regime. For individuals who are not themselves affected by intolerable injustice, Shelby’s understanding of CD asserts that they should nonetheless remain bound to the duties of the unjust regime, and they would not be justified in shirking their valid civic obligations. On Shelby’s account, such individuals remain bound to a cooperative reciprocal scheme to do their fair share as a beneficiary of the primary goods afforded by the social scheme, even if there are those who may not be bound to it (i.e. the ghetto poor). Let me invoke a hypothetical example to illustrate this point. Imagine a team of laborers— Dongbaek, Yongsik, and Jongryul—who sign a contract to work cooperatively under a scheme of mutual advantage in a table-lifting business. If laborer Dongbaek does not receive a fair share of benefits for the work that she performs in lifting an equivalent proportion of the table’s weight, and if this were to amount to Shelby’s standard of intolerable injustice, then Dongbaek may permissibly deviate from her civic obligations, that is, to drop her end of the table and walk away without being subject to moral criticism on this basis. Shelby’s argument continues in the implication that Dongbaek’s deviance does not render null the civic obligations (to move the table) owed by laborers Yongsik and Jongryul, who remain fairly compensated for lifting the table. Since Shelby’s standard of fairness is merely that of adequacy, let’s imagine that Yongsik well-beyond meets the fairness requirement (i.e. Yongsik receives an attractive bonus on top of his standard compensation), whereas Jongryul barely meets the adequacy threshold (i.e. Jongryul is provided with minimally adequate wage compensation for his labor). Regardless of Yongsik’s and Jongryul’s differing proximities from the threshold of tolerable injustice, insofar as they are fairly compensated—according to Shelby’s definition, not the Rawlsian standard—as beneficiaries of the (unjust) reciprocal scheme, Yongsik and Jongryul, who are not themselves affected by intolerable injustice, may not exercise CD. There seems to arise an interesting conflict here. Shelby’s initial words on what establishes civic obligation is as follows: “[E]ach citizen has an obligation to fulfill the requirements of the basic institutions… when these institutions are just” (p. 145, emphasis mine). This implies, in converse, that when these institutions are unjust, each citizen bears no obligation to fulfill the civic requirements of the basic institutions. Extending on this suggestion, perhaps the standard of appropriate CD should be set at a lower bar, more broadly, such that the mere existence of unjust institutions invalidates a baseline of civic obligations for all citizens. As to delineating precisely what set of civic obligations consists of this threshold is a subject for further study. When Yongsik and Jongryul—after Dongbaek’s departure—now must lift heavier weights of the table for the same wage, they may decide that this entire table-lifting venture is fundamentally exploitative, skewed from the ground up, since the social structure generates enormously unfair distributions. In continuing to uphold this scheme along with its unjust institutions, Yongsik and Jongryul sustain injustice, perhaps contravening on positive natural duties, notably that of justice. All the while, other negative natural duties, for instance, the duty not to cause unnecessary suffering, prevent an extended of abuse of CD for the wrong reasons. There is sufficient reason to think that those unaffected by intolerable injustice may be permitted to shirk a baseline of civic obligations given a persisting unjust social structure (defined by some standard of unfairness). On the other side of the spectrum, imagine workers Sangmi and Gyutae, who similar to Dongbaek, suffer from Shelby’s conception of intolerable injustice: the lack of constitutional essentials. Both Sangmi and Gyutae suffer from great intolerable injustice, falling far beyond adequacy conditions. Whereas Sangmi exercises CD, Gyutae does not. Here, Dongbaek’s exercise of CD, which seems to extend symmetrically for all those affected by intolerable injustice, takes advantage of Sangmi and Gyutae (and Yongsik and Jongryul), while Sangmi’s exercise of CD gains from the persisting social cooperation of Gyutae (and Yongsik and Jongryul). Imagine a case where Dongbaek steals a loaf of bread for herself, having starved for three days. For the purpose of illustration, let’s presume that the number of days starved—of one’s and one’s dependents—is the dimension by which we measure ‘unfairness.’ If Sangmi also hopes to steal a loaf of bread for himself and his entire family who have starved for seven days, but if Dongbaek’s deviance necessarily prevents Sangmi from doing so, it seems as if Dongbaek’s CD (indirectly) takes advantage of Sangmi, and wrongly so. Both Dongbaek and Sangmi would be taking advantage of Gyutae, who, having already completed one excruciating day of work, still has no purchasable food from the bakery to feed himself and his family, starving for 12 days. Given that Gyutae continues to hold onto the table while suffering from greater intolerable injustice—defined by a more pressing need for constitutional essentials—than compared to Dongbaek and Sangmi, it seems that Dongbaek harms the innocent Sangmi and Gyutae, and Sangmi takes advantage of Gyutae, and in both cases, the worst off is harmed. Thus, a CD permissibility condition of proportionality to one’s status of injustice faced appears relevant here. Given an initial baseline of permissible CD, I find it necessary that an additional permission to CD considers the level of intolerable injustice each individual suffers as a result of the unjust basic structure, establishing a gradient of tolerability. Part II: Outline of a more adequate approach The real puzzle of CD is, then, not how to draw a threshold line for the fairness of institutions and for the adequacy of constitutional essentials, but instead, how we should be accounting for the level of injustice suffered by individuals while also extending the scope of justified CD to all individuals within the broader scope of unjust structures and institutions. I thus propose a gravity model of justified CD. This model is not intended to be taken as a literal, mathematic formula that citizens can employ to meticulously calculate their degree of permissible CD. Rather, I provide this model in the spirit of opening up alternative ways to think about CD and its implications. The model (first pass), taking into account the discussion on burden-sharing (§I.3, supra) is as follows: Permissible CD (first pass) = extent of the unfairness of the basic structure (measure of unfairness of institutions) • extent of injustice faced (measure of tolerability) The first equational factor is the baseline concerning the fairness of the rules, laws, principles, and institutions that constitute the basic social structure, or the fairness of the basic structure itself. Since this first factor is more broadly applicable, Rawls’s somewhat more demanding standard of justice as fairness could be applied here. The second factor refers to the individual measure of injustice faced: those who are subject to greater forms of (intolerable) injustice may be allowed greater CD permissions. This relation is modeled in Figure 2.1. Both Rawls’s and Shelby’s standards of fairness, the FEO and DP versus constitutional essentials, are not mutually exclusive, for they may be modeled on the same gradient as follows in Figure 2.2, with steeper inclines for each threshold crossing. Other models of fairness could be introduced here (i.e. insert dimension-D along the x-axis or add in threshold-T in place of Rawls and Shelby’s standards). In Figure 2.2, Rawls’s threshold is positioned to the left of Shelby’s since it is an ideal of justice that makes it harder for unjust societies to fulfill: it is more likely for unjust institutions not to meet the requisites of Rawls’s standard of justice as FEO and DP (footnote 7, supra) than to achieve Shelby’s fairly looser standard of adequacy. Natural duties, particularly that of justice, also play a significant role as a factor regulating CD. The second sub-principle of the natural duty of justice holds that each moral agent has a duty—in helping to bring about just rules, laws, principles, and institutions—to fight against unjust rules, laws, principles, and institutions, plausibly by means of CD. These CD-enabling (positive) natural duties may also be limited by CD-restricting (negative) natural duties, for instance, to not be cruel, etc., which impose restrictions on the exercise of CD. Considerations of alternative (i.e. legal) forms of resistance to the unjust basic structure (i.e. peaceful protests, petitions, authorized public events, and other law-respecting acts of solidarity) also fall under the category of CD-restricting natural duties. On this basis, indiscriminate and unwarranted forms of ex ante violence on the innocent can be restricted. What I call the difference of natural duties (ND difference) thus permits CD if and only if the CD-enabling factors outweigh the CD-restricting factors; if the natural duty of justice to upturn severely unjust structures compels the exercise of CD over all other natural duties. If the CD-restricting factors override the CD-enabling features, then CD may, at the very least, face moral limits. If the CD-restricting factors are so great as to cancel out the extent of the unfairness of the basic structure and the extent of intolerable injustice faced, then CD may not be justified. At this point, there arises another relevant concern on whether or not CD could be, in select cases, not only permissible or encouraged but also necessary or required. Building upon the brief mention of alternative forms of action (subsumed under ND difference), I have come to believe that certain forms of CD may be morally necessary to fulfill natural duties when all other alternatives to CD and its weak forms have been completely exhausted (footnote 26, supra). When a member of the ghetto poor, having exhausted all other (i.e. legal) alternatives of securing adequate resources to feed himself and his family, decides to steal a morsel of bread from the bakery next door, he may not merely be permitted but rather obligated to do so. For if he refuses to steal bread and feed his family, he violates the natural duties of self-respect, respect for the moral personhood of others, and duty not to cause unnecessary suffering, among others. The pressing immediacy of respect and preventable suffering for his family outweighs the dues of respect for the bakery-owners. Under some circumstances, a failure to exercise CD represents a failure to do one’s own part in upholding one’s natural duty of justice: those who blindly obey, rather than those who disobey the law, may be accused of perpetuating and sustaining vehement forms of injustice, and be accused of free-riding on their fellow citizens’ cooperative moral efforts. The need for solidarity may call upon CD not merely as a supererogatory act but rather as an obligation: when Gyutae, for instance, fails to exercise CD—which incurs on his, others’, and their shared natural duties—he might be contravening valid CD obligations. By invoking familiar normative categories, we may formulate ‘CD-justified’ in the following forms: CD-permissible or ~(CD-forbidden), and CD-obligatory. At the very least, provided an unjust social structure with its set of unjust institutions and so forth, we necessarily have CD-permissible—though to varying degrees depending on the gravity model equation—and ~(CD-forbidden). In select cases, determinable by when a neglect of CD seriously contravenes on ND, we may have CD-obligatory. I propose a further original condition to CD: the principle of reparative responsibilities (RR). Provided a case of justified CD, not only do citizens retain their natural duties (i.e. to respect others’ humanity, etc.) but also come to bear a new set of obligations—in varying degrees—to restore or re-establish reciprocity, trust, and civic cooperation in the long run. This need not be immediate. Let’s return to the table-lifting example. When a member drops their portion of the table, and when others express solidarity by dropping their portion of the table in an act of radical reform, all members are still due respect to another as equal moral persons (and perhaps the table-dropping is a vehement expression that this has not been the case), and now may be tasked with another duty to work in reallocating the burdens (or benefits) so as to provide for a fairer share of benefits (or burdens). In addition, all individuals—including those who do not eventually engage in CD—now bear the responsibility to amend these damaged social bonds, restore justice, and provide closure to affected victims. RR imposes a duty on all to work towards the adjusting and redrafting of the fundamental social conventions so as to reduce unjust laws and practices in a continued process of reflective equilibrium. In carrying forth the duty of justice, individuals equipped with greater powers and benefits (as a result of unjust institutions) should be bound to a correspondingly greater set of RR to countermand injustice; individuals (i.e. Yongsik in the table-lifters case) with a greater capacity and ability to prevent or counter injustice, in a better situated position to influence change, as well as those who are greater beneficiaries of and contributors to injustices, should be held to a greater degree of responsibility in amending unjust institutions. That said, the underlying RR extends also to the victims of intolerable injustice, as they play a part, albeit small, in sustaining unjust social structures. The ghetto poor, for instance, may not be held to the same degree of RR as the uber rich, provided that RR varies depending on an individual’s relational status in the social scheme. Since justice as fairness demands an unequal distribution of primary goods, RR extends unequally depending on the individual stake in injustice, capacity for political sway, beneficiary, and contributory status until at least society is tolerably just. RR, like any obligations, compel individuals to take action. Given these additions, my gravity model of CD may be revised as follows: Justified (Permissible/Obligatory) CD = [extent of the unfairness of the basic structure • extent of (intolerable) injustice faced] • [ND difference] in line with [ND • RR] An act of CD is justified if and only if—and to the extent that—the basic structure is unjust and the individual faces an extent of intolerable injustice, or CD-enabling factors override CD-preventing factors. Acts of CD should be undertaken with natural duties of justice and reparative responsibilities in mind, which—to varying degrees—impose the normative considerations of respect for humanity and the (eventual) restoration of social cooperation. Acts of CD are obligatory, as opposed to merely permissible, provided the exhaustion of non-CD alternatives and of the least harmful forms of CD, or when unanimously called for by the natural duty of justice. Working together, the ND difference and RR ensure that CD does not arise out of cathartic or exploitative motivations or aims (supra footnote 20) but rather occurs in line with ND and RR. It is important to note that in the equation of justified CD, I preclude concerns of political effectiveness or pragmatism. Similar to Rawls’s reasoning, the effectiveness of CD does not establish the right of deviance, but once that right is independently established, CD should be shouldered with political effectiveness in mind. As Shelby declares, if street capital is to be converted into “political capital in a resistance movement” (p. 160), the oppressed should, whenever possible, publicly register dissent. The justification of CD provides an inquiry into the nature of justice, civic obligations, natural duties, and reparative responsibilities. My gravity model of CD provides a different way of thinking about questions of civic and moral agency, and the duties that individuals should carry depending on the justness of their social structure, alongside the special obligations and responsibilities that follow from their unique standing in the basic structure. Members within unjust structures who exercise CD with respect to their natural duties and reparative responsibilities should not be, echoing Shelby’s words, “demonized, stigmatized, or otherwise dehumanized, just as surely as they should not be romanticized” (p. 160). The ultimate goal is, after all, to shape meaningful bonds of solidarity, to build meaningful political alliances, and to invite the joint action needed to establish and maintain justice.

Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford Partisan Gerrymandering Re-Establishing the Political Question Doctrine in Gill v. Whitford Connor Maag UCLA School of Law Author Filippo Zinni William Gomberg Harry Xie Editors Spring 2019 Download full text PDF (24 pages) Abstract American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape. In Gill v. Whitford , the Wisconsin Elections Commission asked the Supreme Court to overturn a divided three-judge district court decision striking down a Wisconsin voter redistricting plan as an unconstitutional partisan gerrymander. But the court has yet to clearly define the constitutional boundaries of partisan gerrymandering, having provided contradictory holdings and reasoning for decades. In its June 2018 decision, the court held that the plaintiffs lacked standing to sue, but never reached the merits of partisan gerrymandering, leaving the justiciability of that issue unresolved. This paper finds that partisan gerrymandering is correctly viewed as a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyperpartisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should guide the Justices’ own moral compass towards the political question doctrine. American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape.[1] The Wisconsin Elections Commission petitioned the Supreme Court to overturn a divided three-judge district court decision striking down a voter redistricting plan for the Wisconsin state assembly as an unconstitutional partisan gerrymander.[2] However, the Supreme Court has not clearly defined the constitutional boundaries of partisan gerrymandering. In Gill v. Whitford in 2018, the Supreme Court held that the plaintiffs lacked standing—that is, the ability to even bring the lawsuit in court.[3] The court did not decide the merits of the case, and the court made the unusual decision to remand the case back to the district court to afford the plaintiffs an opportunity to properly bring their claim and litigate its merits in the future.[4] Notably, the court did not decide whether partisan gerrymandering is justiciable, leaving the issue unresolved.[5] This piece analyzes the judicial process of deciding the politically-charged Gill v. Whitford case, a decision which will inevitably shift the balance of the nation’s political power towards either the Republican or Democratic party. “Gerrymandering” is a pejorative term, referring to “the dividing of a state, county, etc., into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible.”[6] It comes from former Massachusetts Governor Elbridge Gerry, who, in 1812, designed convoluted voting districts resembling the shape of a salamander.[7] More than two hundred years later, gerrymandering continues in Wisconsin and throughout the nation.[8] However, the judiciary is not the appropriate forum to address partisan gerrymandering grievances. This piece argues that the plaintiff’s partisan gerrymandering claims in Gill v. Whitford presents a non-justiciable political question, due to a lack of judicially-manageable standards for resolving the claim, the proper role of the judiciary within the government, and judicial hyper-partisanship that renders adjudication on the merits inappropriate. Part I of this piece provides background on the Gill v. Whitford case. Part II outlines the law of partisan gerrymandering leading up to Gill, demonstrating that the time was ripe for clarification from the court. Part III explains why the partisan gerrymandering claim in Gill presents a non-justiciable political question. Part IV considers alternative resolutions on the merits of First and Fourteenth Amendment claims, but finds that they inevitably circle back to the rationale for invoking the political question doctrine in the first place. Finally, Part V explores whether judicial ethics provide any useful guidance for the court, finding persuasive support for invoking the political question doctrine. I. Gill v. Whitford In Gill v. Whitford , a group of Democratic voters sued members of the Wisconsin Elections Commission, claiming that invidious and “aggressive partisan gerrymandering” violates their Fourteenth and First Amendment rights.[9] The Fourteenth Amendment claim alleges that Wisconsin’s redistricting “purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.”[10] The argument is supported by seemingly irreconcilable statistics of voters’ current partisan allegiances and the corresponding election results. Specifically, Republicans received 48.6 percent of the two-party statewide vote in 2012 but won 61 percent of the assembly seats; they also received 53 percent of the statewide vote in 2014 but won 64 percent of the assembly seats.[11] Plaintiffs believe a new mathematical test called the “efficiency gap” provides a judicially-manageable standard for the court to determine unconstitutional partisan gerrymandering by measuring the proportion of votes “wasted” by gerrymandering.[12] The First Amendment claim further alleges these wasted votes suffocate voters’ freedom of association with the political party of their choosing, as well as the freedom of expression for their political views.[13] The Western District of Wisconsin agreed with the plaintiffs, holding that partisan gerrymandering was unconstitutional.[14] The Wisconsin Elections Commission then appealed, but the Supreme Court vacated the district court’s decision and remanded it, “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence...that would tend to demonstrate a burden on their individual votes.” The court’s determination and adjudication of partisan gerrymandering claims significantly impacts the American political landscape.[15] Partisan gerrymandering is a widespread issue not limited to Wisconsin,[16] and a Supreme Court decision striking down electoral maps for partisan gerrymandering can open the floodgates for challenges to district maps across the country.[17] Make no mistake, “Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”[18] II. The Time Remains Ripe for the Supreme Court to Clarify Whether Partisan Gerrymandering is Justiciable For decades, American jurisprudence has debated whether gerrymandering involves a “non-justiciable political question”––which is, broadly, an issue inappropriate for resolution in the judiciary.[19] Currently there is no clear answer, even after the Supreme Court’s 2018 decision in Gill. The political question doctrine can be traced as far back as 1803 in Marbury v. Madison ,[20] but the modern doctrine has its roots in the 1960s, when gerrymandering claims fought against discrimination and racial redistricting. In 1962, Baker v. Carr held that racial gerrymandering claims are justiciable, reasoning that “if ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’”[21] However, Gill v. Whitford is about partisan gerrymandering rather than racial gerrymandering, a concept first alluded to in Gaffney v. Cummings (1973). Gaffney suggested that political gerrymandering might be unconstitutional if it correlates strongly enough to racial demographics as to constitute racial discrimination.[22] The court reasoned that: What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment...For example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.[23] The court still limited its reasoning to racial discrimination though, noting the “impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”[24] In 1986, the court directly addressed partisan gerrymandering for the first time in Davis v. Bandemer. A plurality held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause.”[25] The court generally analogized the rationale prohibiting racial gerrymandering to political gerrymandering, explaining “that the claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability. That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma…[does] not justify a refusal to entertain such a case.”[26] Dissenting, Justice O’Connor instead felt that “members of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the court has offered no reason to believe that they are incapable of fending for themselves through the political process.”[27] In 2004, the court changed course when a plurality held political gerrymandering is a non-justiciable political question in Vieth v. Jubelirer . The court reasoned that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged (since Davis). Lacking them, we must conclude that political gerrymandering claims are non-justiciable and that Davis was wrongly decided.”[28] But this justiciability holding failed to achieve majority agreement.[29] In 2006, the court failed to clarify the conflicting Davis and Vieth pluralities. Then, in League of United Latin Am. Citizens v. Perry (2006), the court merely noted that “disagreement persists” as to whether political gerrymandering is justiciable and analyzed the merits because justiciability was not disputed by the parties.[30] The court held that “[they] do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”[31] The court reasoned that partisan gerrymandering was inconsistent with both the Fourteenth Amendment’s prohibition against invidious discrimination and the First Amendment’s protection from retaliation based on political affiliation.[32] Ostensibly, League of United Latin Am. Citizens (LULAC) left Davis intact, but only because the parties did not dispute justiciability. The Davis and Vieth pluralities provide conflicting answers for whether partisan gerrymandering is justiciable. The Supreme Court’s considerable efforts in Gaffney, Bandemer, Vieth, and LULAC do not resolve whether such claims may be brought in cases involving allegations of partisan gerrymandering.[33] Gill thus presented the court with an opportunity to finally clarify the irreconcilable case law, but it remanded the case back to the district court on standing grounds before it could reach the merits.[34] Currently, the justiciability of partisan gerrymandering claims remains unclear. III. The Political Question Doctrine Must Apply to Partisan Gerrymandering Claims As a threshold issue in any partisan gerrymandering claim, the court must decide whether partisan gerrymandering is a non-justiciable political question before it proceeds with the rest of the case. The contours of the political question doctrine are poorly defined,[35] but the Supreme Court has explained that “sometimes...the law is that the judicial department has no business entertaining [a] claim...[where] the question is entrusted to one of the political branches or involves no judicially enforceable rights...Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”[36] The court has outlined six non-exhaustive, independent factors to identify such non-justiciable political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The doctrine is rooted in both “constitutional and prudential considerations,”[37] as well as “respect for the separation of powers, including the ‘proper—and properly limited—role of the courts in a democratic society.’”[38] Case law has also proscribed a nuanced distinction between non-justiciable political questions and cases with political ramifications, the latter of which remains justiciable.[39] As an initial matter, most cases are not decided by political ideology, but as a matter of law. Justices of different ideologies routinely agree with each other irrespective of political agenda. But this paper explores the “5 percent of cases that are truly difficult,”[40] rather than the 95 percent of run-of-the-mill decisions. Gerrymandering claims are often among those difficult cases because they necessarily involve issues that impact the balance of partisan power in the legislature. It has been said that for federal judges, “political elections are the devil’s domain,” and the court should remain cautious when deciding partisan gerrymandering claims.[41] The court should have held in Gill—or should hold in the future—that partisan gerrymandering is a non-justiciable political question due to (1) a lack of judicially-manageable standards for resolving the claim, (2) the proper role of the judiciary within the government, and (3) judicial hyperpartisanship that renders adjudication on the merits inappropriate. A. Partisan Gerrymandering Claims Lack Judicially-Manageable Standards The partisan gerrymandering claim in Gill presents a non-justiciable political question because the claim satisfies Baker’s second factor of “a lack of judicially discoverable and manageable standards for resolving it,”[42] and because there are “no judicially enforceable rights.”[43] First, the proposed “efficiency gap” solution is not a judicially-manageable standard. It fails to clearly identify the impact of partisan gerrymandering and is a rough approximation at best—Chief Justice Roberts calls it “sociological gobbledygook.”[44] Most notably, it fails to distinguish between so-called wasted votes caused by gerrymandering and natural causes.[45] For example, geography is a major cause of wasted votes.[46] Many urban districts overwhelmingly vote Democrat, causing wasted votes that are not the result of partisan gerrymandering.[47] Another problem is that “the efficiency gap is very noisy. It can shift back and forth from cycle to cycle” because voters can simply change their minds and side with a different political party.[48] In Gill, Judge Greisbach’s district court dissent pointed out that efficiency gaps measure “change every election based on a number of factors, including the issues raised, quality of local candidates, [waves], turnout, and other natural phenomena such as shifts in demographics.”[49] It is not hard to imagine a scenario in which voters’ partisan preferences change day-to-day if, say, a candidate receives negative publicity. Such a district might then fail the efficiency gap test because of that publicity, not the map. Second, the claim in Gill does not involve judicially-enforceable rights. Plaintiff-Appellees claim violations of the First and Fourteenth Amendments, which guarantee the rights of an individual, but the district court incorrectly focused on injuries to the Democratic Party as a group.[50] The Supreme Court correctly explained that “the associational harm of a partisan gerrymander is distinct from vote dilution.”[51] In one amicus brief, several states[52] pointed out that “the district court’s reliance on vote-dilution cases fundamentally misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized here.”[53] Justice Burger also pointed out in Davis that those who believe partisan gerrymandering is justiciable improperly “focus...not on access to the political process as a whole, but entirely on statewide electoral success...[and] whether the complaining political party could be expected to regain control of the state legislature.”[54] Many commentators and amici seem to transparently view Gill as a tool for political ends, even advocating to erode Republican power and “regain” Democratic control.[55] The logic has drifted quite far from claims about individual rights. The district court committed a logical leap from protecting individual rights to granting the Democratic party rights as a group and as a result, allowed for judicial manipulation of the balance of political power in the Wisconsin state legislature. On the other hand, the district court, Plaintiff-Appellees, and some commentators agree that judicially-manageable standards exist. The “efficiency gap” at least provides some sort of metric for courts to apply,[56] unlike previous partisan gerrymandering cases. This test also reduces the analysis to a narrow set of analytical factors, which courts should be able to handle.[57]And big-data computing can provide cutting-edge measurements that did not exist when Vieth suggested that partisan gerrymandering claims lack judicially-manageable standards.[58] Other commentators believe there are numerous alternatives that are also judicially-manageable.[59] Although the “efficiency gap” is better than any other test to date, its flaws still render it insufficient. Even if the measurement is considered reliable, the logical solution to eliminate “wasted votes” is a political system of proportional representation.[60] But the court held there is no constitutional requirement for proportional representation, and “equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.”[61] In Davis, the court held that a lack of proportional representation is not enough to prove unconstitutional discrimination.[62] Moreover, hyperefficient “partisan symmetry” erodes the concept of voting districts altogether. The district court in Gill keenly foresaw this criticism by acknowledging the potential extremes of partisan gerrymandering, explaining that “to say that the Constitution does not require proportional representation is not to say that highly dis proportional representation may not be evidence of a discriminatory effect.”[63] Appellees instead claim they argue for “partisan symmetry” rather than proportional representation.[64] However, Chief Justice Roberts quipped that it “[sounded] exactly like proportional representation to [him].”[65] While Justice Kennedy expressed a more open mind, asking whether the most egregious instance of partisan gerrymandering might be unconstitutional,[66] the court would still be required to enforce––or at least approach––a system of proportional representation under the “efficiency gap” standard. This leads to another reason for holding that partisan gerrymandering is a non-justiciable political question: it is not the court’s place to make such structural changes to the government. B. The Supreme Court Should Not Overstep Its Proper Role Prudential considerations also suggest that court should have invoked the political question doctrine in Gill or should invoke it for future partisan gerrymandering claims. Satisfying Baker’s fourth element, it would be impossible to reach an “independent resolution without expressing lack of the respect [towards other] branches of government.”[67] The political question doctrine defines the court’s proper role within the federal government.[68] The framers of the United States Constitution did not design the judiciary as a political body;[69] they intended the court to be “insulated from the chaotic politics that consume the executive and legislative branches of government.”[70] Congress, not the court, should maintain “complete control over the amendment process,” and court decisions should not function as constitutional amendments.[71] Deciding Gill on its merits would fall outside of the court’s appropriate place within the government structure. Thirteen of the fifteen states with voting districts that fail the “efficiency gap” standard in 2018 are Republican states.[72] Implementing that standard thus reflects a willingness for the judiciary to actively reshape the nation’s balance of political power towards one party in particular. This plainly falls beyond the proper role of the judiciary—even the district court, which felt it had standing to hear the case, acknowledged that “state legislative apportionment is the prerogative and therefore a duty of the state government.”[73] Instead, the legislature is the proper forum to address partisan gerrymandering. By answering political questions such as partisan gerrymandering claims, the court would discourage the proper legislative process, almost enabling legislative dysfunction. In addition, adjudicating partisan gerrymandering claims falls outside of the framers’ designed role for the court. In the American two-party political system, partisan gerrymandering claims are inherently political, because revoking political power from one party automatically shifts power to the other party. In this respect, affirming the district court would be an undemocratic fix to a democratic problem, where judges determine the outcome of politically-divided elections—therefore creating “appointed” or “unelected” congressmembers. In Gill, the Supreme Court said it must apply a standard that “ensures that [they] act as judges, and do not engage in policymaking properly left to elected representatives.”[74] Then, in Davis, Justice Burger said “the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.”[75] To the contrary, Alexander Hamilton in Federalist No. 78 wanted the judiciary to be the “least dangerous” political branch, whereby judges would act with “neither force nor will.”[76] And James Madison in Federalist No. 51 explained that “legislative authority necessarily predominates” the judiciary,[77] suggesting that legislative resolution to partisan gerrymandering is more appropriate than judicial resolution. But there is another possibility: maybe the court is the perfect place to address partisan gerrymandering. It’s not hard to imagine that voters and the legislature cannot properly fix the issue themselves. Citizens may not be able to vote the gerrymandering party out of office if the maps are too heavily skewed.[78] Their votes cannot fix partisan gerrymandering; their votes are defined by partisan gerrymandering. In that sense, court intervention seems appropriate because although the issue falls outside of the court’s role, the other branches either cannot or will not fix the problem. Political gerrymandering may also exacerbate partisan gridlock throughout the nation,[79] so court intervention appears appropriate to surpass a paralyzed legislature. Others are also concerned that the negative effects of partisan gerrymandering will worsen if not reversed, given the precision and influence of big data technology.[80] Although these are important considerations, they operate on the assumption that the Constitution grants a right to protection from another political party, and, even if it does, the court is able to proscribe manageable standards to protect that right. In Gill, the Supreme Court explained that its “power as judges to ‘say what the law is’...rests not on the default of politically accountable officers.”[81] On balance, it is simply improper and unworkable “to inject the courts into the most heated partisan issues.”[82] C. Judicial HyperPartisanship Renders Adjudication on the Merits Inappropriate There are legitimate concerns that the court cannot prevent its own bias and achieve an “independent resolution,” again satisfying Baker’s fourth factor.[83] Failing to invoke the political question doctrine would demonstrate a “lack of respect” for the Wisconsin state legislature, because the Justices could not redesign Wisconsin’s legislature without imposing their own ideologies. Alternatively, this piece proposes that “judicial hyper-partisanship rendering adjudication inappropriate” functions as a new factor for determining non-justiciable political questions. This proposed factor would (1) be consistent with the Baker factors, (2) function as a “prudential consideration” which is one aspect of the political question doctrine,[84] and (3) fit seamlessly into the political question doctrine’s overall purpose to ensure the proper role of the court. While this proposition deserves full discussion at another time, it highlights the fact that the court could proffer an entirely new justification for invoking the political question doctrine, since the six Baker factors are non-exhaustive.[85] Irrespective of which “factor” applies, partisan polarization is increasing at all levels of government.[86] A highly-politicized Supreme Court is relatively new, though: “before 2010, the Court never had clear ideological blocs that coincided with party lines.”[87] Authorities like Richard Posner now believe “the Supreme Court is not an ordinary court but a political court...strongly influenced in making its decisions by the political beliefs of the judges.”[88] And empirical evidence proves this. Justices now vote along party lines more frequently in politically-charged cases. Less than two percent of the court’s decisions were 5-4 between 1801 and 1940, but in 2005, this rate topped 20 percent[89] and even spiked to 30 percent in 2006 and 2008.[90] The Senate’s Supreme Court confirmation process is another indicator: the four most senior Justices on the court received less than 21 negative votes on average, while the five newest Justices received more than 40 negative votes on average.[91] The recent cases of Judge Garland, Justice Gorsuch, and Justice Kavanaugh likewise illustrate how judicial office now seems defined by partisanship from the start.[92] Hyperpartisan judicial decisions are detrimental to a well-functioning judiciary. Chief Justice Roberts has expressed concern that the increase in 5-4 decisions erodes the public’s confidence in the court “as a partisan institution,” threatening its credibility and legitimacy.[93] Lawyers have also started preying on the Justices’ partisanship, as “more and more appellate litigators have come to appreciate that the federal ‘courts are a sort of untapped resource for pursuing [a political party’s] agenda.’”[94] On the other hand, maybe the court could have decided Gill on the merits without the bias seen in recent decades.[95] For example, the National Association for the Advancement of Colored People (NAACP) asserts that “gerrymandering isn’t just a political fight between the parties...‘both Democratic and Republican legislatures have used the power of the state to enact extreme partisan gerrymanders.’”[96] At least one poll shows bipartisan voter consensus against partisan gerrymandering.[97] And several Republicans—not just Democrats—publicly advocate against it.[98] For example, a group of Republicans including Arnold Schwarzenegger, John Kasich, and Bob Dole filed an amicus brief asserting that if the “Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders...That result would be devastating for our democracy.”[99] Alternatively, maybe adjudicating the merits would not have displayed a lack of respect for Wisconsin’s legislature because the current Justices are not to blame for hyper-partisanship. Decades ago, the court said that “politics and political considerations are inseparable from districting and apportionment...The reality is that districting inevitably has and is intended to have substantial political consequences.”[100] Others assert that judicial impartiality is a myth[101] and that law is unavoidably political.[102] Yet more argue that “judges are inevitably political actors, and hence their decisions are ultimately based on their ideological convictions.”[103] If partisanship is unavoidable, maybe the court should have decided Gill on its merits anyway. It is also unclear that invoking the political question doctrine actually eliminates the negative effects of a political decision. Just as adjudication on the merits favors the plaintiff’s political party and disfavors the defendant’s party, not ruling on the merits favors the defendant’s party and disfavors the plaintiff’s party. In other words, evading the merits of Gill—perhaps under the guise of the political question doctrine—is still a political maneuver.[104] Some case law demonstrates that declining to rule still yields a victor and shapes policy.[105] Nevertheless, passive political maneuvers are at least more palatable than active political maneuvers. Even if the political question doctrine is invoked as a political tool, it cannot be completely arbitrary, because Justices are constrained to provide coherent legal reasoning behind their decisions.[106] On balance, the court should have held in Gill, or should hold in the future, that partisan gerrymandering is a non-justiciable political question, because judicial hyperpartisanship renders the issue inappropriate for judicial resolution—even though there is bipartisan support, hyperpartisanship is not the court’s fault, and the political question doctrine itself resembles a political maneuver. The best advice comes from Justice O’Connor, who, looking back on Bush v. Gore, expressed regret for not invoking the political question doctrine, explaining that “maybe the Court should have said, ‘We’re not going to take it, goodbye’” and that the case “‘stirred up the public’ and ‘gave the Court a less than perfect reputation.’”[107] IV. Refuting the Alternative of Ruling on the Merits Two rationales might support the decision to ignore the political question doctrine and address the merits in Gill, neither of which were reached because the court remanded the case on standing grounds.[108] First, Gill might not involve a political question at all. The court could have held that the “efficiency gap” analysis provides a judicially manageable standard, prudential considerations are irrelevant, and hyperpartisanship will not affect the outcome. Some even argue the political question doctrine does not exist at all.[109] Second, Gill might involve a political question that the court should have addressed anyway––akin to a “justiciable political question.” The court has confronted contentious political questions before.[110] Bush v. Gore (2000) is perhaps most analogous, because it determined the outcome of a political election under the Equal Protection and Due Process clauses. There, the court ignored the political question doctrine, even though the case had high-profile and partisan implications.[111] Others argue this case taught judges the art of political manipulation under the guise of apolitical judiciousness.”[112] Thus, cases like Bush v. Gore may have set precedent for the court to ignore the political question doctrine in Gill. Regardless of the rationale for ignoring the political question doctrine, the merits of Gill implicate the Fourteenth and First Amendments. V. The Fourteenth Amendment Claim Plaintiff-Appellants claimed that partisan gerrymandering violates their Fourteenth Amendment rights.[113] The Equal Protection Clause of the Fourteenth Amendment[114] “guarantees the opportunity for equal participation by all voters in the election of state legislators.”[115] In the context of voting districts, it requires that “seats in both houses of a bicameral state legislature must be apportioned on a population basis.”[116] This protects the “one-person, one-vote” principle enshrined in the Equal Protection Clause.[117] More specifically, partisan gerrymandering “may” create unconstitutional districts if political groups (1) have been “fenced out of the political process,” and (2) have had their voting strength “invidiously minimized.”[118] The purpose is to achieve “fair and effective representation” for all citizens.[119] First, there are credible arguments that voters have been fenced out of the political process, and the alleged “wasted votes” seem to violate the “one-person, one-vote” standard. At oral argument, Justice Ginsburg focused on partisan gerrymandering’s effect of denying individuals of “the precious right to vote,”[120] expressing concern that “if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?...The result is preordained in most of the districts. Isn’t that -- what becomes of the precious right to vote?” On the other hand, it is more persuasive that partisan gerrymandering does not violate the “one person, one vote” principle, because Plaintiff-Appellants unavoidably seek damages to the Democratic party as a whole,[121] not to “one person.” Unlike the constitutional right to protection from racial gerrymandering, which specifically targets and harms individuals based on their human identity, regardless of who they vote for, partisan gerrymandering is inextricably intertwined with the outcome of a political party rather than individuals who can change their voting preference at any time. Second, Wisconsin’s map seems to satisfy Gaffney’s “invidious” requirement, because it was designed to fix future elections and “the goal of the map...was to ‘determine who’s here 10 years from now.’”[122] This “invidious” trend seems to occur in districts nationwide too, generally hurting Democrats more than Republicans.[123] Commentators note that “the Supreme Court has also picked up on the widespread agreement and has often assumed, at least implicitly, that the drawing of majority-minority districts comes at a cost for the Democratic Party.”[124] Even if partisan gerrymandering seems “invidious” towards Democrats, it is not unconstitutional unless shown to have fenced voters out of the political process. As discussed in Section III, these claims present a lack of judicially-manageable standards to make such a determination. Even if such measurements like the “efficiency gap” are accepted, their use falls outside of the court’s proper role in the government, and even if it falls within the court’s proper role, judicial hyperpartisanship makes such a determination inappropriate. Thus, adjudicating Gill under the Fourteenth Amendment inevitably circles back to the rationale for invoking the political question doctrine in the first place. A. The First Amendment Claim The plaintiffs also argued that partisan gerrymandering caused “wasted votes” and diluted voting power, “unreasonably burden[ing] their First Amendment rights of association and free speech.”[125] The First Amendment states that “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble,”[126] and protects individuals from infringement by the states.[127] The court has held that “in the context of partisan gerrymandering...First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights,”[128] bearing resemblance to the Fourteenth Amendment’s “invidious” and “fencing out” elements. A First Amendment analysis at least semantically alleviates problems associated with the Fourteenth Amendment analysis—particularly with respect to prudential considerations and judicial hyperpartisanship. Under a First Amendment analysis, the court would ensure the voting process is fair for all voters, rather than directly comparing the “equality” of two political parties at large. Thus, the court would not have purported to analyze or manipulate the balance of partisan power in Wisconsin’s legislature. By extension, risks associated with judicial hyperpartisanship seem to disappear as well. However, the outcome would have remained the same under the First Amendment—one party wins and one party loses. Justices who wish to manipulate the balance of partisan power could still do so, just under the guise of another constitutional provision. Still, the First Amendment analysis is more appealing than the Fourteenth, because even if the court alters the balance of power, at least it will not be blatant, mitigating concerns about the court’s public reputation and the appearance of bias.[129] Most significantly, the First Amendment would not alleviate the lack of judicially-manageable standards. Measuring the effect of partisan gerrymandering under the First Amendment still requires calculations like the “efficiency gap.” Like the Fourteenth Amendment analysis, the First Amendment analysis inevitably circles back to the rationale for holding that partisan gerrymandering is a non-justiciable political question. V. The Supreme Court’s Ethical Obligations in Gill v. Whitford There aren’t any – at least, not prescribed by law. All federal judges, except Supreme Court Justices, are bound by the Code of Conduct for United States Judges,[130] which provides pertinent guidance in Gill: Canon 1 states “[a] Judge Should Uphold the Integrity and Independence of the Judiciary,” Canon 2 states “[a] Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities...A judge should not allow...political...relationships to influence judicial conduct or judgment,” and Canon 5 states “[a] Judge Should Refrain from Political Activity.”[131] The Code is further buttressed by sections of the non-binding American Bar Association (ABA) Model Code of Judicial Conduct, such as Rule 2.3, which provides that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice...including but not limited to...political affiliation.”[132] And Rule 2.4 further complements that “[a] judge shall not permit...political...interests or relationships to influence the judge’s judicial conduct or judgment.”[133] The ABA Code of Judicial Conduct does not apply to the Supreme Court, however.[134] Several Justices have stated they follow it regardless,[135] and all Justices take the Judicial Oath of Office, swearing to “faithfully and impartially discharge and perform all the duties incumbent upon [them].”[136] But the Code remains non-binding and the Oath of Office does not create an enforcement mechanism once Justices take office. The Code thus provides persuasive support for invoking the political question doctrine in Gill. Manipulating the balance of political power in a state legislature would erode the integrity and independence of the judiciary,[137] violating Canon 1. Adjudicating the merits of the claims to propel political agendas would be neither independent nor impartial, violating Canons 2 and 5. Allowing such political bias to influence the decision-making process also stands in the face of ABA Rules 2.3 and 2.4. And under Canon 5, this all would apply whether or not political agendas are the underlying motivation, simply because it would appear improper. Although the Code does not apply to the Supreme Court, the existence of scribed rules isn’t the point of ethics. As Judge Alex Kozinski puts it, “we’d all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life—obligations that each judge has the unflagging responsibility to police for himself.”[138] Justices should be held to the highest moral and ethical standards, guided by their own moral compass, even if not required by rule. It’s true that if determined to do so, the Justices can find a way to apply or not apply the political question doctrine to further their political agenda in partisan gerrymandering cases––if that is their goal.[139] But if they wish to invoke the political question doctrine, ethical principles support them. Conclusion After decades of debate and contradictory Supreme Court decisions, Gill v. Whitford presented an opportunity for the Supreme Court to clarify whether partisan gerrymandering is justiciable. The court should have held that partisan gerrymandering is a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyper-partisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should have guided the Justices’ own moral compass towards the political question doctrine. Partisan gerrymandering claims, like those presented in Gill v. Whitford , can be analyzed under both the political question doctrine or the First and Fourteenth Amendments. Those analyses lead to drastically different consequences for American politics: adopting the political question analysis would ultimately favor the Republican party, while adopting the First Amendment analysis would ultimately favor the Democratic party. The prevailing analysis has the power to permanently alter the American political landscape. Endnotes [1] Gill v. Whitford , No. 16-1161 (U.S. July 2017): (“Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”); S.M., “Justice Kennedy Will Take Centre Stage during the Supreme Court’s Upcoming Term,” The Economist, August 15, 2017, https://www.economist.com/democracy-in-america/2017/08/15/justice-kennedy-will-takecentre-stage-during-the-supreme-courts-upcoming-term. [2] See Brief for Appellants, Gill v. Whitford , No. 16-1161 (U.S. July 2017). [3] Gill, 138 S. Ct. 1916. [4] Gill, 138 S. Ct. 1916. [5] Gill, 138 S. Ct. 1916. [6] “Gerrymander,” Www.Dictionary.Com , accessed January 5, 2019, https://www.dictionary.com/browse/ gerrymander. [7] Erick Trickey, “Where Did the Term ‘Gerrymander’ Come From?,” Smithsonian, accessed January 5, 2019, https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. [8] See Thomas Wolf, “What the Briefs Say About Extreme Gerrymandering | Brennan Center for Justice,” Brennan Center for Justice, September 6, 2017, https://www.brennancenter.org/blog/what-briefs-say-aboutextreme-gerrymandering. [9] Whitford v. Gill, 218 F. Supp. 3d 837, 854 (W.D. Wis. 2016). [10] Whitford, 218 F. Supp. 3d at 854. [11] Whitford, 218 F. Supp. 3d at 853. See also Michael Li and Thomas Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case,” Brennan Center for Justice, June 19, 2017, https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case. [12] Complaint, 14–16, Whitford, 218 F. Supp. 3d 837. [13] Complaint, p. 27–28, Whitford, 218 F. Supp. 3d 837. [14] Whitford, 218 F. Supp. 3d at 910; as amended by Amended Judgment, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Feb. 22, 2017). [15] Erwin Chemerinsky discussed Gill v. Whitford at a Federalist Society event the author attended in Los Angeles. See also Azam Nizamuddin, John Pcolinski, and Tim Klein, eds., “Supreme Court Review,” DCBA Brief | The Journal of The DuPage County Bar Association 30 (October 2017), https://www.dcba.org/mpage/vol301017art3. (“According to Erwin Chemerinsky...‘There is really no issue more important than whether partisan gerrymandering should continue.’”). [16] Nizamuddin et al, “Supreme Court Review.” (“Gill v. Whitford is a case which may have implications far beyond Wisconsin.”). [17] See, e.g., Wolf, “What the Briefs Say About Extreme Gerrymandering”; Gill, 138 S. Ct. at 1934. [18] S.M., “Justice Kennedy Will Take Centre Stage”; Gill, 138 S. Ct. 1916. [19] See Gwynne Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead: The ‘Political Question Doctrine’ as a Justiciability Doctrine,” Journal of Law and Politics 29 (May 28, 2014): 427. [20] See Marbury v. Madison, 5 U.S. 137 (1803). [21] Baker v. Carr, 369 U.S. 186, 209–10 (1962). [22] Gaffney v. Cummings, 412 U.S. 735, 754 (1973). [23] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [24] Gaffney v. Cummings, 412 U.S. at 754. [25] Davis v. Bandemer, 478 U.S. 109, 143 (1986). [26] Davis v. Bandemer, 478 U.S. at 125. [27] Davis v. Bandemer, 478 U.S. at 152 (1986). (O’Connor, J., concurring). [28] Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). [29] See Vieth v. Jubelirer, 541 U.S. at 306 (Kennedy, J., concurring); at 317 (Stevens, J., dissenting); at 343 (Souter, J., dissenting); at 355 (Breyer, J., dissenting). [30] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414–15 (2006). [31] League of United Latin Am. Citizens v. Perry, 548 U.S. at 414. [32] League of United Latin Am. Citizens v. Perry, 548 U.S. at 461. (Stevens, J., concurring in part and dissenting in part). [33] Gill, 138 S. Ct. at 1929. [34] Gill, 138 S. Ct. at 1931. (“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”) [35] See generally Chris Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton,” The Yale Law Journal 123, no. 1 (October 2013), https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-theimplications-of-zivotofsky-v-clinton; Louis Michael Seidman, “‘The Secret Life of the Political Question Doctrine’ by Louis Michael Seidman,” 37 J. Marshall L. Rev. 441-480 (2004), accessed January 5, 2019, https://scholarship.law.georgetown.edu/facpub/563/. [36] Vieth v. Jubelirer, 541 U.S. 267, at 277. (Internal citations omitted). [37] Though unclear, some argue the political question doctrine has evolved to “eliminate judicial consideration of the prudential aspects of the political question doctrine or severely limit the application of Baker’s second factor—a lack of judicial standards.” Jared Cole, “The Political Question Doctrine: Justiciability and the Separation of Powers,” CRS Report (Congressional Research Service, December 23, 2014), https://fas.org/sgp/crs/misc/R43834.pdf, 24. [38] Cole, “The Political Question Doctrine,” 1. See also Charles A. Wright and Arthur M. Miller et al., “§3534.1 Political Questions—Political Issues and Separation of Powers,” in Federal Practice and Procedure, 3rd ed., vol. 13C, 2015. (The political question doctrine is derived from “the conclusion that in the separation of federal powers, certain matters are confined to the political branches”). [39] Baker v. Carr, 369 U.S. 186, at 217. (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’”). See also Cole, “The Political Question Doctrine”; Gill, 138 S. Ct. at 1931. (“It is important to distinguish the political question doctrine from cases presenting political issues. Courts adjudicate controversies with political ramifications on a regular basis...The political question doctrine applies to issues thatcourts determine are best resolved within the politically accountable branches of government—Congress or the executive branch.”). [40] Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017), https://papers.ssrn.com/abstract=2432111. (Citing Nomination of John Roberts, 109th Cong, 1st Sess. (Sept 22, 2005), in 151 Cong. Rec. 21032 (remarks of Senator Obama)). [41] Ronald K.L. Collins and David K. Skover, The Judge: 26 Machiavellian Lessons (Oxford, New York: Oxford University Press, 2017), 94. [42] Baker v. Carr, 369 U.S. 186, at 217. [43] Vieth v. Jubelirer, 541 U.S. 267, at 277. [44] Oral Argument Tr. at 40, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts). [45] Nate Cohn and Quoctrung Bui, “How the New Math of Gerrymandering Works,” The New York Times, October 3, 2017, sec. The Upshot, https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-mathof-gerrymandering-works-supreme-court.html, https://www.nytimes.com/interactive/2017/10/03/upshot/howthe-new-math-of-gerrymandering-works-supreme-court.html. [46] Cohn and Bui, “How the New Math of Gerrymandering Works.” [47] Cohn and Bui, “How the New Math of Gerrymandering Works.” [48] Cohn and Bui, “How the New Math of Gerrymandering Works.” [49] See Whitford v. Gill, 218 F. Supp. 3d at 964. (Greisbach, J., dissenting). [50] Whitford v. Gill, 218 F. Supp. 3d at 853. [51] Gill, 138 S. Ct. at 1938. [52] Note that all of these states except Nevada voted Republican in the 2017 presidential election. See Brief for the States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, and Utah as Amici Curiae in Support of Appellants, Gill v. Whitford, No. 16-1161, 3. [53] Brief for the States of Texas et al., Gill v. Whitford, No. 16-1161, 2. [54] Davis v. Bandemer, 478 U.S. at 158. (Burger, J., concurring). [55] Michael Li and Thomas P. Wolf, “Supreme Court Has Historic Chance to End Extreme Gerrymandering,” The American Prospect, June 21, 2017, https://prospect.org/article/supreme-court-has-historic-chance-endextreme-gerrymandering. (“Extreme [political gerrymandering] maps...account for at least 16 and maybe 17 seats in the Republican majority in the House of Representatives. That’s a sizeable chunk of the 24 seats Democrats would need to regain control of the House in 2018.”). [56] Whitford v. Gill, 218 F. Supp. 3d at 944. [57] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [58] See Wolf, “What the Briefs Say About Extreme Gerrymandering.” (Stating there are “two factors [that] would narrow down the range of potentially unconstitutional maps to just a handful this cycle”). [59] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [60] Whitford v. Gill, 218 F. Supp. 3d at 904. (“In a purely proportional representation system, a party would be expected to pick up votes and seats at a one-to-one ratio.”). [61] See Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts) (“Proportional representation . . . has never been accepted as a political principle in the history of this country.”). See also League of United Latin Am. Citizens v. Perry, 548 U.S. at 419. [62] Davis v. Bandemer, 478 U.S. at 132. [63] Whitford v. Gill, 218 F. Supp. 3d at 906. [64] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [65] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [66] Oral Argument Tr. at 26, Gill v. Whitford, No. 16-1161. [67] See Baker v. Carr, 369 U.S. at 217. [68] See Baker v. Carr, 369 U.S. at 278. [69] See, e.g., Alexander Hamilton, “Federalist No. 78: The Judiciary Department,” May 28, 1788, http://avalon.law.yale.edu/18th_century/fed78.asp. [70] Lucas Rodriguez, “The Troubling Partisanship of the Supreme Court,” Stanford Politics (blog), January 7, 2016, https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supreme-court/. [71] Wright and Miller et al., “§ 3534.1 Political Questions—Political Issues and Separation of Powers.” [72] Cohn and Bui, “How the New Math of Gerrymandering Works.” [73] Whitford v. Gill, 218 F. Supp. 3d at 883. [74] Gill v. Whitford, 138 S. Ct. at 1923. (Emphasis in original). [75] Davis v. Bandemer, 478 U.S. at 145. (Burger, J., concurring). [76] Hamilton, Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”). See also Collins & Skover, The Judge. [77] James Madison, “The Federalist #51,” February 6, 1788, http://constitution.org/fed/federa51.htm. [78] Li & Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case.” [79] A bipartisan group of 36 members of Congress, “have decried partisan gerrymandering as ‘a substantial cause of the dysfunction of contemporary politics.’” “Bipartisan Support for Whitford | Brennan Center for Justice,” Brennan Center for Justice, accessed January 6, 2019, https://www.brennancenter.org/bipartisansupport-whitford. [80] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [81] Gill v. Whitford, 138 S. Ct. at 1929. [82] Davis v. Bandemer, 478 U.S. at 145. (O’Connor, J., dissenting), (emphasis added). [83] Baker v. Carr, 369 U.S. at 217. [84] See Zachary Baron Shemtob, “The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm,” The Georgetown Law Journal 4 (2016): 1013-7. [85] See Baker v. Carr, 369 U.S. at 217. [86] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [87] Devins and Baum, “Split Definitive,” 301. [88] Richard Posner, “The Supreme Court Is a Political Court. Republicans’ Actions Are Proof.,” Washington Post, March 9, 2016, https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-courtrepublicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html. (Discussing Republicans senators’ decision to not consider President Obama’s nominations to the Supreme Court). [89] Rodriguez, “The Troubling Partisanship of the Supreme Court”; David Paul Kuhn, “The Incredible Polarization and Politicization of the Supreme Court,” The Atlantic, June 29, 2012, https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. [90] Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [91] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [92] Jessica Yarvin and Daniel Bush, “Is the Hyper-Partisan Supreme Court Confirmation Process ‘the New Normal’?” PBS NewsHour, September 13, 2018, https://www.pbs.org/newshour/nation/is-the-hyper-partisansupreme-court-confirmation-process-the-new-normal. [93] Jeffrey Rosen, “The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think |,” New Republic, June 11, 2012, https://newrepublic.com/article/103987/the-supreme-court-has-legitimacy-crisisnot-the-reason-you-think. But other studies suggest Justice Roberts may be wrong on this point, because most Americans don’t know or understand the political allegiances of the Justices. [94] Collins & Skover, The Judge, xiii. [95] See Devins & Baum, Devins and Baum, “Split Definitive,” 314. [96] Wolf, “What the Briefs Say About Extreme Gerrymandering.” Note also, this is not completely correct. See Cohn & Bui, “How the New Math of Gerrymandering Works,” (showing that nearly all maps violating the “efficiency gap” are Republican districts). [97] Li & Wolf, “Supreme Court has Historic Chance to End Extreme Gerrymandering.” (“The most recent Harris poll shows that 74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents believe that politicians shouldn’t have a hand in drawing lines that benefit them.”). [98] See generally Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering.” [99] Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering. [100] Gaffney v. Cummings, 412 U.S. at 753. [101] Collins & Skover, The Judge, 15. [102] Collins & Skover, The Judge, xii–xiii. (“Law is political. . . . Whatever the political stripes, the charge is always the same: Judge-made law has become politicized.”). [103] Cass R. Sunstein, “Moneyball for Judges,” The New Republic, April 10, 2013, https://newrepublic.com/article/112683/moneyball-judges. [104] See Shemtob, “The Political Question Doctrines”; Madison, “The Federalist #51.” [105] Collins & Skover, The Judge, 33. [106] Shemtob, “The Political Question Doctrines,” 1027. [107] Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker, May 6, 2013, https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. [108] Gill v. Whitford, 138 S. Ct. at 1937–38. [109] See Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation,” 143–44. [110] See D.C. v. Heller, 554 U.S. 570, 603 (2008). See also Collins & Skover, The Judge, 71: (“Originalism, textualism, historicism—they were all isms perfectly suited to Justice Scalia’s conservative constitutional jurisprudence.”). [111] Collins & Skover, The Judge; Cole, “The Political Question Doctrine,” 94. [112] Collins & Skover, The Judge, 102. [113] Complaint, p. 24–27, Whitford v. Gill, 218 F. Supp. 3d 837. [114] “Constitution of the United States - Amendment XIV” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [115] Reynolds v. Sims, 377 U.S. 533, 565–66 (1964). [116] Reynolds v. Sims, 377 U.S. at 568. [117] Whitford v. Gill, 218 F. Supp. 3d at 844. See also Reynolds v. Sims, 377 U.S. at 558. [118] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [119] Reynolds v. Sims, 377 U.S. at 565–66. [120] Oral Argument Tr. at 24, Gill v. Whitford, No. 16-1161. (Questioning by Justice Ginsburg). [121] See, e.g., Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. (“Extreme partisan gerrymandering is also contrary to core democratic values because it enables a political party to win more legislative districts.”) (emphasis added). [122] Whitford v. Gill, 218 F. Supp. 3d at 853. [123] See Cohn & Bui, “How the New Math of Gerrymandering Works.” [124] Adam B. Cox and Richard T. Holden, “Reconsidering Racial and Partisan Gerrymandering,” The University of Chicago Law Review 78, no. 2 (2011): 560. [125] Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. [126] “Constitution of the United States - Amendment I” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [127] Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). [128] Vieth v. Jubelirer, 541 U.S. at 314. [129] See Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [130] The Code omits the Supreme Court from coverage. See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts, 1973, https://www.uscourts.gov/judges-judgeships/code-conduct-unitedstates-judges. (“This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”). [131] “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [132] American Bar Association, “Model Code of Judicial Conduct,” August 16, 2018, https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/. [133] American Bar Association, “Model Code of Judicial Conduct.” [134] See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [135] “Supreme Court Justices and the Code of Conduct,” Judicature 95, no. 4 (2011). [136] “Text of the Oaths of Office for Supreme Court Justices,” supremecourt.gov, accessed January 6, 2019, https://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx. [137] See discussion supra Part III.C. [138] Alex Kozinski, “The Real Issues of Judicial Ethics,” Hofstra Law Review 32, no. 4 (January 1, 2004), https://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/1, 1106. [139] Kozinski, “The Real Issues of Judicial Ethics,” 1105. (“A judge can appear to act ethically and still betray his responsibility in essential respects, and in ways that no one will ever know about.”). Bibliography Adam B. Cox, and Richard T. Holden. “Reconsidering Racial and Partisan Gerrymandering.” The University of Chicago Law Review 78, no. 2 (2011): 553. 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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 Nicola Sturgeon, MSP First Minister of Scotland Gen. John R. Allen President of the Brookings Institution Editorial board forward Volume I Issue II Introducing the second issue of JPPE Click to flip through the journal and see previous JPPE issues Philosophy Moral Manipulation Politics Transparency and Compliance A Kantian Take on Advertising and Campaigning The Strength of EU Lobbying Regulations By Sylvia Gunn By Abigail Borges Philosophy Health/Disease Distinction And Its Normative Uses Economics Vermont Act 46 Implications for School Choice By Margot S. Witte By Quinn Bornstein Politics Georgian-South Ossetian Conflict Philosophy Statelessness Is Secession a Viable Solution? A Contradiction in International Law with Asymmetrical Regional Solutions By Tathyana Mello Amaral By Samantha Altschuler Politics Imagined Isle Economics Public Funds, Private Interest The Role of Private Companies in Shaping US Cybersecurity Policy Irish Catholic Identity in the Restoration Era By Nathan Mainster By Justin Katz