Masthead

Editor-in-Chief
Teresa A. Teng

Executive Editors
Brooke E. Howlett Emma L. Mayberry Emilee A. Sahli Vanessa M. Stone

Senior Editors
Tiffany Chu Marie Curatolo Ashley Lindsey Amanda Lui Kayhan Nejad Christine Ren Brittany Williams Juliya Ziskina

Associate Editors
Ashley Burman Zachary Erlanger Jacob Garner Danny Gibson Rachna Hajari Malin Hamblin Scott Hardy Kika Kaui Mercedes Luna Takayuki Matsushita Sarah McCall Michael Rebagliati Michelle Richard Kristi Young

Volume IV

Spring 2011

Issue III

ARTICLES

Genocide Denial and its Place in Contemporary Law Courts

By Ruth Canagarajah*
The Holocaust has been so clearly substantiated that some would declare the denial of such events as metaphorically parallel to denying the sphericity of the Earth. In fact, recent years have seen that international communities which suffer the most from genocide denial have enacted laws that make the denial of genocides a crime. This is a largely preemptive strategy to create a legal distinction between facts and opinions. As useful and even necessary as some of these laws may appear to be face-value, this paper argues that not only is it not the obligation of courts to uphold historical truths through penal proscriptions, but that laws against denial are not tactically sensible. Through an exploration of the motivations and methods of genocide denial, as well as an account of the logic behind establishing anti-denial laws, this paper establishes that due to legal implications, ethical issues, and post-application corollaries, anti-denial laws will not preserve the moral fabric of society, as intended.
*Ruth Canagarajah is a junior at Pennsylvania State Universitys Schreyer Honors College. As a double major in International Politics and Sociology, she takes an interest in subjects pertaining to post-war development, national identity, and language.

Modern Flat-World Theorists on Trial:

WULR Vol IV, Issue III Spring 2011

Table of Contents I NTRODUCTiON .......................................................2 I:THE IDEOLOGiCALAGENDA:MOTiVATiONS AND METHODS ......5 II: THE UNDERLYiNG PRiNCipLES OF ANTi-DENiAL LAW..........7 III. LEGAL ImpLiCATiONS, ETHiCAL ISSUES, AND POSTAppLiCATiON CORROLLARiES ................................................8 CONCLUSiON..................................................................14 INTRODUCTiON As General Dwight D. Eisenhower paced around, grimly surveying the evidence of Nazi brutality at the Buchenwald camp on April 13, 1945, he made a peculiar but remarkably perceptive appeal. He recounts: I sent communications to both Washington and London to send instantly to Germany a random group of newspaper editors and representative groups Evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.1 Despite his efforts, Eisenhower would perhaps not be surprised by the extent of Holocaust and genocide denial today, not only among those in the predictable communities, such as anti-Semites, but also by those few in modern academia whose words have weight. Genocide denial, which refers to the downplaying, trivializing, and/or rejection of elements or the entirety of a genocide, is seen today as becoming a field in and of itself.2 Negationists, those who negate verified events and engage in historical revisionism, deny facts that are so well-established and substantiated that their denial is akin to refuting the sphericity of the Earth. The modern tendency towards intellectual inquiry, which has progressively heightened since the 1600s and remains one of the most treasured Western ideals, allows for robust debate and an unfailing belief in the perseverance of truth. With such values in place, Alain Finkielkraut, a French essayist and philosopher,
1 DWiGHT D. EiSENHOWER, CRUSADE iN EUROpE 409 (1997). 2 AiDA ALAYARiAN, CONSEQUENCES OF DENiAL: THE ARmENiAN GENOCiDE 126 (2008).

3 Canagarajah argues that[t]hese revisionists are making use of one of modernitys ordinary behaviors: the scrambling of information through interpretation, the denial of fact turned into the exegesis of discourse, the refusal to know what is said sublimated in the will to know more about the person speaking.3 Although they are acting in accordance with contemporary values, the negationists ideas are strongly viewed as illegitimate, an exception to both the scholarly pursuit of truth as well as the freedom of speech. Historic acknowledgment of genocides is an essential obligation of the international community.4 Consequently, the communities that suffer the most from genocide denial have enacted laws that make the denial of these historical certainties a crime, which is a largely preemptive strategy, where the basic legal distinction is the one made between opinions and factual utterances.5 For example, the French government passed the Gayssot Law in 1990, which was one of the first laws that made denying the Holocaust a criminal offense, in addition to disputing the findings of the Nuremberg Trials.6 The law, sponsored by communist deputy Jean-Claude Gayssot, was criticized by opponents of Holocaust denial for the criminalization of opinion, although several countries after its enactment followed suit. In February 2007, the Daily Telegraph reported that Germany had taken steps to criminalize genocide denial while it was the holder of the rotating presidency of the European Union. Their efforts targeted those who were publicly condoning, denying, or grossly trivializing [the] crime of genocide.7 The European Convention on Human Rights, Article 10(1) provides that while everyone has the right to the freedom of expression, this is qualified by certain
3 ALAiN FiNKiELKRAUT, THE FUTURE OF A NEGATiON: REFLECTiONS ON THE QUESTiON OF GENOCiDE 36 (1998). 4 ALAYARiAN, supra note 2, at 126. 5 Laurent Pech, The Law of Holocaust Denial in Europe: Towards a (qualified) EU-wide Criminal Prohibition, 1-51 (JEAN MONNET, WORKiNG PApER NO. 15, 2009). 6 Loi 90-615 du 13 juillet 1990 tendant rprimer tout acte raciste, antismite ou xenophobe [Law 90-615 of July 13, 1990 to Suppress All Racist, Anti-Semitic or Xenophobic], JOURNAL OFFiCiEL DE LA RpUBLiQUE FRANAiSE [J.O.] [OFFiCiAL GAZETTE OF FRANCE], Jul. 14, 1990, p. 8333. 7 Robert Hayden, Genocide Denial Laws as Secular Heresy: A Critical Analysis with Reference to Bosnia, 67.2 SLAViK REV. 384, 385.

4 WULR Vol IV, Issue III Spring 2011 restrictions to uphold democratic ideals.8, 9 In Spain, section 607.2 of the Spanish Criminal Code implemented in 1995 states that ideas denying or justifying genocide is to be punished by one to two years in jail.10, 11 The courts criminalize denial on a variety of counts: the incitement of hatred, discrimination, violence on ethnic or religious grounds, and the dissemination of views based on racial superiority.12 Negationists have already stood trial. Robert Faurisson, a prominent Holocaust denier, who was charged in France in 1981 on three separate charges, the second of which was the willful distortion of history in violation of article 382 of the civil code.13 Faurisson, known for his historical revisionism in the Journal of Historical Review, denied the Holocaust on grounds such as the use of gas chambers, the number of deaths, and Hitlers role in the genocide. The Gayssot charge was deemed particularly unsettling for many scholars since the court pass[ed] judgment on history, a procedure fraught with danger.14 Nevertheless, this decision was upheld in 1996 by the United Nationals Human Rights Committee.15 After the decision, Faurisson lost his teaching post at the University of Lyon. This example of attempting to preserve a historical truth displayed how the right to scholarly inquiry was prevented by both national and international bodies. As useful and even necessary as some of these laws may appear to be, this paper argues that it is not the obligation of courts to uphold historical truths through penal proscriptions. Furthermore, laws criminalizing denial are tactically insensible due to legal implications, ethical issues, and post-application corollaries. Before exploring these concerns, it is necessary to review the motivations and methods behind genocide denial as well as the potential benefits of establishing anti-denial laws.
8 HAYDEN, supra note 7, at 386 9 European Convention on Human Rights art. 10.1 Nov. 4, 1950. & Pablo S. Coderch & Antoni R. Puig, Genocide Denial and Freedom of Speech 13 (Feb. 14, 2010) (unpublished manuscript) (on file with the Universitat Pompeu Fabra School of Law). Id. at 13. DEBORAH E. LipSTADT, DENYiNG THE HOLOCAUST: THE GROWiNG ASSAULT ON TRUTH AND MEmORY 220 (1993). FiNKiELKRAUT, supra note 3, at xxvii. Id. at xxvii. Id. at xxvii.

Canagarajah PART I: THE IDEOLOGiCAL AGENDA: mOTiCATiONS AND METHODS

Details and evidence can be manipulated to make sense of any rationale or objective, especially in the field of history. Deniers are known as extremists who hold their alternate perceptions under the pretext of scholarly inquiry. Professor Deborah Lipstadt, a notable detractor of anti-genocide denial laws, says they do so to disguise their hateful ideology.16 The complex and multifaceted reasons for genocide denial vary. Deniers may believe what they are saying is true, that their conspiratorial governments are trying to repress controversial but plausible ideas, or they simply like to test the limits of civil liberties.17 Generally, deniers adopt an extreme form of revision where they negate facts. In regards to the Holocaust, the deniers are usually accused of having an ideological agenda. They are said to have anti-Semitic beliefs that the Holocaust is a conspiracy by Zionists to embellish the troubles of the Jews during World War II to finance the state of Israel through war recompense.18 A broad method to persuade the general public is noted by Lipstadt:
[It] enlists a basic strategy of distortion. Truth is mixed with absolute lies, confusing readers who are unfamiliar with the tactics of the deniers. Half-truths and story segments, which conveniently avoid critical information, leave the listener with a distorted impression of what really happened. The abundance of documents and testimonies that confirm the Holocaust are dismissed as contrived coerced, or forgeries and falsehoods.19

16 LipSTADT, supra note 9, at 3. MiCHAEL SHERmER & ALEX GROBmAN, DENYiNG HiSTORY: WHO SAYS THE HOLOCAUST NEVER HAppENED AND WHY DO THEY SAY IT? 88 (2000). Id. at 106. LipSTADT, supra note 9, at 2.

WULR Vol IV, Issue III Spring 2011

They quote out of context, turn debates with scholars into debates about the legitimacy of their history-related fields, and rarely make solidified arguments of their own. Instead, they focus on the weak points in their opponents arguments. In addition, they highlight what is unknown rather than addressing what is known. For example their arguments denying the Holocaust bring attention to what is unknown about gas chambers, while ignoring photographs and eyewitness testimonies that provide confirmations of their existence.20 Holocaust deniers specifically reject the number of deaths, disregards the essential tools needed to carry out the genocide, denies the intent or responsibility of central planning by the perpetrators, and alleges reciprocity. For the majority of Holocaust deniers, there are three pillars of the genocide that they deny, according to historian Michael Shermer and president of the Brenn Institute, Alex Grobman. The first pillar deals with the highly technical aspects of the Holocaust by which the genocide would not have been possible, like gas chambers. Deaths are instead mainly attributed to malnutrition and diseases. The second pillar is the number of deaths, ranging from 300,000 to one or two million, considerably less than what is estimated. The final pillar is the denial of the Final Solution plan and/or Hitlers involvement in it. Instead of owing the genocide to racist ideology, deniers say that the Jews were moved to concentration camps due to the Reichs later failure in the war.21 The implications of these negationist arguments, especially the denial of gas chambers, are that without a system of destruction, there is no systematic destruction. Without the gas chambers, there is no Jewish Holocaust. The gas chambers are not there for a footnote, explains Dr. Robert Kahn, Professor of law at the University of St. Thomas.22 There are essential factors that characterize and indeed make the Holocaust plausible. In denying the evidence given, one may as well be denying the genocides very occurrence.
SHERmER & GROBmAN, supra note 12, at 103. Id. at 100. Id. at 100.

Canagarajah PART II: THE UNDERLYiNG PRiNCipLES OF ANTi-DENiAL LAWS

There are reasons why these laws are seen as necessary restrictions to the freedom of speech. At their core, the laws are meant to preserve the moral fabric of society and not reopen healing wounds. The rationalizing, relativizing, and trivializing achieved by negationists have astonishing effects on rational historical discourse. Rejecting genocides by belittling the contributing factors puts certain societies at an increased risk of the reemergence of radical ideologies. Along with the intention to preserve history and the respect for victims, there are a number of other legitimate motives that make the passing of such laws theoretically sound. These laws are sound when factoring in the geographical context. Those who are proximally intimate with the hostile events that transpired have more reason to be concerned. Especially in places like Austria and Germany, where the Holocaust has its roots, the denial with a higher level of sensitivity than it would in America. For example, when Germans deny the Holocaust, they fuel uncertainty that the country has effectively dealt with its Nazi past. If the French deny the Holocaust, they draw attention back to who collaborated and who resisted Nazi occupation. Reasonably, public authorities in such countries are less opposed to the passing of anti-denial laws.23 Whereas in America, free speech is declared an inalienable right, the necessity of free speech in this situation would prove to be too limited and weak in scope to make a sufficient argument due to Americas physical and emotional disconnection. These laws are also sound because they attempt to tackle an ill-used liberal sentiment of free speech that works to the benefit of these genocide deniers. Deniers create an atmosphere of tolerance and debate which muddles the distinction between what is the historical fact and what is their skewed interpretation in this ideological undertaking. Lipstadt notes that the deniers goal is to confuse the matter by making it appear as if they are engaged in
PECH, supra note 5, at 5.

WULR Vol IV, Issue III Spring 2011

a genuine scholarly effort when, of course, they are not.24 This fallacious sentiment can easily sway the uninformed. Finally, some argue that Holocaust denial is a problem because, as more and more of the survivors die, there will be no one left to counter the claim that this terrible event was a myth. As Michel Foucault, prominent French philosopher, notes, it is vital to have control over memory because [i]f one controls peoples memory, one controls their dynamism.25 Thus, there are serious cultural implications for the identity of those who suffered through the genocide if the denial essentially wipes away memory. For example, Dr. Aida Alayrian, clinical psychologist and genocide scholar, explains how the Armenian genocide is a central constituent and module of thinking today in the feelings of many young Armenians globally when identifying themselves to others as Armenians.26 This will therefore bring about the final stage of genocide, according to the former president of Genocide Watch, Gregory Stanton. Stanton claims that the successful act of denial constitutes a physical act of extermination. Elie Wiesel, Holocaust survivor and Nobel Peace Prize winner, refers to this final stage as double killing because it murders the memory of the crime. PART III: LEGAL ImpLiCATiONS, ETHiCAL ISSUES, AND POST-AppLiCATiON COROLLARiES Although these motivations and methods are unfavorable to the perseverance of historical truths, such laws will be insufficient and even counter-effective due to their legal implications, ethical issues, and post-application corollaries. The negative legal implications of establishing anti-denial laws lie in semantics, ineffectiveness due to technology, and the analysis of historys place in courts of law. First, there are legal issues of semantics. Regarding semantics within the laws, many of its supporters have drawn connections with comparing it to yelling fire in a crowded room. The overall intention is to prevent violence brought on by
LipSTADT, supra note 9, at 2.  Michel Foucault, Film and Popular Memory: An Interview with Michel Foucault, 11 RADiCAL PHiLOSOpHY 24, 25 (1975). ALAYARiAN, supra note 2, at 128.

Canagarajah

hate speech. However, genocide denial does not directly lead to violence. The danger is not imminent because it is not known when or what will happen, unlike yelling fire in a crowded room. The fact that a portion of the anti-denial laws is implemented under the assumption that it may create violence is, on its own accord, not a justifiable infringement of freedom of speech.27 In fact, scholars say that denial is criminalized not on the basis that it threatens public order. Rather, it threatens the belief that hate speech brings about such disturbance of the general moral and social order28 Others, like Dr. Laurent Pech, a lecturer in European Union public law at the National University of IrelandGalway, notes that it is this quasiunanimous public abhorrence of brutal genocides that permits this legislative act to allow attempts of trivializing to become morally insupportable.29 There are issues of how semantics will be used by deniers. Scholars like Alan Dershowitz Professor of Law at Harvard University, claims that genocide deniers are increasingly fighting back at the courts by essentially becoming experts at evading and outwitting the law by transmitting the message without breaching the law.30 For example, in 1996, two extremists were accused under the French Gayssot Law for using the phrase, Auschwitz-myth.31 The judge refused to prosecute them, despite his knowledge that they were using coded language.32 This problem is heightened by the fact that the very definition of genocide continues to be debated, which leads to difficulty in deciding exactly what is criminalized behavior, especially when assessing such historic events. If this issue goes unresolved, there is a higher probability of uncertainty depending on how expansive the courts interpretation of the respective law is. Next, the laws reach across technological boundaries will be predictably ineffective. With nearly universal access to the
HAYDEN, supra note 7, at 387. 28 HAYDEN, supra note 7, at 394 PECH, supra note 5, at 22. & Interview with Deborah Lipstadt, Dershowitz, Kimball, & Glazov, Address at Frontpage Symposium (April 27, 2001). KAHN, supra note 18, at 115. KAHN, supra note 18, at 115.

10

WULR Vol IV, Issue III Spring 2011

Internet, criminalization of speech is generally ineffective since it knows no geographic boundaries. Furthermore, attempts to discover the true disseminators of criminal speech are difficult if not impossible. With the increased access to the Internet, ideas, opinions, discoveries, and analyses are available to all for virtually no cost, making the freedom of expression a mundane fact.33 The only means of suppressing the Internet as a tool of influence would be to shut it down, which is an improbable solution. Most importantly, the use of courts to analyze history calls into question the justification for using the force of law to uphold a prescribed version of historic events. The aims of declaring denial illegal seem to be more directed toward moral policing than preventing hate crimes. When the Gaysott Law was passed in 1990, it was followed by prompt rebuttals from philosophers and scholars, like Dr. Tzvetan Todorov, a Franco-Bulgarian philosopher, who was adamant in the fact that this criminalization of errant historical interpretations was repulsive. As Todorov stated, Truth does not need a law in order to be protected; if the law becomes necessary, its because the legislator has doubts about it being the truth.34 One of the main reasons why it is improper for history to be decided in the courts is because acting in the immediate aftermath of the events they judge, [they] lack historical hindsight. Only such hindsight permits an interpreter to situate events, particularly ones which are traumatic and disorienting to contemporaries, within an enduring frame of an intelligible context which will be persuasive to future generations.35 This is exacerbated by the fact that not only are these legal judgments pressed with little room for serious consideration of long-run significance, but these verdicts also have a premature finality that is largely unprecedented in historical interpretations. Because the law is assigning finality in an area where there are constant reevaluations and changes in the prevailing ideas of a given
 David Matas, Countering Hate on the Internet, in THE HOLOCAUSTS GHOST: WRiTiNGS ON ART, POLiTiCS, LAW, AND EDUCATiON 483, 483.  Tzvetan Todorov, Letter from Paris: Racism, SALmAGUNDi 88, 88 (1991). MARK OSiEL, CONSTRUCTiNG MEmORiES WiTH LEGAL BLUEpRiNTS 413 (2000).

Canagarajah

11

historical event, the legitimacy of the law is jeopardized.36 The ultimate legal flaw in this context is that the question of whether genocide took place is not a fact in itself, but the meaning given to a set of facts that constitutes the event; therefore, the law of making genocide an undeniable fact is essentially immobilizing history by taking questions of meaning as questions of fact.37 Because the law itself will be subject to newly discovered information, increased geopolitical constrains, and shifting moral sensibilities among the public, it is improbable that these historical interpretations as per law will stand the test of time.38 Next, there are ethical issues such as the freedom of speech. Free speech restrictions, no matter how pragmatic the justifications, are self-defeating. The attempt of such restrictions to curb the focus on taboo subjects in an attempt to prevent future human rights violations actually creates an environment where another human right, freedom of speech, is infringed upon. While it is understandable that European countries have a different take on free speech rights within the context of this issue, and that the gap between American and European political censorship is considerable, the human mind, no matter what ideas it may generate, must never be squashed.39 Although the European Court of Human Rights makes it clear that freedom of expression does not protect a freedom to deny clearly established historical facts, scholars like Shermer and Lipstadt argue that the legal coercion of silence is perhaps the worst infringement on human rights.40 Although Shermer believes that there are times when institutions, such as schools and publishing companies, can enforce such restrictions, it is only qualified when a denier is utilizing resources within such institutions. Shermer gives the example of Ernst Zundel, a well-known negationist and author of Did Six Million Really Die?, who submitted an advertisement to be run in a free speech magazine, The Skeptic, and was denied. Being in favor
OSiEL, supra note 35, at 415. 37 HAYDEN supra note 7, at 396. OSiEL, supra note 35, at 415. SHERmER & GROBmAN, supra note 12, at 15. PECH, supra note 5, at 25.

12

WULR Vol IV, Issue III Spring 2011

of someones right to freedom of speech is quite different from enabling that speech.41 Even Lipstadt, who was taken to court when she accused David Irving, prominent World War II historian and Nazi sympathizer, is still firm in her beliefs that the freedom of speech is a necessary function of society. Like Shermer, she notes that it can be restricted in other ways:
The deniers have the absolute right to stand on any street corner and spread their calumnies. They have the right to publish their articles and books and hold their gatherings. But free speech does not guarantee them the right to be treated as the other side of a legitimate debate. Nor does it guarantee them space on op-ed pages or time on television and radio shows.42

There are also significant ethical issues underlying the fact that the government gives preferential treatment to a certain historical perspective. Anti-denial laws essentially punish[ed] a particular viewpoint because of the exceptional nature of the Holocaust.43 Thus, those that do not share the perspective of the government feel persecuted for their controversial beliefs. When a group or individual starts to think that the government is conspiring against them they become even more radicalized because they are not represented in the public forum. Legally restricting the right to express their point of view may promote deniers to become more militant in their views. This will do more to gain the attention of persons disconnected from the historical context of genocide than without the existence of denial laws. Deniers will paint themselves as cerebral citizens of the world who, because of the restriction to speak freely, are braving the fearsome coalition of sanctimonious hypocrites and outmoded thinkers.44 Post-application corollaries result in three prominent negative consequences of persecuting those that violate anti-denial
SHERmER & GROBmAN, supra note 12, at 13. LipSTADT, supra note 9, at 17. PECH, supra note 5, at 23. FiNKiELKRAUT, supra note 3, at 57.

Canagarajah

13

law. First, it will make martyrs of the denier, elevating them to the status of modern-day Galileos. Despite what the argument may be, the system works in the favor of the inquisitor, supporting their need to intellectually dissect and argue against what are considered to be prevailing norms. The law unintentionally portrays these deniers as an oppressed group of radicals, but an oppressed group nonetheless. Most societies sympathize with the oppressed minority because they are vulnerable to the majority. Thus, the words that negate genocide are not the center of attention; the focus instead is shifted to those whose voices are wrongfully stifled. As Finkelkraut states, In the mouth of an oppressed person, or of someone speaking on the behalf of the oppressed, a racist statement becomes a legitimate revindication or even a revolutionary act.45 Therefore, the law will involuntarily cause more sympathy for the plight of the oppressed. Second, the law will promote scrutiny of historical facts of genocide. Denial becomes more enticing for the uneducated population, or those that share the minority status of deniers. By having a law that is dedicated to restricting historical perspectives, one encounters what is a clear paradox in this campaign of coercive forgetting.46 The law serves as a persistent reminder of what is deemed too sensitive for public discourse in that it is a legally codified and ever-present reminder to bar discussion about genocide denial. It calls more attention to the issue of denial due to its infringement on freedom of expression. It serves as a tempting opportunity to test the limits of the law that so clearly defy the international standard of freedom of speech set by the Universal Declaration of Human Rights, in which the preamble states that the highest aspiration of the common people includes a world in which humans have freedom of speech.47 As a result, it will not necessarily be only the disaffected segment of society that is likely to protest this law, but also law-abiding and civil rights enthusiasts in a need to uphold certain rights that have long been deemed
Id. at 120. OSiEL, supra note 36, at 412.  Universal Declaration of Human Rights, G.A. Res. 217 III A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

14

WULR Vol IV, Issue III Spring 2011

valuable, if not democratic. Finally, if these laws are upheld in the future, one of two events will occur: the law will be suggestive of uncertainty about a historical event or there will be a slippery-slope effect in considering other historical cases as unable to be revised. Laws such as the Gayssot Act [] appears to transform an historical truth into an unchallengeable state-sponsored truth.48 A rare act like this in setting precedence for establishing truth suggests that the state is actually needed to prop up historical facts. It suggests a lack of records and documentation necessary to validate these occurrences of genocide. However, there could also be a slippery slope effect where once you accept that public authorities can legislate historical truths and ban alternative interpretations of particular historical events, multiple and diverse groups will inevitably attempt to use the force of the law to protect their own historical narratives from any challenge.49 In fact, this has already occurred with some Members of Parliament in the French government who have drawn bills to prohibit the denial of the alleged Vendean genocide of 1793-94 or of the Ukrainian genocide of 1932-33.50 CONCLUSiON While the justifications for having anti-denial laws are sound attempts to prevent the undeniably perverse effects that the methods of genocide denial have on historical certainties, there are consequences for establishing such laws. The law attempts to codify historical events, even when the very definition and components of genocide continues to be debated, which will be even more muddled by the issues of semantics and technology. Regarding ethics, the government makes it known that one side will receive preferential treatment over the other, which bolsters the deniers case of there being a government conspiracy against them. It also limits the freedom of scholarly inquiry and speech, a civil right transcribed in the 1948 Universal Declaration of Human
PECH, supra note 5, at 22. PECH, supra note 5, at 38. Id. at 38.

Canagarajah

15

Rights.51 Finally, the aftereffects of such laws will only compel future generations to take up the wrongly-deprived rights of the deniers cause. We must look at options that allow us to defeat these modern flat-world theorists with the backing of history, not transient laws. The best way to confront Holocaust denial is to reveal it to the mordant light of public inspection, such as scholars, instead of leaving it hidden within legal directives. Society can only progress by addressing these sensitive issues. There is certainly room for debate and discussion regarding the Holocaust; nonetheless, revisionist tendencies that renounce the essential details of the very occurrence must be cautiously handled and defeated through facts. The social climate may be agitated by deniers, but the detrimental effects of enacting laws to curtail the analytical probing will only serve to increase tensions. In fact, these laws themselves can block the necessary steps toward successfully dealing with the past.52 Non-legal alternatives must be seriously sought and pursued, such as the possibilities of education campaigns and truth commissions. Finkielkraut advises to find ways to situate truth in the struggle, [since] history conceived as conflict neutralizes confrontation with exteriority and wards off the threat posed to any intellectual system by the random, unspecified aspects of events. The armor is sold; penetration is impossible; no longer is there a single chink through which something new could enter the mind.53 The strongest option is to fight the fire with historical facts rather than hide these arguments from the public forum. After all, unity in belief and moral values cannot be falsely convinced through decrees. Likewise, upholding historical truths cannot be secured by the law alone.

 Universal Declaration of Human Rights, supra note 47.  Belinda Cooper, Law, Identity and Historical Memory in the Face of Mass Atrocity Conference 9.2 CARDOZO J. CONFLiCT RESOL. 447, 452. FiENKELKRAUT, supra note 3, at 43.

The History of Congressional Legislation and the Commerce Clause, and its Application to the Constitutionality of the Healthcare Individual Mandate
By Brian Goldman*
The Affordable Health Care for America Act has reignited fierce constitutional law debate over the powers of the federal government. At the center of the healthcare legislation lies the cost control mechanism an individual mandate provision that has been attacked and supported using the Commerce Clause of the U.S. Constitution. This paper analyzes the history of the Commerce Clause in American constitutional law, and uses opinions from recent decisions in Gonzalez v. Raich and U.S. v Lopez, to shed light on the constitutionality of the individual mandate. It is Justice Antonin Scalias concurring opinion in Gonzalez that provides the final basis for the papers deduction: the Supreme Court is likely to find the individual mandate a constitutional provision of the healthcare law.

* Brian Goldman is a Political Science & Creative Writing student at the University of Pennsylvania and expects to graduate in May 2012. This research paper was originally penned as a term paper for Professor Alvin Felzenberg, who also has served as a mentor and true source of inspiration. A political conservative, Brian began writing the paper expecting to reach a conclusion contrary to the one he found after completing research. He would like to thank his family and Professor Felzenberg for their continued support.

Goldman Table of Contents INTRODUCTiON...........................................................17 I: THE COMMERCE CLAUSE............................................18 Ia. The Dispute Between Federal and State Power.......18 Ib. Upholding Federal Power with the Commerce Clause.................................................................21 Ic. Expansion of Federal Power.................................23 II: THE COMMERCE CLAUSE & HEALTH CARE ...................28 IIa. Precedents in Support of the Health Care Act........28 IIb. Possible Reactions.................................................31 IIc. The BroccoliArgument ...........................................34 IId. Arguments Against the Health Care Act...............35 CONCLUSiON................................................................37 INTRODUCTiON

17

On Mar. 23, 2010, President Barack Obama signed the Affordable Health Care for America Act into law. In seeking to widen the reach and availability of health insurance, the act relies upon a crucial insurance purchase mandate. This mandate stipulates that all Americans, with limited exceptions for lowincome households, must purchase health insurance or face a fine levied by the federal government. Only one year after passage, the individual mandate provision has ignited fierce constitutional debate and resulted in inconsistent rulings. Already, two district judges in Virginia have ruled on separate sides of the issue. These disparate rulings make it nearly certain that the Supreme Court will hear the case and decide the constitutionality of the individual mandate measure. One of the primary issues at stake is whether the individual mandate is a lawful extension of federal power under the Commerce Clause. This paper seeks to evaluate the legality of that mandate by focusing on the history of congressional legislation that relies upon the Commerce Clause. In addition, this evaluation attempts to answer one of the basic, yet vexing questions facing contemporary

18

WULR Vol IV, Issue III Spring 2011

American government: what limits, if any, does the Commerce Clause impose upon the federal government of the United States? The clause is often regarded as the main avenue by which the federal government can increase its power and ability to create law. Throughout our more than two hundred year history as a nation, the Commerce Clause has been invoked to solidify basic federal responsibilities that many now take for granted: the construction of roads, the regulation of corporate entities, the desegregation of hotels and restaurants, and the illegality of child labor. By stipulating that the federal government has the right to regulate Commerce [] among the Several States1 the writers of the Constitution bestowed upon the federal government a power that has been debated for centuries. PART I: THE COMMERCE CLAUSE Ia. The Dispute Between Federal and State Power Although this paper will primarily focus on aspects of the Commerce Clause in relation to Congressional legislation, it is impossible to understand the basic underpinnings of the phrase in question without considering the preeminent precedent still cited today, Gibbons v. Ogden (1824). This case, fought before the Supreme Court, was the first that challenged the governments right to regulate interstate commerce and supersede state authority. In Gibbons, the main issue was whether the State of New York could issue exclusive licenses to operate steamboats, as New York and New Jersey became popular destinations for steamboats and other carriers.2 Specifically, Aaron Ogden sued Thomas Gibbons for infringing on his right to engage in commerce. Ogden had obtained a license, via other proprietors, from the State of New York to engage in navigation. Soon thereafter, Gibbons started a competing ferry service from New York to New Jersey without the license that Ogden had procured. The main issue facing Chief
U.S. CONST. art. I, 8, cl. 3. BERNARD C. GAViT, THE COMMERCE CLAUSE OF THE UNiTED STATES CONSTiTUTiON 10 (AMS Press 1970).
1 2

Goldman

19

Justice John Marshall during this case was whether New York had a right to issue navigational permits, or whether it was an act of regulation that fell under interstate commerce, and by extension, the authority of the federal government. Chief Justice Marshall set forth a sweeping ruling that permanently affected the interpretation of the Commerce Clause. First, Marshall associated the term commerce with a wide, ambiguous definition of what constituted such an activity. Writing for the majority, Marshall asserted the so-called organic theory of commerce: Commerce, undoubtedly, is all traffic, but it is something more, it is intercourse.3 This phrase is significant because it did not apply a narrow interpretation of commerce, rather, a broad one. To this end, Marshall concluded that commerce cannot stop at the external boundary line of each state, but may be introduced into the interior.4 By stating such, Marshall claimed that commerce was not just a physical transaction, but much more. Therefore, the ability to regulate extended to all aspects of commerce, inside a state as well as amongst the Several states.5 Secondly, Gibbons v. Ogden established the supremacy of Congress over individual states when regulating interstate commerce. By stating that this power [] is complete in itself and may be exercised to the utmost extent, Marshall not only struck down the New York law that granted steamboat licenses, but also asserted that Congressional action in interstate commerce was supreme to any state regulation. This wide interpretation of federal power in regulating interstate commerce was not complete, however, as Marshall did not explicitly dismiss a concurrent theory of power. This theory postulated that individual states had a right to regulate interstate commerce if Congress had yet to act. By asserting that In discussing [] whether this power is still in the States [] we may dismiss it from the inquiry,6 Chief Justice Marshall purposefully avoided rendering a verdict on this debate.
3 PAUL

BENSON, THE SUpREME COURT AND THE COMMERCE CLAUSE, 1937-1970 18-19 (Dunellen Publishing Company 1970). 4 Id. 5 Id. 6 Id. at 18-20.

20

WULR Vol IV, Issue III Spring 2011

This unresolved question would arise again in the years to come, giving states an ability to set certain laws regulating commerce with other states. This unresolved question concerning concurrent power was brought to the forefront again in the case of Cooley v. The Port of Philadelphia (1852). Here, the question concerned a Pennsylvanian statute which mandated that any vessel departing or arriving in Philadelphia must take on a local pilot. In deciding the case, Justice Benjamin R. Curtis applied what has been deemed the selective exclusivity7 theory of commerce. By claiming that, pilotage was a local subject 8 at the discretion of states, Curtis made an important distinction in interpreting the Commerce Clause. He found that interstate commerce issues of national character were to be regulated by the federal government. However, in accordance with the selectively exclusivity doctrine, Curtis also realized that certain aspects of interstate commerce were wholly local in nature, and best subject to a diversity of regulation. In essence, by calling for a diversity of regulation, Curtis perpetuated the ambiguity that Marshall had began by giving states the ability to regulate interstate commercial issues if the issue itself was undoubtedly local in nature. Moreover, it remained unclear who would decide whether an issue was of national character for future cases. By applying this doctrine, Curtis answered in the Courts favor. He had granted the Supreme Court far-reaching powers in deciding what aspects of interstate commerce could lawfully be subject to federal regulation.9 The Gibbons and Cooley rulings did not directly address Congressional legislation. However, their significance is paramount in any discussion of the Commerce Clause. Justice Marshalls ruling in Gibbons granted the federal government wide authority and discretion in regulating interstate commerce. The Cooley ruling tempered the previous ruling by giving the states authority in regulating local aspects of interstate commerce. This
7 Id. at 27-28. 8 Id. at 27-28. 9 Id.

Goldman tension would manifest itself many times over in the nations history, echoing the same interpretative differences that defined Marshall and Curtis rulings. Ib. Upholding Federal Power with the Commerce Clause

21

The Interstate Commerce Act (ICA) of 1887 was the first major piece of legislation to be judged under the provisions of the Commerce Clause. The ICA, which sought to regulate railroads by setting rate boundaries and prohibiting discriminatory policies, took on a railroad industry that was designed to exploit shippers and the general public.10 Despite the merits of the legislation, the strength of the Interstate Commerce Act was severely limited in its early years. The Supreme Court, in interpreting the Commerce Clause narrowly ruled that the ICA could only constitutionally regulate railroad companies (or other travel conglomerates) that operated across state lines.11 This interpretation was expounded upon in Wilmington Transportation Co. v. Railroad Comm.(1915), where the Supreme Court upheld the validity of a California railroad rate on the theory that the movement was intrastate.12 Thus, the California rate superseded any federal regulation because of its intrastate nature, prohibiting the Interstate Commerce Commission (ICC) - which was the federal arm of the ICA - from enforcing any standards on railroads companies that operated purely intrastate. As a result of these rulings, Congress was forced to remake the legislation several times in order to meet the Courts standards. This resulted in the Hepburn Act of 1906, the Mann-Elkins Act of 1910, and the Federal Transportation Act of 1920. These acts, which allowed the ICC to transform [] into an effective regulatory body,13 speak to the constant tension between Congressional activity and Supreme Court interpretation. Eventually, this constant reshaping of the legislation would prove
10 Id. at 48 11 Id. at 49. 12 Gavit, supra note 2, at 143. 13 Benson, supra note 3, at 49.

22

WULR Vol IV, Issue III Spring 2011

beneficial in the landmark case, Shreveport v. Louisiana (1914), where the Court finally decided that interstate regulation required intrastate oversight by the federal government. The defining question in the Shreveport case revolved around the very notion of interstate commerce. Despite the ICCs ability to regulate interstate railroad lines, the commission was unable to regulate rates and other policies on railroad lines that ran purely intrastate due to the Courts holdings. This led to a market discrepancy where haulage between Louisiana and East Texas cost more than haulage from Dallas to Houston even though the latter was a longer route. Hence, intrastate tracks such as these enjoyed an unfair economic advantage.14 The ruling in Shreveport, penned by Justice Hughes, proved monumental. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congressthat is entitledto the dominant rule.15 In this opinion, Hughes signaled for the first time that the Court was willing to recognize that intrastate commerce directly related to interstate regulation was susceptible to federal regulation as well. This revolutionary ruling paved the way for future federal governments to exert control over intrastate commerce. Eight years later, in upholding the constitutionality of the Packers and Stockyards Act of 1921 (which regulated the meat-packing industry), Chief Justice William H. Taft invoked this same principle in writing: such streams of commercewhich are ever flowing are in their very essence the commerce among the States.16,17 In many ways, this concept of commerce mirrors Chief Justice Marshalls designation of commerce as intercourse in the Gibbons ruling. Since this ruling, the notion that intrastate and interstate commerce could be necessarily intertwined has never been reversed. Champion v. Ames (1903) addressed another dispute arising
14 15 16 17

Id. at 50. Id. Id. at 54. Stafford v. Wallace, 258 U. S. 495 (1922).

Goldman

23

from the Commerce Clause. Congress clearly had the right to regulate interstate commerce, but did it have a right to explicitly prohibit certain goods from flowing through interstate commerce? In judging the legality of the Federal Lottery Act of 1895 (which banned the carriage of lottery tickets across state lines), the Court decided in a 5-4 ruling that the government did have such a right. In writing for the majority, Justice John M. Harlan asserted that Congress might constitutionally impose absolute prohibition of items from entering interstate commerce. This power to regulate, he argued, carried with it a logically implicit power to prohibit. By allowing the federal government to prohibit the sale of certain goods, the Commerce Clause was once again interpreted to uphold federal lawmaking power. Ic. Expansion of Federal Power However, federal power to regulate was not completely unchecked. In fact, states still maintained some autonomy in controlling intrastate activity prior to the New Deal, under the legal concept of dual federalism. This concept is grounded in the 10th Amendment, which reads, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.18 Dual federalism interprets this as meaning that the two levels of government - national and state - are sovereign and hence equal within their respective spheres.19 No two cases better exemplify this understanding than E.C. Knight v. United States (1895) and Hammer v. Dagenhart (1918). In E.C. Knight, the Sherman Antitrust Act which authorized antitrust measures and limited the clout of monopolies was severely undercut when the Court ruled that manufacturing was distinct from commerce, and that if intrastate manufacturing could be regulated, then comparatively little of business operations [] would be left for state control. Similarly, the Hammer case disposed of federal legislation- the
18 19

U.S. CONST. amend. X. Benson, supra note 3, at 59.

24

WULR Vol IV, Issue III Spring 2011

Child Labor Act of 1916, which outlawed child labor- on very similar grounds. Once again, the Court held manufacturing was not commerce, and instead a purely unique and local activity. In invoking the principle of dual federalism, Justice Robert Day rendered the law unconstitutional, asserting that the goods being shipped were of themselves harmless. This phrase was crucial because it distinguished the Hammer case from the Ames case. In separating the two, Justice Day claimed that Congressional power to prohibit interstate lottery movement was constitutional because the lottery tickets themselves were harmful. However, in this instance, the goods themselves were harmless; the only harm was the way in which they were produced, and based on the E.C. Knight precedent, production and manufacturing were undoubtedly intrastate activities Justice Day asserted that In each of those instances the use of interstate transportation was necessary to the accomplishment of harmful results.20 This separated Hammer from that group. Interestingly enough, the Court granted itself more power because the Court would now decide what constituted harmful commerce.21 As Paul Benson, Professor of Sociology at the University of Massachusetts, claimed, the justices retained wide discretion to base decisions on their personal economic and social philosophies.22 However, this would prove the end of the era of judicial restraint on federal power. The New Deal ushered in a philosophy of judicial decision-making, where the distinction between intrastate and interstate commerce would be ignored in favor of recognizing a strong federal power to regulate all aspects of interstate commerce. Two New Deal era cases best represent the demise of dual federalism. In U.S. v. Darby (1941), the Supreme Court issued a ruling directly in opposition to Hammer. The dispute revolved around the Fair Labor and Standards Act, which prohibited the shipment of goods produced by child laborers. This virtual
20 21 22

Gavit, supra note 2, at 235 Id. at 235. Benson, supra note 3, at 64.

Goldman

25

reenactment23 of the Child Labor Act of 1916 gave the Court an opportunity to reverse the ruling in Hammer. Justice Harlan F. Stone dismissed the concept of dual federalism by writing that, there is nothing in the history to suggest that [the 10th Amendment] was more than declaratory of the relationship between the national and state governments. Thus, Stone confirmed the demise of dual federalism by continuing with a broad view of federal powers. The power of Congress to regulate interstate commerce extends to those activities intrastate which so affect interstate commerce.24 With this opinion, Justice Stone took the Shreveport ideal and extended it to include any aspect of intrastate commerce that affected its interstate counterpart, including manufacturing, which had previously been judged an intrastate activity. Once again, there is a clear trend here; the fight over Congressional power in relation to the Commerce Clause vacillates, but with a gradual movement towards increased federal regulation in intrastate activity deemed vital to interstate commerce. Of course, this gave more power to the Supreme Court, as they would be the ultimate deciders of what intrastate activities, if any, were not vital to interstate commerce. The second New Deal era case that had major implications for future interpretations of the Commerce Clause was Wickard v. Filburn (1942). At issue here was Franklin Delano Roosevelts Agricultural Adjustment Act (AAA), which stipulated that only a certain allotment of wheat could be grown on personal farms due to the effect of excess supply upon prices and the subsequent disruption of that commerce.25 When Roscoe Filburn grew wheat in excess of that quota, the federal government fined him, and the dispute eventually reached the Supreme Court. In what has been dubbed the aggregate theory of commerce, Justice Robert Jackson upheld the constitutionality of the AAA, stating, Under the Commerce Clause Congress could reach any individual activity, no matter how insignificant, and when combined
23 24 25

Id. at 83. Id. at 88-89. Id. at 95.

26

WULR Vol IV, Issue III Spring 2011

with other similar activities it exerted a substantial economic effect on interstate commerce.26 The significance of this ruling cannot be understated. Here, the Court had withdrawn itself as a censor of federal economic regulation because it had officially judged that manufacturing, mining, and agriculture were now considered to be part of commerce and inseparable from it.27 Unlike the Hammer era, where the Court took it upon itself to judge whether legislation addressed harmful or harmless aspects of commerce, the Supreme Court had now ceded the right to regulate interstate commerce completely and unequivocally to the federal government. The only burden facing future lawmakers was to definitively prove that an individual activity, if multiplied across the nation, would exert a substantial effect on an interstate commercial market. The warning of Chief Justice Fuller in the E.C. Knight case that if national power extends to manufacturing, agriculture, mining and industries, few business operations would be left for state control,28 had been realized just a generation later. This interpretation of the Commerce Clause in favor of federal power evoked Marshalls broad definition of federal commerce power in the Gibbons case.29 In the coming years, the Commerce Clause would grow in scope, evidenced by the Heart of Atlanta Motel v. U.S. (1964) ruling that upheld a key provision of the 1964 Civil Rights Act guaranteeing free and equal access to private establishments. In the ruling penned by Justice Tom C. Clark, he affirmed the right of the federal government to regulate anything related to interstate commerce. Since racial discrimination would have a substantial and harmful effect upon commerce,30 it was immaterial whether the motel in question engaged in a local activity or not (although the government provided convincing evidence that the motel, like most, served travelers from different states and relied upon this interstate activity for business). Thus, intervening to prevent discrimination was deemed a valid use
26 27 28 29 30

Id. at 100. Id. at 101. Id. at 60-61 Id. at 99. Id. at 216.

Goldman

27

of government power, based on its negative effect on interstate commerce and travel. In the years following this ruling, legal scholars of activist and conservative tendencies alike pointed to this continued expansion of the Commerce Clause as a mechanism that would render the federal system created by the Constitution meaningless.31 However, as has been the trend in analyzing the interpretation of the Commerce Clause, recent rulings have pushed back against the expansive doctrine. In U.S. v. Lopez (1995), the Supreme Court blatantly undercut the loose interpretation by striking down the Gun-Free School Zone Act, which prohibited the possession of firearms in educational zones. Like the Child Labor Act of 1916, the virtue of this legislation was not questioned, but its constitutionality was. In striking down the law, Chief William H. Justice Rehnquist asserted that a regulation must truly show a substantial effect on commerce and not simply rely on inference upon inference.32 The ruling recognized that the legislation had no substantial interest in interstate commerce, unlike the Wickard paradigm where legislation guiding personal activity was actually tied to regulations on commerce.33 This new doctrine continued in U.S. v. Morrison (2000), where the Violence Against Women Act was struck down. In this case, the Court did not find that violence against women constituted a direct effect on interstate commerce and invalidated sections of the law that made such violence a federal crime. Interstate commerce power may not be extended so as to embrace effects upon interstate commerce so indirect and remote.34 This phrase, part of Chief Justice Rehnquists majority opinion, touches upon the notion that activity which is noneconomic in nature is not linked to interstate commerce and is
Id. at 222. Claire Prestel, United States v. Lopez: Summary (2000), http://cyber. law.harvard.edu/archived_content/events/vaw/readings/lopezsummary. html#note7 (12/15/2010). 33 RObERT NAgEL, THE IMpLOSiON OF AMERiCAN FEDERALiSM 18 (2001). 34 United States v. Morrison, 169 F.3d at 820 (2000), available at http:// www.law.cornell.edu/supct/html/99-5.ZO.html (12/15/2010).
31 32

28

WULR Vol IV, Issue III Spring 2011

beyond the grasp of the federal government. This resistance against federal encroachment in areas of local life has revitalized the debate over the true meaning of the Commerce Clause, and what aspects of intrastate activity have a genuine and direct effect on interstate commerce. As a result, the individual mandate provision of the Affordable Health Care Act is on less solid footing than it would have been in 1945, directly following the aggregate theory interpretation of the Commerce Clause. PART II: THE COMMERCE CLAUSE & HEALTH CARE IIa. Precedents in Support of the Health Care Act An evaluation of the history of the Commerce Clause regarding insurance companies is paramount in assessing the legality of the individual health insurance mandate. In 1869, Samuel Paul appeared before the Supreme Court over this very matter; he was appealing a Virginia statute that licensed and taxed all insurance companies as an infringement upon the federal governments right to regulate interstate commerce. In writing for the majority in Paul v. Virginia, Justice Stephen J. Field not only dismissed this claim, but also argued that: Issuing a policy of insurance is not a transaction of commerce.35 Instead of upholding the Cooley ruling and asserting that insurance was a local commercial activity to be regulated by the states, Justice Fields refused to even label insurance as commerce, an important distinction that would remain in effect for 80 years. The separation of insurance and commerce would stand until the 1944 case of South-Eastern Underwriters v. U.S., where the state of Georgia filed suit against the South-Eastern Underwriters insurance company for violating provisions of the Sherman Antitrust Act. In the decision, Justice Hugo Black drew upon John Marshalls oft-cited intercourse definition of commerce, and reversed the Paul v. Virginia ruling that, No commercial enterprise which conducts its activities across state lines has been held beyond the regulatory power of Congress
35

Benson, supra note 26, at 148.

Goldman

29

under the Commerce Clause.36 Justice Black set a precedent that would later be used by the government in the Hearts of Atlanta Motel case; factual, statistical proof of an enterprise engaging in interstate activity was critical to its being regulated under the Commerce Clause. The other case that is vital in understanding the Commerce Clause in relation to insurance companies is Prudential Insurance Co. v. Benjamin (1946). In this instance, the McCarran-Ferguson Act, which exempted insurance businesses from federal tax regulations, was upheld. Ironically, however, the McCarranFerguson bill was not an exercise of Congressional power. Instead, the legislation purposely left regulation of insurance to the states.37 While Congress recognized it had the power to regulate insurers based on the South-Eastern Underwriters precedent, it decided that the issue was best handled on a state level. This act was upheld as an all-embracing yet state-power saving construction of the Commerce Clause.38 It is rightfully described as such because although the act was validated reinforcing the belief that Congress had a right to draft legislation regulating insurance companies it also substantiated the idea that Congress could willfully pass this power over to the states. Thus, the Prudential case is notable because it worked to the states advantage, in some senses, while still reaffirming Congress supreme authority in regulating interstate insurance companies. Taking the discussion to the individual mandate provision of the healthcare law, this much is clear: the understanding that insurance companies are part of interstate commerce is indisputable. As Bernard Gavit notes, except on very rare occasions [The Supreme Court] has never expressly overruled prior cases.39 Thus, the fact that the Paul precedent was specifically struck down by the South-Eastern Underwriters ruling underscores the idea that insurance business constitutes commerce.
36 37 38 39

Id. at 153. Id. at 160. Id. at 167. Gavit, supra note 2, at 233

30

WULR Vol IV, Issue III Spring 2011

By overruling a prior case, the Court made it undeniably clear that they believed the Paul precedent to be mistaken. The notion that insurance companies engage in commerce is an understanding the Court embraced six decades ago. Having established that regulating insurance companies falls under Congressional authority, the issue of the individual mandate now comes to the forefront. The controlling precedent here, of course, is the Wickard case, as the Affordable Health Care for America Act stipulates that the insurance mandate is necessary for the very same reasons that Roscoe Filburn could not grow more than the wheat quota on his personal farm. Just as Filburns excess wheat would, in theory, distort the price of wheat due to an excess supply on the market, the individual mandate, in its ideal application, would ensure that the price of health insurance would not rise. To this end, the individual mandate is the costcontrol measure of the healthcare legislation. In accordance with the aggregate theory first displayed in Wickard, if one person were to not buy health insurance, and this phenomenon were multiplied across the country, the price for insurance would rise due to low demand. Because the healthcare law prohibits insurance companies from denying people with preexisting conditions coverage, as well as other practices, premiums will necessarily rise due to this expanded coverage paid for by insurers. However, because of the individual mandate, healthcare costs could theoretically stay down because there would be a heavy increase for insurance demand; everyone would have to purchase insurance. Because everyone would be forced to purchase insurance, insurers would not have to maintain higher premiums for others, they would have more money flowing to them. Essentially, the individual mandate provision is crucial to the Affordable Health Care Act because it is the primary cost-control element of the legislation.40
Josh Gordon, From a Budgetay Perspective, the Health Care Individual Mandate is Not Severable, THE VOLOKH CONSpiRACY (Dec. 16, 2010), http:// www.concordcoalition.org/tabulation/budgetary-perspective-health-careindividual-mandate-not-severable.
40

Goldman IIb. Possible Reactions

31

However, the Wickard and South-Eastern Underwriter precedents certainly do not ensure that the individual mandate will hold. The influence of public opinion on the highest court is of understated significance. This notion is best exemplified by the debate over one of the greatest issues of the 20th century: desegregation. Supreme Court Justice Felix Frankfurter admitted that he would have voted against desegregation in 1946 because public opinion had not then crystallized against it.41 It is not a stretch to theorize that Justice Frankfurter then joined the majority in striking down desegregation in Brown v. Board of Education eight years later because public support had eventually materialized for desegregation. Striking down the individual mandate would be an activist ruling and could imply that the Court is legislating from the bench instead of deferring to Congress. By this definition, the most activist Court in recent memory was the Earl Warren Supreme Court. A recent scholarly study found that, Public preferences have had a direct influence on the Courts decisions. We particularly found this to be true during the Warren Court.42 The study continues to identify the most activist Courts as also the most susceptible to public preferences. The Roberts Court took an activist approach in striking down components of campaign finance reform in the Citizens United case, and they might take a similar approach, especially with public support in their favor, when deciding the constitutionality of the individual mandate provision. If the Court were to strike down the individual mandate provision, however, Congressional history suggests that healthcare reform would not be impeded for long. Michael McConnell of
Mark Hurwitz et al, The Unfluence on Public Opinion on Supreme Court Decision Making, ALL ACADEMiC RESEARCH (Dec. 16, 2010). http://www. allacademic.com//meta/p_mla_apa_research_citation/0/6/0/4/6/pages60463/ p60463-3.php 42 Id. at, 20.
41

32

WULR Vol IV, Issue III Spring 2011

the Hoover Institute insinuated this much when he said, Its not impossible that some kind of interplay between the administration, a more skeptical Congress and a somewhat more skeptical judiciary could lead to improvements in the legislation.43 There is historical evidence that supports this plausible Congressional response. In 1922, Congress passed the Futures Trading Act, which sought to tax the sale of grain futures. However, in Hill v. Wallace (1922), the Supreme Court ruled the act unconstitutional because it applied to intrastate sales.44 In response to the ruling, Congress passed a second Futures Trading Act later that year, and specifically limited its application to interstate sales. This remake was sufficient in the Courts perspective, as it upheld the second act in Board of Trade v. Olsen (1923).45 Moreover, the Employers Liability Cases of the early 20th century stand as a testament to possible collaboration between Congress and the Supreme Court. The Federal Employers Liability Act, which gave employees of interstate insurance carriers a course of action to resolve claims of negligent injury was originally struck down in 1908 because it did not specifically apply to workers engaged in interstate commerce, but employees who worked for an interstate company in general. Immediately, Congress revisited the legislation and reconstructed the language to apply only to workers engaged in interstate commerce. The second Federal Employers Liability Act was upheld in 1912 due to this shift in language.46 Furthermore, even after the Lopez ruling, Congress moved to amend the GunFree School Zones Act, and the revised statute was [] upheld as a constitutional exercise of Congressional power.47 Despite the remedies that exist in the event that the Supreme Court rules the individual mandate unconstitutional,
John Schwartz, The Supreme Court and Obamas Health Care Law, THE NEW YORK TiMES, December 18, 2010,http://www.nytimes.com/2010/12/19/ weekinreview/19schwartz.html. 44 Gavit, supra note 8, at 245. 45 Id. at 218. 46 Id. at 218 47 RObERT DAViSON AND WALTER OLEZSEK, CONgRESS AND iTS MEMbERS at 365 (CQ Press, 2008) (2004).
43

Goldman

33

the remedies should prove unnecessary. Based on historical precedent and recent opinions, the Supreme Court should validate the constitutionality of this measure. Justice Antonin G. Scalias concurring opinion in Gonzales v. Raich (2005) is the strongest argument for why the mandate should be upheld. In this case, the Court reversed its federalist trend established in Lopez and Morrison, and upheld a federal law under the Commerce Clause that criminalized the personal growth of marijuana. In his concurrence, Scalia laid clear exactly why Gonzales was distinct and unique from Lopez:
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.

Here, Scalia identifies that in the Lopez case, the Gun-Free School Zone Act was passed not to enable effective regulation of an interstate market, but rather, on the grounds that possession of a firearm in a school-zone would have a substantial effect, however indirect, on interstate commerce. In contrast, the Gonzales law in question, the Controlled Substances Act, sought to regulate intrastate activity because it was essential to controlling the interstate marijuana market. In Lopez and Morrison, as Scalia emphasized, neither case involved [] control over intrastate activities in connection with a more comprehensive scheme of regulation.48 Thus, Scalias distinction is clear: for an intrastate activity to be legally regulated by Congress, it must be part of an overall strategy to regulate that specific interstate market. By Scalias own analysis, the individual mandate provision fits neatly into the paradigm put forth in his concurring Gonzalez opinion. The individual mandate to purchase healthcare is, in fact, part of a broader Congressional ploy to regulate the entire interstate
Scalia, Gonzales v. Raich http://caselaw.lp.findlaw.com/scripts/getcase. pl?court=US&vol=000&invol=03-1454#concurrence1
48

34

WULR Vol IV, Issue III Spring 2011

healthcare insurance market. Lopez and Morrison, meanwhile, struck down laws that were not part of a greater interstate regulation effort, but were perceived to have some sort of effect on interstate commerce on their own. IIc. The Broccoli Argument In December 2010, a Floridian federal district judge, hearing oral arguments on this very issue, posed the question: Can the government mandate [that] everybody has to buy a certain amount of broccoli if they can mandate that everyone must purchase health insurance?49 If the government can mandate that people purchase health insurance for their own good, why not mandate that everyone eat broccoli for its health benefits? Judge Vinsons question is surprisingly nave. The mandate to purchase healthcare insurance is not borne out of a desire to impose what is best on people. Instead, it is a mechanism designed to ensure that the price of healthcare stays low as part of a national interstate plan to regulate the healthcare insurance industry. Mandating that every individual purchase broccoli, however, would not be a foreseeable part of any interstate commerce regulation. Conversely, a broccoli mandate would not be enforced to keep broccoli prices low, but to keep the populace healthy. Moreover, if we apply the Wickard aggregate theory of commerce to this hypothetical situation, Vinsons question falls flat again. If everyone were to not buy broccoli, what would be the net effects? The populace would possibly be less healthy, and the price of broccoli would likely be lower due to suppressed demand. However, the government could not feasibly deem either of these effects interstate commerce issues.

Jennifer Haberkorm, Health Judge Fears Broccoli Mandate, POL. 1, 2 (Dec 16, 2010).
49

Goldman IId. Arguments against the Health Care Act

35

The strongest argument against the individual mandate is that it purports to regulate inactivity, as advanced in a recent Heritage Foundation study.50 The main distinction theorized here is that the refusal to purchase insurance is a noneconomic activity, similar to the Lopez and Morrison cases where noneconomic regulations were invalidly tied to interstate commerce. However, the study goes awry when it acknowledges the most important aspect of the case: Congress may possibly regulate the healthcare industry or the health insurance industry in light of their substantial effect on interstate commerce.51 This is an implicit endorsement of the idea that refusing to buy health insurance might be considered inactivity, but it is certainly economic. Because the healthcare industry is an interstate commercial market, a decision not to purchase health insurance has a direct and measurable effect on interstate commerce. In contrast, the Gun-Free Zone Act sought to regulate a non-economic activity that had no ties to an interstate economic market. However, the inactivity of refusing to buy health insurance does have an immediate economic effect on an industry that even Heritage acknowledges is interstate in nature- the healthcare industry. While the studys deduction that this regulation guides inactivity is correct, it is shortsighted because it does not acknowledge that the inactivity in question is an economic activity with widespread economic effects. Lastly, the Heritage study uses Lopez and Morrison as controlling precedents for determining the constitutionality of the healthcare mandate. However, even conservative legal scholars such as Richard Epstein acknowledge that Lopez and Morrison did not reverse the New Deal interpretation of the Commerce Clause, but merely clarified it. Epstein admitted this in stating that, Rehnquists limiting principle in Lopez and Morrison had the
Randy Barnett, et al, Why the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional, THE HERiTAgE FOUNDATiON (2009), www.heritage.org/research/reports/2009/12.why-the-personal-mandate-tobuy-health-insurance- is-unprecedented-and-unconstitutional. 51 Id.
50

36

WULR Vol IV, Issue III Spring 2011

effect of solidifying the logic of Wickard.52 By linking intrastate federal regulations to an overall interstate regulatory strategy (which the majority in Lopez reasoned the Gun-Free School Zones Act failed to do), the Rehnquist Court agreed with the assumption that Wickard represents good law.53 Thus, the Heritage report is mistaken when it cites the Lopez and Morrison precedents as reason for striking down the individual mandate. If anything, a nuanced reading of Rehnquists opinion in those cases suggests that the Wickard application of the interstate Commerce Clause has been embraced, not rejected, in recent years. Robert Bork, who was nominated for a Supreme Court Associate Justice post in 1987 lays out his separate problems with the modern application of the Commerce Clause in an academic essay entitled, Boundaries of the Commerce Clause. In it, Bork states that the original meaning of the Commerce Clause does not include manufacturing, agriculture, labor, or industry, or anything that precedes the act of a physical transaction.54 While Bork might be arguably correct in this assessment, he fails to acknowledge that manufacturing and production do exert effects, at times substantial, on interstate commerce. Bork concludes that, the purpose of the Commerce Clause was to remove barriers to interstate commerce.55 By allowing states to maintain different manufacturing standards (with some allowing child labor and others outlawing it for example), Borks stance would have the direct effect of instituting barriers on interstate commerce. Certain states would have lower costs of production and could undercut the prices of states forced to deal with higher employment standards and must charge higher prices. Secondly, Borks analysis of what constitutes commerce seems to support the South-Eastern Underwriters decision that insurance is indeed commerce. Buying
RiCHARD EpSTEiN, HOW PROgRESSiVE REWROTE THE CONSTiTUTiON 75-76 (CATO Institute, 2006). 53 Id. at 117. 54 Robert Bork, Locating the Boundaries The Scope of Congresss Power to Regulate Commerce, (1997) http://www.constitution.org/lrev/bork-troy.htm. 55 Id.
52

Goldman

37

insurance is not manufacturing, nor does it precede a transaction. Buying insurance is a transaction itself, and so by Borks evaluation the federal government has a right to regulate this transaction. CONCLUSiON In Gibbons v. Ogden, Chief Justice John Marshall wrote, The wisdom which constituents possess is the sole restraint of government abuse.56 This statement referred to the main source of power that the democratic process affords the nation as a whole: elections. In saying this, Marshall was refraining from ruling on the wisdom of Congressional legislation, saying that the voting process is the primary avenue by which the populace can address discontent with Congressional action. Instead, Marshall dedicated himself wholly to applying the law as written, exercising judicial restraint. Although the wisdom of the healthcare law itself has come into question, the duty of the Court is not to judge the wisdom of the legislation, but merely its constitutionality. If the Supreme Court were to strike down the individual healthcare mandate, it would be engaging in the same sort of harmful or harmless paradigm that led the Court to strike down the Child Labor Act of 1916 and key provisions of the Sherman Antitrust Act. As Marshall pointed out, it is the job of the electorate to correct these legislative inadequacies through the electoral process. If the Court restrains from judicial activism and does not strike down the individual mandate, then it will have adhered to lawful precedent. Additionally, Justice Scalia made perhaps the most insightful analysis in regards to the issue at hand: if the intrastate regulation is part of an overall interstate regulatory scheme, then the provision is valid and constitutional. The individual mandate in the Affordable Health Care for America Act is exactly that- a regulation on personal activity as a necessary part of a broader interstate insurance regulation. Based on the history of legislation in relation to the Commerce Clause, the individual mandate
56

Benson, supra note 3, at 19.

38

WULR Vol IV, Issue III Spring 2011

provision of the healthcare law is constitutional. As is the case with democracy, the best method for overturning such a provision is not to hope for judicial activism, but to influence policy by exercising ones right to vote.

An Argument for Leaving Same-Sex Marriage to Democratic Processes

By Sean Lyness*
With the repeal of the military policy Dont Ask, Dont Tell, the agenda for gay rights has unquestionably been furthered. Yet, marriage equality, legal in some states, has yet to be realized on a national stage. Many argue that if brought before the Supreme Court, marriage equality will undoubtedly be legalized. However, past precedents do not seem so certain. This article examines some rulings in cases where the Supreme Court removed homosexual issues from the political process, such as Romer v. Evans (1996) and Lawrence v. Texas (2003), and cases where the Supreme Court deferred to democratic processes, such as Michael M. v. Superior Ct. (1981). Upon analysis of these cases, and consideration of the Courts efforts to ease the counter-majoritarian difficulty, it seems likely that the Court would defer to democratic processes for same-sex marriage. Thus, same-sex marriage advocates ought to pursue legislative processes and grassroots activism as the best approach for comprehensive policy change.
*Sean Lyness is a senior at Brown University where he is concentrating in Political Science. The inspiration for this article came from experiences working with Marriage Equality Rhode Island. This work was originally written for a 2009 course on Constitutional Law taught by Prof. Jared Goldstein. Sean lives and works in Rhode Island and hopes to attend law school in the future.

Hearts and Minds:

40

WULR Vol IV, Issue III Spring 2011

Table of Contents INTRODUCTiON............................................................40 I:CASE PRECEDENT: ROMEr AND LAWrENCE.................41 II: DEFERENCE TO THE POLiTiCAL PROCESS......................46 III: POpULAR OpiNiON...................................................47 IV: RECOMMENDATiONS FOR SAME-SEX MARRiAGE ADvOCATES.................................................................48 INTRODUCTiON The campaign to legalize same-sex marriage is a growing movement in America. In 2003, the Massachusetts State Supreme Court ruled to legalize same-sex marriage, making Massachusetts the first state to do so. Since then, four more states and the District of Columbia have joined Massachusetts.1 On the surface, the movement appears to be gaining momentum at local and state levels. Yet many wish for higher courts, specifically the United States Supreme Court, to get involved. Rather than approach the issue on a state-by-state basis, proponents of same-sex marriage want the Supreme Court to issue a ruling approving it at the federal level. While the Court has made sweeping changes with a single decision before, it is ultimately not the best method to advance the goals of the same-sex marriage movement. This article examines some rulings in cases where the Supreme Court removed homosexual issues from the political process, such as Romer v. Evans (1996) and Lawrence v. Texas (2003), and cases where the Supreme Court deferred to democratic processes, such as Michael M. v. Superior Ct. (1981). Upon analysis of these cases, and consideration of the Courts efforts to ease the counter-majoritarian difficulty, it seems likely that the Court would defer to democratic processes for same-sex marriage. It then follows that pragmatic same-sex marriage advocates ought to pursue legislative processes
1 Emily Doskow, Same-Sex Marriage in Five States and the District of Colombia, Nolo.com, at http://www.nolo.com/legal-encyclopedia/article-29828.html (2010).

41 Lyness and grassroots activism as the best approach for widespread policy change. PART I: CASE PRECEDENT: ROMEr V. EVANS AND LAWrENCE V. TEXAS The most well known Supreme Court decisions related to homosexual issues are cases in which the Court overturned state policies. For same-sex marriage advocates, it is helpful to look at two fairly recent cases: Romer v. Evans (1996) and Lawrence v. Texas (2003). Romer dealt with the constitutionality of Amendment II of the Colorado Constitution. Adopted by a statewide popular vote, Amendment II barred any judicial, legislative, or executive action designed to protect persons from discrimination based on their homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.2 The Court ruled the Amendment unconstitutional. Lawrence looked at the constitutionality of a Texas statute that criminalized certain intimate sexual conduct, specifically sodomy, between same-sex couples; identical behavior by heterosexual couples was not prohibited. The Court likewise ruled that the statute was unconstitutional. In both cases, the popularly voted amendment in Romer and the democratically passed statute in Lawrence, the Supreme Court effectively removed the homosexual issue from the political process. Superficially, these cases seem to provide ideal precedent for a future ruling on same-sex marriage. Many same-sex marriage proponents might look to these cases as the applicable precedent for a hypothetical future Supreme Court case that would invalidate laws banning same-sex marriage. In Romer, the Court cited the Equal Protection provision of the Fourteenth Amendment to invalidate Amendment II, while in Lawrence, Justice Sandra Day OConnors concurring opinion also relies on Equal Protection analysis. This is the same provision same-sex marriage advocates hope to use to prove a potential case. While elements of these cases seem to favor same-sex marriage, proponents should be wary of the contexts of those elements and
2 Romer v. Evans, 517 U. S. 620 (1996).

42

WULR Vol IV, Issue III Spring 2011

the reasoning behind Justices decisions. These cases have four elements that would be absent in a same-sex marriage case: the criminalization of conduct, the guarantee of broad rights, the concept of discrete and insular minorities, and the low level of judicial scrutiny, which would suggest a difficult battle for samesex marriage advocates. Both cases involve a punishment for offending the statute in question. In Romer, the Court struck down the revision of Amendment II to the Colorado Constitution, which prohibited all legislative, executive, or judicial action designed to protect [homosexual persons].3 Justice Kennedy described the amendment as one that bars homosexuals from securing protection imposes a special disability, [and has a bare] desire to harm.4 While this case does not specifically denote a criminal punishment, the Court still construed it as a statute that unfairly punishes homosexuals. The language the Court uses - bars, imposes, and harm - demonstrates this interpretation. Lawrence, on the other hand, directly addressed a Texas statute that made it a crime for two persons of the same sex to engage in certain intimate sexual conduct.5 This case is perhaps the clearest example of a statute that criminalizes otherwise legal behavior when performed by homosexual individuals. In both cases, an individual is punished for offending the statute. The same does not hold true in the case for same-sex marriage. There is no punishment for samesex marriage many states simply do not recognize it. Since the absence of a right or privilege not being allowed to marry is markedly different from a criminalization of conduct, the parallels between these cases and a possible same-sex marriage case are weak. In addition, these cases deal with expansive guarantees of rights that have been broadly defined. Romer deals with protection across the board6 while Lawrence refutes a statute
3 Romer v. Evans, 517 U. S. 620 (1996). 4 Id. 5 Lawrence v. Texas, 539 U. S. 558 (2003). 6 Romer v. Evans, 517 U. S. 620 (1996).

Lyness

43

that singled out homosexuals for disfavored legal status.7 Furthermore, the Courts decision in Lawrence grounds much of its opinion in the broad respect for their private lives.8 The notion of privacy and the right to privacy is expansive. This is very different from the specificity of the narrowly defined right to marry, much less the right to marry someone of the same sex. Thus, the Court may not see in the same terms as the rights involved in Romer and Lawrence. It is clear that these cases distinguish themselves from same-sex marriage by involving broad rights. Beyond the differences between these cases and a hypothetical same-sex marriage case, Romer and Lawrence help define the Courts construction of discrete and insular minorities. Taken from the fourth footnote of US v. Carolene Products (1938), which set precedent for how the Court should examine cases involving the Fourteenth Amendment, the theory says that the Court can invalidate statutes if they discriminate against discrete and insular minorities. In other words, such judicial action can be deemed appropriate if it gives protection to a powerless minority group. However, the Court does not consider homosexuals to be a discrete and insular minority, as evidenced by clear wording in Romer and Lawrence. In Romer, the Court was careful to not distinguish homosexuals from the general public; rather, Justice Kennedy concluded that the amendment was unconstitutional because it made homosexuals unequal to everyone else.9 Justice Kennedy decried that the amendment denies [homosexuals] protection across the board.10 This broad language serves to minimize differences between homosexuals and everyone else. Since Amendment II singled out homosexuals and was struck down, the Court indicated a subtle desire to not differentiate homosexuals as a distinct group. In Lawrence, this trend continues; Justice Kennedy grounds his argument in a speech from an earlier case, asserting at the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe,
7 Lawrence v. Texas, 539 U. S. 558 (2003). 8 Id. 9 Romer v. Evans, 517 U. S. 620 (1996). Id.

44

WULR Vol IV, Issue III Spring 2011

and of the mystery of human life.11 Yet the language surrounding individual freedom does not directly concern the categorization of homosexuals as a discrete or insular group. At most, it might specify their freedom to pursue the sexuality and lifestyle of their choice. In fact, Justice Kennedy states just the opposite: Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.12 While autonomy might indicate a right to pursue marriage as well, the Court has made it clear that homosexuals are not a discrete and insular minority. Thus, this categorization makes it difficult for the Court to invalidate statutes that discriminate against them. Furthermore, both cases show a low level of judicial scrutiny, or minimal judicial review, indicating a reluctance to interfere with cases dealing with homosexual rights. As Romer and Lawrence indicate, the Court has no intention of using heightened scrutiny for a same-sex marriage case. The opinion in Romer uses the language of the most basic level of judicial scrutiny, rational basis, in which an existing statute is acceptable for merely being rationally related to a legitimate interest of the government. These terms stipulate a clear relationship between the law and legislative intention are broad and thus the scrutiny is of the lowest level. Justice Kennedy demonstrates the Courts rational basis reasoning clearly: a law must bear a rational relationship to a legitimate governmental purpose and Amendment Two [of the Colorado Constitution] does not.13 In Lawrence, the majority uses Due Process analysis, preferring not to involve the Equal Protection clause. Justice OConnors concurring opinion, however, does use Equal Protection analysis in a form of rational basis review.14 Justice OConnors use of terms like legitimate governmental interest, a central phrase of
 Lawrence v. Texas, 539 U.S. 558 (2003). Justice Kennedy refers to the Courts assertion that American laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education, and quoted their earlier decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).  Lawrence v. Texas, 539 U. S. 558 (2003).  Romer v. Evans, 517 U. S. 620 (1996). Id.

Lyness

45

rational basis review, in her concurring opinion corroborates this claim. Judicial trends at the state level are similar. Even the case that legalized same-sex marriage in Massachusetts, Goodridge v. Dept of Public Health (Mass. 2003), used the language of rational basis review and declined to classify homosexuals as a suspect classification that required more heightened scrutiny.15 While not a Supreme Court case, Goodridge illustrates well how a high level court, the Massachusetts Supreme Court, used judicial scrutiny on homosexual issues. This ruling, a final answer from the Massachusetts State Supreme Court to a number of lawsuits filed against the Massachusetts Department of Public Health by Gay and Lesbian Advocates and Defenders (GLAD), very clearly states rational basis is the appropriate standard of review...there is no rational relationship between the marriage statute [banning same-sex marriage] and the Commonwealths proffered goal...16 This coincides with the academic findings of Darren Lenard Hutchinson, who claims that the Court has effectively ceased recognizing new suspect classes.17 Thus, it is very unlikely that a Supreme Court case dealing with marriage equality would be given anything but the lowest level of judicial scrutiny. This low level of scrutiny places the burden on the plaintiff to prove that the current system is unconstitutional, making it very challenging for plaintiffs to prove their case. Drawing on the opinions in Romer and Lawrence, samesex marriage advocates likely would not encounter a receptive Court if the issue were ever added to the Supreme Courts docket. In both cases, the Court bypassed the legislative process by ruling on the issue at hand, yet elements of the two cases suggest a same-sex marriage case would not see similarly favorable results. A same-sex marriage case simply could not be construed as a criminalization of conduct. It would certainly not concern a broad guarantee of rights, as the right for same-sex couples to marry can be narrowly defined. In addition, the cases illustrate the Courts
 Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). Id.  Darren Lenard Hutchinson, The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics, 23 LAW AND INEQUALiTY: J. OF THEORY AND PRACTiCE 1, 57 (2005).

46

WULR Vol IV, Issue III Spring 2011

refusal to denote homosexuals as a discrete and insular minority, and their clear use of rational basis review for homosexual classifications. These elements all add to the difficulty of proving the constitutional right of same-sex marriage and should be noted by those who refer to these cases as promising indicators that the Court will approve same-sex marriage. PART II: DEFERENCE TO THE POLiTiCAL PROCESS There are, of course, many cases where the Court defers to legislatures and the political process. Unfortunately for same-sex marriage advocates, the previously described cases would suggest negative consequences for a hypothetical same-sex marriage case. The Courts long history of deference to the legislative branch, its reluctance to question legislative motives, and the absence of an explicit mention of marriage in the Constitution would hinder the Courts ability to mandate the legalization of same-sex marriage. In Turner Broadcasting v. FCC (1997), a case unrelated to homosexual issues but indicative of Court protocol, Justice Kennedy spoke for the majority when he stated, we must give considerable deference, in examining the evidence, to Congress findings and conclusions.18 This deference to legislative acts is not new; the Court has long held that legislatures are far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.19 Indeed, this translates to a central tenant: let the democratically elected legislatures make the laws. As Justice Rehnquist argued in Michael M. v. Superior Court (1981), the relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line chose[n] by the California Legislature is within constitutional limitations.20 While this case is not related to homosexual issues it does denote the Courts preference. For same-sex marriage advocates this means that the Court would
 Turner Broadcasting System, Inc. v. FCC 520 U.S. 180 (1997). Id.  Michael M. v. Superior Court, Sonoma Cty., 450 U.S. 464 (1981).

Lyness

47

likely defer to existing laws that prohibit same-sex marriage. Additionally, the Court is reluctant to question legislative motives. As Justice Kennedy asserts in Michael M., this Court has long recognized that [in]quiries into congressional motives or purposes are a hazardous matter.21 The ramifications of this approach could apply to a hypothetical same-sex marriage case. The tendency of the Court to refrain from examining intentions means they would likely not question the motives of the standing prohibitive marriage laws, making it harder to claim that homosexuals are being discriminated against. The refusal to question legislative motives is yet another roadblock in creating marriage equality. PART III: POpULAR OpiNiON Perhaps less obvious than the circumstances surrounding the issue are the effects of the Courts attempt to shape perceptions of the counter-majoritarian difficulty. Coined by Alexander Bickel, the concept of the counter-majoritarian difficulty refers to the political phenomenon that results when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, [and] thwarts the will of the representatives of the actual people.22 It essentially holds that judicial review inherently goes against democratic processes. By invalidating statutes created through popularly elected legislatures, judicial review can be seen as anti-democratic. Some go so far as to suggest that the judicial branch reigns unchecked as a political animal,23 leading to outcries of justices legislating from the bench. Others contend that judicial review is necessary for protection from rampant majoritarianism. Regardless of whether the counter-majoritarian difficulty is an adequate portrayal of judicial review, the Supreme Court has been conscious of it and has reacted to it. As Hutchinson argues, one of these reactions is ruling in ways that correspond with public opinion. Hutchinson
Id. ALEXANDER BiCKEL, THE LEAST DANGEROUS BRANCH 17 (Yale Univ. Press, 1962). Id.

48

WULR Vol IV, Issue III Spring 2011

says that Equal Protection analysis vividly portrays the Courts majoritarianism.24 In Lawrence, the Court counted the number of states that had decriminalized sodomy, which, as Hutchinson notes, clearly [sought] to link [the Courts] ruling to majoritarian views.25 Furthermore, both the majority decision and [Justice OConnors concurring opinion] seek to distance Lawrence from efforts to legalize same-sex marriage, which a broad majority of the public does not support. In other words, the Court is careful not to endorse issues that are not publicly supported. This is a conscious effort on the part of the Court to appear as a majoritydriven institution. Hutchinson is explicit: the Court is likely trying to quell, even if unsuccessfully, ongoing democra[tic] critiques of judicial review.26 Thus, the Court has been active in responding to counter-majoritarian criticism. For same-sex marriage advocates, this increased role of public opinion in the Courts decisions is not good news. A CNN poll from 2011 showed that a narrow 51% support samesex marriage.27 With no clear majority, the poll reveals the deeply divisive nature of this issue. If the Court were concerned with appearing majoritarian, it would be unlikely to rule on the issue with the public so divided. In this instance, the Courts efforts to counter criticism would hurt the same-sex marriage cause. PART IV: RECOMMENDATiONS FOR SAME-SEX MARRiAGE ADvOCATES Same-sex marriage advocates should pay careful attention to the Tenth Amendment, which relegates unenumerated powers to the states, rather than to federal lawmakers. The amendment asserts that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This essentially holds that
 Hutchinson, supra n. 16, at 22. Id. Id., at 42.  Rebecca Stewart, Poll: More Americans Favor Same-Sex Marriage, CNN Politics Political Ticker (2011) at http://politicalticker.blogs.cnn.com/2011/04/19/poll-more-americans-favorsame-sex-marriage/.

Lyness

49

the powers that the Constitution does not delegate to the federal government are left to the discretion of the states. Justice Scalia voices this in his Romer dissent, claiming, since the Constitution of the United States says nothing about [homosexual rights], it is left to be resolved by normal democratic means.28 While many claim that other provisions in the Constitution cover same-sex marriage, such as the Equal Protection provision of the Fourteenth Amendment, Justice Scalias comment highlights an important fact: thus far, the states have been charged with allowing or denying same-sex marriage.29 It is evident that the Court adheres to a strictly drawn line between the judicial and legislative branches, allowing legislatures fact-finding power, refusing to question their motives, and observing that unenumerated powers and rights belong under the purview of the state legislatures. Taken together, these factors suggest that the Court would leave same-sex marriage to political processes, leaving a Court challenge futile for same-sex marriage advocates. Navigating a hypothetical case through the doctrines of the Supreme Court can be difficult. However, looking at past precedents and current trends can guide some predictions. Given the predictive analysis above, same-sex marriage advocates looking to further their cause through the Supreme Court are unlikely to be successful. Certain aspects have to be taken into consideration. Namely, a same-sex marriage case would lack critical components, such as heightened scrutiny, criminal consequences, broadly based rights, or a classification of discrete and insular minority. It is likely that the Court would abstain from creating policy regarding same-sex marriage, due to the Courts long history of deference to the states, reluctance to question
 Romer v. Evans, 517 U. S. 620 (1996).  This, of course, ignores the federal-level Defense of Marriage Act (1996) which defined marriage as explicitly heterosexual. It also ensured that no state would be charged with recognizing a same-sex marriage authorized in another state. This seems relevant legislation for this issue. However, due to the fact that President Obama declared the Defense of Marriage Act unconstitutional in February of 2011 and now refuses to defend it legally, the fate of the legislation is uncertain. With this in mind, I have thus chosen to keep the legislation absent from my argument.

50

WULR Vol IV, Issue III Spring 2011

motives, and a lack of specificity in the Constitution. In addition to these circumstantial concerns, the Courts efforts to ease its perception as a counter-majoritarian institution prove damaging to the same-sex marriage cause. In order to counterbalance the Courts majoritarian bent, same-sex marriage activists need to change public opinion in America. Perhaps then, with the public solidly behind the same-sex marriage movement, will the case be successful before the Court. Even in that instance, proponents of same-sex marriage are better off pursuing strategies that do not deal with the courts and judges, but with creating policy at the state level. Thus, current efforts would be best directed at changing of hearts and minds of state voters, rather than hoping for intervention from a reluctant Supreme Court.

Obscenity in the 1960s and its Effect on American Law & Politics
By John Myers*
The issue of obscene material became part of the national consciousness following the Roth v. United States decision in 1957. The Roth decision galvanized the American public, igniting a ferocious debate over obscenity. While the scope and framework of the debate changed over the course of time, the discussion remained active for nearly two decades. At its core, the debate became a stage for expressing the fears that the American public had regarding the changing nature of society during the 1960s. Even with this fear being the driving force behind the debate, obscenity was a major issue that allowed the American people to debate the past, present, and future of the Constitution and the United States.

*John Myers is a Senior at Virginia Polytechnic Institute and State University majoring in History and Political Science. His research interests include constitutional law and federal electoral history. He has served as a Capitol Hill intern for Congressman Tom Perriello and Senator Mark Warner and has studied abroad at the American University of Cairo in Egypt.

52

WULR Vol IV, Issue III Spring 2011

Table of Contents INTRODUCTiON............................................................52 I. THE ISSUE OF OBSCENiTY EMERGES............................53 Ia. The Roth Ruling...................................................54 Ib. The Debate Continues........................................57 II. POLiTiCAL IDEOLOGiES iN THE OBSCENiTY DEBATE........58 IIa. The Civil Liberties Liberal Perspective................58 IIb. The Social Activist Liberal Perspective..............60 IIc. The Social Conservative Perspective...................62 III. THE MiLLER RULiNG...............................................66 CONCLUSiON................................................................69

INTRODUCTiON In the mid-1950s, radical changes began to take root in American society. Civil rights became a prominent political issue, women began moving from the home to the workplace, and Americas youth began showing signs of cultural dissent and rebellion. Against this backdrop, the Supreme Court began to rule on a variety of First Amendment issues related to obscene material. Perhaps the most important case, Roth v. United States (1957), sparked a national discussion about what constituted obscene material and whether or not it was protected by the First Amendment. This section will show how Roth galvanized the American public into a ferocious debate over obscenity. There were many sides to the debate over obscene materials. Some people believed that the definition of obscene material was expansive and that all material deemed to be obscene was a threat to the moral foundation of America. Others claimed that obscene material was not as great of a threat to Americas morals as what they perceived to be the larger issues of war, poverty, and racism. Yet another group of individuals reasoned that all speech and expression, obscene or not, was protected by the

Myers

53

First Amendment. The debate over obscenity would rage for two decades before another Supreme Court case, Miller v. California (1973), altered the framework of the argument. The debate over obscenity served as a catalyst for disagreement over the changing nature of American society from the late 1950s to early 1970s. These controversies contributed to a heated public discourse about current and future American values. In contemporary public discourse, politicians from all parts of the political spectrum claim that American values are declining and use various cultural references to illustrate this point. However, this argument is not new to the political arena. Elected officials have called for a restoration of American values for decades. It is important to realize that this argument most recently came to the forefront of American politics in the late 1950s. Today, the debate over obscenity and its validity under the First Amendment continues to shape politics. For this reason, the debate that raged over obscene material from the late 1950s to the early 1970s has been crucial in explaining the growth and change of American society and politics over the last fifty years. PART I: THE ISSUE OF OBSCENiTY EMERGES In the 1950s and 1960s, the Supreme Court, under the leadership of Chief Justice Earl Warren, broadened the scope of judicial activism by hearing cases on a range of social issues that the Court had never previously considered. Cases involving abortion rights, school prayer, and segregation brought new light to issues that had plagued society for decades.1 One of these issues involved the definition of obscene material.Prior to the Roth decision in 1957, obscenity was a relatively minor issue in the national consciousness. Although almost every state had laws against obscenity, it seemed that a catalyst was needed to provoke a national discussion.2 Most obscenity debates were insulated in local communities. In the 1940s, the Chicago area had a minor
1 JOSEpH J. HEMMER, JR., THE SUpREME COURT AND THE FiRST AMENDMENT 210 (Praeger 1986). 2 EDWiN KiESTER JR., CRiMES WiTH NO ViCTiMS (Alliance for a Safer New York 1972).

54

WULR Vol IV, Issue III Spring 2011

controversy that concerned the mass mailing of obscene materials to individuals who had not ordered these items.3 While the mailing of such materials would have been a larger issue after the Roth ruling, the issue drew relatively little press at the time, with virtually no publicity other than a letter to the editor that appeared in the Chicago Tribune. Obscenity would continue to be a localized issue until the Supreme Court ruling on Roth. Ia. The Roth Decision In 1957, the Supreme Court propelled the issue of obscenity onto the national stage with the case of Roth v. United States. The case centered on a business owned by Samuel Roth, who was indicted and convicted for mailing obscene circulars and an obscene book.4 Justice William Brennan, writing for the 6-3 majority, said that freedom of expression did not give protection for every utterance, that all ideas that have the slightest redeeming social importance have the full protection of the Constitution, and that any obscene material had to be utterly without redeeming social value.5 According to this interpretation, obscenity was not within the area of constitutionally protected speech or press. Brennan then defined the test of obscenity as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.6 Brennan stressed four critical elements in his ruling. First, the Court made clear the distinction between sex and obscenity. Obscene material could contain sexual material, but in a manner that appealed to lustful interests. Therefore, the depiction of sexual material was insufficient reason to suppress material; it must be coupled with lustful interests. Second, the test applies to the average person, meaning that the material in question must be capable of affecting someone other than a particularly susceptible
3 No Censors Needed, CHi. TRiB., June 2, 1947, at 18. 4 JOHN ViLE, SUMMARiES OF LEADiNG CASES ON THE CONSTiTUTiON 273 (Rowman & Littlefield Publishers 2004). 5 Roth v. United States, 354 U.S. 476, 582 (1957). 6 Id.

Myers

55

individual in order to be deemed obscene. Third, the material must violate contemporary community standards.7 Brennan attempted to make obscenity regulation a local issue with his use of the word community. However, the definition of the term community itself was fiercely debated, which proved to be problematic. Was a community a city, a state, or the entire United States? The term community would not be specified until later Supreme Court rulings. Fourth, the material must be considered as a whole, not merely judged by the effect of an isolated passage. The Roth decision was announced during a period of American politics in which there was a decline in conservatism and a rise of liberalism. In 1957, conservative Republican President Dwight Eisenhower had a high approval rating, while conservative Democrats controlled both houses of Congress. It was in this conservative atmosphere that the Roth ruling created a national discussion. Had the ruling occurred three years later, when liberal Democrat John Kennedy was in the White House and when the Democrats in Congress were moving to more liberal views, the Roth decision might not have caused such an extensive dialogue. If federally elected officials represent the will of the majority, then the change from a conservative Republican president in 1957 to a liberal Democratic president in 1960 demonstrated that an increasing percentage of the country had adopted liberal beliefs. The fact that the Roth ruling occurred during the transition between conservatism and liberalism may give insight into why the decision was so controversial. Brennans four elements defined certain questions and general concepts for the subsequent public response. In regards to Brennans first element, the distinction that the Court made concerning what constituted obscene materials was lost over the course of debate. People from all parts of the ideological spectrum identified different societal problems as obscene. For example, many liberals considered poverty and world hunger to be obscene.8Arguably, Justice Brennan and the majority of the
7 HEMMER JR, supra note 1 at 211. 8 Shades of Morality, N.Y. TiMES, May 5, 1972, at 40.

56

WULR Vol IV, Issue III Spring 2011

Court would have considered this to be far outside of the scope of obscenity. Similarly, many conservatives wanted to include profane language that was not necessarily related to sex.9 It is likely that the Court would likewise have rejected this approach because it did not concern sex or inspire lustful thoughts. The second element of the Courts opinion, which specified obscene material as affecting average people inspired further public debate. The Court was careful to say that obscene material had to offend normal individuals as distinct from particularly susceptible individuals.10 One major question that defined public responses was whether obscenity should be totally outlawed because of its potential influence on children. One interpretation of the Courts ruling would be to say that the obscenity must offend normal adults, not necessarily children. The reasoning here is that the scope of obscene material is increased greatly when children are taken into consideration. Instead of considering how obscene material would affect only adults, the Court would have to consider how the material affected children as well. If the Court allowed this interpretation, then the definition of average people would have rendered the term utterly useless. The third element, in which Brennan stated, contemporary community standards must be violated, is perhaps the vaguest of the four. Many people began to wonder what exactly defined a community. Some said that a community should be restricted to a town or city while others said that the entire nation could be considered a community.11 The debate over the definition of community would be yet another thread in the ongoing public discussion about obscenity. The fourth element of Brennans test, which required consideration of the material as a whole, was also very important in the public debate. Whenever disagreement arose surrounding certain material, those people condemning the material would isolate certain sections to focus on.12 However, the Court had
9 The Tediousness of Four-Letter Words, CHi. TRiB., January 21, 1969, at 18. 10 HEMMER JR. supra note 1, at 210. 11 Jerry De Muth, Censorship at Northwestern, CHi. TRiB., October 17, 1958, at 10. 12 Allan Frost, Obscene Literature, CHi. TRiB., June 20, 1959, at 12.

Myers

57

ruled against singling out specific sections; the entire work had be considered. 1b. The Debate Continues In 1966, the Supreme Court ruled on another case involving obscene material. In Memoirs v. Massachusetts (1966), John Clelands 1750 book Memoirs of a Woman of Pleasure (commonly known as Fanny Hill) was brought before the Court to determine whether the book constituted obscene material. The lower court in Massachusetts ruled the book to be obscene. The Supreme Courts decision, announced by Justice William Brennan, stated that the Massachusetts courts head erred in finding Memoirs to be obscene. The Court, applying the test for obscenity established in Roth, held that the book was not utterly without redeeming social value.13 In essence, this case affirmed the ruling in Roth. Just as he had in Roth, Justice William Brennan wrote the Memoirs ruling, which allowed Brennan to craft the language of the decision to fit the model he created in the earlier case. The Memoirs case was important given the politics of the time. Unlike Roth, where the case was decided during a time of conservatism, Memoirs was decided during the Johnson administrations era of liberalism and big government. Liberal Democrats, in control of both Congress and the White House, rapidly expanded the role of the federal government to include social programs such as the War against Poverty and educational grants.14 The Roth decision, which ruled that only certain material could be considered obscene, was not in line with the conservative politics during 1957, while the Courts decision in Memoirs was very much in sync with the liberal politics during 1966. While all four elements of the Roth decision (and their subsequent affirmation in Memoirs) provided a framework for the debate over obscenity in the 1960s, it is important to note that a great deal of the public discussion strayed from the conditions established in these elements at various points. Many times only a
13 Memoirs v. Massachusetts, 383 U.S. 413 (1966). 14 A.H. Raskin, Generalissimo Of the War on Poverty, N.Y. TiMES, NOvEMBER 22, 1964, at SM39.

58

WULR Vol IV, Issue III Spring 2011

small portion of the material in question was used to condemn the entire work, rather than the work as a whole.15 Debaters from both sides of the aisle applied the term obscenity to material not related to sex.16,17 This deviation from Roths framework defined much of the public discourse. PART II: POLiTiCAL IDEOLOGiES iN THE OBSCENiTY DEBATE IIa. The Civil Liberties Liberal Perspective Three main groups dominated the debate over obscenity: civil liberties liberals, social activist liberals, and conservatives. The first group, civil liberties liberals, included those who thought that obscenity was a problem, but considered censorship an even greater concern.18 There were several lines of thinking among these civil liberties liberals. First, some people believed that obscenity was protected by freedom of speech and any censorship at all was a violation of this critical component of American political ideology. Robert Burke, writing a letter to the editor of the Los Angeles Times, expressed this opinion clearly when he said, the basic theme of American democracy has been the unrestricted freedom of the individual to express new and even unpopular ideas. In any question of censorship because of obscenity, it is absolutely irrelevant whether a book is philosophically in accord with accepted social values.19 Burkes letter perfectly characterized the civil libertarian liberal position. His statement reflects the position that freedom of expression is a guarantee of the First Amendment that cannot be taken away just because the beliefs are unpopular or contrary to the majority view. His statement also indicated an animosity toward censorship. For Burke, it did not matter if a book was in line with widely held beliefs. In his opinion, the Constitution secured the right to freedom of expression for all citizens.
15 John Moore, Tropic Trial, L.A. TiMES, March 7, 1962, at A5. 16 Neil Weinberg, A Worse Evil, CHi TRiB., September 15, 1957, at B11. 17 Moral Abdication, CHi. TRiB., February 6, 1965, at 12. 18 Martha Boaz, Censorship Threat, L.A. TiMES, October 18, 1966, at B4. 19 Robert Burke, Censorship, L.A. TiMES, February 4, 1962, at F5.

Myers

59

Robert Burkes editorial echoed Justice William Douglas dissent. In Roth, Douglas argued that both the New York statute and Brennans ruling in writing for the majority violated the First and Fourteenth Amendments.20 While legal scholars normally invoke the Fourteenth Amendments proclamation that the right to due process shall not be infringed more than average citizens, both men were arguing similar positions.21 There are two aspects of this argument that are directly connected to Brennans four elements. The first considers the material as a whole. Burke and Douglas would likely agree with Brennan on this rule. Burke would go further in saying that not only is the entire work protected by the First Amendment, every word is also protected. For him, any material, whether obscene or not, was protected by the Constitution. The second element debated concerns the materials violation of contemporary community standards. Burke insisted that all expression was protected, even material that may not be in accordance with the contemporary times. Arguably, Brennan would have disagreed saying that material that violated the standards of contemporary communities was not protected by the Constitution. Another component of the civil liberties perspective involved defining what exactly constituted obscenity. Many people, even those who did not fit into the civil liberties category, questioned how to specifically define obscenity. David Kase, in a 1964 editorial in the Los Angeles Times, wrote that, obscenity, like beauty, is the eye of the beholder and the reason that freedom of expression must be carefully protected is that no one beholder is competent to judge for the eyes of another. That matters of taste can and do become matters of public security and welfare is undeniable, but public security must never be confused with simply the taste of the majority.22 Kases statement highlighted several different ideas. He started by saying that obscenity was a personal matter, and that no one person can say what is obscene
20 Roth, supra note 5. 21 U.S. CONST., amend. XIV, 1. 22 David Kase, Obscenity, L.A. TiMES, November 25, 1964, at A4.

60

WULR Vol IV, Issue III Spring 2011

for a community because it was only obscene for that person.23,24 This directly contradicted Brennans four elements. Furthermore, Kase argued that what was considered public security could not be confused with the will of the majority. The latter half of that idea was what Brennan would call contemporary community standards. Kases editorial excellently characterized the question over what qualifies as obscenity. A final component of the civil liberties view in the debate was that censorship, in violating the Constitution, applied outdated historical standards to contemporary times. Many liberals felt that the censorship applied by Brennan in Roth was an ancient legal standard being applied in the name of contemporary community values, and they considered this hypocritical. Frank Mayer summarized this when he wrote in the Chicago Daily Tribune in 1972 that, even those who believe censorship desirable are likely to resent the imposition of 1869 Victorian morality on adults in [contemporary society].25 Another connection between Mayers editorial and Brennans ruling lay in the definition of average people. Brennans wording made this category very generalized and open to interpretation. Mayer specifically said that Victorian morality should not be applied to adults. This would presumably mean that the same rule does not apply to children. Did average person mean all people or only children and non-consenting adults? This was yet another area where debate sparked over the interpretation of Brennans ruling in Roth about how to effectively judge obscenity in contemporary culture. IIb. The Social Activist Liberal Perspective Those possessing social activist liberal beliefs represented another objection to Brennans ruling. These people believed that obscenity, as defined by Brennan in the framework of sex, was too narrowly tailored. Social activist liberals thought that all plagues on society, such as war, poverty, and racism, were
23 H. Mann, H, Is Obscenity Real?, CHi. TRiB., February 11, 1972, at 16. 24 Karen Vierneisel, Is Obscenity A Crime?, CHi. TRiB., January 9, 1962, at 18. 25 Frank Mayer, Victorian Censorship, CHi. TRiB., May 28, 1959, at 10.

Myers

61

obscene. Nita Hinely made this point clear in the 1969 Chicago Daily Tribune: What is an obscenity to one person obviously is not to another perhaps the real obscenities are poverty, racism, war, violence, prisons, hatred, [and] greed.26 Hinelys editorial perfectly encapsulated the social activist liberal position by arguing that obscenity did not necessarily have to be sexually related. Obscenity could be anything that was harmful to society. This editorial directly contradicted Brennans four elements. Brennan said that obscenity must be sexually related. Hinelys argument questioned this element and advocated for a wider interpretation of the term. One important component of the social activist liberal ideology was that it directly connected with the civil rights struggle. During the late 1950s and early1960s, civil rights activists actively campaigned to give African Americans increased rights. Many social activist liberals believed that the issues of obscenity and racial justice were intertwined. The reluctance of the government to allow certain freedoms in either case allowed for arguments incorporating the goals of each. As Martha Roaz explained in a letter to the editor that appeared in a 1966 Los Angeles Times, Not obscenity but prejudices and deep seated hatreds are the real issues. Surely people who think and are mature will work to decrease, diminish, and dismiss this type of censorship, intolerance, and bigotry.27 Roazs quote captures how champions of censorship and anti-civil rights bigotry connected throughout the 1950s and 1960s. Many social activist liberals believed that the characterization of obscenity in strictly Western, Anglo-Saxon terms ignored the influence of other cultural traditions present in the diverse United States. They believed that limiting the definition of obscenity to English language material alone was prejudicial to English speakers.28 From the perspective of these social activist liberals, the fact that the Court solely deemed English words
26 Nita Hinely, Obscenities, CHi. TRiB., June 11, 1969, at 28. 27 Martha Roaz, Attempts to Impose Censorship on Writings Concern Librarians, L.A. TiMES, June 12, 1966, at L6. 28 RiCHARD KUH, FOOLiSH FiGLEAvES? 54 (THE MACMiLLAN COMpANY 1967).

62

WULR Vol IV, Issue III Spring 2011

offensive disregarded the influence of non-English speaking groups in the American experience. Ironically, social activist liberals argued that the Courts ruling was biased against English speakers, thus defending the majority against the minority of non-English speaking immigrants. As it relates to Brennans four elements, this argument is only applicable if the materials content deals with sex. This application was made by Michael Kac of the Los Angeles Times, when he wrote, Sexual activity is not inherently obscene and yet it is believed that some words relating to it are. But this is true only of those words from the Anglo-Saxon segment of the English vocabulary.29 Kacs quote shows exactly how social activist liberals believed that Brennans ruling was too narrow because it didnt take into account other languages and the various obscene words said by people of different ethnicities. IIc. The Social Conservative Perspective Those with social conservative beliefs composed the final dominant group involved in the obscenity debate. The defining theme in conservative arguments was that obscenity was chipping away at the moral foundation of the country. Many of the arguments expressed by conservatives were in direct opposition to those of liberal advocates. Conservatives were not as divided over the issue of obscenity as their liberal counterparts, the latter of whom disagreed on what qualified as obscenity and how it should be regulated30 Conservatives, on the other hand, were unified in their position that obscenity was an abomination to American morality. There were several major aspects of the conservative argument in the obscenity debate, the first of which is that censorship, while bad, was a necessary evil, needed to protect Americans from the greater harm that is obscenity. L.M. Landon, in a 1959 editorial for the New York Times, wrote, the idea of censorship is fully disturbing. But, in all honesty, we must
29 Michael Kac, Are Only Anglo-Saxon Words Obscene?, L.A. TiMES, March 18, 1972, at A4. 30 FREDERiCk SCHAUER, THE LAW OF OBSCENiTY 83 (Bureau of National Affairs, 1976).

Myers

63

face the fact that our minds are just as susceptible to poisons as our bodies, and surely no one in his right mind would destroy our food and drug laws.31 Landon highlighted a distinct difference between civil libertarians and conservatives. Civil libertarians asserted that the First Amendment protects all forms of expression from censorship, whereas conservatives were willing to sacrifice individual liberty in favor of protection against obscenity. Conservatives, in advocating for protections against obscenity, placed their trust in the government. In contrast, liberals placed their trust in individual citizens, marking a reversal of traditional Liberal and Conservative positions concerning the role of the state in their political arguments32 Generally speaking, liberals favored the big government measures of the Kennedy and Johnson administrations, while conservatives generally opposed this style of 20th century liberalism, in favor of more limited government control.33 During this debate, however, liberals condemned government intervention, argued that obscenity was subjective, and contended that it was each individuals right to chose how to regulate such material. Conservatives believed that the government had the right to judge what qualified as obscenity and therefore had the right to regulate it.34 Here one of Brennans four elements reappears. Brennan argued that obscenity must offend the average person. However, the question had become whether the material was deemed offensive by the average person themselves, as the liberals argued, or by the government in the name of the average person, as the conservatives argued. Conservatives also argued that freedom of expression had been too broadly interpreted, and that the incorporation of material perceived to be obscene should not be covered by the Constitution.35 This point was reinforced by C.A. Provost of the Los Angeles Times, who wrote in 1958 that some forms of censorship seem urgently needed when the cherished guarantee of
31 I. Langdon, To Guard Against Obscenity, N.Y. TiMES, November, 22, 1959, at E10. 32 Supra note 17. 33 Tom Wicker, Johnsons Great Society Lines Are Drawn, N.Y. TiMES, March 14, 1965, at E3. 34 LEON FRiEDMAN, OBSCENiTY 172 (Chelsea House Publishers 1970). 35 Mary Ander, Abused Freedoms, CHi. TRiB., January 31, 1960, at W14.

64

WULR Vol IV, Issue III Spring 2011

freedom of the press is flagrantly abused.36 The Supreme Courts decision in Schenck v. U.S. (1919) (a case not directly related to obscenity) supported Provosts comments. In Schenck,the Court ruled that some forms of speech were not allowed, in an effort to ensure civilian tranquility.37 The Court gave the example of someone shouting Fire! in a crowded theater, despite the absence of an actual fire. Provosts comment would have been much more applicable if this ruling applied to the issue of obscenity. However, the Schenck ruling had to do with individuals whose speech threatened the domestic war effort of World War I. For this reason, it is merely a hypothetical matter as to whether the Court would apply this case to issues of obscenity. Provosts argument reinforced the conservative belief that there should be certain restrictions to First Amendment guarantees. The previous argument centered on the individuals choice to judge obscenity, whereas this argument centered on the idea of simply creating obscene material. The conservative view, vocalized by C.A. Provost, asserted that the creation of obscenity was not within the First Amendment and that it constituted a violation of the parameters of the Constitution. Liberals, on the other hand, broadly interpreted the First Amendment, arguing that all forms of speech were accepted by the Constitution. This debate over the interpretation of the First Amendment continued in other Supreme Court debates of the 1960s such as flag burning, draft resistance, and school prayer.38 Another conservative thought concerned the moral foundation of America. This aspect of conservatism included the belief that any form of obscenity would lead to the destruction of American morals and values. Peter Chen, writing in the 1970 Chicago Tribune, said, in practice today obscenity is exactly what Americans seem to desire in their art. They wish complete freedom from censorship. Such an action will serve only to destroy the moral standards upon which America is based and turn the
36 C.A. Provost, Morals and Free Press, L.A. TiMES, June 16, 1958, at B4. 37 Schenck v. U.S., 249 U.S. 437, 438 (1919). 38 LUCAS A. POWE, JR., THE WARREN COURT AND AMERiCAN POLiTiCS (Harvard University Press 2000).

Myers

65

arts from a form of enrichment to a thing of evil.39 Chens quote relates to two important points. First, it reinforced the conservative theme of moral destruction. Second, it demonstrated how different age groups were present in the conservative base of the time. Although the age of most newspaper writers is unknown, the Chicago Tribune had a special section entitled Voice of Youth which took editorials from high school students.40 Mr. Chen was a high school senior when he wrote the aforementioned quote, and his age illustrates how the obscenity debate was not reserved for just middle-age adults but for the youth as well. This was important because during the 1960s many people considered the clash between liberals and conservatives to be synonymous with a clash between young and old, and yet Mr. Chen is an exception to this dominant conception. The divisions between young and old also defined another conservative theme: protection of children. The moderate wing of the conservative caucus wanted to ensure that obscene material was kept out of the hands of children. This was seen as an attempt to allow children to mature before they were exposed to such material. Horace Manges, writing for the New York Times, insisted, in 1953, let us protect the morality and well being of our youth.41 Manges quote suggests that many conservatives were simply concerned with preventing the youth of America from becoming corrupted. In accordance with his four elements, Brennan had asserted that obscenity must apply to the average person. The question became whether the definition of an average person was solely an average adult, or if the definition included children. Conservatives argued that any material that offended children should be considered obscene. Manges article, written before the Roth ruling, demonstrates that conservative concerns surrounding obscene material and its effect on children pre-dated the Roth ruling. While Roth served as a catalyst for the obscenity argument, conservatives had long been concerned about obscene material influencing children in their local communities. The
39 Peter Chen, Voice of Youth, CHi. TRiB., May 17, 1970, at W4. 40 Robert Grosch, Voice of Youth, CHi. TRiB., January 28, 1962, N2. 41 Horace Manges, Banning of Publications, N.Y TiMES, May 16, 1953, at 18.

66

WULR Vol IV, Issue III Spring 2011

argument to protect the children paralleled the overall belief that the definition of obscenity was very broad and any material that fell into that category should have been banned. PART III: THE MiLLER RULiNG The Supreme Court, under the leadership of Earl Warren, was responsible for ruling on other social issues that had led to a public backlash. Besides ruling on the issue of obscenity, the Court also ruled on cases involving abortions, school prayer, and racial segregation.42 Most of the rulings sparked debates as ferocious as the one over obscenity. Because of these controversial cases, Congress, on behalf of the population, carried out a backlash against the Court during the late 1960s. The liberalism of the Johnson administration had become increasingly unpopular. Many citizens and politicians advocated for new Justices who would prevent the Court from ruling on social issues.43 So great was the call for conservative justices that Richard Nixon, in his 1968 presidential campaign, actively campaigned on the issue of appointing conservative justices to the Court in order to stop the wave of judicial activism surrounding social issues. The influx of conservative justices appointed to the Court in the late 1960s fulfilled Nixons campaign promise.44,45 These new appointees faced a level of scrutiny that their predecessors had not. During this time, Supreme Courts nominees backgrounds began to be meticulously scrutinized by members of both dominant political parties. Political ideology also started to make new advances on the idea of judicial objectivity in order to make political gains. Many members of Congress portrayed Supreme Court nominees as biased political operatives. During a time when Democrats controlled both Houses of Congress and a Republican controlled the presidency, the nomination of Supreme Court nominees
42 THEODORE VESTAL, THE EiSENHOWER COURT AND CiviL LiBERTiES 27 (Praeger 2002). 43 Frank Caricato, Criticism, N.Y. TiMES, April 10, 1955, at X3. 44 Edward Sherman, New Chance for Nixon to Push Court to the Right, N.Y. TiMES, September 19, 1971, at E4. 45 William Tebbetts, A Fading Nation, L.A. TiMES, April 16, 1976, at C4.

Myers

67

became an easy way for each party to inspire and mobilize their base.46Although the nominees all faced increased scrutiny, all the nominees presented to the Senate under Nixon were confirmed. Lewis Powell, Harry Blackmun, William Rehnquist, and Warren Burger were joined by Byron White (appointed by John Kennedy) to constitute a conservative majority.47 It was this new Court that would rule on Miller v. California in 1973, a landmark obscenity case that rejected many of the precedents set by Brennan in Roth when defendant Marvin Miller was convicted of distributing sexually explicit material.48 In Miller, the Supreme Court reexamined the issue of obscenity and overturned many of its previous rulings. The majority opinion, written by Chief Justice Warren E. Burger, consisted of three standards. First, the Court redefined the term community. The use of contemporary community standards in Roth was overturned because it was impossible to enforce as a national standard. The Court said that it was not realistic to view the First Amendment as requiring people of one state to accept material found acceptable in another state.49 According to Burger, diversity is not to be strangled by the absolutism of imposed uniformity.50 Second, the Court said that obscenity could be determined when the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law.51 The Court then identified specific examples of material that might be considered patently offensive: representations of normal or perverted, actual or simulated sexual acts, descriptions of masturbation and/or excretory functions, and lewd exhibition of the genitals.52 Third, the Court said that obscenity could exist when the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.53 With this statement, the Court
46 JEFFREY ROSEN, THE SUpREME COURT: THE PERSONALiTiES AND RivALRiES THAT DEFiNED AMERiCA 122 (Times Books 2007). 47 Id. at 125. 48 HEMMER JR., supra note 1, at 210 49 Id. at 212. 50 Miller v. California, 413 U.S. 15, 70-73 (1973). 51 Id. 52 HEMMER JR., supra note 1, at 210. 53 Miller, supra note 50.

68

WULR Vol IV, Issue III Spring 2011

rejected the utterly without redeeming social value argument put forth by Brennan in Roth. The Courts ruling in Miller was more specific test for obscenity than the Roth ruling. This specific test allowed the Court to scrutinize obscenity with even greater detail than had been allowed by the generic Roth test. The Courts ruling in Miller provided answers to many of the questions posed by those debating the issue in the aftermath of the Roth ruling. First, the term redefining community in a narrower sense provided clarification. When Brennan stated that contemporary community standards were the regulation for obscenity, the term community eventually became synonymous with contemporary U.S. standards.54 With Burgers narrowing of the definition of community to each individual state, it allowed the term community to be easily interpreted by both citizens and justices on other courts. The next part of Burgers ruling, allowing the term patently offensive to be determined by state law, had a huge effect on the nature of obscenity. This rule, when coupled with the first part of Burgers ruling on redefining community, took the issue of obscenity and transformed it from a federal to a state issue. This was a major shift in the legal framework. No longer were the U.S. Constitution and federal law directly compared to the issue of obscenity. Now each individual state debated the issue of obscenity according to that states laws and constitution. During this period of time, federal law regulated many social issues. The Supreme Court routinely either upheld federal regulation or allotted new regulatory powers to the federal government, as shown by decisions on issues such as segregation, voting rights, and education.55 However, Miller shifted power from the federal government to the state government. This shift from federal to state power is best explained the majority of conservative justices on the Court, many of which were appointed by Richard Nixon. These conservatives on the Court tended to favor states rights over federal. This presence of conservative ideology provided the framework for the Courts ruling in Miller.
54 SCHAUER, supra note 30 at 95. 55 Brown v. Board of Education of Topeka, 347 U.S. 483, No. 1 (1954); U.S. CONST., amend. XXIV, 1.

Myers CONCLUSiON

69

After analyzing the issue of obscenity during 1960s, the question of why obscenity was such a provocative issue remains. The most apparent explanation is that obscenity simply served as a scapegoat for larger concerns of the public during the 1960s.56 Profound shifts in the social norms marked the decade. AfricanAmericans gained a number of new civil rights and the size of the federal government expanded to new levels under President Lyndon Johnsons Great Society program. These changes made the American public seriously question the future of the country. Arguably, one of the reasons that obscenity became the center of so much debate and anger was because it proved to be an easy outlet for the nations concerns.57 As announced by the Roth decision, obscenity was a very vague concept that people could shape and mold in many different ways. Furthermore, obscenity was something that Americans felt they could control, unlike controversies such as civil rights and Vietnam, which were out of the control of the average American citizen. Even if the government regulated obscenity, each person could still choose what material they and their families viewed. Additionally, obscenity was a relatively new issue to the American public.58 While issues of obscene material had always existed, the 1960s was the first time during which obscene material was freely and readily available. Advancements in infrastructure and entertainment during the 1950s had facilitated new distribution routes for books and films. For the first time, obscenity was available not only in the big cities but also in small towns and communities. All of these factors led to obscenity becoming a major issue during the 1960s. The issue of obscenity emerged in the national consciousness following the Roth decision in 1957. Americans
56 MAURiCE ISSERMAN, AMERiCA DiviDED: THE CiviL WAR OF THE 1960S 121 (Oxford University Press 2008). 57 FRiEDMAN, supra note 34, at 101. 58 Id. at 102.

70

WULR Vol IV, Issue III Spring 2011

began to argue over what constituted obscenity and how it should be regulated. From the Roth ruling, Justice Brennans four elements provided a framework for the discussion. Although the elements were vague, they provided a context for which people could talk about the definition of obscenity. Three distinct political factions divided the debate: civil rights liberals, social activist liberals, and conservatives. Civil rights liberals believed that although obscenity was undesirable, censorship was worse. This group argued that the First Amendments freedom of expression clause protected even obscene material. The social activist liberals believed that war, poverty, and racism, rather than offensive language or sexually explicit material, constituted obscenity. This group was very closely connected to the civil rights movement of the 1960s. Finally, conservatives believed that obscenity, in any form, represented a threat to the moral foundation of America. Conservatives argued that although censorship was objectionable in principle, it was acceptable when used to address obscenity. The debate over obscenity was so divisive that it started to affect national politics. Richard Nixon was elected President in 1968 in part due to his declaration that he would reinvigorate Americas moral foundation by appointing conservative Supreme Court justices. The conservative Court that followed as a result of Nixons appointments made an important obscenity ruling in Miller v. California, which would overturn many aspects of the Roth ruling, including many key components of Brennans four elements. Miller would also effectively turn the issue of obscenity over to the state legislatures thereby shifting the debate over obscenity from the national level to a more local level. Roth v. United States galvanized the American public into a heated debate over the issue of obscenity. While the scope and framework of the debate changed over the course of time, the discussion remained active for nearly two decades. At its core, the debate became a proxy for fears the American public had of the changing nature of society during the 1960s. Obscenity was a major issue that inspired the American people to debate the past, present, and future of the Constitution and the United States.