Con Law final research paper

Research paper on the evolution of SC doctrine re: the tri-branch power rivalry, documented parallel to the evolution of the economically laissez-faire Court.


The issue of economic protectionism by the Supreme Court, specifically dealing with the “liberty of contracts,” might seem like a topic more apt for a discussion of rights and liberties than of the Court’s own definition of its sphere of power relative to Congress and the President. Yet the evolution of this doctrine, whereby the Court adopted a laissez-faire theory of economic involvement and treaded remarkably close to Congress’ power of lawmaking, demonstrates the dynamic nature of the tri-branch power struggle as well as any subsequent series of cases yet documented. From 1858 to 1937, through the adaptation of the Fourteenth Amendment and the crisis of Franklin Roosevelt’s threats to pack the Court, the Supreme Court found itself in every role from congressional watchdog to, eventually, presidential political subsidiary.

The first milestone in this series of cases was Butchers’ Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co. (1873), also known as The Slaughterhouses Cases. It stood effectively as the beginning of a Supreme Court doctrine that protected economic liberties beyond those protections offered in the contract clause (O’Brien 982).
In 1869, Louisiana passed a state law, aimed at reducing the spread of pollution and cholera in the Mississippi River, that prohibited the slaughtering of livestock in New Orleans and the surrounding area with the exception of one slaughterhouse. This slaughterhouse was afforded an exclusive slaughtering franchise in southern Louisiana lasting 25 years – a franchise that some claimed constituted a monopoly (O’Brien 993).
The Butcher’s Benevolent Association (BBA), a group of independent slaughterers (O’Brien 993), challenged that the legislation granting one slaughterhouse exclusive rights was a violation of the Thirteenth and Fourteenth Amendments of the Constitution, holding that it deprived them of their livelihood (O’Brien 993). Specifically, BBA alleged that the law “creates an involuntary servitude forbidden by the 13th article of the amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law” (O’Brien 994).
The Court upheld the law 5-4, affirming the judgments of a Louisiana state court and the state Supreme Court, on the grounds that the Fourteenth Amendment only applied to residents claiming injury under national citizenship (O’Brien 981). In his delivering the opinion of the Court, Justice Sam Miller wrote that “It is quite clear, then that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual” (O’Brien 994) and held, citing the language in the Amendment that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (O’Brien 980), that “it is only the [privileges and immunities belonging to a citizen of the United States] which are placed by this clause under the protection of the Federal Constitution, and that [those of citizens of individual states]…are not intended to have any additional protection by this paragraph of the Amendment” (O’Brien 995).
This decision effectively quashed any hope that the Fourteenth Amendment would wholly protect privileges and immunities past the initial implication that citizenship was to be extended to blacks (mostly former slaves), which effectively overturned Dred Scott v. Sandford (O’Brien 980-981, Ross 649-650). Likewise, this inadvertently unraveled the doctrine established in Dred Scott whereby Congress could not legislate so broadly as to regulate the property of particular state citizens (Ross 649). Michael Ross quoted a Supreme Court historian from the 1960s in saying that “the only thing slaughtered in The Slaughterhouse Cases was the right of the negro to equality” (Ross 650).
Though Slaughterhouse was essentially a case about personal and corporate economic liberties, however, there was a larger sphere of influence into which its decision and ramifications tapped. It touched on the sphere of court-congress power divisions. In this case, the definition of that sphere and its borders gained a new degree of ambiguity. Precedent established in the denial of congressional federal property law-making was thrown out the window, the dynamic of the tri-branch power struggle set back in motion.
In his dissent, Justice Bradley wrote, concisely, that “a law which prohibits a large class of citizens from adopting lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law” (O’Brien 997), arguing that the ousted workers were entitled to keep their jobs under the due process clauses of not only the Fourteenth Amendment, but the Fifth (O’Brien 981). He was also a proponent of the interpretation of the Fourteenth Amendment purported by John Campbell, who represented BBA – that the due process clause ought to be interpreted as more than a mere “procedural guarantee” (O’Brien 981). For the time being, Cambell’s interpretation would remain stagnant, if only ahead of its time. The Slaughterhouse Cases represented the beginning of a legal movement that resulted in vast protection of economic freedoms, aided by a decision in Santa Clara County v. Southern Pacific Railroad Company (1886) that ascertained the status of “legal persons” for corporations (O’Brien 983).
As drastic as things may have seemed, a new era was about to be ushered into the history of Supreme Court doctrines on economic interference and judicial activism.
Lochner v. New York (1905), which O’Brien calls “one of the most notorious rulings on the liberty of contract” (984), was preceded by Allgeyer v. Louisiana (1897), in which a Louisiana law restricting the issuance of insurance policies was struck down and the doctrine of a “liberty of contract” was announced by Justice Rufus Peckham:
The Liberty mentioned in the [Fourteenth] Amendment means not only the right of a citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the employment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contacts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned (O’Brien 984).
The “Lochner Era,” which O’Brien says was ushered in with Allgeyer, was a period marked by extensive economic protection from the due process clause (984). Lochner originated when Joseph Lochner was fined $50 for violating an 1897 New York statute that barred employers from having their employees work more than 60 hours per week in a bakery. The Court struck down the state law as a violation of the liberty of contract established after Allgeyer. Justice Peckham, in delivering the Court’s opinion, wrote that “The state…has power to prevent the individual from making certain kinds of contracts” (O’Brien 1001) because states possess broadly stated powers to make laws for the general welfare over which the Fourteenth Amendment has no jurisdiction, negative or affirmative. However, he wrote, “[t]his is not a question of substituting the judgment of the court for that of the legislature…It is a question of which of two powers or rights shall prevail, - the power of the state to legislate or the right of the individual to liberty of person and freedom of contract” (O’Brien 1001-1002).
And given this question? “We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right to free contract on the part of the individual” (O’Brien 1003).
But the implications of Lochner were far from definite. Justice Holmes, in his dissent, wrote that “the Constitution is not intended to embody a particular economic theory…It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States” (O’Brien 1003-1004). Thus Holmes does three things – first, he argues that the Supreme Court ought to interpret laws rather than create them, terms he says are being violated in Lochner and the Allgeyer doctrine. Second, he establishes that the Lochner era can be interpreted two different ways – the first being that the court was imposing a free market doctrine, the second that the court is trying to distinguish between legislation aimed at promoting the general welfare and legislation that was invalid because it advanced special interests (O’Brien 985).
Third, and most important to this exploration, Holmes opines in such a way as to keep the freedom of contract debate at least partially within the sphere of the power struggle between the Court and the law-making power of the state insofar as it falls outside the sphere of the Fourteenth Amendment. Peckham argued that the Court’s power to protect economic liberties supercedes the power of the state legislature, and Holmes disagreed.
William J. Novak, in a review of Paul Kens’ Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, cites Kens and his argument that the Lochner “myth,” or retained doctrine, still exists (Novak 1447). Given that judicial activism and an overly politicized bench is all but a dead issue, Kens appears insightful, if not slightly prophetic; lacking a read on the Court situation in 1990, when the book was written, that conclusion cannot be made. But Novak writes, with respect to Kens, that one reason for the supposed continued existence of Lochner laissez-faire Court economics is Lochner’s “lure for contemporary jurisprudes debating the ins and outs of judicial activism” (Novak 1447). Of course, a true assessment of Lochner’s current influence would be prudent; a series of cases between 1908 and 1937 provide the best conventional assessment as of yet.
In Muller v. Oregon (1908), the Court unanimously upheld an Oregon state law that limited the workday to 10 hours for women. While this appears at first as though the Court is retracting its own power to protect economic freedoms in favor of the state’s legislative powers, the reasoning behind the decision was almost exclusively factual rather than constitutional (O’Brien 1007-1008). In delivering the Court’s opinion, Justice Brewer wrote that “the general right to contract in relation to one’s business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute and extending to all contracts” (O’Brien 1008).
When not, then? “[A] State may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual’s power of contract” (O’Brien 1008).
Why the change in doctrine? Or does this even constitute a change in doctrine?
Oregon was represented in Muller by Louis Brandeis, who filed a brief containing only two pages of legal arguments but over 100 pages of factual information regarding the special needs of women and the discrepancies between men and women in a physically exhaustive work state (O’Brien 987). This represented a return to the tactics of the Court that marked Lochner in that the Court was essentially debating the factual merits of a law rather than the constitutionality thereof. And they were convinced – Brewer cited a number of Brandeis’ statistics and facts in defending the law as within state powers, even within the sphere of the general welfare:
“The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength…This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her…” (O’Brien 1009).
A 1912 article in the Michigan Law Review cited Muller as valid defense of a Washington statute limiting the number of consecutive hours women are allowed to work with machinery, stating that “limitation upon this freedom is a valid exercise of the police power when the circumstances under which labor is performed…or the condition of the persons engaged in it…require it” (Constitutional 642).
Is this an arbitrary point in the question of spheres of power? On the contrary – the nature of the statute or act and the aspect of said statute in question can determine the nature of the case – one of general welfare, perhaps; one of simple fact and lawmaking, though the Court effectively hijacked such cases in Lochner and Muller, or one of interpretation (Constitutional 642). This distinction, it so happened, would turn out to matter a great deal.

This much is obvious – that the Court commenced an unprecedented era of protection for economic freedoms, including those of businesses, beginning essentially with the Allgeyer definition of economic protectionism and Lochner’s upholding it, and that Muller represented a drastic change in precedent though not necessarily in doctrine. That last question, then, is next to be addressed.
At first, it seemed as though Muller has little effect on the doctrine of Supreme Court decisions regarding economic protections. Despite the decision in Muller and a similar ruling in Bunting v. Oregon (1917), in which a ten-hours-per-day limit on labor for both men and women was upheld, the Court continued to consistently strike down economic regulation laws thereafter (O’Brien 988) in a validation of what Novak, with respect to Kens, refers to as the persistence of the “Lochner myth” (Novak 1447). The pattern of protection for the liberty of contract persisted with Adair v. United States (988) when the Court overturned a congressional law banning employers from forcing employees to sign contracts under the condition that they would not join a union; it persisted in Coppage v. Kansas (1915) when the Court struck down a state law of the same nature; and it continued in Adkins v. Children’s Hospital (1923) when the Court struck down the Washington, D.C. minimum wage law for women (O’Brien 990).
The persistence of the Lochner doctrine, according to Novak, was different than the theory purported by Kens. “Lochner…and subsequent constitutionalism owed much more to fundamental Civil War era shifts in the definitions of federalism, legislation, sovereignty, common law rights, state police powers, and even the law of master/servant than to the capture of the Supreme Court by either Herbert Spencer or Adam Smith” (Novak 1447). Could it be that this sequence was initiated with the overturning of Dred Scott, the case that in many circles is blamed for instituting a doctrine of federalism that inadvertently led to the American Civil War?
Whatever the answer, President Franklin Delano Roosevelt was content to utilize the potential of judicial activism in passing the New Deal proposals, years-old doctrine beyond the realm of consideration. When key pieces of New Deal legislation were struck down by the Court, Roosevelt, fresh off a landslide reelection victory, threatened to “pack” the court with up to 15 justices (O’Brien 990). Shortly thereafter, the conservative Justice Roberts provided a swing vote to pass West Coast Hotel Co. v. Parish (1937), which upheld a Washington State minimum wage law, as well as the vote to affirm National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) and the National Labor Relations Act, a key piece of New Deal legislation (O’Brien 990-991).
The Court’s position had been reversed, to be certain – and so it remained. But whether the Court underwent a true self-renewal, or whether Roberts was simply reacting at a counter to the Court’s judicial activism to that point, is not entirely clear. If the latter is indeed the case, however extraordinary it would subsequently be that the Court has retained this change in doctrine, the evolution of the liberty of contract doctrine would have taken an astoundingly unpredictable path. What began as a struggle between Congress and the Court’s defense of property rights for state citizens in Dred Scott was turned on its head with the virtual eradication of the rights beyond those aimed at former slaves that the Fourteenth Amendment could well have provided – indeed, The Slaughterhouse Cases also called into doubt the relationship between the Court and Congress’ lawmaking and interpreting power, a relationship solidified enough from Dred Scott to have legitimately been blamed for the Civil War when Congress was left powerless to ban slavery via federal statute.
This ambiguity was taken to a new extreme at the ushering of the Lochner era and the definition of the liberty of contract, whereby the very role of the Court as either interpreter of laws or lawmaker) was called into question. Yet the Court persisted, as protective of the economic liberties of individuals and corporations as ever, possibly even at the inadvertent expense of certain personal and individual liberties or rights under the due process clause. The Court was an activist one.
But that changed when Roosevelt countered with a threat to use judicial activism to reverse the Lochner-era doctrine. The Court, as if exposing a degree of its own politicization, responded to the threat by backing off. Doctrine was simply abandoned. And whether the Court has revealed of itself a dark period of its history, and whether the answer to that question makes any difference, the fact is that a new dimension has been added to the dynamic and debatable definitions of the tri-branch power sharing question. The Court may have established itself as supreme interpreter in Marbury v. Madison and it established a “veto” power over Congress in Dred Scott. But the Court was no match for presidential politicking. Roosevelt proved, in virtually pressing the Court to swing a vote and subsequently perform an about-face on a doctrine of economic protectionism, that the question of interpretation and politicking, though two very different fields, both yield tremendous power in the face of the branch for whom one method is not a specialty.
O’Brien noted that, since the “revolution” of 1937, “the Court has evolved a proverbial double standard: it gives economic regulation only minimal scrutiny, requiring only that it have some rational basis, while giving that affecting civil liberties heightened scrutiny, often upholding legislation only if the government’s interest in regulation is compelling” (O’Brien 991). But more than that, the Court has spent the last 70 years fully aware of the consequences of intrusion into presidential or congressional lawmaking; and it has, likewise, retained sole proprietorship over interpretation of the law.

Works Cited

“Constitutional Law: Restrictive Laws for Women.” Michigan Law Review. 1912.

Novak, William J. “Review: Judicial Power and Reform Politics: The Anatomy of
Lochner v. New York.” The Journal of American History p. 1447. Organization of American Historians. 1992.

O’Brien, David M. Constitutional Law and Politics: Struggles for Power and
Governmental Accountability. New York: W. W. Norton and Company, Inc.
2005.

Ross, Michael A. “Justice Miller’s Reconstruction: The Slaughter-House Cases, Health
Codes, and Civil Rights in New Orleans, 1861-1873.” The Journal of Southern
History p. 649-676. Southern Historical Association. 1998.

Personality profile

A perosnality profile on one of my roomates. Don't tell him I posted it...he's shy.


The thoroughly-examined life
By Alex Kurt
SJU junior Zach Hunter is arguably one of the great thinkers of the CSB/SJU community. He says he owes it all to his books

A giant black triangle looms in the background of the photograph, resonating in the early morning clouds.
“I’m standing at the top of Volcán Atitlán in this, and you can see the shadow in the distance,” says SJU junior Zach Hunter as he points to the picture. “That’s the highest point in Central America.”
The photograph, which Hunter took while studying in Guatemala last spring, is one of the only objects decorating the bedroom of his campus apartment. The dimly-lit quarters have no television and no furniture besides a desk and chair.
“I try to avoid a television because, frankly, my laptop provides enough distraction from homework,” Hunter said. “Plus, there’s not much that I’m interested in on TV.”
Instead, Hunter has adopted a habit rare among his peers.
“I’d rather read,” he said.

Great reads
Hunter said his love of reading pushed him to enroll in an honors Great Books course.
The 100-book reading list for the course, which Hunter estimates totals roughly $1,000 in value, is the reason a new bookshelf is among the room’s scarce decorations.
“The shelf they gave us with the room was too small,” Hunter said.
Hunter has utilized the shelf and its contents.
“I just finished reading Barrabas this weekend,” he said. “I’m reading Lolita right now, though I should finish that up by tomorrow and move on to something else.”
Despite the volume of reading, Spark Notes will never be a part of Hunter’s reading list.
“I’m a slow reader,” he said. “I take the time to read, to build up images. If I don’t understand a sentence, I’ll go back and read it again.”
He has made an impression on those he works with.
“Zach is probably the most judicious reader of anyone in the course,” said classmate Doug Trumm, an SJU sophomore. “He always, always has something relevant to contribute and it’s amazing sometimes to hear the things he says.”
Yet Hunter admits his work ethic can be far from flawless.
“After an intense phase of Tolstoy of Dostoevsky, I would continue to read a lot, but I might only finish half of each book for a bit,” he said. “It’s a vice I’m still trying to correct.”
Trumm said Hunter probably doesn’t even realize that he’s usually a step ahead of his classmates.
“Zach is pretty modest,” Rice said. “But he’s incredibly smart.”

A creature of habit
Hunter’s love of reading was instilled at an early age.
“My dad read me The Hobbit when I was little, and it made me wonder if there were other books by the same author,” he said. “I went to a bookstore and found three large books by the same guy. Of course, the author was Tolkien and my first great literary love was the Lord of the Rings series.”
Hunter said the habit was solidified in high school, where he discovered the work of Leo Tolstoy.
“I read War and Peace my junior year, and that’s when I really began to take interest,” he said.
Now in the throes of the Great Books course, Hunter is also working his way through a list of books compiled by literary critic Harold Bloom.
“The list is many pages long and it has hundreds and hundreds of books,” he said. “That’s a lifetime goal that may never be reached, or, if it is reached, it will be a long time from now.”
Though Hunter said he prefers literary or aesthetic reading, the humanities major will rarely turn down a book.
“Humanities is a broad picture of everything, which is conducive to my personality because I’m pretty much interested in everything,” he said. “I’m not sure how I’ll be employable. I’ll either have to focus on something or be a librarian.”

Books and the big question
Of those many interests, Hunter said, perhaps his strongest is religion.
It’s a topic Hunter has personally struggled with since high school.
“I had a very religious childhood,” he said. “Our church wasn’t fundamentalist, but it was in that direction.”
“My own religious upbringing was so narrow and focused, and I had a sneaking suspicion that it wasn’t right,” he added.
Hunter was baptized as a high school senior, a decision he said he wasn’t committed to. But he wasn’t comfortable challenging his religious background until his dad did the same.
“Religion can be difficult to investigate because there is so much family and emotion tied into it,” he said. “But after my dad did his own dissent and found his own kind of intellectual approach to it, I started perusing the philosophy section of Barnes and Noble.”
There, he said, he found his first books on atheism.
“Frankly, I found their arguments quite convincing,” he said. “Eventually I had to come out with it and tell my family that I wasn’t a Christian anymore.”
“That was hard on my mom,” he added.
Still, Hunter said he is the foremost critic of his own beliefs.
“I’m interested in discussing it, not engaging in fierce debate or winning anyone over,” he said. “I don’t think I’ve read enough or thought enough about it to promote it.”
Again, Hunter will use reading as a means of guidance.
“I don’t think you should divorce emotion from this important of a subject,” he said. “But religion is the most interesting subject ever, and I’m going to keep reading about it.”

Enriching experience
Though Hunter enjoys a tranquil lifestyle in a simple living space, he’s no stranger to balance and adventure.
“I think you should be creative in living and doing things that are unusual and meeting new people and trying new things,” he said. “If you read, you get a lot of that vicariously, but I’ve been trying to do it more. I have that capacity, but sometimes I’ll get caught up in books or homework or something.”
Though there is no substitute for a real experience, Hunter said, reading enriches his experience nonetheless.
“Milan Kundera wrote that we each put up a curtain, and that’s what we think life is about,” he said. “Literature pulls that curtain aside. It reveals things you maybe knew were there, but hadn’t necessarily thought about.”
It is possible to learn more from fiction, Hunter said, than from any work of science or history.
“With literature, you can compare what Milton called ‘master spirits’,” he said. “They’re the works of many writers as it relates to the broad range of experience they’ve all had. To be able to encounter that is a privilege.”
Hunter points to a photo of a supernova on the floor.
“Reading these works is like being able to see these photos from the Hubble Telescope,” he says. “It’s a privilege and a blessing, and I’m lucky to have them.”

Norton v. S.U.W.A. (2004) abstract

This isn't that long, but an abstract for a Supreme Court case has a brutal return on hours researching vs. pages typed.

Norton, Secretary of the Interior, et al. v. Southern Utah Wilderness Alliance et al. (2004)
Alex Kurt and Matt Lindstrom

Under 43 U.S.C. &1782, land designated as wilderness by Congress is protected by Congress. This land, deemed “Wilderness Study Areas” (WSAs) under &1782, is managed by the Secretary of the Interior; more specifically, an Interior Department agency called the Bureau of Land Management (BLM) is charged with managing such land in accordance with a “land use plan” (&1782(a)) under the Federal Land Policy and Management Act of 1976 (FLPMA) (Norton).

In 2004, the Southern Utah Wilderness Alliance and others (SUWA) sought relief in Federal District Court for BLM’s failure to protect WSAs in Utah from damage caused by off-road vehicles (ORVs) under the Administrative Procedure Act (APA), which “compel[s] agency action unlawfully withheld or unreasonably delayed” (Norton). The District Court dismissed the claims, but the Tenth Circuit Court of Appeals reversed the dismissal but held that the BLM’s alleged failure to protect the land was not remediable under the APA (Norton).

The Supreme Court heard arguments the same year. In addition to claiming noncompliance with the APA, SUWA contended that the BLM broke with the Secretary of the Interior’s duty to protect WSAs under &1782 by not fulfilling the terms of its land use plan, and that the BLM did not fulfill its requirements under the National Environmental Policy Act of 1969 to consider adding language regarding ORVs to its “environmental impact statement” (Norton).

The Court ruled unanimously in favor of Secretary of the Interior Gale Norton, holding that SUWA could not seek injunctive relief (Blum). In delivering the opinion of the Court, Justice Scalia echoed the ruling of the Appeals Court and stated that, though the APA in fact authorizes federal courts to compel agencies to action, that stipulation was not applicable to the current case because Congress had not directed the BLM to take “discrete” action under $1782, instead leaving the agency with broad discretion regarding the prevention of land impairment (Blum, Norton). This also applied, the Appeals Court opined, to the BLM’s alleged failure to follow its own land use plan; furthermore, it was ruled that the supplementation of an environmental impact statement was only required in the case of “major Federal action” (Norton), which was not the case here (Norton).

Conservationists have largely decried the potential precedent set by Norton (Cart), saying it leaves federal land managers free to insulate themselves from judicial review over matters of land management (Blum). Conflict has followed directly in Utah – the state’s legislators in Washington wrote a bill to make up to 40 square miles of the 87% of the federally-owned land in Washington County, Utah, available for private development in 2006 (Cart). In addition, the Utah state legislature came under fire in 2007 for helping fund suits that fought federal jurisdiction of Utah wilderness – spending, critics said, that largely occurred without oversight and that could encourage development of much of Utah’s wilderness (Cart).
Sources:

Blum, Michael C. and Bosse, Sherry. “Norton v. SUWA and the Unraveling of Federal
Public Land Planning.” Lewis and Clarke School of Law.
< abstract_id="991149">.

Cart, Julie. “The Nation: Eyes in the Wets are on Federal Land Sale.” Los Angeles
Times. June 6, 2006.

Cart, Julie. “Utah fighting the laws of the land.” Los Angeles Times. April 22, 2007.

“Norton, Secretary of the Interior, et al. v. Southern Utah Wilderness Alliance et al.:
Certiorari to the United States Court of Appeals for the Tenth Circuit.”
.

Samuel Sandmel and anti-Semitism in the New Testament

Research paper for Rabbi Cytron's Judeao-Christian heritage class, HONR 350


In the preface to Anti-Semitism in the New Testament?, author Samuel Sandmel writes “In writing [the book], I have two primary loyalties. One is to objective scholarship, the other is to my Jewish background” (ix).
The fact that anti-Semitism has so frequently been drawn from the New Testament of Christian scripture has become self-evident, manifested in Nostra Aetate and the “Declaration of the Evangelical Lutheran Church in America to the Jewish Community,” among other such pieces of dialogue. And Sandmel, a rabbi, may very well feel an obligation to not only seek out the sources of anti-Semitism in scripture, but also to investigate the legitimacy of the path of logic that led to so many centuries’ worth of animosity and subconscious hostility between two religions.
Anti-Semitism in the New Testament? provides an exceptionally detailed traipse through the New Testament and its contemporary pagan culture in response to the first goal. The second, on the legitimacy of the things he finds, is left unanswered by the admittedly unknowing Sandmel. At the very least, though, he has provided the discussion with balance and made available the tools needed to decide, if even for oneself, whether the New Testament sanctions anti-Semitism. Yet it’s worth noting that, though Sandmel remains agnostic to the subject for good measure, his scholarship all but makes the answer obvious: no.

The origins of anti-Semitism
Sandmel situates his research by first posing a question regarding the very nature of Christianity: “…was the conception as Christianity as an aggregate of virtues merely sentimental self-deception on the part of comfortable, middle-class people, the reality being that Christianity represented also intolerance, arrogance, and cruelty?” (xv).
He extends the question to the roots of the Holocaust, pondering whether the mass murder was “out of keeping with the reality of Christianity” or “the direct and logical result of the very nature of Christianity” (xv).
The focus of his work assumes the second answer: “If the latter, when and how did hostility to Jews enter Christianity?” (xv).
He provides two principal answers – of which he never truly ascribes legitimacy to one over the other. One line of reasoning, he writes, is “to ascribe the origin of anti-Jewish motifs to the second or even third Christian century, to a time after the age of the New Testament, in order to exempt the New Testament itself.” (xv). This makes sense, he continues, because Jesus and his disciples were Jews, and most if not all of the New Testament literature itself was written by Jews, “hence the New Testament could not have been anti-Jewish” (xv).
The alternative? Sandmel acknowledges that “perhaps it is the New Testament itself that is, or at least can be, the source of and sanction for Christian hostility and contempt for the Jews” (xv). In this view, Sandmel is empathetic towards those who have used the New Testament as justification for anti-Semitism. Whether they are correct is admittedly unknown, however absurd Sandmel proves said line of thinking to be.

Breaking down the New Testament
Sandmel begins the breakdown of New Testament scripture by asserting that, plainly put, the allegorical and narrative insights offered in the bible are all but unconditionally factual: “One conviction is that sacred means eternally authoritative…Another conviction is that although Scripture is indeed sacred it is not exempt from some bondage to time and circumstance, nor is it fully free from a human element, namely, that men preserved this literature and that men wrote it” (xv). Again, though he presents the competing arguments agnostically, his position on the question of biblical literalism is abundantly clear, if only because the latter position named here is quintessential to the framework of most of his argument, in addition to his continued treatment of the historical, Jewish, Jesus: “If Jesus had not been a Jew and it Christianity had not derived from Judaism, the New Testament writings would not have contained those passages that are the concern of this book” (xvii). Such is the topic, in fact, of what is perhaps a better-known work of Sandmel’s – The Historical Jesus – which will be revisited later in this analysis.
Sandmel then embarks on a progressive and chronological breakdown of each of the Gospels, Paul’s Epistles and Acts, as well as a brief analysis of biblically contemporary cultural anti-Semitism. He disperses the type of anti-Jewish language and/or messages in each and looks further into the factors that shaped the various anti-Jewish and anti-Semitic messages.
Pagan anti-Semitism
Sandmel first distinguishes the difference between cultural, racially-based anti-Semitism in the pagan world and the type derived from holy scripture: “One type [of pagan anti-Semitism] was the vulgar social frictions that arose between Jews and pagans in part of the Greco-Roman world, like that among immigrants to America in a common urban neighborhood…To equate Christian anti-Semitism with the earlier pagan anti-Semitism is grossly to misunderstand Christian anti-Semitism” (1-5). Since the subjects and writers of the New Testament are Jewish, it is reasonable to furthermore assert that said cultural frictions were not a primary source of scriptural anti-Jewish passages.
The letters of Paul
Paul is a traditional symbol of Christian-based anti-Judaism. His “conversion” on the road to Damascus followed by his trademark criticisms of Judaism’s stringent social customs and laws make him a figurehead for the proponents of supercession theory. John Gager describes the common perception, one he also argues is misguided, as “the father of Christian anti-Judaism, the author of rejection-replacement theology, who claimed that God had rejected his people Israel and replaced them with a new people, the Christians” (57). However, as Gager adds, not only was Paul not converted to a religion that did not exist at the time, but also that “if we are ignorant of his rhetorical techniques, when we read his letters we are bound to get him wrong” (57).
Sandmel explores that rhetorical technique and attempts to explain the internal factors that led Paul to write the way he did. One method is to attribute Paul’s critique of Jewish law as a continued criticism rather than a denunciation of the religion as a whole:
“In support of his view that Gentiles need not conform to Jewish observances, he came to argue that these observances were not the primary element in Judaism; that is, he went beyond merely exempting Gentiles from the observances and even proceeded to contend that Judaism, properly understood, did not any longer need to preserve its inherited regulations” (7).
Sandmel distinguishes, additionally, between the criticisms of Judaism apparent in Paul and those apparent in the Gospels, which he says are unparallel and from which it could not be logically inferred to contain the same message: “But in his Epistles there is an almost complete lack of ascription to the Jews of those unedifying traits that the Gospels ascribe to them. If modern Christians can infer aspersions against historic Judaism from the Epistles of Paul, they could not readily and easily infer from him the same kind and measure of aspersions of Jews that can arise from the Gospels.” (18) Furthermore, Sandmel writes that, in several instances, the Gospels present in narrative form pieces of Paul’s writings that were originally presented in theological or allegorical form (22). New Testament anti-Semitism, therefore, is inconsistent between various facets of scripture. That universal rules of anti-Semitism could be drawn from two differing messages, it would seem, is a flawed line of thought.
The Gospel of Mark
Sandmel’s theory on Mark is fairly simple. Adele Reinhartz (in an analysis, oddly enough, of the Gospel of John) writes that a negative portrayal of Judaism arose in the Johannine tradition from a “need of this community (made up of Jews) to define themselves over against other Jews in the context of the painful process of separation” (116). Insofar as this need for distinction arose from a need for validation, Sandmel argues that Mark’s Gospel takes on a very similar role in that the Christian community needed to be assured of its own validity, being that it was located outside Judea and was composed primarily of Gentiles: “How could Gentiles be assured of their authenticity in a movement that began with Jews in Judea? In answer, the Gospel of Mark was so shaped – probably reshaped – to assure the community that, though Gentile, it possessed full validity” (47-48).
Sandmel writes further that “In normal controversies the assertion of one’s own validity is followed by denigrating one’s opponents” (48). Hence Mark’s portrayal of Jews and Judaism as invalid (48).
The Gospel of Matthew
Sandmel, similar to his analysis of Mark and Reinhartz’s work on John, recognizes an attempt by the author to validate the authenticity of Christianity. In this case, however, it is a matter less of arguing one’s case and proving an opponent invalid, but rather a direct appeal for traditional Jews to break ties with their old faith and join this more authentic form of Judaism. What’s more, Sandmel writes, he uses a technique the validity of which has been affirmed and reaffirmed by MTV and the punk rock movement: “…for Matthew the scribes and the Pharisees represent what we would today call ‘the establishment’ and that Matthew is appealing, as it were, over the heads of ‘the establishment’ to the ordinary Jews, inviting them to the movement…Christianity in Matthew’s view is the authentic Judaism” (69-70).
It is easy to see where this perspective could turn sour. Marc Saperstein writes that Jewish-Christian relations through the reformation, culminating in Martin Luther’s scathing writings, was one such example. “The reformation provides an object lesson for what can happen when one group defines the other in terms of an agenda totally alien to the other group’s self-definition” (36). Such a self-definition would take a development or two past the writings of Matthew, but the attitude purveyed in this Gospel certainly provides the stepping stones of animosity and interfaith rifts.
The Gospel of Luke
Sandmel writes that the portrayal of Jews in Luke is just as venomous, though much more subtle, than that recorded in either Mark or Matthew. Jews are portrayed, he writes, in such a way that the best case against Judaism is the behavior of the Jews themselves rather than any diatribe on the part of the author: “The villainy of the Jews in Luke is not primarily in what Luke says against them…It is rather that the acts and words of the Jews are their own indictment. It is in this sense that the anti-Semitism in Luke is more subtle than that in Mark and Matthew” (85). Jesus in Luke is a faithful Jew, never accused of blasphemy; rather, it was the tendencies of that faith community, to which Jesus was loyal, that cast Jesus on the outside.
The Acts of the Apostles
Sandmel takes Acts to task for dubious historical accuracy. “Some Christian scholars have expressed the judgment that ‘Acts as history is thoroughly untrustworthy…’” (99) he writes, though, as Sandmel then points out, G. H. C. Macgregor, in The Interpreter’s Bible, considered these views flawed. “Though our author’s treatment of events may not always be well informed or intelligent, there has been no deliberate falsification of history” (100), Macgregor writes.
Why, then, even if Sandmel is correct, is the historical accuracy of Acts any more significant than the accuracy of any other New Testament passage subject to form criticism?
Because, Sandmel answers, the Jews are portrayed so negatively in Acts that this subjective matter merits attention: “Whether Acts is historically reliable or not will always remain a matter of subjective interpretation…But can it be denied that Acts is written from a Christian viewpoint?...In Acts, “the Jews” are villains and their villainy could not be worse…Is Acts an account of what really happened or is it, with respect to Jews, a series of vilifications?” (100).
The Gospel of John
In Sandmel’s analysis of John, he very nearly revisits Saperstein’s analysis of the reformation, insofar as it can be said that the anti-Jewish language in John provides a stepping stone for a rhetorical animosity-ridden showdown between the faiths. As Sandmel put it, John’s Gospel is written in a way that reflects a sort of bitterness – a sore spot for early Christians that resulted when the Jewish people failed to comprehend, in the eyes of Christians of the day, the “messiahship” of Jesus: “instead of believing, Jews contended against Christian assertions…The Gospel according to John reflects the ultimate in the reflection of one side of a reciprocal bitterness, a two-sided animosity” (119).
More frustrating for Christians of the day was the fact that Jesus was a faithful member of the Jewish community – a fact that should have drawn support from Jews rather than doubt and denial of Jesus’ divinity: “Jews of all people should have believed, for Jesus was a Jew (as were his disciple), and he preached in synagogues and in the Temple, and Scripture foretold him” (119).
And to what extent does Saperstein’s analysis purvey the Gospel of John? To what extent might we revisit Adele Reinhartz with similar results? Given what Sandmel later writes, it’s clear that the work of these two applies once again, whether or not Sandmel meant to imply this: “The charge of deicide itself, though, is the historical product of the bitter two-sided controversy raging at the time of the writing” (138).

The Historical Connection
Near the end of Anti-Semitism, Sandmel reflected further on the role that Paul and a correct or incorrect understanding of his message regarding Jesus, Judaism and the path to salvation: “Paul’s view of the Christ is so thoroughly different from the one held by the Jews that ordinarily Jews are quite unable to understand it, and ordinarily Christians, not informed on what Jews believed about the Messiah, are equally unable to understand the Jewish denial of the messiahship of Jesus” (133).
Paul’s role and the historical context of Paul’s life and letters is also the subject of earlier work by Sandmel. In the 1958 book The Genius of Paul: A Study in History, Sandmel closely analyzes a number of the parts of Paul’s life that may have contributed, in some form, to his writings, teachings, and general understanding of Jesus and the faith. Sandmel actually breaks Paul’s life into three stages – Paul as a man, Paul as a Jew and Paul as a convert – and analyzes aspects of Paul’s life at the time, including the scriptures he was studying, his career, and the evolution of his theories and thought patterns, as well as Sandmel can derive them.
“Paul’s thought can be simple,” Sandmel writes in the introduction to The Genius of Paul. “This is true because we are today far removed from Paul in time, in geography, and in thought patterns. But Paul is not beyond our grasp and his importance in the history of religions makes him well worth the effort” (xii).
Sandmel’s affinity for seeking understanding of historical context and accurate scriptural interpretation extends into another piece of his work, The Historical Jesus.
Why the need to historically analyze he who many believed to be messiah? Sandmel attributes the influx of rationalism and its subsequent stripping of the authority of the Gospels to this need to understand Jesus as a historical figure, basically, because Jesus’ message was an important one, worth remembering and acting out: “If only the Gospels could be stripped of the legendary and the supernatural, so the argument ran, then the ethics of Jesus would be discernible as a man whom rational men could imitate” (Historical 193).
The Historical Jesus, in fact, is another site of Sandmel’s analysis of New Testament anti-Semitism: “There are, however, Christians in abundance who recognize the circumstance that the anti-Jewish tone of the New Testament is the product of an age and a set of conditions” (204). Those who doubted Sandmel’s position after reading Anti-Semitism might reasonably rest assured that they know, having read this passage, despite the fact that he is again attributing the thought to a group of people with whom he is not directly affiliated – in this case, open-minded Christians.
Sandmel is considered a leader in the field of scriptural analysis, historical or otherwise. In Roots of Rabbinic Judaism: An Intellectual History, Gabriele Boccaccini cites a method of Sandmel’s ( or, rather, Sandmel’s criticism of scripture analysis in the absence of this technique) nearly identical to that used to differentiate between Paul and the Gospels and discredit anti-Semitic parallels between the two: “Sandmel defines [the method] as ‘that extravagance amongst scholars which first overdoes the supposed similarity on passages and then proceeds to describe source and derivation as if implying literary connection flowing in an inevitable or predetermined direction” (Boccaccini 29).
Furthermore, Sandmel’s own theory has become the subject of academic scrutiny, evidence that he has become, in some sense, entrenched and understood to hold a certain authority over the subject of Jewish-Christian relations (emphasizing the perspective of Judaism) and scriptural analysis. Ignaz Maybaum cites Sandmel’s 1965 book We Jews and Jesus in Ignaz Maybaum: a Reader, writing that “The Hellenistic world, the West, responded to the biblical ‘God is One’ with the doctrine of the Trinity. To Jews this doctrine is, according to Samuel Sandmel, ‘inherently incomprehensible.’ But the philosophy of Plato or Kant may also be incomprehensible to many Jews” (Maybaum 71).

So, is there anti-Semitism in the New Testament?
Now that Sandmel’s authority on the subject has been demonstrated, we come to ask: what is his conclusion? Is it reasonable for so many people to have inferred an anti-Semitic message from the New Testament, a set of scripture the hallmark of which is Jesus’ message of love and forgiveness? What’s more, if the anti-Semitism is evident, to what extent is it, for lack of a better phrased, being sanctioned in Christian holy scripture?
It becomes clear that Sandmel gives Christians the benefit of the doubt: “The Christian will to purge Christianity of anti-Semitism exists both broadly and in many places deeply” (163).
Yet he recognizes fully that the New Testament is full of passages that, accurate and worthy of attention and effort or not, exist, and will cause animosity, if even inherently, because of Jesus’ label as the messiah – something that Jews, by description following the split from Christianity, do not believe as a standard facet of theology: “This will collides with the authority of Christian Scripture for Christians, their devotion to it, and their use of it. Rosemary Ruether…raises the question ‘Is it possible to say ‘Jesus is Messiah’ without implicitly or explicitly saying at the same time ‘and the Jews be damned’?’” (163).
Sandmel’s closing note is essentially an admission that objective readers may very well come away from an honest reading of the New Testament with anti-Jewish inspiration and trains of thought: “It does not seem to me that [Ruether] exaggerates the extent to which Judaism appears in Christian theology as that which needs negation and rejection” (163). All that Sandmel can do, he seems to admit, is try his best to provide us with the most objective and historically-based analysis available. If he’s done his job right, he might hope, we’ll all come to the same conclusion he has.







Bibliography
(Some works cited – all works analyzed and incorporated)

Auwers, Jean-Marie & de Jonge, H.J. (2003). The Biblical Canons. Belgium: Peeters
Publishers.

Boccaccini, Gabriele (2002). Roots of Rabbinic Judaism: An Intellectual History, from
Ezekiel to Daniel. Grand Rapids, MI: Wm. B. Eerdman’s Publishing Co.

Dacy, Marianne Josephine (2000). The Separation of Early Christianity from Judaism.
Retrieved October 9, 2007, from The University of Sydney, Australia library
online. http://ses.library.usyd.edu.au/bitstream/2123/837/1/adt-NU20020515.16223101front.pdf.

De Lange, Michael, Maybaum, Ignaz, & Robert, Nicholas (2001). Ignaz Maybaum:
A Reader. New York: Berghahn Books.

Gager, John (2002). “Paul, the Apostle of Judaism.” Jesus, Judaism & Christian Anti-
Judaism. Fredrickson, Paula and Reinhartz, Adele, eds. London: Westminster
John Knox Press.

Jackson, Glenna S. (2002). Have Mercy on Me: The Story of the Canaanite Woman in
Matthew 15:21-28. London: Continuum International Publishing Group.

Rayner, John Desmond (1997). An Understanding of Judaism. New York: Berghahn
Books.

Reinhartz, Adele (2002). “The Gospel of John: How “the Jews” Became Part of the Plot.
Jesus, Judaism & Christian Anti-Judaism. Fredrickson, Paula and Reinhartz,
Adele, eds. London: Westminster John Knox Press.

Sandmel, Samuel (1978). Anti-Semitism in the New Testament? Philadelphia: Fortress
Press.

Sandmel, Samuel (1958). The Genius of Paul: A Study in History. New York: Farrar,
Straus and Cudahy, inc.

Sandmel, Samuel. The Historical Jesus.

Saperstein, Marc (1989). Moments of Crisis in Jewish-Christian Relations. Eugene:
Wipf and Stock Publishers.

Wilson, Marvin R. (1998). Our Father Abraham: Jewish Roots of the Christian Faith.
Grand Rapids, MI: Wm. B. Eerdman’s Publishing Co.

Wright, Archie T. (2005). The Origin of Evil Spirits: The Reception of Genesis 6:1-4 in
Early Jewish Literature. Tuebingen, Germany: Mohr Siebeck.

R. Douglas Arnold Lit. Review (Congress)

Midterm lit review for Claire Haeg's U.S. Congress class, spring 07


In The Logic of Congressional Action, R. Douglas Arnold attacks the express goal of explaining the motivation and inner workings behind congressional policy decisions. Why, specifically, does congress enact policies that provide general benefits at times while limiting benefits to certain groups or geographic constituencies at others? The logic, he argues, lies in the principle legislative goal of reelection and the series of estimations that follow, including the propensity of constituents to form policy opinions and, thereafter, to act upon those opinions via the electoral ballot.
The Logic of Congressional Action paves new avenues for the analysis of congressional decision making, though its innovative theoretical nature creates questions that are left unanswered by the basic theory itself. Yet in spite of these shortcomings, Arnold has written a piece that stands as a foundation for a new line of scholarship – one that ranges from the use of simple assumptions in answering basic questions about the legislature to the application of theoretical premises about public opinion and blame placement in broader social analyses.

The Logic of R. Douglas Arnold
Arnold’s (1990) work sets out to answer a question of his own making, general as it is: “Why does Congress enact the policies it does?” (p. 3). He seeks to answer why Congress enacts legislation that benefits certain groups with specific and often narrow geographic and interest benefits. He “sets forth both the conditions that encourage legislators to produce particularistic policies and serve organizes interests and the conditions that prompt legislators to serve more general interests” (p. 3).
Arnold (1990) argues that there are three principle influences in congressional decision-making: manipulation on the part of coalition leaders, anticipation of voters’ actions in future elections, and a degree of free agency (p. 5). “The theory assumes,” he writes, “that members of Congress care intensely about reelection…This means simply that legislators will do nothing to advance their other goals if such activities threaten their principle goal [of reelection]” (p. 5). He goes so far as to “assume that when legislators have to make a decision they first ask which alternative contributes more to their chances for reelection” (p. 7).
The principle goal of Arnold’s (1990) book, then is “to discover how legislators estimate the electoral consequences of their policy decisions so that they can compare an unending stream of paired alternatives (p. 7) – alternatives, he writes, that are at times defined by successful coalition leaders who are, furthermore, charged with the task of anticipating the potential actions of legislators based on said legislators’ electoral goals (p. 7). Anticipation, as Arnold (1990) repeatedly puts it, is a major part of his analysis. “Rather than assuming that policy preferences are fixed and asking what impact established preferences have on legislators’ decisions,” he writes, “I introduce the notion of ‘potential preferences’ and ask how legislators adjust their decisions in anticipation of them” (p. 10).
Arnold’s (1990) principle theory of congressional influence and logic is broken into four steps:
Citizens establish policy preferences by evaluating both policy proposals and policy effects
Citizens choose among congressional candidates by evaluating both the candidates’ policy positions and their connections with policy effects.
Legislators choose among policy proposals by estimating citizens’ potential policy preferences and by estimating the likelihood that citizens might incorporate these policy preferences into their choices among candidates in subsequent congressional elections.
Coalition leaders adopt strategies for enacting their policy proposals by anticipating legislators’ electoral calculations, which in turn requires that they estimate both citizens’ potential policy preferences and the likelihood that citizens might incorporate these policy preferences into their choices among congressional candidates (p. 14-15).
Arnold (1990) includes examples pertaining to energy, tax, and economic policy in the later part of the book. He demonstrates, in short, that Congress will often serve particular interests at the expense of diffuse interests, but sometimes reverses itself, thus demonstrating the power of policy-conscious publics to persuade legislators that the public will appreciate the benefits on election day.
To his first point, Arnold (1990) writes that “legislators need to estimate which of their constituents might divide on the issue, and how deeply they might feel about it” (p. 17). He argues that they develop policy preferences based on a simple analysis of cause and effect – both in the prospective sense, such that constituents would logically presume that certain results and consequences would follow from specific policy directions, and in the retrospective sense, such that constituents draw conclusions based on past results and the policies that generated them (p. 17-19). What’s more, constituents’ ability and desire to follow and assess the effects and path of legislation depends on the policy effects status as “early order” or “late order” effects. Arnold (1990) writes that “for short causal chains, retrospective evaluation is not fundamentally different from prospective evaluation. It is just as easy…When causal chains are very long, however, retrospective evaluation becomes virtually impossible” (p. 20-21).
Arnold (1990) specifies several categories of costs and benefits, including “general,” “group,” and “geographic” costs, and argues that “the perceived incidence of costs and benefits is partly a function of the length of the causal chain” (p. 26). Furthermore, he writes, the strength of constituents’ feelings on legislation, and, thus, we might suppose, propensity to act on those feelings, relies on the magnitude and timing of a specific cost or benefit, the proximity of a citizen to those who are affected, and the presence of an instigator to “reveal citizens’ stake in an outcome” (p. 28-30). These factors, he writes, “affect the likelihood that a citizen will perceive a specific cost or benefit” (p. 30).
The next question addressed, then, pertains to a related point – the second of Arnold’s (1990) four steps. How, in essence, do citizens’ policy preferences relate to their choice of candidate? Arnold (1990) writes that there are four paths by which citizens make their decision: “Voters may decide how to vote on the basis of either policy positions or policy effects, and they may connect their policy evaluations either to the candidate directly or to the party first and only indirectly to the candidate” (p. 40). The evaluations based on party and candidate positions, he writes, are prospective evaluations, whereas the evaluations based on party and incumbent performance are retrospective in nature (p. 40-41). Citizens’ retrospective evaluations can be as simple as 1) whether conditions are improving or deteriorating in society and 2) which party is currently in charge or which candidate is currently in office, and thus, in some sense, responsible for those conditions (p. 41, 44).
Arnold (1990) writes that a number of other factors determine citizens’ voting preferences, and addresses the handling of an enormous analytical task by a relatively inattentive citizenry (p. 57). He states that “whenever an election occurs a citizen merely retrieves the four values, combines them into a single net present value, and votes according to its sign” (p. 58).
The third and, as far as is relevant to Arnold’s (1990) methodical analysis, final step in the process of congressional decision-making is the weighing of options by legislators, given their estimations of citizens’ potential reactions, with the principle goal of reelection constantly at the forefront of their strategy. “The question for legislators,” he writes, “is how much they should consider the known policy preferences of attentive publics as opposed to the potential policy preferences of inattentive publics when they are deciding which sides to support in a policy dispute” (p. 65). Attentive publics, he notes, are those that are affected by a policy’s costs or benefits, as noted in the first section (p. 65).
Legislators, Arnold (1990) writes, should have little trouble estimating subsequent action by attentive publics if their representative were to vote contrary to their preferences (p. 67); the issue, he writes, lies in the “attempt of the legislator to estimate three things: the probability that an opinion might be aroused, the shape of that opinion, and its potential for electoral consequences” as related to inattentive publics (p. 68). These can depend on such previously mentioned factors as the traceability of a policy effect or the presence of an instigator (p. 68-69). To estimate the potential reaction of inattentive publics, Arnold (1990) suggests that a legislator consider how he or she would incite the inattentive publics against him or herself if they stood for an alternative policy position, as well as the potential presence of instigators to agitate public opinion against the legislator (p. 70). Arnold (1990) concludes that, to reach a decision, a legislator needs to “1) identify all the attentive and inattentive publics…2) estimate the direction and intensity of their preferences and potential preferences, 3) estimate the probability that the potential preferences will be transformed into real preferences, weight all these preferences according to the size of the various attentive and inattentive publics, and 5) give special weight to the preferences of the legislator’s consistent supporters (p. 84).
To conclude the basic outline of Arnold’s (1990) impact on the analysis of congressional decision-making, the first three steps of his theory of congressional influence are the most definitive and significant as pertains to his central goal of demonstrating that electoral goals drive legislators to enact both general and particularized benefits. The role of coalition leaders is not to be ignored, especially in the event that those roles are filled by party leaders, wielders of the power to award nominations and, in the post-Wright era, positions of power within the legislature; however, much of the study regarding coalition leaders depends on their understanding of the congressional decision-making process itself – the first three steps in Arnold’s (1990) theory – such that the power of influence could be made to hold more power when leaders know what a legislator will emphasize in a high-stakes candidacy. As Arnold (1990) writes, “neither the existence nor the talent of coalition leaders is explainable within the current model” (p. 132).
Arnold’s (1990) argument, in essence, is that congressional decision making is stilted on a delicate balance of estimating policy preferences of inattentive constituents, the likelihood that policy preferences will henceforth have electoral results, and the need to appeal to attentive publics and the legislator’s loyal base, all on the basis of which course of action will garner the best electoral results. The aforementioned estimates are based upon the costs and effects of policies on specific constituents, as well as the traceability of certain effects to original policy. What’s more, citizens may develop preferences either retrospectively or prospectively, based on incumbent and party performance or party and candidate positions.

Innovation and inherent theoretical shortcomings: initial reaction to The Logic of Congressional Action
Reviews of Arnold (1990) are largely mixed; praise is accompanied by criticism, as an innovative framework for congressional analysis is accompanied by new, unanswered questions and issues.
In an untitled review of Arnold’s Book, Lawrence C. Dodd (1992) characterizes The Logic of Congressional Action as “one of the most illuminating books I have ever read on Congress” (p. 1052). Yet Dodd (1992) also faults Arnold for failing to “deliver on this central goal” of demonstrating “that electoral calculations can account for the enactment of general, as well as particularized, benefits” (p. 1052).
Specifically, Dodd (1992) cites the confusion in the text “over the distinction between particularized benefits and collective goods,” this having spawned from Arnold’s arguing “that general benefits refer to ‘collective goods that people value because they believe everyone profits’,” and that “particularistic goods, by contrast, are the benefits that fall on identifiable group or geographic interests” (p. 1052).
“The trouble,” Dodd writes, “is that Arnold assumes that group or geographic interests are the only particularistic interests that concern voters. In point of fact, much of the tension between private and collective interest arises from citizens’ desire for highly salient, specific, and divisible individual benefits” (p. 1052). Individual benefits, Dodd (1992) argues, cannot compete with general and group benefits for legislators’ support, as Arnold’s theoretical framework suggests and assumes (1052). Dodd (1992) suggests three criterion, which he states ought to be included in the book, which a good must meet to be considered collective: “(1) the program’s primary benefit should be substantial, shared, and indivisible among citizens (e.g. clean air); (2) there should exist real reason to believe that the enactment of the policy would deliver the shared and indivisible benefits (so that such claims are not simply symbolic); and (3) the program should have some substantial private costs, so that government action is required to obtain the beneficial effect” (p. 1052-1053).
Given these criterion, Dodd (1992) asserts, none of Arnold’s case studies (economic, tax, and energy policy) fits into the category of collective goods. In fact, Dodd (1992) argues, the examples used serve to contradict (if not reverse) the original theory, especially the fourth part, pertaining to coalition leaders: “What Arnold has demonstrated is that coalition leaders exploited legislators’ increased vulnerabilities in the 1970s and 1980s in order to pursue an expansion of privatized and individualized benefits and to reverse historic concerns with collective goods and the general public interest” (p. 1053).
Dodd’s (1992) more relevant point, however, lies in Arnold’s underlying theoretical question and development. Can Arnold, he asks, demonstrate that the electoral calculations of which he writes apply to collective goods (p. 1053)? In order to do this, he argues, Arnold must do two things: “Arnold must develop a more sophisticated interpretation of the voting public, with citizens, as well as politicians, attentive not just to immediate policy benefits but to long-term policy effects and concerned, therefore, not just with private and particularized policy agendas but with shared and indivisible policy benefits” (p. 1053). Second, according to Dodd (1992), Arnold would need to devise “a determination of the institutional arrangements that facilitate authentic congressional deliberation over whether to deliver (and how best to fund) collective goods” (p. 1053).
Arnold’s work is met by Dodd (1992) with a combination of praise for innovation and criticism for its theoretical shortcomings: “The Logic of Congressional Action is destined to become a classic investigation of congressional decision-making and a welcome stimulus to a new generation of theorizing and policy analysis. Arnold has yet to demonstrate that the electoral calculus of legislators yields general policies providing collective goods, but he is clearly knocking at the door” (p. 1053).
Slightly earlier in the same year that Dodd’s review was published, Daniel J. Reagan (1992) praised Arnold’s book as “an imaginative, insightful addition to congressional scholarship” (p. 687). In fact, Reagan does little other than commend Arnold for his theory and the innovative critical process that produced it.
Reagan (1992) puts a great deal of emphasis on the framework in which Arnold pursued his central questions, which is called “innovative” later in the review (p. 687): “Rather than attacking prevailing paradigms…Arnold wants to refine and expand the literature that centers on the reelection motive to explain congressional behavior” (p. 686). Of course, the assumption that congressional behavior is driven by the reelection motive is hardly innovative. Reagan (1992) explains: “Where Arnold differs from the typical focus on the electoral foundations of congressional behavior is with his claim that ‘the electoral quest’ can move Congress to adopt either particularistic policies or general interest ones…he seeks to specify the conditions that lead electorally driven legislators to adopt particularistic policies, and the conditions that lead them to adopt policies that serve the general interest” (p. 686-687).
Reagan’s (1992) writing is not devoid of criticism – criticism, as Reagan (1992) points out, that Arnold largely brings to readers’ attention himself. “The world that he describes,” Reagan (1992) writes, “is admittedly artificial and less complex than the world inhabited by real legislators” (p. 687). Reagan argues that this simplicity helps Arnold make his arguments, “but it leaves him unable to explain a decisive part of his theory on his own theory’s terms” (p. 687). Though coalition leaders play a key role in the decision-making process, Reagan (1992) quotes from Arnold, “‘neither the existence nor the talent of coalition leaders is explainable within the current model’ (p.132)” (p. 688). Yet one resultant strength of Arnold’s work, Reagan (1992) argues, “is that it thus points beyond itself, beyond the artificial world…Arnold’s contribution lies not only in refining the predictive capacities of ‘the electoral connection,’ but also in suggesting these limits to its explanatory powers” (p. 688).
In 1994, Steven P. Croley of the University of Michigan Law School reviewed The Logic of Congressional Action in conjunction with John Mark Hansen’s Gaining Access: Congress and the Farm Lobby, 1919-1981. “While Arnold and Hansen both highlight an insufficiently emphasized issue [the rational-choice theory],” he writes, “their particular arguments concerning the implications of imperfect information leaved unanswered several important questions” (p. 509). He continues: “Indeed, the relationship between imperfect information and the electoral connection – an issue insufficiently developed in many of the classics on legislative behavior – ultimately constitutes the driving engines of their respective theories. For these reasons, and also because [Arnold and Hansen] exhibit several important methodological and substantive similarities, as well as leave open similar questions, they warrant joint praise and criticism” (p. 510).
Specifically, Croley (1994) praises Arnold for his attention to inattentive publics, which he calls “silent publics” (p. 517) and for noting that legislators are themselves imperfectly informed: “In contrast to much of the classic work on legislator decision-making, Arnold and Hansen explore the consequences of the fact that legislators are imperfectly informed with respect to the…variables central to their reelection decision-making calculus” (p. 517).
Yet both authors, Croley (1994) argues, establish questions regarding those consequences that are left unanswered (p. 518). “It is unclear,” he writes, “just how introducing imperfect information about constituents’ responses to costs imposed upon them, without more, solves the puzzle Arnold identifies” (p. 518). Croley (1994) continues: “By explaining that sometimes a legislator imperfectly informed about the future will anticipate that the beneficiaries of general-interest policies will appreciate their gains and will provide electoral advantages to the legislator, Arnold does not answer why that is so. In other words, he provides no reason why a legislator would anticipate that concentrated groups will be less likely to possess electoral resources in the future than in the present” (p. 518-519).
Croley (1994) also points out that Arnold’s implicit assertion that, in assuming the priority status of reelection goals, legislators are inherently risk-averse, may be flawed: “reelection-minded legislators seem likely to be either risk-averse, risk-neutral, or risk-seeking depending on what percentage of the vote they otherwise expect to receive” (p. 520).
Overall, Croley (1994) appears willing to look past Arnold’s shortcomings – which include how data needed to estimate the electoral consequences of any action would be gathered and tested for credibility (p. 522) – when it comes to praising The Logic of Congressional Action for its having initiated a new and quite relevant realm of congressional decision-making analysis. “By pointing in a new and important direction,” he writes, “Arnold and Hansen have advanced the project of understanding the calculus of the reelection-minded legislator” (p. 523). This innovative nature of Arnold’s book – as well its theoretical shortcomings, both self-proclaimed and non-obvious – are the common ground on which the initial reaction by critics and reviewers meet.

Applications both simple and broad: further scholarship based on The Logic of Congressional Action
To address every scholarly work that has cited The Logic of Congressional Action and/or has used its principles and theory to develop a new thesis would be impractical. The selections to be discussed, then, have been chosen on the basis of their own importance to the study of political science, in this case indicated by the number of citations of that work, as well as by the extent to which Arnold’s (1990) work influenced the scholarship.
Jeffrey W. Legro (2000) of the University of Virginia extends Arnold’s (1990) concept of the voters’ mindset, specifically the conception of success or failure and the blame or reward that results (p. 51), to the broad shifting of collective ideas pertaining to public policy. In a section aimed at explaining the change in collective ideas throughout a society, Legro (2000) investigates, more specifically, “the collapse of an extant orthodoxy” (p. 424). This collapse in orthodoxy, he writes, is “driven by the interaction of (1) collective expectations (generated by collective ideas) and (2) the experienced consequences of critical events” (p. 424).
He then brings Arnold’s (1990) analysis of the collective voter mindset into the analysis: “Extant collective ideas contain not only a notion of appropriate action but also a portrayal of what consequences are a success (or socially-approved) versus a failure (or socially stigmatized). This distinction is important because a range of studies indicate that failure as opposed to its opposite success is associated with a change in collective mindset” (p. 425). Readers are then pointed to a passage of Arnold’s (1990) book: “costs inspire people to search for someone to blame, whereas benefits are usually enjoyed without a corresponding effort to discover whom to reward” (p. 51). Legro (2000) has extended Arnold’s (1990) concept that “large and perceptible costs, then, are the principle stimuli for voting by the incumbent performance rule” (p. 51) to the collective decision-making process of societies that are shifting amongst the plurality of orthodoxies, norms, and common ideas.
The application of Arnold’s (1990) theory to outside scholarship can take a simpler form – for example, it can be applied directly to a question regarding the legislative process. John M. Carey, of Washington University, and Richard G. Niemi and Linda W. Powell, both of the University of Rochester (1998), explore the effects of term limits on the behavior of state legislators, and in doing so, pull from one of Arnold’s (1990) most basic assumptions: that the quest for reelection is at the forefront of the legislator’s decision-making process: “A central assumption in most legislative theory is that politicians are ambitious and that, as a consequence, legislative behavior and organization cannot be explained without paying close attention to political career opportunities and trajectories (Arnold 1990; Fenno 1978; Schlesinger 1966)…critics of careerism attribute pork-barrel spending, excessive government regulation, and bureaucratic inefficiency to legislators’ efforts to build constituency support” (p. 272).
Carey, Niemi and Powell (1998) come out in support of term limits, holding that “with respect to legislative behavior, term limits decrease the time legislators devote to securing pork, and heighten the priority they place on the needs of the state and on the demands of conscience relative to district interests” (p. 271). Insofar as Arnold (1990) is correct in his assumption that electoral concerns take precedence in the decision-making process, Carey, Niemi and Powell (1998) consider this fundamental characteristic of the legislature detrimental to, if we must say, the collective good.
Wendy J. Schiller (1995) of Brown University also applies one of Arnold’s (1990) basic premises to the investigation of a more empirical question of legislative function – specifically, the use of bill sponsorship to shape personal agendas. Schiller (1995) refers to Arnold’s (1990) functions stemming from the premise that, “in contrast to the vast amounts of knowledge that exists about legislators and roll-call voting (Kingdon 1973; Mayhew 1974; Arnold 1990), few works seek to explain the choices legislators make when building their agendas. Unlike roll-call voting, where senators face a predetermined set of alternatives they had no part in shaping, bill sponsorship is under control of the individual legislator” (p. 186-187).
Schiller (1995) comes close to paralleling some of Arnold’s (1995) underlying methodical premises, as is evidenced in her concluding that “Senators are constrained in their use of bill sponsorship by a combination of institutional and political forces” (p. 186), insofar as Schiller (1995) focuses on the specifics of bill sponsorship and Arnold (1990) focuses on legislative action in general. Her work departs somewhat from Arnold’s (1990) in stating that “current views of the senate as a place that lacks structure and predictability in it operations may be overstated” (p. 186) as both Dodd (1992) and Arnold (1990) emphasize the formidable gaff left in the predictability of legislative action given the prevalence of imperfect information.
Arnold’s (1990) work can also be extended to comparative analysis, so long as the country being held under the comparative microscope experiences regular democratic elections, thus investing in executives and legislators’ a fear of losing a future race. Argelina Cheibub Figueiredo and Fernando Limongi (2000) reference The Logic of Congressional Action in their “Presidential power, legislative organization, and party behavior in Brazil.” Specifically, in their discussion of presidential agendas and the resultant (relative) executive power in Brazil, they cite the frequency with which constitutional amendments are passed (or are at least voted on in a disciplined manner): “For constitutional amendments, the government coalition failed to attain the necessary three-fifths mostly due to absences. If these absences are considered nondisciplined votes, presidents have been defeated on twenty-six of 434 cases due to lack of discipline. Hence discipline is the norm” (p. 160).
The post-article notes by Figueiredo and Limongi (2000) reveal the logic behind a lack of non-discipline even among the amendments that were not passed: “There is no case in which the constitution was changed against the government’s will. Following Arnold’s classification, most of these votes were on politically unfeasible policies, for instance, reform of the social security system” (p. 170). Readers are pointed specifically to a passage from Arnold’s (1990) chapter on electoral calculations and legislators’ decisions: “Legislators’ fear of retrospective voting impels them to avoid a class of policy alternatives that I shall call politically infeasible policies. Specifically, legislators shun policies that would have large and direct early-order effects on their constituents, for these effects are easily traced to their roll-call votes” (p. 72-73). The work of Figueiredo and Limongi (2000) points out the instance of Arnold’s (1990) theory – such that discipline is encouraged by the call to accountability by voters – is applicable not only to other democracies outside the U.S. but also to any body or organization in which image and intrapersonal contact and impact will potentially have lasting effects. This is to say nothing of the process leading to displays of discipline and the fact that legislators in Brazil must estimate the likelihood of voter retribution and act accordingly.
Of special interest is the extension of Arnold’s (1990) central question – that of general interests versus group or geographic interests – and its applicability to an empirical group. Michele L. Swers (1998) of Harvard University takes on this job in analyzing the voting patterns of female legislators as related to policy benefits for fellow women. Specifically, she cites the “blame avoidance” (p. 443) that Figueiredo and Limongi (2000) used in their analysis and its applicability to the plethora of women’s issues that stem from controversial reproductive issues: “The significance of gender is magnified when one consider that the bills on which gender has its most significant impact, reproductive issues, constitute the women’s issue legislation that is most salient to political activists. Highly contested bills relating to abortion and family planning continuously come to the floor for a vote in every legislative session. Pro-choice and pro-life groups constantly monitor representatives’ voting records and distribute voters’ guides during election campaigns. Thus, the prudent legislator who is concerned with ‘traceability’ and ‘blame avoidance’ should avoid taking a controversial stand that can be used by an opponent in the next campaign” (p. 443).
Swers (1998) concludes that gender plays a significant role in gender-specific issues such as reproductive policy, though gender is overwhelmed by such other factors as party and constituency concerns on non-gender related issues (p. 435). Arnold (1990) would likely agree, likening these conclusions to electorally-minded calculations weighed between a number of competing factors.

Conclusion
Arnold’s theory, by its very nature, leaves questions unanswered. Between the understanding of the meaning of “collective” goods and the implications of imperfect information, Arnold could certainly be faulted for postulating a theory that is full of holes; however, as Dodd (1992) and Croley (1994) make clear in their reviews, these gaps in explanatory merit are the result of Arnold’s having formed a relatively innovative theoretical framework – a framework whose insights into the provision of specific versus general benefits and estimates of unseen data have begun to earn landmark status in the realm of congressional action analyses. Furthermore, Arnold’s work has proven applicable to outside work both in its basic assertions about electoral motivation and in its larger theoretical methods, such as blame avoidance, of analyzing broad social trends in thought and intrapersonal strategic action. The Logic of Congressional Action is of the variety of scholarship that begs readers to look past its shortcomings and tap into the potential for congressional research and discovery. Thanks to Arnold’s patented framework, that potential is a great deal more accessible.




































Works Cited

Arnold, R. Douglas. 1990. The Logic of Congressional Action. New Haven: Yale University
Press.

Carey, John M., Niemei, Richard G., and Powell, Lynda W. 1998. “The Effects of Term Limits
on State Legislatures.” Legislative Studies Quarterly 23: 271-300.

Croley, Steven P. 1994. “Review: Imperfect Information and the Electoral Connection.”
Political Research Quarterly 47: 509-523.

Dodd, Lawrence C. 1992. Untitled review. American Political Science Review 86: 1052-1053.

Figueiredo, Argelina Cheibub and Limongi, Fernando. 2000. “Presidential power, legislative
organization, and party behavior in Brazil.” Comparative Politics 32: 151-170.

Legro, Jeffrey W. 2000. “The transformation of policy ideas.” American Journal of Political
Science 44: 419-432.

Reagan, Daniel J. 1992. “Review: Congress beyond the Electoral Connection.” The Review of
Politics 54: 686-688.

Schiller, Wendy J. 1995. “Senators as Political Entrepreneurs: Using Bill Sponsorship to Shape
Legislative Agendas. American Journal of Political Science 39: 186-203.

Swers, Michele L. 1998. “Are women more likely to vote for women’s issue bills than their
male colleagues?” Legislative Studies Quarterly 23: 435-448.

A sample of Ndungu

I had a 50-pager for this guy my freshman year, but between then and now, my computer crashed and I lost it. Disappointing.

This is the demi-intro for a final paper in Ndungu's Comparative Politics class, Spring 2007.

In the interest of providing a solution for the state of disarray in Iraq, it would be prudent to turn to two models. Japan and Germany have both recovered remarkably well from their war-torn status in 1945, reconstructing the rubble to the tune of the world’s second largest economy, in Japan’s case (Hauss online 3) and a GNP per capita of roughly $23,000 in Germany (Hauss 144). But what element of this successful growth can be applied to Iraq’s stagnant progress? Both Japan and Germany have adapted systems of economic decision-making that, while relatively representative, are closed to public participation. The remaining question will be whether Iraq ought to adapt a similar system of political decision –making.
Nary an observer can reasonably doubt the successful economic implications of a policy guided by Japan’s “Iron Triangle” – the system of peak associations in which civil servants, corporate executives, and politicians from the ruling Liberal Democratic Party are informally but intangibly linked in the process of policy determination (Hauss online 24-25). In a process that has been dubbed “state-led capitalism” (Hauss online 27), corporate executives, largely freed from overseas competition via high tariffs, can plan for long-term growth rather than short-term profiteering. What’s more, the state will subsidize domestic enterprises that show promise for potential growth and economic harvest (Hauss online 28). Such government control of the free market has proven cause for an economy that, despite a recent recession, has been the marvel of the international scene due to its rate of growth spanning the previous decades.
Yet the process functions of the political decision-making process in Japan have called into question the very notion of whether Japan is, in fact, a democracy. Indeed, Japan appears to follow the consensus model at best, having bred a citizenry that is encouraged to abandon individualism in favor of “groupism,” which “represents little more than an acceptance of arbitrary authority that allows elites to manipulate and dominate everything from public opinion to foreign markets” (Hauss online 14). Though other parties exits and control seats in the lower house of parliament (the Diet), the Liberal democratic Party has held nearly unwavering control of power since the mid 1950s (Hauss online 16).
Herein, within this system of political and economic decision-making that essentially disallows the uneducated masses from subverting progress, lies the potential answer for Iraq: by establishing a system of intense group loyalty, Japan has created patron-client relationships in which factions resulting from the country’s feudal past can spar at the highest levels of government, rather than sparring between the masses in the city streets. The elites, who are brought together due to business interests, are left to fight each other, rather than the people, and progress is not inhibited. Iraq, given the religious divide that is driving the violent civil conflict, would do well to adopt a similar system which is centralized in both the areas of political and economic decision-making. Stability is key.
Since the benefits of economic centralization are difficult to deny, at least for the short term, opponents would likely focus on the structure of political decision-making, opting instead for an open political system to accompany the closed economic process. The obvious example is Germany, whose corporatist economic process has been matched by an open, majoritarian, multi-party political society.
Germany’s corporatist economic decision-making process is most visible through “Concerted Action,” in which the Social Democratic party organized meetings between business, government, and labor officials from 1966 to 1977, with the original goal of ending the first major recession following World War II (Hauss 167). Though the formal ties, especially in the arena of macroeconomic policy, have been scaled back, informal ties between the bureaucracy and the business community remain largely intact (Hauss 167-168), including such facets as codetermination, in which unions are given half the seats on businesses’ boards of directors, which is largely considered a less adversarial model for business-labor relations than those typically found in other liberal democracies (Hauss 168). Germany’s banks have also, until very recently when the European Union’s central bank took over many of the Bundesbank’s functions, been key players in the determination of economic policy. Many argued that the Bundesbank was Germany’s most powerful political institution (Hauss 168). On the whole, the closed-door economic decision-making process has been met with undeniable success.
The major discrepancy between the German and Japanese models exists in terms of the political decision-making process. Opponents of the Japanese model would point out that, when economic policy is determined behind closed doors, the policies are not being determined by elected officials, and that the electoral connection between the people and policy, as a whole, is lost. Germany counters the Japanese model by providing for a more free and open political system in which multiple parties exist and power regularly switches hands. Moreover, the electoral system is designed in such a way that, though the dual system and single party district setup in the Bundestag (lower house) minimizes the number of new and small parties, gives the major parties incentives to appeal to as many voters as possible (Hauss 156-157). Even the smaller parties are given this incentive, to a degree: “Voters also cast a second ballot in which they choose from a list of candidates representing each of the parties. Seats are then allocated proportionally to all parties that win over 5 percent of the vote” (Hauss 157).
As corporatist arrangements created affluence and economic success after the war, this growth and success undermined left-wing radicalism and right-wind fascism, in turn erasing the most divisive political factions – those that had the highest likelihood of impeding growth and development in the reconstruction era (Hauss 157). The parties attempted to appeal to moderate voters, which led to a more civil and successful process of political decision-making at the highest levels rather than leaving a void in which the people would take to the street. Stability was achieved nonetheless.
Such is the appeal of the German model in seeking to find a solution for the disarray in Iraq. The emergence of affluence undermined support for radical, progress-impeding factions, and the closed economic decision-making process described in both Germany and Japan give us reason to believe that a similar system would work for Iraq. Proponents of the social democratic theory would, however, advocate an open political process similar to that of Germany, as per the fact that stability was not subverted nor progress inhibited when affluence led to more moderate people who, in turn, essentially forced the parties to turn to moderation (Hauss 157). Unity was created via incentives for creating cooperation. What’s more, that unity was a unity based not on bloodlines or religion, but on professionalism and the interest of progress and affluence. This is where the U.S. failed in attempting to establish an open political system – in establishing a representative government, parties and seats were held under the title of different religions and sects of Islam – indeed, this only served to perpetuate the divisiveness of the Sunni-Shiite conflict that is currently ravaging the nation.
This is also where our primary concession lies. Though a more closed political system would certainly ensure stability and a civil decision-making process, Germany has proven that stability and progress is quite attainable, thanks to none other than the closed economic decision-making process that she and Japan have in common. What’s more, though we write in support of a closed system, it is undeniable that this must remain a solution only in the short run, lest the powerless remain exploited for an indeterminable period. It is only through dashes of social democracy (for example, free public education) that the liberal constitutionalist theory will prove successful in the long run. In order for long-term success, liberal constitutionalism cannot be a long-term feature of the political and economic landscape.