Enforce the Twenty-Fourth!

By: Clary Doyle

Edited By: maggie farina and kailey morand

The idea that history repeats itself is regarded as an axiom. However, until most Americans are dressing up in Roman tunics and watching gladiator fights, I won’t claim that the cliche is true. Instead, citizens find themselves decked out in sports jerseys, watching the Super Bowl. The tradition is similar, but it doesn’t play out in exactly the same way. History does not go in circles—mankind isn’t walking in place. Rather, history spirals—it goes through a similar motion while forging a new path. The same phenomenon occurs when examining the Twenty-fourth Amendment of the American Constitution. The amendment states that it is illegal to make citizens pay to vote, but its ratification had a deeper connotation. It sought to fight prejudice surrounding the suffrage of minorities. Though decades have passed since its installment, Americans have not yet eradicated racist voting policies, and citizens continue to pay unfair fines in order to vote. Until the spiral stops, the Twenty-fourth Amendment will continue to be a relevant Constitutional right. 

The creation of the Twenty-fourth Amendment is rooted in significant events that followed the Civil War. The ratification of the Fifteenth Amendment granted African Americans the right to vote. However, Southern white citizens and hate groups like the Klu Klux Klan detested the idea, as they feared a robust black population would have too much influence in elections. [1] To dampen African American power, invidious politicians responded by contriving petty laws that hindered a black person’s right to vote. [2] Just one of these many obstacles was the poll tax, a voting fee citizens had to pay before receiving a ballot. [3]

Poll taxes were not the only forms of voter suppression during that time. Some states had laws requiring African Americans to pass literacy tests—nearly impossible quizzes asking recondite questions. [4] In Louisiana’s 1964 literacy test, the heading delineates that unless one answers all thirty questions correctly in under ten minutes, they would fail. [5] The actual questions are intentionally deceitful and irrelevant to political knowledge. 

Although literacy tests were clearly discriminatory, poll taxes proved to be worse. Making citizens pass a literacy test implies that voters must be educated. Requiring people to pay a fine insinuates that voters must be rich. Eight American states enforced poll taxes of a dollar or more.[6] Albeit the amount seems minuscule, the average black laborer in Atlanta, Georgia in 1897 earned only three dollars each week. [7] The proportionally large fine deprived thousands of black Americans of their Constitutional right. This disenfranchisement continued for years, and its effects were deleterious. For example, in Georgia, the poll tax decreased black voter turnout by fifty percent. [8] In this way, racist politicians ensured that the substantial black population in their regions would not oust them from office. 

For many years, Americans criticized the poll tax and raised their concerns to all three branches of government. In the judicial branch, a court case to terminate the poll tax went to the Supreme Court, but lost when judges argued it took away from state rights. [9] In the legislative branch, laws were proposed to ban the tax, and, in response, Southern politicians filibustered. [10] Only in the executive branch did John F. Kennedy finally put an end to the poll tax by instating the Twenty-fourth Amendment in 1964, ending the US’s nearly one hundred year battle to dissolve poll taxes. [11]
Though gone in name, many Americans today wonder if the poll tax ever really went away. The symbolic act of disenfranchising minority groups by fining them still exists in many states. Though not explicitly called poll taxes, Florida requires citizens released from prison to pay all fines related to their sentence before they are eligible to vote. [12] In 2010, over 22,000 persons on probation in Florida owed, on average, $8,195 in court fines, medical debts, and legal fees. [13] Florida is not alone in this requirement. Many southern states, such as Alabama, Georgia, Arkansas, and Tennessee have similar laws. [14]

Nowhere does the Constitution delineate that citizens must pay for their amendment rights. If the same prisoner who wasn’t eligible to vote for failure to pay court fees wanted to protest peacefully, they would not be stopped. This highlights a key inconsistency in the modern day poll tax—if citizens are granted their First Amendment right, why are they denied their Twenty-fourth Amendment right?

Unfortunately, the parallels for these modern day poll taxes are rooted in racist beliefs. African Americans make up only 12 percent of the American adult population, but they constitute 33 percent of the prison populations. [15] Hispanic persons, too, are disproportionately affected. While only accounting for 16 percent of the national population, they represent 23 percent of incarcerated persons. [16] Thus, minorities and people of color face more barriers to voting than white citizens. Moreover, the lower average incomes of African Americans and Hispanic people contributes to their inability to pay such fines. [17]

Though the times have changed, the concept remains: poll taxes disenfranchise minorities, especially African-Americans. These injustices are not just mishaps of the past; they are thriving obstacles to suffrage today. The full potential of the Twenty-Fourth Amendment will not be realized until poll taxes of every form are expunged. If history moved in a circle, mankind would be cursed to relive the same inequities over and over. However, because history spirals, by fighting for justice, the pattern can be broken.

Notes:

1. Stoney, George C., “Suffrage in the South Part I: The Poll Tax,” Survey Graphic, Vol. 29, No. 1, p. 5 (Part 1) and No. 3, p. 163 (Part 2) (January 1, 1940), http://newdeal.feri.org/texts/246.htm. 

2. Ibid. 

3. Ibid. 

4. “Lousiana’s 1964 Literacy Test.” Static Oprah. http://static.oprah.com/images/o2/201412/LA-literacy-test.pdf.

5. Ibid. 

6. Stoney, George C., “Suffrage in the South Part I: The Poll Tax,” Survey Graphic, Vol. 29, No. 1, p. 5 (Part 1) and No. 3, p. 163 (Part 2) (January 1, 1940), http://newdeal.feri.org/texts/246.htm.

7. United States Bureau of Labor. "Condition of the Negro in Various Cities," in United States. Bureau of Labor. "May 1897 : Bulletin of the United States Bureau of Labor, No. 10, Volume II," Bulletin of the United States Bureau of Labor, Nos. 1 - 100 (May 1897): 25-137. https://fraser.stlouisfed.org/title/3943/item/477562/toc/498120.

8. Evans, Farrell. “How Jim Crow-Era Laws Suppressed the African American Vote for Generations.” History. 13 May. 2021. https://www.history.com/news/jim-crow-laws-black-vote. 

9. “Twenty-fourth Amendment to the Constitution.” Totally History. Totally History, 2012. http://totallyhistory.com/24th-amendment-to-the-constitution/.

10. Ibid. 

11. Ibid. 

12. Ludwig, Mike. “Modern-day ‘poll taxes’ disenfranchise millions of low-income voters.” Salon. salon.com, LLC, 2019. https://www.salon.com/2019/08/03/modern-day-poll-taxes disenfranchise-millions-of-low-income-voters_partner/.

13. Ibid. 

14. Ibid. 

15. Gramlich, John. “The gap between the number of blacks and whites in prison is shrinking.” Pew Research Center. Pew Research Center, 30 April 2019. https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/. 

16. Ibid. 

17. Gold, Howard. “The racial wage gap is at the heart of America’s inequality.” Market Watch. MarketWatch, Inc., 15 July 2020. https://www.marketwatch.com/story/the-racial-wealth-gap-is-at-the-heart-of-americas-inequality-2020-07-15.

    BIBLIOGRAPHY:

    Evans, Farrell. “How Jim Crow-Era Laws Suppressed the African American Vote for Generations.” History. 13 May. 2021. https://www.history.com/news/jim-crow-laws- black-vote. 

    Gold, Howard. “The racial wage gap is at the heart of America’s inequality.” Market Watch. MarketWatch, Inc., 15 July 2020. https://www.marketwatch.com/story/the-racial-wealth- gap-is-at-the-heart-of-americas-inequality-2020-07-15.

    Gramlich, John. “The gap between the number of blacks and whites in prison is shrinking.” Pew Research Center. Pew Research Center, 30 April 2019.https://www.pewresearch.org/fact-

              tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/.

    “Lousiana’s 1964 Literacy Test.” Static Oprah. http://static.oprah.com/images/o2/201412/LA- literacy-test.pdf.

    Ludwig, Mike. “Modern-day ‘poll taxes’ disenfranchise millions of low-income voters.” Salon. salon.com, LLC, 2019. https://www.salon.com/2019/08/03/modern-day-poll-taxes- disenfranchise-millions-of-low-income-voters_partner/.

    Stoney, George C., “Suffrage in the South Part I: The Poll Tax,” Survey Graphic, Vol. 29, No. 1, p. 5 (Part 1) and No. 3, p. 163 (Part 2) (January 1, 1940), http://newdeal.feri.org/texts/ 246.htm.

    “Twenty-fourth Amendment to the Constitution.” Totally History. Totally History, 2012. http:// totallyhistory.com/24th-amendment-to-the-constitution/.

    United States Bureau of Labor. "Condition of the Negro in Various Cities," in United States. Bureau of Labor. "May 1897 : Bulletin of the United States Bureau of Labor, No. 10, Volume II," Bulletin of the United States Bureau of Labor, Nos. 1 - 100 (May 1897) : 25-137. https://fraser.stlouisfed.org/title/3943/item/477562/toc/498120.

Discriminatory Profiling Based on Nationality

By: Anna Dellit

Edited By: christine mao and luke vredenburg

President Biden recently ordered the Department of Justice and Homeland Security to revise their anti-discrimination policies by November 21 2022. This follows criticisms regarding the loopholes of the 2014 anti-discrimination policies that “allow federal law enforcement to profile people based on race, religion, ethnicity, and national origin in certain contexts.” [1] Senator Cardin, the author of the End Racial and Religious Profiling Act (ERRPA) and the Law Enforcement Trust and Integrity Act (LETIA), urges the DHS and DOJ to heed to Biden’s order due to the fact that “Discriminatory profiling is unjust in its targeting of minority communities, ineffective in stopping criminal or terrorist activities, inconsistent with American values, and wasteful of limited government resources.” [2] In a letter to Alejandro Mayorkas, the Secretary Department of Homeland Security, Senator Cardin lists five revised guidelines to eliminate discriminatory profiling, including “Explicitly apply updated DOJ and DHS guidance to federal law enforcement agencies, as well as state and local law enforcement agencies that participate in joint operations or partnerships with federal law enforcement agencies.” [3] This is extremely important, as the ACLU of Michigan found “that although people of Latin American origin make up only 16.8% of Michigan’s foreign-born population, 84% of all noncitizens apprehended by Border Patrol there were originally from Latin America.” [4] Religion similarly evokes discriminatory profiling at the borders and airports. Abdirahman Aden Kariye, a Muslim from Minnesota who sued U.S. officers after continually being questioned about his religion when he traveled, found the experience stressful and intimidating enough to “stop wearing a Muslim cap known as a kufi, and to stop carrying religious texts when he travels internationally to avoid additional scrutiny.” [5] The unsolicited questioning and investigation to determine if he was a “safe person” based on his religion is unconstitutional. [6]

Secretary Alejandro Mayorkas has the responsibility of setting the framework to makediscriminatory profiling impermissible across all local and federal levels. This includes wrongfully putting someone on a terrorism watchlist, tagging someone as a security risk, and investigating someone without evidence of criminal activity. These discriminatory practices cause consequences for people in terms of immigration, travel, employment, and can be seen as violation of their rights. [7] This all follows the discontinuation of the “China Initiative,” a form of discriminatory profiling against Asian Americans that were put in place during the Trump administration.  “China Initiative” was a “national security program designed to focus resources on prosecuting economic espionage and trade secret theft by Chinese government agents” that ultimately led to“increasingly targeted fundamental research scientists of Chinese ancestry.” [8] The initiative led to wrongful investigations into academic scientists and professors with Chinese ancestry for minor paperwork errors. While the initiative was denounced and extinguished earlier this year,Senior Staff Attorney of the ACLU’s National Security Project Patrick Toomey believes that its termination “won’t prevent discrimination from seeping into the FBI’s investigations of Asian Americans and others going forward. Getting rid of the name is not enough. To ensure this discriminatory program comes to an end once and for all, the Biden administration must fundamentally reform the longstanding Justice Department policies that enable racial profiling in the name of national security.”[9] The continuation of discriminatory profiling across different ethnicities, races, and nationalities, harms the integrity of the United States in its ability to protect its citizens, and detracts from any anti-discriminatory efforts moving forward. Biden’s order to the Department of Justice and Homeland Security is a first step in a long process to ensure the dignity and safety of all people in America.

Notes:

“ACLU Commends Biden Administration for Ending Discriminatory ‘China Initiative," but Fundamental Reforms Are Still Needed.” American Civil Liberties Union, February 7, 2022. 

https://www.aclu.org/press-releases/aclu-commends-biden-administration-ending-discrim inatory-china-initiative-fundamental. 

Cardin, Benjamin L. Letter to Secretary Alejandro Mayorkas and Attorney General Merrick Garland. “Urge DHS and DOJ to Adopt Stronger Guidance Against Discriminatory Profiling,” November 17, 2022. 

https://www.cardin.senate.gov/wp-content/uploads/2022/11/Cardin-to-DHS-DOJ-re-Profi ling-Guidance-11.17.2022.pdf 

“Discriminatory Profiling.” American Civil Liberties Union, November 8, 2022. https://www.aclu.org/issues/national-security/discriminatory-profiling. 

German, Michael. “End of Justice Department's 'China Initiative' Brings Little Relief to U.S. Academics.” Brennan Center for Justice, September 10, 2022. 

https://www.brennancenter.org/our-work/analysis-opinion/end-justice-departments-china initiative-brings-little-relief-us. 

Patel, Faiza. “Discriminatory Profiling Needs to End at Homeland Security.” The Hill. The Hill, September 10, 2022. 

https://thehill.com/opinion/civil-rights/3637216-discriminatory-profiling-needs-to-end-at homeland-security/.

Yang, Maya. “Muslim Americans Sue over US Border Officers' 'Invasive' Questions on Religion.” The Guardian. Guardian News and Media, March 26, 2022.

Death Penalty Logic Across Legal Systems

By: Lorenzo Garcia

Edited By: maggie farina and shiny han

1. Introduction

A ban on the death penalty has been decisively codified into law in 108 countries. In the rest of the world, 55 countries remain retentionist, like the U.S., and 28 are abolitionist in practice but not by legal mandate, like South Korea. In both categories, the debate is in a constant, confusing state of flux. What is it about these countries that curses them with an inability to resolve the matter of capital punishment? Their respective constitutions may give us some clues. This article will focus on the constitutions of the U.S. and South Korea.

2. Due Process and the Death Penalty in the U.S.

Is capital punishment a constitutionally acceptable means of punishment? Does the text of a given country’s constitution even matter if there is enough consensus that the very idea of capital punishment is morally reprehensible? Although answering such questions requires a delicate review of the law and judicial precedent, it is common to find politicians seeking to fan the flames of an impassioned populace in order to gain votes, rather than voicing constitutionally-informed opinions.

There appears to be a disconnect between the American popular discourse, which focuses on the morality of capital punishment, and the legal discourse, which focuses on whether capital punishment violates due process protected by the Constitution. The popular discourse is largely driven by the political atmosphere. For instance, American conservatives who typically advocate for the death penalty often imply that liberals are spineless, pro-crime, terrorist sympathizers. This is exemplified in Republican Sen. Tom Cotton’s words, “The Biden administration should stand strong in favor of capital punishment for [Tsarnaev, a capital offender], and justice should be done” (Fritze, 2021). On the legal side, the Fourteenth Amendment states, “No State shall… deprive any person of life, liberty, or property, without due process of law” (U.S. Const. art. XIV, § 1). Indeed, due process is at the heart of the latest case on the SCOTUS docket, U.S. v. Tsarnaev, colloquially known as the Boston Marathon bomber case. Dzhokhar Tsarnaev, the planner and perpetrator of the bombing, was found guilty of all seventeen death penalty charges against him and received the death sentence in 2015. However, in 2020 this sentence was overturned by the U.S. Court of Appeals for the 1st Circuit on the grounds that the jury was exposed to bias from pretrial coverage, which violated Tsarnaev’s right to due process (News Desk, 2015). Interestingly, this case is an anomaly to the extent that conservatives are invoking due process to execute the convict, as opposed to the usual case of liberals invoking due process to prevent the execution. Hence, while the application or lack thereof of due process is similarly inconsistent between the two parties, the stance for and against it is thoroughly partisan. 

Another due process debate took the form of assessing the cruelty of arbitrariness and delays in carrying out the death sentence in the 5-4 Glossip v. Gross Supreme Court decision. Cruelty here refers to the cruelty resulting from due process errors, not the cruelty of executing a criminal. This debate derives from the intersection of the Eighth Amendment and the aforementioned Fourteenth Amendment. The Eighth Amendment reads, “cruel and unusual punishments [shall not be] inflicted” (U.S. Const. art. VIII). Though not explicitly expressed as a “right to” something, this provision is just short of an enumerated fundamental right. Fundamental rights, by definition, cannot be taken away from any U.S. citizens, while regular rights can be stripped from criminals when they commit the crime. Accordingly, since government-inflicted punishment implies a criminal as its object, the fundamental right to protection from cruel and unusual punishment cannot be stripped from any criminal. 

On arbitrariness the concurring Justice Antonin Scalia, one of the Roberts Court’s strongest constitutional originalists, opined, “the fact that some defendants receive mercy from their jury no more renders the underlying punishment ‘cruel’ than does the fact that some guilty individuals are never apprehended” (Glossip v. Gross, 2015: p. 4). Justice Stephen Breyer stressed that the death penalty is not administered with any semblance of “reasonable consistency,” and that the judicial precedent set in 1976 acknowledged that the death penalty is unconstitutional if “inflicted in an arbitrary and capricious manner” (Glossip v. Gross, 2015: pp. 9-10). In sum, capital punishment proponents emphasize that sentencing mistakes go both ways and are unavoidable. Therefore, therefore the burden is on the defendant to gather sufficient evidence to prove innocence. Opponents retort that the penalty is so randomly administered that it, as a whole, undermines the due process clause. Similarly, on delays, Scalia wrote “delay is a problem of the Court’s own making” (Glossip v. Gross, 2015: p. 5). However, Breyer wrote about how the dehumanizing conditions on death row awaiting a delayed execution are not only cruel but also undermine the legal process because “many inmates volunteer to be executed, abandoning further appeals” (Glossip v. Gross, 2015: p. 22). This follows a familiar pattern. The former perspective emanates optimism – it sees no essential discrepancy between due process and the systemic process of sentencing someone to death and views errors as rare and the fault of individual mistakes rather than the system as a whole. The latter insists on the contrary – not only can no amount of careful precision prevent fatal mistakes from occurring, but the death penalty is administered based on very arbitrary factors including “race, gender, local geography, and resources”  rather than the severity of the crime, (Glossip v. Gross, 2015: p. 22). This viewpoint reveals the inability of the justices, judges, and juries to decide something as precious and irrevocable as a person’s life because it is impossible to claim with absolute certainty  that someone is guilty with  all the relevant evidence presented to the court during the sentencing.

3. A moral dilemma: Right to life in South Korea?

The ongoing constitutional debates on capital punishment in South Korea is the antithesis to the present-day U.S. judicial approach of overlooking morality. Instead of asking, “is the death sentence fundamentally compatible with due process?” Korea asks a far different question: is life a fundamental right? The Korean constitution gives no easy answers. Article 10 contains the only mention of a fundamental right in the document: “All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals” (Korean Const. Art. 10). The latter sentence, in its brevity, fails to name which rights in the Constitution are classified as fundamental with the notable yet still amply vague exception of human rights. Former President Kim Dae-Jung, a devoted abolitionist and death row survivor, argued that human rights are supremely fundamental. He cited the UN international human rights standard – which recognizes the right to life as an inherent human right (UN, n.d.) – since human rights are themselves  explicitly fundamental rights that the government must guarantee as per Article 10. His reasoning suggests that the death penalty violates not only the fundamental, constitutionally explicit human rights but also an implied right to life His abolitionist movement has gained marked influence in the executive and legislative branches of government over the last several decades (Bae, 2009: p. 417).

The judicial branch tells a different story. The latest Supreme Court case on capital punishment, known as 2008Hun-Ka23-1, ruled 5-4 in favor of the death penalty on February 25, 2010. In this case, concurring Justices combined a variety of approaches citing several constitutional provisions to argue for the legality of the death penalty. One piece of the argument was that the offense adheres to the principle of proportionality in Article 37, because there is such thing as criminal offenses so heinous that they are proportionally equivalent to the death penalty. The court decision states, “the death penalty is an unavoidable choice for the State; it has to deprive the life of person who committed a cruel crime in order to secure the public interests in protecting innocent people’s lives and other equivalently important values” (2008Hun-Ka23-1: p. 15). This argument hinges on the fact that the right to human dignity and worth provided by Article 10 is a zero-sum game – whereby providing it to someone requires taking it away from someone else. Not  only is the right not fundamental but there is also neither  constitutional provision nor judicial precedent that guarantees an absolute right to life. Concurring judges employed a supplemental fact from Article 110 section 4:  “military trials under an extraordinary martial law may not be appealed in case of crimes of soldiers and employees of the military… except in the case of a death sentence” (Korean Const. art. CX). According to the concurring judges, the explicit mention of the death sentence here renders it a constitutional norm, and therefore a viable penalty option for criminals. Following this logic, to assert that this norm excludes non-military trials without any basis in the Constitution, legislative acts, or prior rulings would undermine the legal system through gross judicial overreach (2008Hun-Ka23-1: p. 21).

Like the U.S., South Korea has never officially resolved its constitutional question. The right to life remains in a vague, Schrodinger’s Cat-esque limbo of simultaneously existing and not existing in the eyes of the law. However, as it stands, Korea  is known as a “de facto” abolitionist country. This began when Dae-Jung enacted an unofficial moratorium on executions in 1998, the year he was elected. No executions have occurred since, yet 63 remained on death row as of 2008 (Cho, 2008: p. 183). Moreover, Korea also contains the same political dynamic at play as the U.S., in which the conservative opposition party (the People Power Party) exploits public disgust at capital offenders to appear stronger and more concerned with retributive justice than their liberal counterparts. For instance, alluding to an alleged capital offender, People Power Party Rep. Hong Joon-pyo declared, “If I'm elected president, I will put serious criminals like him to death” (Seung-woo, 2021). This quote bears an uncanny resemblance to the Tom Cotton remark. However, similarities between the two countries end here.

The prior analyses of the U.S. and South Korea reveal a surprising difference between the two countries. Namely, constitutional rights cited by South Koreans in the controversy do not overlap with the constitutional rights cited by Americans. The U.S. debate revolves around guaranteeing the procedural right to due process of law in the form of fair/impartial juries, non-arbitrary sentencing, and timely executions to even the most heinous criminals. In contrast, the Korean debate revolves around the right to life and the moral quandaries surrounding executing those supposedly less deserving of life to uphold   society’s security and values. This results in drastic differences in the perception of the criminal. Both proponents and opponents of the death penalty in the U.S. see the capital offender as stripped of most basic rights  but still deserving of the fundamental rights like due process. There is no such common ground in Korea – based on one’s personal values, one either believes that capital offenders deserve to die or don’t deserve to die, largely informing their stance on whether or not life is a fundamental right.

Shifting our focus to the trajectory of capital punishment, the structure of each Constitution lends itself to two starkly different future paths. The U.S. Constitution is quite well-equipped to handle a controversy as heavy as capital punishment because the issue most directly implicates a right that is, as stated previously, agreed upon by both sides. This shared understanding of a goal ensures due process and is crucial in the sense that proponents and opponents are constantly vying to see whose approach, backed by a range of selected constitutional provisions, laws, empirical data, and past rulings, is most effective in achieving the same goal. Thus, the debate is highly competitive, as each stance has an equal shot of gaining influence because neither argument can decisively be said to be wrong based on the provisions of the Constitution  – it is more a question of better or worse in the aggregate. Neither party bothers asking if any crime makes someone deserving of death, resigning itself to the impossibility of answering that through even the most meticulous inspection of the Constitution. 

The same cannot be said about South Korea. While the U.S. Constitution omits concepts like “human worth and dignity” and “human rights,” the Korean Constitution lists both. In effect, this bridges the treacherous gap between morality and Constitutional analysis, which are tricky to reconcile with one another. In particular, in the absence of due process as an enumerated fundamental right, abolitionists like Dae-Jung must transcend the Constitution into the external territory of, say, UN international human rights standards to prove an implied fundamental right to life and subsequently make a constitutional case against the death penalty. This argument is far less compelling because it is not directly constitutional and therefore an easy target for Korean retentionists, who cite the provision for human dignity and worth for society as a duty that the Constitution aims to protect over a criminal’s right to human dignity and worth. 

However, the inclusion of the death sentence as a punishment in Article 110 turns a valid abolitionist argument from a daunting task to an impossible one. Because of this minute technicality, there is no way the existing Korean Constitution can ever allow for the abolition of capital punishment. A relic of the time when this Constitution was written, this technicality reflects a norm in criminal sentencing that drafters did not anticipate would require flexibility and second thoughts. Thus, unless these two words are amended out from the Constitution, the best case scenario for Korean abolitionists is maintaining its de facto status rather than formal abolition.

4. Conclusion

Keeping the Korean abolitionist stalemate in mind, the U.S. justice system should continue to thoroughly take advantage of the durability of its Constitution, and how the document promotes creative, objective approaches to arguing “mega-politics” topics such as capital punishment. Because the U.S. Constitution has this characteristic, it not only has more room for either side to prevail feasibly, but it also allows the  advocates of either side to further experiment with  their approaches without undermining the document or the system as a whole. It may even be productive to dabble with Korea’s approach of morality and deliberation of a “right to life” by blending this approach with its main substantive due process approach during constitutional interpretation, as doing so would echo modern social shifts toward the application of humanist approaches in traditionally “unfeeling” professional fields.

BIBLIOGRAPHY:

2008hun-KA23-1 (2010) Capital Punishment February 25, 2010 ... Global Health Rights. (2010). Retrieved December 8, 2021, from https://www.globalhealthrights.org/wp-content/uploads/2018/03/2008Hun.pdf. 

Bae, S. (2009). South Korea's de facto abolition of the death penalty. Pacific Affairs, 82(3), 407–425. https://doi.org/10.5509/2009823407 

Cho, B.-S. (2008). South Korea's Changing Capital Punishment Policy. Punishment & Society, 10(2), 171–205. https://doi.org/10.1177/1462474507087198 

Constitutionality of the death penalty in America. Death Penalty Information Center. (n.d.). Retrieved December 8, 2021, from https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america. 

Fritze, J. (2021, March 22). Supreme Court agrees to hear death penalty case against Boston Marathon Bomber Dzhokhar Tsarnaev. USA Today. Retrieved December 8, 2021, from https://www.usatoday.com/story/news/politics/2021/03/22/supreme-court-takes-case-boston-marathon-bomber-dzhokhar-tsarnaev/4339396001/.

Hirschl, R. (2008). The judicialization of mega-politics and the rise of political courts. Annual Review of Political Science, 11(1), 93–118. https://doi.org/10.1146/ annurev.polisci.11.053006.183906 

Korea (republic of)'s constitution of 1948 with amendments ... (n.d.). Retrieved December 5, 2021, from https://www.constituteproject.org/constitution/Republic_of_Korea_1987.pdf?lang=en. 

News Desk. (2015, April 8). Dzhokhar Tsarnaev found guilty on all 30 charges for role in Boston bombing. PBS. Retrieved December 8, 2021, from https://www.pbs.org/newshour/nation/jury-reaches-verdict-boston-bombing-trial. 

Seung-woo, K. (2021, September 2). Horrific crimes reignite debate over death penalty. The Korea Times. Retrieved December 7, 2021, from https://www.koreatimes.co.kr/www/nation/2021/09/251_314858.html/. 

Supreme Court of the United States. (2015). Retrieved December 8, 2021, from https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf. 

United Nations. (n.d.). Human rights. United Nations. Retrieved December 5, 2021, from https://www.un.org/en/global-issues/human-rights. 

United States of America 1789 (rev. 1992) constitution. Constitute. (n.d.). Retrieved December 8, 2021, from https://www.constituteproject.org/constitution/United_States_of_America_1992?lang=en.

Analyzing John Locke: Is there Law in the State of Nature?

By: Edgar Carvalho

Edited By: ALICE HURLEY and ANNA WESTFALL

John Locke begins the Second Treatise on Government by identifying the foundation of just governments. Turning away from the divine right of sovereignty, Locke affirms that God did not give Adam absolute authority. From this premise, he argues that Adam's heirs did not inherit divine rights. While one could refute the earlier premises on a teleological basis, Locke's third premise is historiographical: since it is impossible to trace down Adam's lineage, it is irrational to claim divine heritage. Locke then redefines political power, affirming the right to legislate for the protection of property. More importantly, this definition rests on the backing of the community, and the regulation of property being to the benefit of the public good.

As a key component of redefining political power, Locke examines the State of Nature. In this state, he theorizes that all are equal and free to act as they choose. While this notion of accentuated liberty is compatible with earlier philosophers, Locke further distinguishes himself by claiming that Natural Law exists even in a State of Nature. Guided by an innate desire for self-preservation, people naturally restrain their liberty (giving up rights that would place them at odds with each other) to live in greater social harmony. Locke provides evidence for the existence of Natural Laws in a State of Nature through an analogy of foreign jurisdiction. If a person commits a crime in a foreign country, they can be punished even though they are not citizens of said country. As long as the punishment fits the crime (with urgency on discouraging repeat offenses), any individual in a State of Nature can act in accordance with the Laws of Nature.

Following a glorification of the State of Nature and personal liberty, Locke turns to the evil inverses of the State of War and slavery. Locke defines the State of War as a conscious effort to take another's life. While both states share the lack of a common authority, the State of War is characterized by the use of premeditated force. Thus, the desire for common authority is integral to the State of Nature (eventually leading to the formation of a social contract) while unwarranted force promulgates the State of War. Locke adds a caveat to this discussion in claiming that the Law of Self-Preservation (as a corollary of the Law of Nature) allows for killing under self-defense. This premise relies on the assumption that an attack on property is a threat to liberty, and thus, killing is justifiable. Similarly, slavery breaks Natural Law because it contradicts the corollary Law of Self-Preservation. Arguing against slavery, Locke calls for freedom from absolute power. He defines natural liberty as the right to only be ruled by Natural Law. Likewise, he calls on social liberty as the right to solely follow laws consented by and for the benefit of the Commonwealth. Together, these liberties show the unlawfulness of slavery.

While Locke's liberal delineation of government is foundationally significant to modern democracies, his usage of the State of Nature seems implausible. I question whether there is any verisimilitude in attempting to envision the human being devoid of social contracts. The moment of birth in itself marks a contract between a parent and child. More importantly, this thought experiment assumes that human beings have unlimited liberty. Either this assumption rests on some sense of divine virtue, or it undermines the social nature of humanity. I firmly believe that every second of human nature has been imbued with social contracts. In other words, I cannot imagine a time when social contracts did not exist, to begin with. While Locke might contend that this was the case early on, his argument hinges on a massive assumption that contradicts decades of psychological research on social development. In all, Locke's Second Treatise of Government paved the way for liberalism (especially against monarchism), but on a hypothetical (rather than empirical) foundation.

BIBLIOGRAPHY:

Locke, John. 1980. Second Treatise of Government. Edited by C. B. Macpherson. Cambridge, MA: Hackett Publishing.