Burke
THE
ACADEMIC REVIEW
SPRING 2014 • VOLUME 1, ISSUE NO. 2
A Play on Power:
Coriolanus, the Fox and the
Lion
by Michael Promisel
The Incongruous
Branch:
Marbury and the Conflation
of Law and Politics
by Robert Batista
The Invasion of
Cambodia:
A New Means of Propelling
Vietnamization Policy
by John Wilson
A Path to Victory, Even
in Defeat:
Ken Cuccinelli’s Success with
Young Voters and What it
Means for the GOP’s Future
by Peter Finocchio
Competing Motivations
for Originalism:
Formalism v. Rights
by Hector Quesada
Letter from the Editors
Dear Reader,
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John “JR” Roach
Editor In Chief
Kasey Sease
Managing Editor
Burke
THE
ACADEMIC REVIEW
SPRING 2014 • VOLUME 1, ISSUE NO. 2
Contents
4
A Play on Power: Coriolanus, the Fox and the Lion
16
The Incongruous Branch: Marbury and the Conflation of Law and
Politics
28
36
42
BY MICHAEL PROMISEL
BY ROBERT BATISTA
The Invasion of Cambodia: A New Means of Propelling
Vietnamization Policy
BY JOHN WILSON
A Path to Victory, Even in Defeat: Ken Cuccinelli’s Success with
Young Voters and What it Means for the GOP’s Future
BY PETER FINOCCHIO
Competing Motivations for Originalism: Formalism v. Rights
BY HECTOR QUESADA
Publication Staff
editor in chief
John “JR” Roach
managing editor
Kasey Sease
editors
Samara Brown
David McKillop
graphic design
Michael Douglas
cover photography
Michael Douglas
Contact Information
We welcome comments and suggestions at [email protected].
The Burke Academic Review is published semesterly by students at the University of Virginia
and distributed free to the university community.
The opinions expressed in The Burke Academic Review are those of the authors alone.
All content is ©The Burke Academic Review unless otherwise noted.
Staff Bios
John Roach is a third year in the History Distinguished Majors Program from Richmond, VA,
researching twentieth century British political history. In addition to Burke Society, he is a member of
the undergraduate Moot Court team and the quiz bowl team.
Kasey Sease is a fourth year in the Politics Distinguished Majors Program, double majoring in
History and Government. She studies early American history and 19th century Southern political
thought. In addition to serving as the president of the Burke Society, Kasey is a member of the Phi
Beta Kappa society, ADAPT, and serves as a seasonal intern for the Mariners’ Museum in Newport
News, VA.
Samara Brown is a fourth year majoring in Government and History. Her activities include the Burke
Society, the Virginia Advocate, and the Network of Enlightened Women.
David McKillop is a third year from Long Island currently working towards a History and
Government double major. He focuses his studies on early American history and Constitutional law.
Besides being a member of the Burke Society, he plays club rugby and is a volunteer firefighter back
home in Jamesport, NY.
Michael Douglas is a fourth year majoring in Computer Science and Mathematics.
A Play on Power: Coriolanus, the Fox and
the Lion
By Michael Promisel
Abstract
Although several of Shakespeare’s classical plays incorporate Roman politics to varying
degrees, Coriolanus stands out as a narrative of acquiring and wielding power in Rome. Coriolanus is the gripping portrayal of a historical and archetypal Roman hero’s ascent and fall from
political power. After defeating Rome’s enemies on the battlefield, Coriolanus returns home
to the realm of politics and an entirely different order of conflict and opponents. Upon his return, Brutus and Sicinius, tribunes of the people and Coriolanus’ adversaries, vow to prevent
the general’s ascent to power. Their mischievous and crafty plots for attaining political ends
deeply contrast Coriolanus approach to power. In fact, the subsequent unfolding of political
calamity reveals significant differences between the virtues necessary for success in warfare
and politics. The violent nature that secures Coriolanus’ prowess in battle also provokes his
political failures: exile from Rome, defection to the Volscian enemies, and eventually, his execution. This self-destructive nature ultimately casts serious doubt on the nobility of Roman
virtue and the stability of the early Republic. By examining Shakespeare’s opposing portrayals
of Coriolanus and the tribunes, I propose a framework for understanding their respective approaches to power.
Shakespeare develops two distinct patterns, or personas, of power when depicting these
characters. These personas are best defined by the images of the fox and the lion in Machiavelli’s The Prince. Through an examination of these power tropes, I argue not only for their
utility in understanding the approaches to power manifest in the play, but also their value for
reflection on wielding power in political affairs. The shortcomings of Coriolanus and the tribunes suggest a more effective, hybrid approach to political power and question a foundational
element of Roman political virtue.
A Play on Power: Coriolanus, the Fox and the Lion
One of the most distinct features of Shakespeare’s Coriolanus is its focus on power. In
fact, the word ‘power’ appears thirty-eight times throughout the play, more than in any other
work of Shakespeare’s corpus (Notes 1.1.209). Set amidst the tumult of the Roman Republic,
the plot revolves almost entirely around political activity and the individuals holding power,
namely Coriolanus and the tribunes. Shakespeare makes evident in these characters two distinct approaches to power that are maintained with surprising consistency throughout the play.
Coriolanus and the tribunes, Brutus and Sicinius, follow patterns, or personas, of power that
marshal and predict their political activity. Moreover, Shakespeare proves willing to alter
the historical record in rendering these distinctions; he makes several adaptations in order to
preserve them.
4 • The Burke Academic Review
Spring 2014
The aforementioned power personas are best exemplified by the symbols of the lion and
the fox explained by Nicollò Machiavelli in The Prince. Coriolanus’ approach to power follows the lion, driven by unfettered thumos1. The tribunes, with their devious plots, represent the fox power persona. Although it is uncertain whether Shakespeare bore in mind Machiavelli’s animalistic symbols when writing Coriolanus, his work gives human flesh to the
personas, permitting study of the fox and the lion in practice. After defining these personas
and demonstrating their explanatory capacity for the political activity of Coriolanus and the
tribunes, it is possible to examine whether Shakespeare renders any judgments concerning
these approaches. In fact, the downfall of Coriolanus and the impotency of the tribunes suffering his vengeance demonstrate the shortcomings of each persona’s unilateral employment.
Although Shakespeare does not outline any explicit teachings, these insufficiencies support
Machiavelli’s prescription for unifying both the lion and fox in wielding power. Finally, the
shortcomings of the lion, a distinctly Roman persona, may testify to larger deficiencies in the
Roman conception of virtue.
Defining Terms: The Lion and the Fox
Although the images of the lion and the fox immediately invoke intuitions about wielding
power, it is necessary to ground our natural deductions in established definitions. Machiavelli’s The Prince provides a sufficient foundation for this reflection. Before proceeding, it is
important to note the context in which Machiavelli invokes these symbols. These approaches
to power are meant as manifestations of the bestial nature that princes must arouse when administering political activity. Because man is not all good, animalistic force is necessary in human affairs to supplement the persuasion and structure of law (XVIII, 69). The symbols of the
lion and the fox represent methods of marshaling princely action. Machiavelli explains, “thus,
since a prince is compelled of necessity to know well how to use the beast…so one needs to be
a fox to recognize snares and a lion to frighten the wolves” (XVIII, 69). The lion and the fox
each exhibit important qualities of a successful prince. The fox uses foresight and cunning to
avoid snares, and the lion’s ferocity and courage serve as protection from enemies. Thus, these
personas illustrate different means of exercising power and have distinct strengths.
The fox employs knowledge, craftiness, and devious acts in its pursuit and use of power.
Machiavelli champions the fox’s approach to power in securing political ends. He continues,
“and the one who has known best how to use the fox has come out best…men are so simple
and so obedient to present necessities that he who deceives will always find someone who
will let himself be deceived” (XVIII, 70). The fox is capable of exploiting the many who are
shortsighted and succeeds when acting with proper knowledge and preparation. On the other
hand, the lion relies on physical prowess, courage, and uncompromising spiritedness to attain
his political ends. This approach is best suited to fighting enemies, not navigating the nuances
and snares of political action. “Those who stay simply with the lion do not understand this.
A prudent lord, therefore, cannot observe faith, nor should he, when such observance turns
against him, and the causes that made him promise have been eliminated” (XVIII, 69). Unlike
the lion, the prince cannot maintain a steady faith, or fixed set of values, that dictate his politi1
Thumos will be further defined by means of the Chariot analogy in Plato’s Phaderus
Spring 2014
The Burke Academic Review • 5
cal activity. When necessity demands it, the prince must be capable of putting aside the values
or virtues he outwardly professes. Thus, the lion’s nature, dependent on maintaining certain
virtues, will fail on its own. It is for this reason that Machiavelli ultimately supports manifesting both the lion and the fox in power (XVIII, 69). When used together, the prince wields his
power with strength and craft. Nonetheless, Machiavelli’s insight into these power personas
provides a sufficient foundation for considering the actions and schemes of Coriolanus and the
tribunes.
Although Machiavelli’s definition of the lion is illuminating, it can be enhanced by understanding the actions of lions, including Coriolanus, in light of thumos. Put simply, if the
lion represents the image of Coriolanus’ power, thumos is the fire that incites his action. It is
a disposition of the soul that forms the underlying principle of both public and private activity.
For the purposes of this paper, thumos is best understood through the metaphor of the chariot
soul in Plato’s Phaderus. According to Plato, the chariot, and the soul, consists of three parts:
“two of which had the form of horses, the third that of a charioteer” (253d). Each part of the
chariot plays a unique role in organizing motion. The dark, or erotic, horse represents passion
and appetite and is not significant for our discussion. The second horse represents thumos:
The horse that stands at the right hand is upright and has clean limbs; he carries his neck
high, has an aquiline nose, is white in color, and has dark eyes; he is a friend of honour joined
with temperance and modesty, and a follower of true glory; he needs no whip, but is guided
only by the word of command and by reason (253d).
In this image, Plato indicates three important aspects of thumos. First, thumos is spirited
and imposing in its stature; this part of the soul drives action, supplies courage, and is the seat
of emotion. Second, thumos strives for honor and glory. Each part of the soul seeks different
ends, and it is thumos that pursues honor and glory. Thus, thumos is the quintessential temperament of a warrior. It is for this reason that Plato mentions the third aspect of thumos, its
necessary reins of moderation and reason. In the analogy, the charioteer represents intellect
directing and restraining the drive of the two horses. Thumos, if left unchecked by reason, can
lead the chariot along an unstable and shortsighted path. It is this disposition of the soul that
underlies the activity of lions, such as the noble Coriolanus.
Coriolanus the Lion
Coriolanus’ approach to power is initially demonstrated in the battle scenes of Act I. These
scenes provide the first impression of Coriolanus’ actions as a political figure and bearer of
power. In this role, Coriolanus reveals his remarkable spirit and proves a ferocious warrior.
This is apparent in his instructions to fellow soldiers: “now put your shields before your hearts,
and fight/With hearts more proof than shields…He that retires, I’ll take him for a Volsce,/And
he shall feel mine edge” (1.4.23-28). For Coriolanus, true power comes from the strength
of the heart and potency of spirit, not the weapon or shield. Any second-guess or inkling of
hesitation marks an enemy to Coriolanus’ noble cause. Amidst the commotion and retreat of
his soldiers in scene 1.5, Coriolanus becomes stranded in the city of Corioles and is presumed
dead by his fellows (1.5.21). However, immediately after his eulogy is proclaimed, Coriolanus emerges from the gates in truly heroic fashion. This dramatic action is indeed a result of
Shakespeare’s creative zeal. Plutarch, his historical source, writes that Coriolanus was accom6 • The Burke Academic Review
Spring 2014
panied by several soldiers inside Corioles and did not fight his way out alone (Plutarch, 151).
Thus, Shakespeare makes a point to emphasize Coriolanus’ ferocious and spirited qualities as
a warrior from the beginning of the play. In his first test of power, Coriolanus announces his
presence with a roar.
In addition to his personal military achievements, Coriolanus exhibits the spirit of the lion
in his guidance of the soldiers beneath him. Once the Romans overtake Corioles, the soldiers
set about exploring and collecting the spoils of the city. Although it is customary for captured
cities to be pillaged for their goods, Coriolanus immediately rebukes his soldiers. He shouts,
“bury with those that wore them, these base slaves,/Ere yet the fight be done, pack up. Down
with them!” (1.6.6-7). For Coriolanus, the spoils afforded by victory are secondary; so long
as the battle continues, there is no time to focus on such things. Thus, Coriolanus craves more
than material benefit in his leadership. But what does Coriolanus seek? This question is answered in the next scene as he rallies support for continuing the fight. He proclaims, “if any
fear/Lesser his person than an ill report;/If any think brave death outweighs bad life,/And that
his country’s dearer than himself…follow Martius” (1.7.70-75). The ultimate principle guiding Coriolanus’ military action is the glory of Rome. Spoils mean nothing in light of the honor
achieved in devotion to the city.
Perhaps the most emblematic image of Coriolanus’ military power arises following the
conquest of Corioles. Instead of seeking rest, Coriolanus, covered in his own blood, immediately sets his heart to the next battle. He arrives at the second Roman camp and demands
action, despite the astonishment of his fellows. Cominius exclaims, “who’s yonder,/That does
appear as he were flayed? O gods!/He has the stamp of Martius.” Coriolanus responds asking,
“Come I too late?” (1.7.21-4). As if an animal in a frenzied state, the flayed Coriolanus is blind
to the ails of his flesh in pursuit of victory and glory. The incredulity of his companions highlights the astounding extent of Coriolanus’ martial hunger. In the context of battle, Coriolanus
manifests the unrestrained thumos Plato describes and demonstrates himself as a true warrior.
As demonstrated by his triumphs in Act I, Coriolanus’ nature and methods of leadership
are best suited for the battlefield. He achieves stunning success and displays the capacity of a
lion to wield and exert significant power in war. However, when Coriolanus returns to Rome
as a hero, the circumstances of power shift from warfare to political activity. Whereas the
battles of Act I demonstrate the full potential of his lion-nature, the politics of Acts II and III
reveal its shortcomings. In fact, Coriolanus himself recognizes the limits of his own nature.
When Volumnia, his ambitious mother, attempts to persuade Coriolanus into pursuing the
consulship, he responds accordingly, “Know, good mother, I had rather be their servant in
my way/Than sway with them in theirs” (2.1.199). In a statement of surprising self-understanding, Coriolanus acknowledges that he is not suited for political office. Nonetheless, he
begrudgingly agrees to pursue the position and follow the customs of election, including an
appearance to the plebeians (2.3.110). The results are not surprising. When faced with opposition, Coriolanus responds with war-like anger, not political suave; this jeopardizes his political
and civil standing. He is unwilling to temper his emotions and spirit for the sake of political
gain, or even his own safety. He explains this to Volumnia: “Why did you wish me milder?
Would you have me/False to my nature? Rather say I play/The man I am” (3.2.14-6). In the
realm of political shuffling, Coriolanus’ nature proves uncompromising. The lion dares not
comb his mane.
Spring 2014
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Coriolanus’ nature is no secret to the characters that advise him in political affairs. Volumnia understands her son best of all characters and advises him with unique insight. She
explicitly states that suppression of his spirit is the best way to achieve his political ends. If
only he were able to moderate his actions for a short period of time, he could ascend to the
consulship. She implores, “pray be counselled./I have a heart as little apt as yours,/But yet a
brain that leads my use of anger/To better vantage.” (3.2.28-30). Volumnia recommends the
same advice as Plato for curbing Coriolanus’ thumos. Just as the intellect of the charioteer
must whip the horses into proper form, Coriolanus should use his brain to redirect his anger in
a more practical direction. This fault, the unrestrained spirit, is indeed the downfall of all lions,
just as Machiavelli warns. Without proper restraint, the lion will be caught up in the snares of
political activity. In a final effort to convince her son, Volumnia says something quite surprising; Coriolanus must supplement his power with deception. “If it be honour in your wars to
seem/The same you are not, which for your best ends/You adopt your policy, how is it less or
worse/That it shall hold companionship in peace/With honour, as in war, since that to both/It
stands in like request?” (3.2.48-52). Deception, she argues, serves the same purpose in politics
as it does in war. If only Coriolanus could deceive his enemies, he will attain victory. However, this tactic is characteristic of the fox, not the lion. Thus, the nature of the lion is insufficient for a complete ascent to, and use of, power. Volumnia arrives at the same conclusion as
Machiavelli; power must be approached with both the force of the lion and the craft of the fox.
The third and final way in which Shakespeare demonstrates Coriolanus’ nature is his inadequacy as a public speaker. The undisciplined ferocity of his thumos is manifested in his
inability to restrain anger in public speech. Although this is evident throughout the play, it is
perhaps most striking when Coriolanus is in the most danger. In Act III, it is not Coriolanus’
political career on the line, but his own life. Despite the desperate efforts of his friends and
loved ones, he is unable to hold back even under these circumstances. He states, “as for my
country I have shed my blood,/Not fearing outward force, so shall my lungs/Coin words till
their decay against those measles” (3.1.79-81). No matter how much resistance he faces, Coriolanus’ spirit proves unyielding. Ultimately, it is his enflamed tongue that has him banished
from the city. He states, “I would not buy/Their mercy at the price of one fair word,/Nor check
my courage for what they can give/To have’t with saying ‘Good morrow” (3.3.90-2). Coriolanus’ lion courage refuses to back down despite the circumstances of his demise. Thus, on the
verge of securing the highest political office in Rome, Coriolanus winds up banished from the
city. Although he risked his life for the preservation of Rome, the lion is cast out by his own
people and is overcome by the craft of the tribunes.
Brutus, Sicinius, and the Fox
The tribunes’ exercise of power directly contrasts the lion-character of Coriolanus. Brutus
and Sicinius approach the position of tribune not as powerful lions, but as cunning and conniving foxes. Shakespeare first highlights this contrast through the very setting in which the
tribunes act. Brutus and Sicinius are often alone on stage, discussing and plotting as if entirely
removed from the flow of action. Unlike Coriolanus’ constant engagement, the circumstances
of these private conversations suggest sinister and devious technique. This pattern is apparent
from the very first scene of the play when Shakespeare gives the stage direction “Exeunt all
8 • The Burke Academic Review
Spring 2014
but Sicinius and Brutus” (1.1.250). The first scene emphasizes the covert context in which
the tribunes will discuss and plot their approach to power. This setting of conversation, this
fox den of scheming, is framed six more times as the tribunes continue their plotting (2.1, 2.2,
2.3, 3.3, 4.2, 4.6). Thus, before even examining the content of the words and actions of the
tribunes, Shakespeare frames their efforts in a mischievous setting.
In addition to the unique setting of their interaction, the tribunes approach their power
through a lens that is much more far-sighted than Coriolanus. Whereas Coriolanus is always
focused on the task or battle at hand, the tribunes continually look ahead, predict, and discuss
their opportunities accordingly. Thus, just as Machiavelli explains the fox’s capacity to predict
and avoid snares, the tribunes first foresee Coriolanus’ rise to power and potential threat. In the
opening scene, Brutus examines Coriolanus’ opportune position and predicts his rise as war
hero. He states, “fame, at which he aims,/In whom already he’s well graced, cannot/Better
be held nor more attained than by/A place below the first” (1.1.261-4). Indeed, the tribunes’
prediction proves correct and Coriolanus returns to Rome riding a wave of victory and glory.
After the flourish of Coriolanus’ return, the tribunes immediately turn their focus to what lies
ahead: a threat to their power. Sicinius says, “on the sudden/I warrant him consul,” and Brutus
responds, “then our office may/During his power go sleep” (2.1.217-9). The tribunes respond
to political activity with skepticism and discussion. In addition to identifying this threat, the
tribunes continue forming other predictions, all of which pan out. They anticipate Coriolanus’
intemperance rendering his honors short-lived (2.1.220-3), the ease with which the people will
forget Coriolanus’ present fame (2.1.225), and the begrudging attitude Coriolanus will bear
in the market place (2.1.229-30). It is these predictions that serve as the call to action for the
tribunes. After identifying the snares, they must disarm them.
The way in which the tribunes go about addressing the threats to their authority is most
revealing of their fox-like approach to power. They do not decide to pick up arms, storm the
Capitol, or confront the face of the threat as a lion would. Instead, they resort to more manipulative tactics. Brutus first espouses this method: “we must suggest the people in what hatred/
He still hath held them” (2.1.241-2). The tribunes decide to challenge the up swell in Coriolanus’ power by inciting the passions of the people. Although the citizens find no objection
to Coriolanus when they first meet him, the tribunes quickly step in to plant their mischief.
Sicinius implores, “could you not have told him/As you were lessoned: when he had no power/
But was a petty servant to the state,/He was your enemy, ever spake against/Your liberties”
(2.3.172-6). This quote suggests that the tribunes have already made efforts to direct the opinions of the people and continue to influence them. By the end of the scene, Brutus and Sicinius
have persuaded the citizens to reconsider their original decision and challenge them to spread
the word to all citizens that the wrong choice has been made (2.3.257). Thus, the tribunes’
exercise of power relies on the manipulation of external objects. Their power is buttressed not
by personal strength, but the power of the people they influence.
The effects of the tribunes’ manipulation are immediate and formidable. The tides are
turned and Coriolanus is forced to appear in front of the citizens once more to receive approval. In the chaotic scuffle of action, the previously concealed manipulation becomes overt as
the tribunes play on the enflamed passions of the people. Sicinius proclaims, “you are at point
to lose your liberties./Martius would have all from you, Martius/Whom late you have named
for consul” (3.1.195-7). The people respond with mutinous yells and cries for action. BruSpring 2014
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tus continues, “upon the part o’th’ people in whose power/We were elected theirs, Martius is
worthy/Of present death” (3.2.210-2). Thus, the tribunes outwardly act on their objective only
once they have secured the support of the people. With this backing, they have become an
imposing threat. As a result, Coriolanus erupts with anger, as the tribunes predicted, and this
further enflames the people. In a final covert move, Sicinius and Brutus instruct the Aedile to
incite the people to echo the punishment they proclaim (3.3.12-17). Banishment is chosen and
the people follow suit as if an extension of the minds and mouths of the tribunes themselves.
Thus, through means of both overt and covert manipulation, Brutus and Sicinius ultimately
succeed in securing their political objective: the ousting of Coriolanus.
The final evidence for the fox persona of the tribunes is found in the recognition of other
characters. Just as Volumnia and others validated Coriolanus’ power persona in their advice,
several characters recognize the scheming plots of the tribunes. In fact, even Coriolanus recognizes their devious proclivities. He is the first to suspect their schemes and upon request
of evidence, he simply responds, “you are like to do such business” (3.1.49). Coriolanus
speaks to an almost predictable pattern in the tribunes’ actions. It is in their very nature to act
in this way. Furthermore, Volumnia gives perhaps the most astute validation of the tribunes
scheming: “hadst thou foxship/To banish him that struck more blows for Rome/Than thou hast
spoken words” (4.2.20). She invokes the image of the fox outright in accusing the tribunes
for banishing her son. Indeed, this final quote brings to light the contrast in power personas
that has become increasingly apparent in the play. Coriolanus, the hero throwing punches for
Rome, and the tribunes who brought him down from the devious doings of their den.
Questioning the Fox & the Lion: Coriolanus’ Invasion of Rome
Shakespeare maintains the power personas of the fox and the lion leading up to Coriolanus’ alliance with the Volsces and invasion of Rome in Acts IV and V. However, it may be argued that this framework is seriously questioned in light of the events of Coriolanus’ invasion
of Rome. More specifically, the tribunes’ glaring miscalculation of their security in power and
Coriolanus’ surrender to Volumnia seem to suggest noteworthy breaks from the power tropes
developed earlier. Shakespeare devotes significant attention to both of these events; therefore,
such concerns must be addressed in order to reach a more complete understanding of power in
these characters of Coriolanus.
The scene in which the tribunes express their satisfaction with the political situation in
Rome, and eventually learn of its impending doom, is laced with dramatic irony. While Coriolanus and the Volscians are barreling their way toward Rome, the tribunes are portrayed in
a surprising state of ease. Their approach to politics has transformed from constant scheming
to repose. When discussing their “former” enemy, Sicinius states, “we fear not of him, neither
need we fear him” (4.6.1). Brutus agrees and testifies to a state of general peace in Rome: “the
gods have well prevented it, and Rome/Sits safe and still without him” (4.6.37). The scene is
nearly utopian; never before has Rome reached a state of such harmony and peace. However,
in a brilliant reversal of emotion and irony, the line directly following Brutus’ proclamation introduces the Aedile, announcing the impending invasion. So much for an ideal Rome. The tribunes are incredulous: Brutus orders, “go see this rumorer whipped. It cannot be/The Volsces
dare break with us” (4.6.48). It takes several messengers with increasing amounts of informa10 • The Burke Academic Review
Spring 2014
tion to pull the tribunes out of their blissful fantasy. What is to be made of this dramatic shift
in the tribunes’ foresight? Has Shakespeare abandoned the persona of the fox altogether?
Unfortunately, Shakespeare does not provide much more room for reflection on the power
of the tribunes. For the remainder of the work, Brutus and Sicinius play a more reserved role,
living at the mercy of Coriolanus’ vengeance. This, perhaps intentionally, leaves the door
open for interpretation of the power wielded by the tribunes. However, the stark contrast of
the tribunes’ position in 4.6 to their pervious scheming is noteworthy; indeed, 4.6 is entirely
Shakespeare’s creation. This deviation from the historical record suggests Shakespeare wishes
to communicate something about the tribunes’ use of power. This is not an abandonment of
the fox persona he so rigorously developed earlier; it is a scrutiny of its utility in politics. Although the foxes have temporarily achieved their political end, the dramatic change in events
reveals them helpless under the lion’s paw. Their impotency and desperation throughout the
remainder of the play suggest that no fox is suited to maintain power. Furthermore, there
are limits to how far knowledge and foresight can carry ambitions in politics. The apparent
mastery the tribunes had secured over power comes crashing down with the invasion of Coriolanus. Thus, the significance of this scene is not to cast doubt on the adequacy of the fox
persona in describing the tribunes’ approach to power, but the shortcomings of the fox in the
animalistic realm of politics.
Before addressing Coriolanus’ shocking submission to Volumnia’s request of surrender, it
is important to understand the context of this decision. While the tribunes who banished him
were basking in their temporary peace, the lion of Coriolanus was on the prowl for more prey.
The exile seems to intensify his roaring thumos and obliterate any remaining control reason
has over his actions. This is demonstrated in his decision to align with Rome’s greatest adversary, and his own mortal enemy, Aufidius. He explains, “not out of hope-/Mistake me not-to
save my life, for if/I had feared death, of all the men i’th’ world/I would have ‘voided thee, but
in mere spite/To be full quit of those my banishers/Stand I before thee here” (4.5.80-5). Thus,
Coriolanus decides to ally with his bitter rival as a result of his enflamed vengeance. The warring spirit that once slaughtered Volscians in the name of Rome now shamelessly solicits their
partnership. Shortly after joining the Volsces and entering once again into the familiar territory of war, Coriolanus seems to be truly flourishing again. Aufidius’ Lieutenant observes, “I
do not know what witchcraft’s in him, but/Your soldiers use him as the grace for meat,/Their
talk at table” (4.7.2-4). As soon as Coriolanus returns to his predestined realm of warfare, he
achieves an electric attraction that is wholly absent from his affairs as a political figure. In
these scenes Shakespeare suggests that Coriolanus’ nature is not at home in Rome, or any other
city, but only amidst the heat of war.
In the midst of this wrathful invasion, Coriolanus demonstrates the extremity of his obstinate nature through his treatment of former friends. While Coriolanus is camped outside
the Roman boundaries, his fellow citizens inside resort to desperate measures to prevent attack and send for his mercy. After Coriolanus refuses to hear Cominius’ pleas, Menenius
finally decides to make an attempt. He approaches the Volscian camp expecting his presence
to awaken Coriolanus’ sense and open a conversation for peace. However, Coriolanus’ rage
continues to blind him and he will not permit Menenius’ entry (5.2.77). Moreover, he claims
no one will be able to sway him: “wife, mother, child, I know not. My affairs/Are servanted to
others. Though I owe/My revenge properly, my remission lies/in Volscian breasts” (5.2.80-3).
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The Burke Academic Review • 11
Coriolanus has subjected all forms of human connection to his impassioned mission. The aspects of his lion nature manifested and described throughout the play have reached their peak.
It is for this reason that his subsequent submission to Volumnia is so surprising. In the very
next scene, Volumnia makes several arguments to Coriolanus and he miraculously agrees to
spare Rome. For the first time in the narrative, Coriolanus sets aside his ambition and fervor in
favor of another’s cause. The fickle nature of this concession is condemned by Aufidius: “at
a few drops of women’s rheum, which are/As cheap as lies, he sold the blood and labour/Of
our great action; therefore he shall die” (5.6.45-7). As Aufidius suggests, this decision makes
no sense in the context of Coriolanus’ previous actions and aspirations. Has the lion finally
been tamed? Does the narrative bearing his name conclude in a triumphant change of heart?
The final scene answers these questions with a resounding no. The rationale behind Coriolanus’ decision to spare Rome becomes less important when viewed in light of Coriolanus’
return to the old habits and dispositions in his final actions. Even if Volumnia is able to curb
her son’s towering ambition and spirit, the final taste Shakespeare leaves in our mouths is the
spice of Coriolanus’ burning rage. In a scene reminiscent of his trial in Rome, Coriolanus
begins in high favor with the Volscian people. However, all it takes is one provocation and
Coriolanus begins to dig his own grave. In this context, Aufidius calls Coriolanus a “boy,” and
he explodes. He exclaims, “cut me to pieces, Volsces. Men and lads,/Stain all your edges on
me. ‘Boy’!” (5.6.112-3). In a short manner of time, the citizens who were just blaring trumpets
and parading in celebration, now call for Coriolanus’ death. Despite the Lords’ insistence on a
fair and judicial trial, Coriolanus’ temper boils over and he resorts to his violent nature. Drawing his sword, he challenges Aufidius and his companions to duel, provoking the Conspirators
and ultimately bringing about his own death (5.6.127-8). Thus, there is no development in
Coriolanus’ character from his time in Rome to the end of the play. The same outrage that
prevented his political ascent and secured his banishment from Rome, ultimately leads to his
own demise. Shakespeare plants this observation in the solemn words of Second Lord: “His
own impatience/Takes from Aufidius a great part of blame” (5.6.145-6). Indeed, Coriolanus’
lion nature proves self-destructive, not only for politics, but his own life. Thus, the lion persona
remains present to the very end.
Roman Virtue and Power
The historical and political context of Shakespeare’s Coriolanus lends itself to more than
a detached reflection on two methods of wielding power. One must not forget the distinct setting of the exposition: Rome. Indeed, Coriolanus is more than one of many lions engaged in
politics and power throughout the eons of man’s turbulent political history; he is a noble Roman. Shakespeare makes a point to illustrate Coriolanus’ standing among the greatest leaders
Rome has to offer. This is suggested in Act I when Coriolanus is thought to be dead and Lartius pronounces his eulogy. “Thou wast a soldier/Even to Cato’s wish, not fierce and terrible/
Only in strokes, but with thy grim looks and/The thunder-like percussion of thy sounds/Thou
mad’st thine enemies shake as if the world/Were feverous and did tremble” (1.5.29-34). The
most significant part of this eulogy is the invocation of Cato, an individual the audience would
immediately recognize as a quintessential Roman hero. Through Lartius’ words, Shakespeare
places Coriolanus in the line of truly great Romans. It is important to note the anachronism in
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this statement; Cato did not live for another few centuries after Coriolanus. Thus, Shakespeare
extends a literary arm through the historical record in order to frame Coriolanus’ place among
Roman greats.
Coriolanus’ status as a great Roman is a result of the virtues he possesses. In fact, the
Romans champion the lion approach that Coriolanus embodies as their most noble of qualities. Cominius makes this notion explicit: “it is held/That valor is the chiefest virtue, and/Most
dignifies the haver. If it be,/The man I speak of cannot in the world/Be singly counterpoised”
(2.2.80-5). Shakespeare establishes a very clear definition of Roman greatness. Valor is the
epitome of Roman character and Coriolanus embodies valor, or courage, better than anyone
else. Thus, as Cominius suggests, Coriolanus’ character is unparalleled not only within the
local context, but indeed across the entire world. As it turns out, Shakespeare’s Coriolanus
is about more than just the use of power by any individual. It is a work entitled and created
around an individual the Romans would have espoused to be among their greatest and most
virtuous leaders ever.
With this context in mind, Shakespeare’s narrative about Coriolanus’ use of power takes
a step beyond the individual to reflect on the character of an entire civilization. Of course,
one must keep in mind that this is a literary work, not a political treatise. Nowhere does
Shakespeare make explicit any general conclusions about politics, power, or even Roman
culture. However, the actions of Coriolanus, and his status as a pinnacle of Roman virtue,
provide a viable context for Shakespeare’s thoughts on the Roman approach to power. The
most evident deduction about the lion’s approach is its insufficiency in marshaling collective
political action. Although the tribunes reveal the lion’s incapacity to navigate the nuances
of politics, Coriolanus himself demonstrates a unilateral, monarchical approach to politics.
He states, “it makes consuls base, and my soul aches/To know when two authorities are up,/
Neither supreme, how soon confusion/May enter ‘twixt the gap of both and take/The one by
th’other” (3.1.111-4). This noble Roman is unable to grasp the principles of republican government. Politics is not like warfare; action must stem from deliberation and compromise, not
the charging heels of a heedless leader. Perhaps Roman virtue is not suited for this means of
governance. Furthermore, the virtue of valor alone is not sufficient for the proper wielding of
power. Cominius makes this suggestion during Coriolanus’ bout of rage in the Roman market
place: “but now ‘tis odds beyond arithmetic,/And manhood is called foolery when it stands/
Against a falling fabric” (3.1.245-7). Thus, courage and valor are only practical for wielding
power when tempered. In this scene, Coriolanus’ violent stand against the tribunes appears
foolish because of the extent he allows valor to rule his action. Valor is most valuable not
when it reaches its extreme, but when checked by the discernment of reason.
Perhaps the most revealing defect of valor is its self-destructive nature. When pursued to
its extreme, valor transcends the constraints of reflection and becomes an unstoppable force.
As demonstrated by the Coriolanus’ betrayal of Rome, valor has the capacity to threaten the
very grounds from which it grows. Menenius, a character with unique insight into Coriolanus
and Roman politics, foresees this danger. He states, “this tiger-footed rage, when it shall find/
The harm of unscanned swiftness, will too late/Tie leaden pounds to’s heels. Proceed by process,/Lest parties - as he is beloved - break out/And sack great Rome with Romans” (3.1.3139). Although Menenius does not direct this warning to Coriolanus, he has foreshadowed the
impending doom of both Rome and its valiant leader. As Menenius suggests, power must be
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The Burke Academic Review • 13
restrained if noble ends are to be secured. Thus, valor, the chief among Roman virtues, proves
questionable in the exercise of power in politics and the preservation of a stable political community.
Conclusion
Shakespeare’s Coriolanus provides more than a literary exposition on the early Roman
Republic. His focus on a particularly political plot sheds light on power through those who
wield it. Unlike a political treatise grounded in principles and deductions, this play offers insight by opening the curtains on the activity and use of power in personalized action. Through
his development of Coriolanus and the tribunes, Shakespeare unfolds an arena in which two
distinct approaches to power are manifested and locked in political conflict. The lion and the
fox personas articulated by Machiavelli are given human flesh.
When Shakespeare’s portrayal of these personas is paired with the definitions and understanding of Machiavelli and Plato, their true strengths and weaknesses begin to come to light.
Coriolanus’ efforts in battles on behalf of the Romans and Volscians demonstrate the potential
and dominion of the lion in the realm of warfare. Similarly, the tribunes’ capacity to foresee
threats, understand the nuances of politics, and take manipulative action testifies the fox’s potency in politics. However, the uncompromising adherence of these characters to their narrow
understanding of power also reveals shortcomings in their approaches. Machiavelli’s warnings prove valid: Coriolanus is unable to restrain thumos to overcome the snares of politics,
and the tribunes’ reliance on external manipulation leaves them defenseless when confronted
by imposing enemies. Finally, Coriolanus’ status as the epitome of Roman virtue reveals possible faults in the Roman approach to power. Coriolanus’ inability to restrain his pursuit and
employment of valor may be emblematic of a self-destructive Roman culture. If Coriolanus
and Rome are not conquering others, they are prone to turn on themselves. Thus, through its
own fox-like ways, Shakespeare’s Coriolanus offers insight into the snares and potency of
power in the realm of human affairs.
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Spring 2014
Works Cited
Machiavelli, Niccolò. The Prince. Trans. Harvey C. Mansfield. Chicago, IL: University of
Chicago Press, 1998. Print.
Plato. Euthyphro, Apology, Crito, Phaedo, Phaedrus. Trans. Harold North Fowler. Cambridge,
MA: Harvard University Press, 1990. Print.
Plutarch. Lives of the Noble Grecians and Romans. Trans. Thomas North, Sir. New York:
AMS Press, Inc., 1967. Print.
Shakespeare, William. The Tragedy of Coriolanus. Ed. R. B. Parker. Oxford: Oxford University Press, 2008. Print.
Michael Promisel is a Fourth Year Government major at the University of Virginia from Fairfax,
Va. His primary academic interests are in political leadership and the history of political thought,
which he aspires to continue studying in graduate school.
Spring 2014
The Burke Academic Review • 15
The Incongruous Branch: Marbury and the
Conflation of Law and Politics
By Robert Batista
If men were angels, no government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be necessary. In framing a
government which is to be administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed; and in the next place oblige
it to control itself. - Federalist No. 51
The presence of Supreme Court justices at State of the Union addresses has always seemed
out of place. Indeed, the clause of the Constitution from which these grand political spectacles
derive (Art. II, §3) only specifies that the President “give to the Congress Information of the
State of the Union, and recommend to their Consideration such Measures as he shall judge
necessary and expedient.” While the clause does not expressly bar the Supreme Court from
these addresses, there is still incongruity in the Supreme Court’s proximity to such a politically-charged atmosphere. The unfortunate implications were visible during the 2010 address,
when President Obama criticized the justices for their ruling in Citizens United to very partisan
applause. This palpable tension is indicative of how the Court is politically intertwined with
the other branches beyond the scope of a role as an impartial check on the constitutionality
of the actions of Congress and the executive. The reason for this mix of law and politics, I
contend, harkens all the way back to one of the Court’s first landmark decisions: Marbury v.
Madison.
In this paper, I will present my theory of Marshall’s opinion as the engine behind “covert
political review”. This theorysargues that Marshal, in his Marbury opinion conflated judicial
review’s potency as a political sword and shield of constitutional integrity that foreshadowed
and cemented the Court’s political clout.
There was a time before Marbury, as the 1803 decision came nearly 15 years after the
Constitution’s ratification. The existence of this gap indicates that any argument supporting
the notion that Marbury marks a momentous turning point in American legal and political history must consider the state of affairs prior to 1803 and evaluate Marbury conforms or deviates
from this framework. The second main thread of my argument is that while Marshall’s vision
of covert political review marked a clear deviation from the pre-Marbury vision of judicial
review, the original Constitutional framework and subsequent institutional developments both
blessed and nurtured the Court’s use of covert political review.
Thus, my argument has four parts. First, I will show that despite the ongoing scholarly
debate regarding whether or not judicial review was part of the original vision of the Framers,
it is certainly accurate to say that the Framers constructed a Constitutional framework that
restricted the Court’s power and far from granted it any political clout in the modern sense of
the phrase. Second, I will provide a close analysis of Marshall’s opinion and the underlying
political struggles surrounding Marbury to support the provocative conclusion that Marshall’s
16 • The Burke Academic Review
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version of judicial review is more akin to covert political review. Third, I will argue that considering the outcome of Marbury in light of the pre-Marbury framework reveals that while the
Court’s self-granted “power” of covert political review deviated from the vision the Framers
had for the Court, the political potential of this sword also conformed to the Constitutional
framework put in place at the Founding, and has received augmentation from post-Ratification
institutional developments. Finally, I will conclude with an evaluation of the normative question of whether this momentous turning point should have ever taken place—that is, the question of whether Marshall was right or wrong in implicitly asserting the power of the Court to
exercise political clout, rather than strictly legal clout.
Setting the Scene: The Pre-Marbury Understanding of Judicial Review
The debate as to whether judicial review is implicit in the Constitution’s text, structure
or history is a subject of ongoing debate (Brest, et. al. 124). Ever since Bickel answered in
the emphatic negative to this question (1), constitutional scholars have proffered extensive
and varied analyses refuting this claim. The emerging modern consensus appears to be that
to some extent judicial review existed in the minds of the Framers at Philadelphia and then
manifested itself in both the text and structure of the Constitution. Though the focus of this
paper is not to take a side in this debate, an analysis of the these modern arguments—along
with an examination of the judiciary’s role in the early Republic gives Marbury appropriate
and useful context. structural arguments for judicial review center on the basic framework of
the separation of powers among the three branches of government. Treanor maintains that the
pre-Marbury Republic widely understood judicial review as a means by which the Court could
safeguard its independence from the other two branches, particularly the legislative branch,
as a coequal branch of government (561). As Treanor understands it, judicial review was not
so much a device by which the Court could or should gain the upper hand in this division of
powers, but rather it was a shield to protect against dropping to a lower status. In particular,
pre-Marbury case law reveals that tha common use of reviey in state court, was to invalidate
laws directed toward the judiciary itsele with an emphasis on those affecting its jurisdictional
reach (557).
Prakash and Yoo take a slightly different view. They claim that From the structural framework of the Constitution emerges an understanding of judicial review as not a passive means
by which the Court can do its part to maintain the separation of powero, but as an active means
by which the Court can assert its authority. It is by negating aggressive attempts by the other
branches to broaden their powers that the Court may do this. (Prakash & Yoo 924 Prakash and
Yoo avoid the assertion that the Court should wield judicial review as an aggressive weapon.s
they concede that through a departmentalism standpoint,t the other branches are under no
obligation to accept the Court’s negations and are free to negate the Court’s maneuvers (890).
Despite the differences between this understanding of judicial review and that of Treanor,
both viewpoints see judicial review as deriving from one of the Constitution’s most celebrated
structural provisions—the separation of powers. there appears to be something particularly
special about the Supreme Court, not just as the highest legal institution in the country vested
with the “judicial Power of the United States” (Art. III, §1), but more so as a branch of government with its own Article, with some role to play vis-à-vis its legislative and executive
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The Burke Academic Review • 17
counterparts.
Amar evaluates the extent to which judicial review was present in the pre-Marbury period
by examining the historical record and the Constitution’s explicit provisions as to the role and
status of the judiciary branch in general. First, he refutes any notion that the Framers did not
have judicial review in mind by pointing out that several prominent ratification leaders expressed support for a Court that would be able to ignore Congressional overreach (“America’s
Constitution” 212). In addition, Amar quotes Federalist No. 78, in which Hamilton suggests
that the Court should reject Congressional laws “‘contrary to the manifest tenor of the Constitution’” (212). However, Amar recognizes that the phrase “manifest tenor” is ambiguous an,
implies a rather tautological role for the Court as stating the obvious (212). This is an important function, since Congress could act egregiously without a Court there to state the obvious,
but it suggests that the Framers understood the Court to have a narrowly defined function that
lacked the fluidity and creative freedom embodied in the powers that the Constitution delegated to the legislative and executive branches.
Amar corroborates this conclusion that the judiciary, as originally understood, had a rather
modest role by listing an impressive array of Constitutional provisions that seem to designate
the Court as the weakest of the three branches. These provisions include the judiciary’s place
in Article III, rather than in Articles I or II; the enablement of the President and Senate to collaborate to appoint justices to the Court (Art. II, §2); and the empowerment of the House and
Senate to impeach and remove justices (Art. I, §2 and §3) without reciprocal power of the
Court to do the same (“America’s Constitution” 208-9). These textual commitments suggest
that the Framers certainly meant for the President and Congress to exert a particular influence
over a weaker Court, one that the Court could not necessarily counter, given the omnipresent
danger of impeachment.
It is important to note that this influence over the Court was not meant to ba political influence as we understand ths phrase today. ,These textual and structural Constitutional provisions
suggest that the Framers took great pains to remove the Court from partisan and popular influence. The aforementioned State of the Union clause (Art. II, §3) is very clear that the Court is
to have no explicit place in the public policy considerations of the President and Congress. The
language of the presentment clause (Art. I, §7) reinforces this notion of the Court as excluded
from the political process. eThe modern visceral reaction to this apolitical state of affairs in the
pre-Marbury period would be to say that the Court brushes up against partisanship since the
President and the Senate—the two institutions that collude to appoint the justices—appear to
have electoral mandates and ties to the People. This would be to forge, that the Framers failed
to account for political parties in the original Constitution since they did not exist in 1787 and
that the Senate was actually subject to state legislature, rather than popular, influence in the
original Constitution (Art. I, §3).
The influence that the President, Congress and the Peopletcould place on the Court become evident the provisions that Amar details. To complete our picture of the role of the
judiciary and of judicial review in the pre-Marbury period, then, we must also take into account Constitutional provisions that sought to counterbalance this susceptibility to influence.
First, the six-year tenure of Senators (Art. I, §3) can be understood to insulate the Senate (and
by extension, the Court) from the popular whims of a constituency, to the extent that popular
passions exert a powerful influence over the state legislatures that pick Senators, who in turn
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Spring 2014
confirm judicial appointments. Second, the life-tenure of the justices (Art. III, §1) can be
understood as directly insulating them from their fellow political elites, that is, those in the
other branches of government. Finally, Amarnpoints out a subtle provision that fulfills the
separation-of-powers vision of three coequal branches: the Article III clause that separates the
Supreme Court from inferior courts that lack thn Article III mandate and whose existence is
relegated to the whims of Congress (“America’s Constitution” 207).
Synthesizing the Constitutional and institutional elements presented here, it appears that
the original vision for the Article III Court was somewhat contradictorytto what would achieve
a unique status of being coequal and quasi-insulated in the separation of powers structur.,yThis
was only insofar as it had modest apolitical tools that would ensure that the United States government remained a government of laws, and did not become a government of non-angelic
men. But, this contradictory status meant that there was potential for the Court to become
something.
Signaling Suspicion: Marshall’s Peculiar Statutory Construction and
its Implications
Let us begin our analysis of Marbury with a look at Marshall’s peculiar construction of
Section 13 of the Judiciary Act of 1789. In Marbury, Marshall construed this section as granting the Court original jurisdiction over writs of mandamus. An clue to the ulterior motives underlying Marshall’s opinion emerges upon an independent reading of Section 13. nAn analysis
of its languagenquestions the link between original jurisdiction and writs of mandamus (“Section 13” 453-4). eThe last instance of the word “original” in the section appears some 85 words
before the phrase “writs of mandamus,” and two periods and one semicolon separate the two
terms. Even more telling, the words following the second period—“The Supreme Court shall
also have appellate jurisdiction…”—appear to signal a clear shift in subject, frof original jurisdiction to that of appellate jurisdiction. This link between original jurisdiction and “...power to
issue writs of mandamus…” is severed. oTo conclude that Section 13 merely gives the Court
appellate jurisdiction over writs of mandamus constitutes a more natural reading than Marshall’s interpretation, one that seems loose and indicative of a grander purpose at play.
The larger purpose controlling Marshall’s construction of Section 13 is his desire to formulate his doctrine of judicial review. , The construing of Section 13 in the way that he did
providedha way Marshall could resolve the question of the extent to which the Court could
and should strike down unconstitutional actions of the other branches. This avenue is as follows: Marshall’s construction of Section 13 as enlarging the Court’s original jurisdiction to encompass the power to issue writs of mandamus clashed with his conclusion that enlarging the
Court’s original jurisdiction is unconstitutional gave him the opportunity to consider whether
the courts are obliged to affirm an unconstitutional law. He answered his own question,by
concluding that courts are bound ty the rule that “a law repugnant to the constitution is void”
(Brest, et. al. 120).
Resolving the as of yet unanswered question of why Marshall sought so dearly to affirm
what, as we have seen, was in the air at the Founding and in the early Republic, leads us to
the provocative conclusion that Marshall meant for the Court to wield judicial review’s impartial shield over constitutional integrity as a partisan sword to combat aggressive political
Spring 2014
The Burke Academic Review • 19
maneuvers of the legislative and executive branches. That is, in his mind, the Court’s ability
to rule certain egregious acts of Congress and the President unconstitutional would be a means
by which the Court could exert power, authority and pressure over the political agendas of
the other two branches. In other words, he established the Court’s power of covert political
review.
The politically-charged backdrop of Marburd provides powerful evidence for this conclusion. The case arises from two consecutive political moves: These moves are the attempts by
Adams and Marshall to pack the judiciary with Federalist judgeship, and an aggressive counter by Jefferson to deprive the Federalists of one of these judgeships. As this maneuver was
a microcosm of Jefferson’s larger plan of imposing his party’s influence at the expense of the
defeated Federalists, Marbury gave Marshall the opportunity to ripostr with his own political
fire. The result of this political dynamic was Marshall’s intriguing path from a loose Section
13 construction totone that added judicial review to the Court’s powers, an outcome which
both gave the Court strength and gave Marshall a reason not to order Madison (and by extension, Jefferson) to deliver the commission, a move that may have brought about impeachment.
Since judicial review was Marshall’s answer to his political dilemma, it follows that he
meant for judicial review to support the strength of the Court as a political institution with
partisan loyalties that would be able to counter the aggressive partisan agendas of a Congress
and Presidens. Indeed, he nearly removes his guise of judicial impartiality in the opinion itself,
when he implies that not upholding judicial review would be allowing the legislature “to do
what is expressly forbidden” such that it is gifted a “practical and real omnipotence” (Brest,
et. al. 117). For Marshall, qua Federalist, the prospect of an omnipotent legislature controlled
by Jeffersonian-Republicans would be an absolute nightmare. Now, allow me to defend my
argument—that Marshall’s version of judicial review entails a covert political intent—by considering three objections.
Firstly, I would concede my argument if one could prove that Marshall offered what
he truly believed to be the proper interpretation of Section 13. For if this was accurate, then
Marshall’s formulation of judicial review could be said to be simply a natural by-product of
this construction and not necessarily entwined with any underlying political motivations. I
would refute this counterargument on the basis of my aforementioned contention that the more
natural reading of Section 13 leads one to conclude that it merely grants the Court the power to
issue writs of mandamus for appellate cases. Furthermore, Marshall proffers his construction
of Section 13 virtually without explanation (“Section 13” 454). At the very least, the meaning
of the statute is debatable and any interpretation warrants justification. This stark omission
indicates that he is less concerned with the statutory construction as an end unto itself than he
is concerned with the statutory construction as a means to an end. This end, namely, is the
opportunity to resolve the question, affirmatively, of whether the Court can strike down an
unconstitutional statute. Thus, Marshall’s ultimate goal of giving himself the power of judicial
review effectively controls his construction of Section 13.tThis argument could be objected if
one could prove that Marshall did not allow the “epic political struggles” (Brest, et. al. 103)
of the time to control his self-grant of judicial reviewr. this would be to say that Marshall
merely wished to give the judiciary an impartial shield rather than the empowering weapon of
covert political review. Though we lack the only definitive proof to the contrary through an
admission from Marshall himself, the massive amount of converging historical factors—the
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Spring 2014
crushing Federalist defeat in the elections of 1800, Jefferson’s political threats, and the political implications of a partisan Court wielding judicial review — stack up in favor of the judicial
review-as-political-sword argument. Several other factors1 also weigh against any defense of
Marshall as nonpartisan judge in Marbury. For example, that his affirmation of judicial review
is actually the culmination of a line of cases that had already broached the subject (Brest, et. al.
98) suggests that it is not the doctrine of judicial review itself that he hoped to make the lasting
mark of this case but rather judicial review’s potential as a political threat for the weakened
Federalists to wield against the political agenda of the Jeffersonians. The most potent attribute
of covert political review, of course, would be that Marshall and future justices would be able
to hide their swords underneath their legal shields on the judicial battlefield. another possible
objection stems from the fact that the next Supreme Court case to result in the striking down
of a federal law was the infamous Dred Scott decision, handed down by the Taney Court over
50 years later. A cogent counterargument to my analysis of Marshall’s far-reaching political
intentions, then, would be to contend that a significant distinction exists between Marshall’s
intention to issue a politically aggressive decision solely in Marbury and his intention to do
so in future cases. The empirical reality that Marshall failed to wield covert political review
for the remainder of his time on the Court would seem to indicate that Marbury is not as significant in the long-term—as far as its implications for the conflation of law and politics—as
I would have it.
To answer this objection, I would first point out that judicial review only tangibly manifests itself when the end result of a case is a decision that a law is unconstitutional, rather than
constitutional. This would imply that the Court’s decision to hear and adjudicate cases in
which the main question pertains to the constitutionality of a federal law shows an underlying
re-assertion of its power to wield judicial review, even if the end result is that the federal law
is upheld. Perhaps the most famous instance of this scenario in the post-Marbury Marshall
Court is McCulloch v. Maryland. Though Marshall ultimately upheld the federal law establishing the Second Bank, his mere consideration of the question signaled a desire to reaffirm
that it is “the province and duty of the judicial department to say what the law is” (Brest, et.
al. 116). Marshall’s willingness to exercise judicial review does not mean that McCulloch was
an instance of covert political review. eThe record seems to show that McCulloch was a prime
example of judicial deference to Congress. Marshall upheld a law that had achieved passage in
a Democratic-Republican-controlled legislature (Brest, et. al. 37). Two considerations speak
to the underlying political motivations in McCulloch. For one, several prominent Federalist
such ay Hamilton (Brest, et. al. 34) had supported the Bank. This suggests that Marshall’s
decision was not a passive gesture toward the Democratic-Republicans as it was a gesture toward his own political leanings. Secondly, the Democratic-Republicans may have construed
a ruling deeming the Second Bank unconstitutional as an affront to their efforts to rectify
economic dilemmas in the wake of the War of 1812 (Brest, et. al. 37). Taken together, these
political underpinnings suggest that Marshall was trying to simultaneously appeal to Federalist principles and Democratic-Republican pragmatic considerations in a way to refrain from
appearing overly aggressive toward the legislature while still asserting the judiciary’s role in
deciding these matters, thereby preserving the framework for covert political review that he
1
Such as Marshall’s failure to recuse himself and his nontraditional ordering of the case’s issues.
Spring 2014
The Burke Academic Review • 21
had taken great pains to establish in Marbury.
Covert Political Review: Deviance and Conformity
Covert political review marks clear deviations from the pre-Marbury state of the judiciary
and of judicial review. These pre-Marbury elements include attempts to insulate the Court
from excessive Presidential, Congressional and popular control through life-tenure and a lower
rate of Senate turnover; the absence of political parties at the Foundin; and the expressed views
of several prominent Framers, such as James Wilson, that it would be the duty of the Supreme
Court—to use judicial review as a legal and impartial guard against legislative encroachment
(Prakash & Yoo 981). Thus, by choosing to wield judicial review against a glaring political
backdrop and by offering a loose construction of Section 13 to reach a politically convenient
outcome, Marshall deviated from this expressly nonpartisan vision of the Framers. eWhile
modern scholars like Treanor contend that Marbury was an elucidation of a well-defined judicial power (457) that was merely meant as a shield against potential encroachment on the
Court’s literal jurisdiction (557), the crux of my argument in Part II is that Marshall used the
basic framework of judicial review and exercised it in such a way that provided a model and
means by which future justices would be able to exercise covert political review. That is, Marshall both showed how to adjudge a case under the guise of impartiality while actually achieving a partial result and what to use in such cases—namely, the cloak of judicial review, since
this tool allows a justice to strike down a law of Congress under purely legalistic grounds. The
shield hides the sword until it is too late.
Marshall’s opinion is not completely deviant, as it serveh to both fulfill the promise of
the Constitution’s original structure and to parallel post-ratification institutional developments. cCertain Constitutional provisions, particularly the separation of powers concept and
the Court’s place as an Article III branch coequal with the branches of Articles I and II, implicitly envision a Supreme Court on the same plane as the President and Congress. At the
same time,—the Framers’ view that judicial review would only have a modest role as a check
on a blatantly egregious legislature and the Court’s susceptibility to control by the other two
branches via appointment powers—entrenched a weakness in the Coure that stood in contrast to the implicit Constitutional structure. The Court’s susceptibility to control by the other
branches became even more of a weakness with the rise of political parties, as the ability to
appoint and impeach according to partisan affiliations is the ability to control the political outcomes of Court cases.
It is here, then, that Marbury both seeks to both level the playing field and to embody
this novel institutional development of the rise of political parties, as reflected in the Twelfth
Amendment. The first indication that Marshall’s opinion sought to raise the clout of the Court
to achieve coequal status with the other two branches is that he deviated frome Federalist
No. 78 the“manifest tenor” mandatedthat stuck down an arguably constitutional statut As
Harrison notes, the Supreme Court inherently lacks political authority, while the legislative
and executive branches do not (375), according te, the State Union and presentment clauses.
Harrison goes on to say that to achieve symmetry among the three branches, one would have
to make judicial review a political power resembling the veto (373). Indeed, this is precisely
what Marshall’s opinion does, as he uses judicial review in a way that cements the implica22 • The Burke Academic Review
Spring 2014
tions of an insulated Court wielding this power in a partisan fashion. eThe rise of political
parties would actually weaken the independence of the Court by transforming it into a puppet
of the political party in power at any given time. The life-tenure of the justices ensures that at
least some points in American history will see the “ghosts of President past”2 clash with the
current administration, just as was the case in Marbury. At these times, just as in Marbury,
no President is safe from the adverse effects of covert political review. Amar and Graber lend
support to Marbury as a fulfillment of the Constitution’s malleable framework, one that left
the Court vulnerable to political influence but also kept it sufficiently insulated for it to remain
able to fight back with its own political maneuvers at certain critical points in American history
(“America’s Constitution” 212). Graber explicitly traces the transition from the pre-Marbury
sentiment of an anti-partisan version of judicial review to the post-Marbury sentiment of a partisan judicial reviee that would forevermore serve political considerations rather than countermajoritarian goals (613). To this last point, however, Amar and I would disagree, in the sense
that yet another institutional development, one that occurred over 100 years after the Marbury
decision, has nurtured and solidified the express partisan nature of even counter-majoritarian
decisions, especially with regards to “ghosts of Presidents (and Senates) past” scenarios. This
institutional development embodied in the Seventeenth Amendment is the transition from state
legislature elections of Senators to popular election of Senators. Since Senators have a direct
influence on the appointment of Court justices, this development has made justices more accountable, albeit still indirectly, to popular passions and whims, rather than purely state interests.
Thus, in a situation in which a President and Senate, embodying a particular national majority, appoint justices, only for most of these justices to be on the Court when a new President
and different Senate, embodying a completely different national majority, come into power,
the justices may be apt to adjudicate constitutional issues on the basis of the national majority that had appointed them to their positions previously, thereby undermining the will of the
representatives of the people of the present time period (Bickel 16-17). Contrary to Graber’s
notion that elected officials have a powerful influence on the judiciary in terms of coercing the
Court to align with the dominant national collation (610, 612)—a view inspired by Dahl’s logic (289)—then, elected officials can also leave their imprint on a Court that comes face-to-face
with their political opponents in subsequent years. In sum, while the political underpinnings
of Marbury parallel and complement the rise of political parties (Twelfth Amendment) and the
direct election of Senators (Seventeenth Amendment), these institutional developments also
nurture the powerful political implications of Marbury by giving the Court an effective veto
against Congress—which presumably embodies the current national majority—that is in some
ways more potent than the executive veto because it comes under the guise of impartiality.
To unify covert political review’s relationship to the pre-Marbury understanding of judicial review, I will take an analogy from biology. Stem cells are cells that have the intrinsic
potential to differentiate into one of several types of specialized cells. Several molecular signals influence which kind of cell they become. The pre-Marbury understanding of the judicial
2 According to Akhil Amar, this phrase refers to justices appointed by past Presidents who were most
likely affiliated with a political party and/or platform different from that of the current President.
Spring 2014
The Burke Academic Review • 23
review is like a stem cell that had the potential to differentiate down several different paths. By
both showing how a judge could wield judicial review as a political weapon and establishing it
as the means by which to so covertly, Marbury was the main molecular signal that influenced
judicial review’s differentiation into covert political review. The implications of the Twelfth
and Seventeenth Amendments—the influence of political parties and the direct election of
Senators—meanwhile, were less secondary molecular signals that solidified the political specialization of this pre-Marbury stem cell.
The Normative Question: Is Covert Political Review Improper?
The question of whether Marshall’s conflation of judicial review’s use as an impartial
check on the executive and legislature and its use as a means of partisan aggression was a
normative mistake is an extremely difficult one to answer. My instinct is to argue, all considerations of how this may negate the coequal nature of the structural separation of powers aside,
that judicial review is not meant to be a political sword and should never be proffered as such,
as Marshall does in Marbury (albeit implicitly). Perhaps the most “political” argument one
could make for the logic of judicial review is that it makes the Court a counter-majoritarian
institution designed to protect a minority from an oppressive majority, the latter of which may
infringe upon the former’s constitutional rights. For example, if a President and the majority
party in Congress were elected on a mandate to reinstitute slavery in modern times, a Court
could exercise judicial review to place a check on laws reinstituting slavery. If we take slavery
to be a hot-button political issue, then yes, one could say that the Court is merely exercising
judicial review to nullify the democratically elected President’s platform and is therefore exerting political clout (Bickel 16-17). If the Court were to apply judicial review correctly,,by
impartiallyy—striking down slavery laws, would be a purely apolitical act.
Strictly speaking then, the proper role of judicial review is a shield—not a sword—that
protects against constitutional infringements by the President and Congress regardless of the
political affiliation of these two branches. eThe proper takeaway from this opinion should
have read something like, “For Marshall, qua non-partisan, the prospect of an omnipotent
legislature controlled by any political party would be an absolute nightmare.” Judicial review
prescribes the Court’s role in the scheme of departmentalism, in which all three branche, according to the oaths they take to support the Constitution and their individual competency to
do so, make independent interpretations of the constitutionality of laws and actions (“Section
13” 445). Marshall himself alludes to this proper place for judicial review, when he states
that “courts, as well as other departments” have a duty to say “No” to laws repugnant to the
Constitution (Brest, et. al. 120). Despite this recognition, Marshall and other justices throughout history have still mistakenly conflated this role of judicial review and its (covert) political
one, as the presence of weighty political elements in cases has tended to transform impartial
“Yes’s” and “No’s” into politically-charged “Yes’s” and “No’s.”
If covert political review was not the proper solution to Marshall’s political problem, it
begs the question of what other solution Marshall had to his dilemma. My answer to this
would be to say that there was no real solution to Marshall’s political dilemma because the
Supreme Court is not supposed to have political dilemmas, only legal ones. tThe Court is often
presented with cases that present so-called political questions, but these are distinct from po24 • The Burke Academic Review
Spring 2014
litical dilemmas such as those in Marbury. While cases involving political questions concern
whether or not the Court has proper jurisdiction, cases involving political dilemmas have in
their background issues of electoral mandates, partisan agendas and the ideological and political loyalties of supposedly impartial judges. In these latter cases, it is normatively proper that
judges ignore the political implications involved and instead exercise judicial review as a matter of applying good-faith constructions of statutes and constitutional clauses.
To say that Marbury represents an early instance of politics underlying judicial outcomes
is not to imply that justices expressly cite Marbury as a justification for issuing politically-motivated opinions. Rather, to reiterate, Marbury’s spirit lives on through judicial review itself.
tNot only did Marshall foreshadow future instances of an unwarranted mix of politics and law
by brandishing judicial review as a political threat to Jefferson’s agenda, he also prescribed the
very tool that has allowed these conflations to happen in subsequent cases. A review of cases
in which judicial review arises from historic confrontations between Presidents, Congress and
a judiciary resembling the “ghosts of Presidents past”—such as the post-FDR election Lochner era cases and NFIB v. Sebelius—suggests that judicial review is a potent tool for issuing
politically-motivated opinions, because a justice can propose to strike down a law repugnant
to his or her political ideology under the guise of impartiality and a departmentalism ethos.
eThe expectation that judicial review, as originally understood, could have evolved within the
Constitution’s framework as only a strictly legal shield is very unrealistic (Dahl 280), and may
have, as Graber points out, led to a non-influential Court that never fulfilled the potential it
had at the Founding (634-44). As this paper has shown, there is a strong argument to be made
for covert political review as the gateway for the Court to become truly coequal with the other
two branches. fIf the Court is a branch of government, then perhaps it is to do more governing, a verb that carries political and policy implications. If not, then perhaps the Constitution
itself, in the sense that it establishes the Court as a third branch of government, is a normatively
incorrect text. Indeed, to the extent that the Constitution’s structure did grant judicial review
(Prakash & Yoo 891), this embodied somewhat of a normative revolution at the Founding, as
the English Privy Council had no power to invalidate acts of Parliament (“America’s Constitution” 211). Regardless, an analysis of the normativity of the Constitution itself is outside the
scope of this paper, so it will suffice to accept that the notion of the Court as a third branch of
government is fundamentally sound. In this sense, then, it is difficult to entirely dismiss the
Court’s use of covert political review, as it seems inevitable that this country would have fallen
prey to non-angelic men at some point without a powerful Court. Brown v. Board of Education certainly stands for this proposition.
Furthermore, if it is good from an empirical standpoint that the Court has continued to
exercise judicial review as a political sword, it must be noted that Marbury was the ideal case
for this to happen first, especially in contrast to Dred Scott. For one, the immediate and direct
result of Marbury was actually quite innocuous to Marshall’s political opponents in the legislative and executive branches, while Dred Scott’s result was anathema to the Republican Party
platform and to human dignity in general. Furthermore, Marbury provides an ideal case study
for how covert political review both embodied and confirmed the changing currents of the
time—namely, the increasing politicization of the Court. tThe politicization of the Court is not
unreasonable (Dahl 279 —as Madison proclaimed in Federalist 51, “If angels were to govern
men, neither external nor internal controls on government would be necessary.” Court justices
Spring 2014
The Burke Academic Review • 25
do not live in a vacuum. In addition to their role as impartial arbiters, they are also private
citizens, and even the most angelic judges probably find it difficult to create an impermeable
barrier between their judicial philosophies and partisan beliefs. eThe rise of political partie, as
captured by the Twelfth Amendment has aligned with the judicial appointments clause (Art.
II, §2) to provide for an overtly political and ideological appointment and confirmation process (“America’s Constitution” 220), A process that while sometimes capturing the will of the
People of the here and now, often neglects to do so because the judicial tendency to resign
during the presence of ideologically favorable Presidential and Congressional arrangements
leads to many “ghosts of Presidents (and Senates) past: scenarios (“America’s Constitution”
224). To argue against the use of covert political review would be to fruitlessly militate against
a slew of unchangeable facts, including but not limited to the non-angelic nature of judges and
the independent rise of certain institutional political arrangements, and how these two facts
manifest themselves in the original structure and framework of the Constitution (Dahl 279).
In conclusion, the pre-Marbury stem cell certainly differentiated into a schizophrenic cell.
Covert political review embodied a stark internal contradiction: a legal argument shields a political sword, and this would appear to impose a burden on the Court. But while the wielding
of a shield and sword at the same time burdens the weak soldier, it strengthens the strong soldier who can use both of them well and prudently. Similarly, a strong and able Court can wield
the two simultaneously to fulfill its proper Article III function. With the omnipresent tension
between law and politics in mind, however, this duality will always seem quite incongruous,
as will all instances in which it manifests itself, such as the Supreme Court’s presence at State
of the Union addresses. But in the ens Marbury, subsequent cases and history show that until
our government is one of angels and not of men, covert political review is indeed the best way
for government to “control itself” (Federalist No. 51).
26 • The Burke Academic Review
Spring 2014
Works Cited
Amar, Akhil. America’s Constitution: A Biography. New York: Random House, 2005. Print.
----. “Marbury, Section 13, and the Original Jurisdiction of the Supreme Court.” Yale Faculty Scholarship Series (1989): 443-499. Web.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics.
2nd ed. Indianapolis: Bobbs-Merrill Company, 1986. Print.
Brest, Paul, et. al. Processes of Constitutional Decisonmaking. 5th ed. New York: Aspen Publishers, 2006. Print.
John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 Va. L. Rev.
333 (1998).
Mark A. Graber, Establishing Judicial Review: Marbury and the Judicial Act of 1789, 38
Tulsa L. Rev. 609 (2003).
Robert A. Dahl, Decision-making in a Democracy: The Supreme Court As a National PolicyMaker, 6 J. Pub. L. 279 (1957).
Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887
(2003).
William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455 (2005).
Robert Batista is a junior at Yale University majoring in Political Science, with plans to attend
law school after graduation. He is the current Chairman of the Federalist Party, a conservative
speech and debate society in the Yale Political Union. Robert would like to thank Christopher
Michel for his guidance on this paper.
Spring 2014
The Burke Academic Review • 27
The Invasion of Cambodia: A New Means
of Propelling Vietnamization Policy
By John Wilson
Dear Mr. President Nixon,
It is now spring of 1970, and we’re no closer to peace, neither at home nor abroad, than
when you swore oath. Furthermore, the main U.S. objective of helping South Vietnam maintain its sovereignty via Vietnamization remains difficult because of enemy sanctuaries and
supply lines that persist along the Cambodian border, despite Secretary Laird’s confirmation
concerning Operation Menu’s strikes in March.1 We gave Hanoi a chance to come to the table
last fall, yet their “cold rebuff” signaled that honorable peace requires a different direction and
a bolder approach.2 Instead of either extending a feeble olive branch or advancing past the
17th parallel, I trust that an incursion into Cambodia is the most effective method in which
we can create momentum for ongoing troop withdrawal, hand off this conflict to the South
Vietnamese, and finally disengage the United States from Vietnam. Moreover, I believe invading Cambodia, if planned immediately and conducted properly, is our most pragmatic policy
option from an international and tactical perspective despite inevitable domestic constraints.
In other words, Mr. President, an incursion into Cambodian is the best new solution for an old
problem: ending this war with credibility.3
We must, first, look at how this invasion aims to achieve U.S. objectives in regard to
the current international situation. A successful invasion will not only facilitate gradual U.S.
withdrawal and disengagement from the immediate Vietnam War, but it will also promote
long-term objectives within the encompassing Cold War. Winning the international conflict
between non-communist forces and Communist juggernauts, the U.S.S.R. and the PRC, is this
administration’s first and foremost concern. Furthermore, our strategy for winning the larger
Cold War struggle dictates that the United States will come to the temporary aid of any important state that is not able to defend itself against Communist aggression. Even though Vietnam
is a smaller and less formidable state than the U.S.S.R. and China, it remains vital to U.S.
security because of its vulnerability to the Communist bloc. This is exhibited by the NSSM-1
survey information that Kissinger received in March, specifically in regards to question 16
concerning the increasing portion of the rural Vietnamese population subject to significant VC
1 Telephone Conversation between Melvin Laird and Henry A. Kissinger, [Bombing of Cambodia],
21 March 1970, Henry A. Kissinger Telephone Conversation Transcripts, Box 4, 03/21/70 – 03/27/70, p.
2, Richard Nixon Presidential Library, http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02472.
2 George C. Herring, America’s Longest War: The United States and Vietnam 1950-1975 (New York:
McGraw-Hill, 2002), p. 280.
3 Herring, America’s Longest War, 271.
28 • The Burke Academic Review
Spring 2014
presence and influence.4
One year later, I still agree with Kissinger in that the Communist presence in Vietnam remains strong and is more than likely growing each day.5 Fortunately, tensions between Soviet
Russia and the PRC have increased as of last year, and aggressing Hanoi via Cambodian supply lines is how we can continue to aggravate this vulnerable Sino-Soviet split. A weakened
and intimidated Hanoi is more likely to come to the negotiation table, as well as exacerbate
the current divisions between Communist China and Soviet Russia.6 A ground assault targeted
against enemy sanctuaries along the Cambodian border will physically diminish VC military
capabilities in Southeast Asia in order to push Hanoi closer to negotiations, and consequently cripple the larger Communist bloc. Therefore, from the global Cold War perspective, this
spring is the best chance for an invasion to compel Hanoi into peace talks while adding further
divisions in the Sino-Soviet split.
In addition to our international goals, our nation’s reputation in the world is also at stake
if you decide to escalate, seeing that Vietnamization policy has been in operation since early
1970.7 Furthermore, the international community will perceive a mutual operation, alongside
ARVN forces, that doesn’t cross the 17th parallel more honorably than a unilateral U.S. offensive into North Vietnam. It is internationally pragmatic for the United States to present
itself as the defender of vulnerable Saigon, rather than an impatient or irrational aggressor of
Hanoi. Secretary Rogers has also voiced this concern, “If it comes out the action was initiated
by us we would be in a bind.”8 Thus, we must present this escalation as a South Vietnamese
offensive coupled with U.S. assistance, and then gradually hand over responsibility to Saigon
as advocated by the Nixon Doctrine.
Once the United States has offered enough assistance, in order to preserve our international
reputation as well as our commitment to Saigon, we also must avoid any semblance of South
Vietnamese betrayal during our incremental withdrawal. The world must see the United States
as defenders of Saigon simply because the South Vietnamese are too weak in the meantime,
exhibited clearly by your previous attention concerning low morale and high desertion rates
within the South Vietnamese Army.9 There are also recent estimates that ARVN “ghosting”
is as high as 20 percent, and “flower soldiers” still remain.10 In addition to this lack of moti4 National Security Study Memorandum 1: Vietnam, (1969), p. 4, The Nixon Virtual Library, http://
www.nixonlibrary.gov/virtuallibrary/documents/nationalsecuritystudymemoranda.php.
5 Marc J. Selverstone, “Vietnamization,” America in Vietnam, HIUS 3172, University of Virginia, 4
April 2013, Lecture.
6 David Landau, Kissinger: The Uses of Power (Boston: Houghton Mifflin, 1972), 239.
7 Herring, America’s Longest War, 285.
8 Telephone Conversation between Secretary Rogers and Henry A. Kissinger, [Infiltration of Cambodian
Border], 22 April 1970, Henry A. Kissinger Telephone Conversation Transcripts, Box 5, 4/19/70-4/26/70,
p. 2, Richard Nixon Presidential Library, http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02682.
9 Memorandum from Richard Nixon to Henry Kissinger, [Desertion Rates in the South Vietnamese
Armed Forces], 24 November 1969, White House Central Files, Box 84, 08/01/69-12/08/69, p. 2, Nixon
Presidential Materials Staff, http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:dnsa&rft_
dat=xri:dnsa:article:CVW00163.
10 Herring, America’s Longest War, 287.
Spring 2014
The Burke Academic Review • 29
vation, Kissinger stated that ARVN troops are not able to fight this war on their own simply
because of a lack of artillery and air support. 11 As Kissinger recently repeated to Rogers, “It
would be nice to have ally who could fight.”12 Therefore, this process must again be a mutual
effort in which the United States is the initial supplier and modernizer. Note that by the end of
this invasion, the United States plans to have gradually weaned ARVN off of such assistance.
By sending ARVN forces into Cambodian sanctuaries alongside U.S. ground troops, it will be
easier to hand off eventual responsibility, victory, and sovereignty to the South Vietnamese.13
It is our duty as a global superpower to respectably assist the South Vietnamese in their defense against the wrath of communism. This invasion would ensure Saigon’s protection while
still abiding by your promise to gradually de-Americanize the conflict.
From a tactical viewpoint, there is further reason to believe that an invasion into Cambodia is your most efficient choice of policy in regards to promoting Vietnamization. To begin,
recent tactical air support [tac-air, hereafter] has not made an effective impact along VC supply lines; the COSVN headquarters remains undamaged and Communist supply lines persist
throughout Laos and Cambodia.14 A ground incursion into Cambodia would not only target
Communist supply lines and sanctuaries in a more direct manner than previous attempts, discussed by Kissinger in his recent conversation with General Westmoreland, but it will also let
ARVN forces coordinate their own attacks on enemy sanctuaries once U.S. troops have done
the heavy lifting.15
As for specific resources, I must discuss the means necessary for executing an operation of
this magnitude. General Westmoreland reported that these enemy sanctuaries along the border
contain several thousand enemy troops, and he believes there is a chance for “costly casualties” because of mines, booby traps, and bunkers surrounding the border.16 Unfortunately,
Laird also fears that soldier casualties will be high.17 Therefore, in order to reduce the chance
of American causalities, I advise that we continue nearby tac-air support, via Operation Menu,
as a prelude to the invasion in order to maximize destruction of the enemy’s defensive capabilities. Recently, as you made Laird and Kissinger aware of on April 23rd, 1970, there have
been rumors about possible bombing leaks in the Times.18 As distressing as this may seem, this
information will not disappear so we might as well continue to make use of tac-air before ei11 Telephone Conversation between General Westmoreland and Henry A. Kissinger, [Enemy
Sanctuaries in Cambodia], 21 April 1970, Henry A. Kissinger Telephone Conversation Transcripts, Box
5, 4/19/70-4/26/70, p. 1, Richard Nixon Presidential Library, http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02666.
12 Telephone Conversation between Rogers and Kissinger, [Infiltration of Cambodian Border], 2.
13 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
14 Landau, Kissinger: The Uses of Power, 210-211.
15 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
16 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
17 Telephone Conversation between Melvin Laird and Henry A. Kissinger, [Invasion of Cambodia;
Tactical-Air Capabilities], 23 April 1970, Henry A. Kissinger Telephone Conversation Transcripts, Box
5, 4/19/70 - 4/26/70, p. 2, Richard Nixon Presidential Library, http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02690.
18 Telephone Conversation between Laird and Kissinger, [Invasion of Cambodia; Tactical-Air
Capabilities], 1.
30 • The Burke Academic Review
Spring 2014
ther Congress or the public can seek to limit our bombing capabilities. Note that this increased
bombing will not target any locations above the 17th parallel and, therefore, it will not contradict President Johnson’s previous halt in the bombing campaign of North Vietnam. Moreover,
a ground attack that is closer to enemy targets will also avoid notably more Cambodian civilian
casualties than previous bombing campaigns, such as Operation Breakfast.19
In further regard to military resources, there is already a fair amount of U.S. supplies and
artillery near the border. Although Laird pessimistically noted it takes about two months to
move all these supplies in order to discourage an invasion, we might as well devote these conveniently placed resources toward the incursion effort.20 Tac-air operations within Cambodia,
which have been in “heavy use” since Operation Menu according to Laird, along with the
U.S. supplies already near the border, should be enough support and supplies for ARVN and
U.S. ground troops.21 ARVN may not be effective alone, but as Kissinger stated to General
Westmoreland, “…with the proper support they [ARVN] could be effective and would be
desirable.”22 ARVN, as well as local militia, will undoubtedly have an advantage with initial
U.S. guidance, which will include a combination of ground, artillery, and tac-air support.
Also note that General Abrams has keenly picked two targets for this invasion, Parrot’s
Beak and Fishhook, which are both within fifty-five miles of Saigon.23 These two targets are
closer and more accommodating locations relative to an attack on Hanoi. If we take advantage
of these tactical elements, this invasion will be the most effective method in which you can
intimidate Hanoi and buy time for Vietnamization, the policy that Melvin Laird argued will
gradually “give the South Vietnamese the equipment and training necessary so that they can
follow up their responsibility to their country.”24
Furthermore, two final, yet crucial, tactical factors necessitate that you implement this
plan by the end of April. Both factors, together, have created a small window of opportunity
that will allow U.S. and ARVN forces to strike with the highest chance of success. The first,
and most important, is our alignment with the current regime change in Cambodia. In fall of
1968, William H. Sullivan’s cable estimated that Norodom Sihanouk would soon abdicate his
throne and, as of last month, a non-communist coup successfully captured political power.25
Fortunately, this timely non-communist regime under the leadership of Lon Nol allows for the
19 Marc J. Selverstone, “Cambodia and Laos,” America in Vietnam, HIUS 3172, University of Virginia,
11 April 2013, Lecture.
20 Telephone Conversation between Melvin Laird and Henry Kissinger, [Troop Withdrawal; Operation
Menu; China], 21 April 1970, Henry A. Kissinger Telephone Conversation Transcripts, Box 5, Vietnam
04/19/70-04/26/70, p. 2, Richard Nixon Presidential Library and Museum, http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02667.
21 Telephone Conversation between Laird and Kissinger, [Invasion of Cambodia; Tactical Air
Capabilities], 2, 3.
22 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
23 Herring, America’s Longest War, 290.
24 Melvin R. Laird. Interview by Vietnam: A Television History. Episode 9. Mark Samels, Executive
Producer. Transcript: http://www.pbs.org/wgbh/amex/vietnam/series/pt_09.html.
25 [Sihanouk’s Abdication] Secret, Cable, 008887, 6 September 1968, p. 1, Collection: U.S. Policy in the
Vietnam War, 1969-1975, http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:dnsa&rft_
dat=xri:dnsa:article:CVW00420.
Spring 2014
The Burke Academic Review • 31
destruction of more Communist supply lines along the Cambodian border. Under the previous
communist leadership of Sihanouk, it was easier for Hanoi to move VC troops and supplies
closer to Saigon via the concealed Ho Chi Minh Trail. Westmoreland stated that we now have
the support of Lon Nol and the 15 battalions that his administration has recently mobilized in
response to threats of North Vietnamese aggression.26 The fact that Lon Nol has mobilized
forces will only make it easier for U.S. forces to eventually hand over responsibility and accountability back to local militia—we intend for our presence to be temporary. Therefore,
it will be easier and more calculated to target the hidden communist sanctuaries while we
have access to Cambodian forces, intelligence, and political support. Secretary Rogers has
confirmed that Lon Nol desires U.S. political and military support in order to survive, and I
add that the United States needs Lon Nol’s support in order to properly coordinate a ground
invasion.27
The second facilitating factor that we must account for is that the rainy season approaches next month, as indicated by General Westmoreland in his telephone conversation with
Kissinger.28An invasion is still feasible in the monsoon season, but I argue that our efforts will
be far more effective in the dry season. General Westmoreland stated that General Abrams
could still commence the incursion later in the rain, however, U.S. and ARVN forces would
ultimately be “hard pressed.”29 Moreover, he said that the rain is an unhappy coincidence and
it would inhibit the flexibility of U.S. operations.30 I argue that it is pragmatic for us to act now,
before the rain begins, because our window of effective time is closing. Furthermore, the advantage of utilizing Cambodian political support combined with the advantage of the remaining dry season necessitates that we begin the invasion by the end of this month.
Now that several international and tactical factors have been discussed in depth, I must
shift focus to the second war at home, sir. This policy analysis will account for current domestic constraints—notably poor public opinion, Congressional agitation, and some of your advisors’ negative opinions— and accommodate for certain inevitable repercussions if we invade
Cambodia. This invasion will, without doubt, create discontent both in the public citizenry and
political realm; even you have said that this decision to invade neutral Cambodia will have a
“shattering effect” in regards to public opinion of your presidency.31 Negative public opinion
may have restrained your hand in Duck Hook, but I contend that international and tactical
conditions together are entirely too suitable to let public opinion ruin this invasion’s potential
for success.32
Foreseeable popular discontent does not mean that we must hide the invasion from the
26 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
27 Telephone Conversation between Rogers and Kissinger, [Infiltration of Cambodia], 1.
28 Telephone Conversation between General Westmoreland and Henry A. Kissinger, [Military
Operations on Cambodian Border], 22 April 1970, Henry A. Kissinger Telephone Conversation Transcripts,
Box 5, Vietnam 04/19/70-04/26/70, p. 1, Richard Nixon Presidential Library, http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:dnsa&rft_dat=xri:dnsa:article:CKA02675.
29 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
30 Telephone Conversation between Westmoreland and Kissinger, [Enemy Sanctuaries in Cambodia], 1.
31 Henry A. Kissinger, White House Years (Boston: Little Brown, 1979), p. 449.
32 Fredrik Logevall and Andrew Preston, Nixon in the World: American Foreign Relations, 1969-1977
(New York, Oxford University Press, 2008), 191.
32 • The Burke Academic Review
Spring 2014
public. In fact, I advise that we use this invasion to promote support for the Vietnamization
policy from the public. We must be transparent and open in regards to this invasion in order
to best defend against the media’s inevitable liberal bias, which simply “does not represent
the views of America”.33 A clear description of this decision to the public, as well as the circumstances that have allowed for this harsh course of action, will attempt to win as much support and trust from the undecided voters as possible. I say as much as possible because since
the beginning of the Vietnam War, and most noticeably after April of 1967, greater numbers
of Americans are agreeing that it was a mistake to send troops to Vietnam.34 To make matters worse your honeymoon period is now over, and failed attempts to bring Hanoi to the
table alongside continuing violence has only exacerbated this downward trend during your
presidency. Furthermore, because of the previous moratorium’s turnout, I can only anticipate
more radical protest in the spring. Despite this unpleasant increase as a general tendency,
disapproval ratings steadied momentarily following your shrewd “Silent Majority” speech.35
Therefore we must, once again, seek to rally the silent majority’s support in order to combat
the inevitable dissidence that is accumulating in the rest of society.
There are two effective ways in which you can conjure up the support of the silent majority
while accounting for any expected criticism. The first way, which is also important considering United States’ international reputation, is to emphasize that this invasion is a response to
North Vietnamese threats of mass aggression in Cambodian territory.36 Instead of an escalation
of war into a neutral territory, it is again prudent to defend this decision as an allied form of
assistance meant to protect the future of both Cambodia and South Vietnam. As a committed
democratic superpower, it is still our duty to defend the interests of non-communist states that
are too weak to defend themselves. This admirable portrayal is much more likely to elicit a
supportive response from the undecided American citizenry.
Secondly, the fact that you considered this announcement comparable to “drop[ping] a
bombshell on the gathering spring storm of anti-war protest,” means that we must cushion
the blow in order to prevent an all-out public scathing once we invade.37 In order to mobilize
as much support as possible for Vietnamization policy, I advise that you remind the anti-war
public of the ongoing phased withdrawal of 150,000 troops in the upcoming months—since
the summer of 1969, we have redeployed 110,000 troops and plan to redeploy 50,000 more
by next October.38 Furthermore, in your public announcement, you should also report the in33 Spiro T. Agnew, “Television News Coverage” (Speech, Des Moines, IA, November 13, 1969),
American Rhetoric, http://www.americanrhetoric.com/speeches/spiroagnewtvnewscoverage.htm.
34 [Mistake to Send Troops to Vietnam] Gallup Poll, Marc J. Selverstone, “The War at Home II - Section
III: Progress Offensive,” America in Vietnam, HIUS 3172, University of Virginia, 26 March 2013.
35 [Nixon’s Approval Ratings: Handling of the War] Gallup Poll, Marc J. Selverstone, “Vietnamization Section IV: Duck Hook,” America in Vietnam, HIUS 3172, University of Virginia, 4 April 2013.
36 Herring, America’s Longest War, 291.
37 Richard M. Nixon, RN: The Memoirs of Richard Nixon (New York: Simon and Schuster, 1978), p.
448.
38 [Troop Redeployments from Vietnam] U.S. Withdrawal Timetable, Marc J. Selverstone,
“Vietnamization - Section III: Vietnamization,” America in Vietnam, HIUS 3172, University of Virginia, 4
April 2013.
Spring 2014
The Burke Academic Review • 33
creasing proportion of deployed South Vietnamese forces.39 Together, these two figures will
provide empirical proof that Vietnamization is in progress, and we can convince the public that
the United States is on its way out of Vietnam. I believe that utilizing these two methods will
successfully capture the silent majority’s endorsement in regards to ongoing withdrawal, while
effectively redirecting and revamping our allied efforts against Hanoi.
You will also face disapproval from many of those within the U.S. government. I expect a
large amount of Congressional dissent, in addition to the criticism that has already risen within
the U.S. State Department.40 Also note that within your circle of closest advisors, both Melvin
Laird and Rogers have vigorously opposed this escalation.41 Both advisors state that the domestic repercussions of this invasion are not worth the potential benefits of an escalation, but,
then again, public opinion will always suffer during times of war. You must not obsess over
these inevitable domestic constraints because they ignore the more significant international
and tactical objectives. In the meantime, the best way to mitigate disapproval in the domestic
realm is to clearly describe how this invasion is required for the ongoing success of the withdrawal program.
The Vietnam War is no longer winnable by reasonable means; we must get out. Rather
than just cutting our losses, credible American withdrawal requires a new strategy with a new
direction. Therefore, due to recent circumstances, I formally advise that you pursue an incursion into Cambodia in order to help provide momentum for Vietnamization and, thereby, bring
an honorable end to America’s exhausted efforts in Vietnam. Frankly, if we do not destroy enemy supply lines and sanctuaries along the Cambodian border, ARVN sustainability will continue to suffer and, ultimately, Vietnamization will fail. Despite unavoidable backlash in the
domestic realm, it is entirely more crucial for the United States to uphold both our international
commitments and reputation before exiting. Fortunately, the combination of international and
tactical factors is in our favor and necessitates that the best time to strike Hanoi’s supply operations is now. Internationally, we must defend non-communist sovereignty in the free world,
fulfill our promise to modernize South Vietnamese forces, and strike during the current SinoSoviet split when Hanoi is most vulnerable to coercible negotiations. Tactically, we must strike
COSVN headquarters and enemy supply lines along the Cambodian border while we still have
the support of Lon Nol, while U.S. artillery supplies and tac-air are still in nearby use, and also
before the monsoon season approaches.
As president, you are certainly aware of the conflicting interests at stake concerning an
escalation of this magnitude; nonetheless, this administration is still in need of a justifiable exit
from this war. This invasion has the potential to be that new solution due to an advantageous
blend of international and tactical conditions. Thus, we will use this Cambodian operation to
ease the transition of military responsibility back to the Republic of Vietnam, mobilize further
support for the ongoing withdrawal effort, and ultimately disengage the United States from
39 [Republic of Vietnam Armed Forces Strength] South Vietnamese Deployment Graph, Marc J.
Selverstone, “Vietnamization - Section II: One War,” America in Vietnam, HIUS 3172, University of Virginia,
4 April 2013.
40 William Shawcross, Sideshow: Kissinger, Nixon, and the Destruction of Cambodia (New York:
Simon and Schuster, 1979), p. 139.
41 Herring, America’s Longest War, 290.
34 • The Burke Academic Review
Spring 2014
Vietnam as promised. Two years ago, you guaranteed this nation a way out of Vietnam and
now, after two years of prolonged struggle, a successful invasion of Cambodia can finally help
steer American policy toward an honorable exit.
Works Cited
Herring, George C. America’s Longest War: The United States and Vietnam, 1950-1975. New
York: McGraw-Hill, 2002.
Landau, David. Kissinger: The Uses of Power. Boston: Houghton-Mifflin, 1972.
Logevall, Fredrik, and Andrew Preston. Nixon in the World: American Foreign Relations,
1969-1977. New York: Oxford University Press, 2008.
Selverstone, Marc J. “Vietnamization.” Lecture, University of Virginia, Charlottesville, Virginia, April 4, 2013.
Selverstone, Marc J. “Cambodia and Laos.” Lecture, University of Virginia, Charlottesville,
Virginia, April 11, 2013.
Shawcross, William. Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New
York: Simon and Schuster, 1979.
John Schaeffer Wilson is a fourth-year student at the University of Virginia majoring in
International Affairs with a French Minor. He is originally from Indiana and has fostered a
strong interest in both foreign and defense policy throughout his undergraduate career. John
is currently interning part-time at the American Foreign Policy Council. His regional interests
include mainly South and Southeast Asian security issues, both past and present. He is also part
of the South Asia program and Missile Defense program of the American Foreign Policy Council.
Spring 2014
The Burke Academic Review • 35
A Path to Victory, Even in Defeat:
Ken Cuccinelli’s Success with Young Voters and What it Means for the GOP’s
Future
By Peter Finocchio
November 5, 2013 was a thoroughly disappointing night for the Republican Party of Virginia. As had been anticipated in polls for months, Ken Cuccinelli lost his electoral bid for
Governor of Virginia. His running mate for Lieutenant Governor, Bishop E.W. Jackson, lost
by an expectedly greater margin, giving Democrats effective control of a tied state senate.
Unless the outcome of the Attorney General race is reversed in a pending recount, Democrats
will have all three seats for the first time in two decades and all five statewide elected offices
for the first time in over forty years. Gleeful Democrats are interpreting their triumphs this year
as signaling the death knell of the Tea Party and the ascendance of a Blue Virginia. Despite
the historic nature of the Democratic victory, however, there is a development which lends a
silver lining to Republicans: the revelation that young people are no longer a sure thing for
Democratic candidates. Despite losing the election, Ken Cuccinelli successfully captured the
youngest voting demographic, 18-24 year olds, who voted for the conservative Republican by
a margin of six points. Winning the youth vote presents a path for Republicans to make historic
gains of their own and begin the necessary work of building a new winning coalition.
Cuccinelli’s success with the youngest voters is astonishing given the group’s steadfast
loyalty to the Democratic Party in recent decades. In the 2004 presidential election, the only
age group won by Democrat John Kerry was voters aged eighteen to twenty-nine, who rallied
to the Massachusetts Senator by a nine point margin.1 In both the 2008 and 2012 presidential
elections, young voters were instrumental to the election and reelection of President Barack
Obama. Larry Sabato writes that the 2008 presidential election “reawakened” young voters,
who had not turned out to vote in such large numbers since 1972. In 2008, 18-29 year olds
voted to elect President Obama by a margin of 66 percent to 32 percent.2 In 2012, 18-29 year
olds voted to reelect President Obama by a less but nonetheless still overwhelming margin
of 60 percent to 37 percent.3 President Obama performed slightly better among voters under
thirty in Virginia than he did in the nation as a whole, carrying them by a margin of 61 to 36
percent.4
1 Larry J. Sabato, “The Obama Encore that Broke Some Rules,” in Barack Obama and the New
America, edited by Larry J. Sabato (Lanham: Rowman & Littlefield Publishers, Inc., 2013), 21.
2 Sabato, Barack Obama and the New America, 21.
3 Ibid, 22.
4 Sue Sturgis, “Youth help turn back the Tea Party in Virginia gubernatorial race.” The Institute for
Southern Studies. Nov. 6, 2013. Date accessed: Dec. 8, 2013. < http://www.southernstudies.org/2013/11/youth36 • The Burke Academic Review
Spring 2014
Sue Sturgis, Editorial Director at the left-leaning Institute for Southern Studies, overlooks
Cuccinelli’s victory among 18-24 year olds and cites McAuliffe’s lead among 18-29 year olds
as evidence that Democratic support among young voters remains as strong as ever.5 McAuliffe carried voters aged twenty-five to twenty-nine by fifteen points, which was enough to
offset his loss among 18-24 year olds, giving him a five point lead among all voters under age
thirty.6 McAuliffe’s failure to capture the lower half of that demographic, however, can’t be
overlooked in order to emphasize the happier news for Democrats with older young people.
For one thing, the McAuliffe campaign heavily invested in turning out college students, but
college students turned him down. McAuliffe visited twenty-three Virginia community colleges over the course of the fall.7 In the week before Election Day, he toured five college
towns alongside popular former President Bill Clinton. Cuccinelli, on the other hand, while
touring Victory offices in college towns, only came to the campus of one Virginia college:
ultra-conservative Liberty University.8 Yet Virginia’s students still cast their votes not for Terry
McAuliffe but for Ken Cuccinelli. Sabato has written that President Obama’s large support
among first-time voters in 2008 was “another ominous development for Republicans, in part
because the young often keep their first part label for most or all of their lives.”9 This helps
explain why so many of the older young voters are still loyal to President Obama and also supported Terry McAuliffe. The shortcomings of the Democratic policies of the past few years,
however, have resulted in a plurality of first-time voters actually voting Republican in the 2013
Virginia Governor’s race. It will be very troubling for Democrats if these voters remain loyal
to their first party affiliation and if disappointment in President Obama (and Governor McAuliffe) continues to turn first-time voters into Republicans.
Ken Cuccinelli won the youngest voters because of economic issues. In addition to speaking with several staffers on Cuccinelli’s campaign, I asked three College Republican leaders
why they believe Cuccinelli won 18-24 year olds. Their answers were very similar. Jobs and
economic opportunity were the issues that these young conservatives believe enabled Cuccinelli to close the youth gap. Elizabeth Minneman, Chairman of the College Republicans
at UVA and Political Director of the College Republican Federation of Virginia told me that
Virginia’s students “want a leader who will step up to create jobs and focus on growing the
economy rather than bringing corruption to Virginia.” 10 Evan Draim, a freshman at Princeton
who was the youngest delegate at last year’s Republican National Convention, contended
that many young voters are “fiscally conservative but socially liberal” and that Republican
help-turn-back-the-tea-party-in-virginia-gub.html>
5 Sturgis, “Youth help turn back the Tea Party.”
6 Sarah Westwood, “Ken Cuccinelli’s Surprise Success with Young Voters.” The Washington Times.
Nov. 11, 2013. Date accessed: Dec. 8, 2013. < http://communities.washingtontimes.com/neighborhood/unicorndiaries/2013/nov/11/ken-cuccinellis-surprise-success-young-voters/>
7 Laura Vozzella, “McAuliffe makes final community college stop.” The Washington Post. Sep. 7, 2013.
Date accessed: Dec. 8, 2013. < http://articles.washingtonpost.com/2013-09-07/local/41843861_1_terrymcauliffe-workforce-development-community-college>
8 Sturgis, “Youth help turn back the Tea Party.”
9 Sabato, Barack Obama and the New America, 21.
10 Elizabeth Minneman, Email Interview. December 8, 2013.
Spring 2014
The Burke Academic Review • 37
candidates must “find common agreement and reach out to them where they overlap with conservative politics.”11 Matt Wertman, current Chairman of the College Republican Federation
of Virginia, suggested that “it was Cuccinelli’s message of pro-growth and sound economic
policies that convinced young voters to vote for him.” When asked why he personally was motivated by the campaign, Wertman continued, “I firmly believe in the fiscal policies of the Republican Party. I believe that we represent the Party of economic prosperity and opportunity.”12
Economic opportunity is a winning message for Republicans, especially among the youngest
voters, who are about to graduate and enter into the workforce and are worried about having
to move back home with mom and dad because of a still sour economy.
As the President’s signature healthcare bill, known throughout the country as “Obamacare,” began to unravel during the final weeks of the campaign, Cuccinelli’s attempt to transform his campaign into a referendum on that law helped him make the race competitive,
and probably bolstered his support among young voters as well. In his election night concession speech, Cuccinelli told supporters that “this race came down to the wire because of
Obamacare.”13 The College Republican leaders I spoke with concurred. Minneman contended
that young people hate Obamacare because of its adverse economic impact on their age cohort
in particular, and predicts that the issue will continue to drive voters into the arms of the GOP
in next year’s critical United States Senate races.14 Evan Draim, argued that “many students
began to realize how horrible a deal Obamacare is for them and refused to vote for a governor who championed its expansion in Virginia.”15 College Republican Federation of Virginia
Chairman Matt Wertman also credited, among other things, the “complete disaster” of the
Obamacare rollout with helping Ken Cuccinelli to win young voters.16 Obamacare continues
to pull young voters away from the Democratic Party. On December 4, the National Journal
reported that 57% of millenials disapprove of Obamacare and 52% of 18-24 year olds would
vote to oust President Obama.17
The Cuccinelli campaign worked hard to channel the energy of first-time voters into the
Republican direction. The campaign hired a Youth Coordinator who oversaw a coalition of
young leaders, predominantly college students, called Youth for Cuccinelli. Youth for Cuccinelli brought together a statewide network of over 5,000 high school students, college students, and young adults. Two regional co-chairs were selected for different regions of the
Commonwealth, who worked with and helped recruit coordinators at colleges and universities
within their designated areas. Jessie Markell, the Cuccinelli campaign’s Youth Coordinator,
shared with me his thoughts on the effectiveness of the youth strategy. “I believe, despite its
flaws, the Youth Coalition was extremely successful,” he opined. “We won the youth vote by
11 Evan Draim, Email Interview. December 8, 2013.
12 Matt Wertman, Email Interview. December 9, 2013.
13 Betsy Woodruff, “Cuccinelli: ‘This Race Came Down to the Wire Because of Obamacare.’ National
Review. Nov. 5, 2013. Date accessed: Dec. 8, 2013. < http://www.nationalreview.com/corner/363201/
cuccinelli-race-came-down-wire-because-obamacare-betsy-woodruff>
14 Elizabeth Minneman, Email Interview.
15 Evan Draim, Email Interview.
16 Matt Wertman, Email Interview.
17 Ron Fournier, “Millenials Abandon Obama and Obamacare.” National Journal. Dec. 4, 2013. Date
accessed: Dec. 9, 2013.
38 • The Burke Academic Review
Spring 2014
6 percentage points, an almost 18 point reverse from the Obama/ Romney election. We made
sure that Republicans had a constant presence on campus and made sure to stress the importance of Obamacare and the economy as the central youth issue, which I think resonated with
Virginia college students and young adults, as we are seeing it resonate at the national level.”18
I served as one of the regional co-chairs on the Youth for Cuccinelli leadership board. I worked
closely with UVA’s campus coordinator and also offered advice to the campus coordinator at
the College of William and Mary. The youth coalition was one of the ways in which the Cuccinelli campaign sought to engage young voters across the Commonwealth.
Regional Field Directors at local victory offices also recruited volunteers to assist with
local efforts. In areas close to major universities, such as Charlottesville, the vast majority of
regular volunteers were College Republicans interning with the local campaign office. Graham Pittman, who was field director for Albemarle, Fluvanna, and Nelson Counties, relied
heavily on College Republican volunteers.19 His predecessor, Zachary Cady, who was with
the campaign from February until April, but left to pursue a job opportunity in the private sector, also lauded the College Republicans for their efforts.20 The field director joined College
Republican volunteers on Grounds at UVA for weekly call nights, providing pizza from the
campaign, and College Republicans supplied volunteers to the local campaign office during
the rest of the week. College Republicans were essential to these local efforts.
While both the grassroots effort to mobilize College Republican volunteers as well as the
statewide coalition had a great deal of success, lack of adequate coordination between the
Youth for Cuccinelli coalition and the local field offices prevented these efforts from reaching
their full potential. Miss Minneman, who helped to coordinate College Republican volunteers across the Commonwealth this fall, reflected on some of the campaign’s inefficiencies.
“The problem with the Cuccinelli campaign was that all the coalitions were not coordinated
throughout the whole campaign,” she recalled. “The Youth for Cuccinelli people would call
me asking for volunteers for one thing, then the statewide campaign would call asking for us
to do something else at the same time, and then Women for Cuccinelli would ask for something else. And none of them communicated. And it was all data driven so they were each
competing with each other to steal volunteers. It was so counterproductive.”21 Jessie Markell,
the Cuccinelli campaign’s Youth Coordinator added that “communication is always an area
for improvement with campaigns.”22 While a successful grassroots campaign requires decentralized volunteer and voter outreach, there also must be adequate communication between
the different arms of a campaign. Out of my own personal experience both coordinating College Republican volunteers for the Charlottesville Victory office and serving on the leadership
board of Youth for Cuccinelli, it was very clear for me over the three and a half months that I
served in both capacities that the two departments did not communicate. Improving communication between the multiple parts of the campaign would have yielded a more efficient volunteer and voter outreach strategy, and may have increased Cuccinelli’s ability to turn out his
18
19
20
21
22
Jessie Markell. Email Interview. December 5, 2013.
Graham Pittman. Email Interview. December 6, 2013.
Zachary Cady. Email Interview. December 3, 2013.
Elizabeth Minneman. Email Interview.
Jessie Markell. Email Interview.
Spring 2014
The Burke Academic Review • 39
base on Election Day. In an election as close as this year’s gubernatorial election in Virginia,
that can make a tremendous difference.
In his analysis of the 2004 presidential election, Mr. Sabato described Kerry’s strong support among 18-29 year olds as “a ray of hope for the Democrats… even in the midst of John
Kerry’s defeat.”23 Ken Cuccinelli’s strong support among 18-24 year olds could likewise
be a ray of hope for Republicans even in the midst of their defeat this year. The Cuccinelli
campaign incorporated youth outreach into its campaign strategy, seeking to mobilize young
Republican-minded voters through a statewide youth coalition as well as through the volunteer efforts of local field offices. They channeled the energy of College Republicans across
the Commonwealth, who were singly the most dedicated coalition of volunteers for Ken Cuccinelli and his running mates. Young voters were attracted to the Republican firebrand by
a message that promised economic opportunity. Disenchanted by the perceived failure of
Obamacare, they gravitated toward the candidate who in the last days of the race tried to turn
the election into a referendum on the new health care law, despite largely disagreeing with
many of his positions on social issues. Virginia Republicans must learn from the losses they
suffered this year, the causes of which will likely be debated for years. It is equally important, however, that they acknowledge and appreciate their victories. Winning 18-24 year olds
was a tremendous victory for Ken Cuccinelli. If Republicans embolden themselves from this
achievement and work to make their youth outreach even stronger, this year’s Democratic
victories will be very short-lived.
Works Cited
Zachary Cady. Email Interview. December 3, 2013.
Evan Draim, Email Interview. December 8, 2013.
Ron Fournier, “Millenials Abandon Obama and Obamacare.” National Journal. Dec. 4, 2013. Date accessed: Dec. 9, 2013.
Jessie Markell. Email Interview. December 5, 2013.
Elizabeth Minneman, Email Interview. December 8, 2013.
Graham Pittman. Email Interview. December 6, 2013.
Larry J. Sabato, “The Obama Encore that Broke Some Rules,” in Barack Obama and the
New America, edited by Larry J. Sabato (Lanham: Rowman & Littlefield Publishers, Inc., 2013)
Sue Sturgis, “Youth help turn back the Tea Party in Virginia gubernatorial race.” The Institute for Southern Studies. Nov. 6, 2013. Date accessed: Dec. 8, 2013. < h t t p : / /
23
Sabato, Barack Obama and the New America, 21.
40 • The Burke Academic Review
Spring 2014
www.southernstudies.org/2013/11/youth-help-turn-back-the-tea-party-in-virginia-
gub.html>
Laura Vozzella, “McAuliffe makes final community college stop.” The Washington Post. Sep.
7, 2013. Date accessed: Dec. 8, 2013. < http://articles.washingtonpost.com/2013-09-
07/local/41843861_1_terry-mcauliffe-workforce-development-community-college>
Matt Wertman, Email Interview. December 8, 2013.
Sarah Westwood, “Ken Cuccinelli’s Surprise Success with Young Voters.” The Washington Times. Nov. 11, 2013. Date accessed: Dec. 8, 2013. < http://communities.washingtontimes.com/neighborhood/unicorn-
diaries/2013/nov/11/ken-cuccinellis-surprisesuccess-young-voters/>
Betsy Woodruff, “Cuccinelli: ‘This Race Came Down to the Wire Because of Obamacare.’ National Review. Nov. 5, 2013. Date accessed: Dec. 8, 2013. < http://www.nationalreview.com/corner/363201/cuccinelli-race-came-down-wire-because-
o b a m a c a re betsy-woodruff>
Peter Finocchio is a fourth-year Distinguished History Major with a second major in
Government and a Classics minor at the University of Virginia. He wrote this essay for Larry
Sabato’s Campaigns and Elections course in the Fall 2012 semester. As Vice Chair of Campaigns
for the College Republicans last fall, Peter was responsible for recruiting and coordinating
volunteers for last year’s Republican ticket. Peter also served as a regional co-chair on the
Cuccinelli campaign’s Youth Leadership Board and was the Chairman of the College Republicans
this semester. He has been a member of the Burke society since fall 2010 and is a staff writer for
the Virginia Advocate, a Student Ambassador, and was a Student Council Representative for the
past year.
Spring 2014
The Burke Academic Review • 41
Competing Motivations for Originalism:
Formalism v. Rights
By Hector Quesada
I. Introduction
In the never-ending debate over constitutional interpretation, there has remained one constant theme: the persistence of originalism. Yet, originalism has only been a dominant interpretive theory in the past several decades. Many consider the late Robert H. Bork to have brought
it out of the shadows and into the national spotlight with his book The Tempting of America,1
encouraging closet originalists throughout the country to express their views. The originalism
of today, however, is not exactly the one he promoted. The focus has shifted from original intent to original meaning. Driving this shift have been many of the theory’s leading advocates,
who are not all drawn to originalism for the same reasons. Some view originalism as the best
interpretive method to supplement formalist theories of law. Others, though much less numerous, believe that originalism ensures that protections of natural rights written into the Constitution remain in effect. While both groups support a faulty interpretive theory, subjective in
its true nature and providing no sure guard against judicial activism, this essay will attempt to
answer the question whether originalism is actually compatible with their motivations. In this
article, it will be shown that both motivations are ill-vindicated by originalism, but that originalism is more consistent with and better supported by the doctrine of natural rights.
II. A Brief History of Originalism
Bork’s originalism stresses the original intent of the drafters of the Constitution. To him,
they intended certain words of the document to have certain consequences, and we are bound
by those original intentions. While simple and somewhat appealing, the theory suffers from
issues of feasibility and subjectivity. First, there is no singular intention of the Constitution’s
drafters. The document was born out of compromise, and there is no way of figuring out
whose intention should be given priority. Intents were conflicting, and there is no consensus
on what “the” original intent was. Daniel A. Farber and Suzanna Sherry note, “Moreover, different framers expressed different views, and many, including Madison, changed their views
over time . . . And to make matters worse, some of the evidence suggests that Americans in
both the 1780s and the 1860s did not expect their own understanding of the meaning of the
constitution to govern future interpretation!”2 Second, historical accounts are often skewed
by personal agendas. Besides misinterpreting history on particular legal issues,3 Bork also
Robert Bork, The Tempting of America: The Political Seduction of the Law (1990).
Daniel A. Farber & Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for
Constitutional Foundations 16 (2002)
3 Id. at 17 (“When it comes to doing the actual historical work of determining the intent of the framers,
1
2
42 • The Burke Academic Review
Spring 2014
misrepresents historical views on the role of judges. From the late 18th century, Americans
endorsed the role of “judges as guardians of the rights of people.”4 Even Madison expected
judges to freely enforce the Bill of Rights.5 These steps away from reality are not accidental
but rather necessary to justify Bork’s, and other originalists’, policy preferences.6 It is clear
why scholars might seem hesitant to adopt Bork’s original intent theory. For some, though,
historical considerations are too alluring to abandon, and these scholars refuse to throw the
baby out with the bath water.
Original meaning originalism is the theory that many scholars have now adopted to
avoid original intent’s flaws. Justices Antonin Scalia and Clarence Thomas are perhaps this
theory’s most well-known supporters, and their position on the Supreme Court means their
jurisprudence has a powerful effect on the lives of most Americans. What they advocate is
interpretation of law based on the original meaning of words, as understood by the public
at the time of the law’s adoption. This shift from original intent to original meaning reflects
the search for objectivity in constitutional interpretation, since the original understanding of
words to the public is a matter of fact and not of opinion. Formalism can be seen as driving
most original meaning originalists, but it will be shown that originalism can often undermine
formalistic desiderata.
III. The Formalist Motivation
At its core, formalism is a jurisprudential doctrine advocating as optimal the interpretation of laws as they are written, without resorting to external judgments about, for example,
fairness and intent. Formalism is inextricably tied to analyses of the meanings of words in legal text; to know what a written law says, one must know what its words mean. This does not
necessarily lead to an originalist approach to interpretation, as one can utilize current meanings
(how we understand the words of the law today) or original meanings (how people from the
past—presumably those who lived during the time of the law’s initial creation—understood
the words of the law in their day). Yet, some of the most prominent formalists, like Justices
Felix Frankfurter and Antonin Scalia,7 have been/are drawn to originalism.8 To them, only
this interpretive method helps them follow the two guiding principles of formalism: judicial
restraint and objectivity. But does originalism in fact help them achieve their twin objectives?
Bork is too often sloppy, superficial, and sometimes inaccurate.”).
4 Id.
5 Id. at 18-19.
6 See Farber & Sherry, supra note 2, at 25-28.
7 See David A. Strauss, The Death of Judicial Conservatism, 4 Duke J. Const. L. & Pub. Pol’y 1, 7
(2009) (describing Frankfurter as “the most vigorous proponent” of limiting judicial action to cases where laws
are obviously unconstitutional); Farber & Sherry, supra note 2, at 37 (“Although far more sophisticated than
the classical formalists, Scalia shares their passion for order and logic.”).
8 See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947)
(expressing originalist notions when he remarked, “And so we assume that Congress uses common words in
their popular meaning, as used in the common speech of men.”); Antonin Scalia, Originalism: The Lesser Evil,
57 U. Cin. L. Rev. 849, 862 (1989) (clarifying to the reader that, despite its flaws, he prefers originalism to
nonoriginalism).
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A. Judicial Restraint
One of formalism’s primary objectives is judicial restraint. Justice Scalia writes: “All
I urge is that . . . the Rule of Law, the law of rules, be extended as far as the nature of the
question allows . . . .”9 For him, legal disputes necessarily involve relevant legal questions,
and judges should restrain themselves from deciding on issues not properly before them. According to Margaret L. Moses, judges also overstep their boundaries by reversing acts of Congress or state legislatures, undermining the legislative authority of elected institutions: “When
members of the Court act like ‘politicians in robes,’ who overstep their proper boundaries of
the constitutional structure regarding the role of the judiciary . . . they need to be called to
account.”10 Along with deciding issues not before them, judges also overstep their boundaries
by reversing acts of Congress or state legislatures, undermining the legislative authority of
elected institutions.11 Normatively, formalists believe such behavior should be kept to a minimum, if allowed to occur at all. In their view, judges should act merely as expositors of the law
to settle specific legal disputes, not legislate their policy preferences. Thus, Justice Frankfurter
exercised ultimate restraint in his dissenting opinion in West Virginia State Board of Education
v. Barnette;12 he sympathized with respondents, Jehovah’s Witnesses punished for obeying
the tenets of their faith and not saluting the American flag during the Pledge of Allegiance,
but believed the Court had no business interfering with the West Virginia law at hand.13 At
first glance, this seems honorable; we have an example of a justice selflessly disregarding his
personal convictions to bar himself from overstepping his judicial authority by invalidating the
rationally justified state law. Isn’t that the attitude judges should operate under?
As admirable as this type of restrained judging may seem (to some people), originalism
in practice does not lend itself so neatly thereto. Originalism is often embraced as a way to
enforce formalism, but the reality is that originalist interpretation has led the Court to overturn
many local, state, and federal statutes, or to reverse longstanding precedent it set, or both. An
especially illustrative example of the latter option is Justice Scalia’s majority opinion in District of Columbia v. Heller.14 Not only did the Justice strike down certain provisions of a local
statute, D.C.’s Firearms Control Regulations Act of 1975,15 but he also reversed the Second
9 Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1187 (1989).
10 Margaret L. Moses, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U.
Pa. J. Const. L. 161, 214 (2011).
11 Id. at 163.
12 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (Frankfurter dissenting).
13 Id. at 647 (Frankfurter, J., dissenting) (“I cannot bring my mind to believe that the ‘liberty’ secured
by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of
that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by
employment of the means here chosen.”).
14 See District of Columbia v. Heller, 554 U.S. 570 (2008).
15 See Firearms Control Regulations Act of 1975, D.C. Code §§ 7-2501.01(12), -2502.01(a),
-2502.02(a)(4),
and -2507.02 (1975).
44 • The Burke Academic Review
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Amendment precedent set by Miller v. United States16 in 1939. It is revealing that the most
influential originalist in the country, Justice Scalia, rejected formalism’s goal of restraint so
strongly .17 The gun control ordinance was not obviously unconstitutional, as Justice Frankfurter would have it be in order to invalidate it,18 and, as previously mentioned, the precedent
abandoned had been in place for almost 70 years.
The Court has also struck down major provisions of the Bipartisan Campaign Reform
Act of 200219 in several recent cases, including Citizens United v. Federal Election Commission.20 According to former senator Russ Feingold, “Presented with a relatively narrow
legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate
money in federal elections since Teddy Roosevelt was president.”21 Justice Scalia’s concurring
opinion in Citizens United certainly utilized an originalist methodology, but Feingold was not
without warrant to believe the Justice’s side of the court had overstepped its judicial bounds.
Certainly Frankfurter’s “clear mistake” judicial restraint may be an extreme—and “nobody
on the Court today holds this view of the Court’s role”22—but it is indisputable that original
meaning originalism can and has led to the invalidation of major laws.
B. Objective Adjudication
Another main goal of formalism is achieving objectivity when adjudicating. Judges are
subjective when they cast value judgments on policy and interpret the Constitution to fit those
judgments.23
Both of the prominent varieties of originalism are liable to the subjectivity that formalism scorns. Original intent originalism can lead a judge to such subjectivity: “When a judge
looks for what a law ‘meant’ rather than what it said, he will tend to ask ‘[w]hat should it
have meant?’ and will conclude that it meant something that he deems best.”24 Original understanding originalism, which has become more common, is claimed to prevent subjectivity
and encourage objectivity, since judges merely look at the historical evidence to decipher text
and decide cases. However, the latter originalists can still succumb to subjectivity in the form
of imposing their own value judgments—as would be expected from any human being. More
16 Miller v. United States, 307 U.S. 174 (1939).
17 Farber & Sherry, supra note 2, at 29 (“As a Supreme Court justice, [Scalia] has been an important
force—a powerful critic in dissent, and not infrequently the spokesman for the conservative majority.”).
18 See Strauss, supra note 7, at 7.
19 Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat 81.
20 See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010); Davis v Fed. Election Comm’n,
554 U.S. 724 (2008); Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007).
21 Kasie Hunt, John McCain, Russ Feingold diverge on court ruling, Politico (Jan 21, 2010), available
at http://www.politico.com/news/stories/0110/31810.html (visited Nov 7, 2013).
22 Strauss, supra note 7, at 8.
23 See Tara Smith, Why Originalism Won’t Die: Common Mistakes in Competing Theories of Judicial
Interpretation, 2 Duke J. Const. L. & Pub. Pol’y 159, 164 (2007).
24 Id. (footnote omitted) (quoting Antonin Scalia, Common Law Courts in a Civil-Law System: The
Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation:
Federal Courts and the Law 18 (Amy Gutmann ed., 1997)).
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novel is the idea that objectivity is misunderstood by both originalists and their detractors.25
1. Imposing Extra-textual Values
The values of a judge, whether judicial or moral, can override the ostensibly restraining effects of originalist analysis, directly undermining the aims of formalism. For example, Justice
Scalia admits that the doctrine of stare decisis should be followed in cases where longstanding, entrenched precedent contradicts an outcome expected from an originalist interpretation
of the Constitution.26 This philosophy that stare decisis is paramount is uncontroversial, and
reflects the views of most judges. Yet, stare decisis, which may serve the ends of formalism
and judicial restraint, is a judicial value neither mentioned nor directly supported anywhere in
the constitutional text. While the doctrine of stare decisis may have been advocated by Framers like Alexander Hamilton,27 their views are not binding on any judge, especially one like
Justice Scalia who opposes the use of original intent.28 What is frustrating is the ease with
which he talks of “diluting” and “adulterating” originalism with stare decisis, while providing
no justification—that is consistent with originalism— for doing so.29 One could conceivably
dilute originalism with many things, including principles of popular sovereignty and liberty
rights, but justifying them using “tradition” is not a logically sufficient argument.30 The problem is not that Justice Scalia’s originalism encourages dilution—it doesn’t—but rather that it
is seemingly neither strong enough nor practical enough to prevent dilution.
While the doctrine of stare decisis advocates the decidedly judicial value of following
legal precedent,31 originalists can also smuggle moral and/or political values into their rulings
in spite of their interpretive approach. Justice Scalia has declared, for example, that legally
sanctioned public flogging or handbranding would not be sustained by courts, even if such
punishments were shown to be acceptable during the times of the Framers.32 Though Justice
Scalia seems to accept this as a matter of moral conviction, again, no part of the Constitution
explicitly invites judges to impose their morality on the outcome of cases.
Similarly, Justice Scalia unexplainably ascribes special importance to tradition:
25 Smith, supra note 23, at 161.
26 Scalia, supra note 8, 861.
27 See Moses, supra note 10, at 169 n. 27.
28 See, e.g., Smith, supra note 23, at 163 (“Of the two—what lawmakers intended and what they
actually wrote down and ratified—only the latter counts as law, Scalia insists.”).
29 Scalia, supra note 8, at 861 (“[I]n its undiluted form, at least, [originalism] is medicine that seems too
strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis . . . .”).
30 See Farber & Sherry, supra note 2, at 49-50.
31 Stare decisis may, for this reason, be taken by some as an acceptable extra-judicial
consideration.
32 Scalia, supra note 8, at 861 (“[I] am confident that public flogging and handbranding would not be
sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come
to terms with that reality.”). Since 1989, Justice Scalia has doubled down on his originalism, recently admitting
that “[I]f a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”
Jennifer Senior, In Conversation: Antonin Scalia, New York, Oct 6, 2013, available at http://nymag.com/news/
features/antonin-scalia-2013-10/.
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[W]hen a “practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back
to the beginning of the Republic, [the Supreme Court has] no proper basis for striking it
down.”33
Following tradition is indeed a pragmatic way to prevent court decisions from overturning
well-established practices in government, but tradition is nowhere invoked in the Constitution
and may, in any given instance, stand opposed to it. Justice Scalia would temporarily reject
originalism, for example, if it were used to declare current libel laws unconstitutional because
this would dramatically change how reporters or bloggers portray public figures.34 Without
originalism this would seem like a sensible approach; the effects of shifting jurisprudence on
major issues would lead to legal chaos. With originalism, however, sticking to tradition despite
conflicts with interpretation is baseless, or at least based on something outside the constitutional text. In this respect, the Justice seems a faint-hearted originalist indeed.35
The preceding analysis of extra-textual values and their relationship to originalism shows
that the latter is simply not enough for formalists. While declaring that text is their main guide
to law, prominent formalists still make use of subjective judgments when interpreting and,
especially, when adjudicating.
2. Misunderstanding Objectivity
Tara Smith suggests that genuine jurisprudential objectivity exists when, among other things, judges consider “the open-ended nature of concepts” when interpreting the law’s
words.36 On her account, Justice Scalia’s textualism—her term for his formalist originalism—
considers the words in the Constitution to refer to broad concepts, and these concepts “refer
to what [the law’s authors] meant by the concepts in question . . . rightly or wrongly.”37 The
authors or framers had in mind criteria for what certain concepts meant, so that concepts to33 Farber & Sherry, supra note 2, at 51 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 95
(1990) (Scalia, J., dissenting), quoted in Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 687 (1996) (Scalia,
J., dissenting)).
34 The example of libel laws is taken from Umbehr, 518 U.S. at 688 (Scalia dissenting). Striking down
libel laws is not unheard of, however: the United Nations Human Rights Committee declared in 2011 that a
Philippine law defining libel—and used to convict one Alexander Adonis—violated the right to freedom of
expression under the International Covenant on Civil and Political Rights. Rev. Penal Code, art. 353 (Phil.);
International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), art. 19, U.N. Doc. A/6546 (Dec
16, 1966); U.N. Human Rights Comm., Views of the Human Rights Committee under article 5, paragraph 4, of
the Optional Protocol of the International Covenant on Civil and Political Rights (103rd session) concerning
Communication No. 1815/2008, CCPR/C/103/D/1815/2008/Rev.1 (April 26, 2011), available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/422/05/PDF/G1242205.pdf?OpenElement (visited
Oct 10, 2013).
35 Scalia, supra note 8, at 864 (“Having made that endorsement [of originalism], I hasten to confess that
in a crunch I may prove a faint-hearted originalist.”).
36 Smith, supra note 23, at 209.
37 Id. at 190.
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day refer to the specific items the framers associated with concepts/words and any other such
items as meet the criteria. Smith’s problem is that this view does not allow or take seriously
the possibility that the Framers may have associated concepts with certain items that did not
meet the required criteria but that were simply assumed to meet the criteria. For example, she
points to “cruel and unusual punishment,” suggesting the possibility that those who drafted the
Eighth Amendment may not have recognized the innate cruelty of punishments they thought
permissible.38 The issue is that, to originalists, the list of items that are considered (un)constitutional depends entirely on the views and often faulty value judgments of our agenda-driven
forefathers. Thus, Justice Scalia’s originalism is superficially objective and loses formalism’s
war against subjectivity because it claims to faithfully apply “certain individuals’ beliefs about
actions” to modern cases, without critically evaluating the correctness of those beliefs.39
Smith claims that objectivity is actually attained when one uses timeless, correct criteria
to determine the meaning of text.40 The correct criteria for interpretation are, on her view,
based in reality, not one group of people’s beliefs about reality.41 In her words, there must be
a fidelity “to the concepts expressed in the written law rather to a set of lawmakers’ or a society’s time-frozen beliefs about those concepts’ referents.”42 Smith’s plan is actually objective
because it recommends real criteria, not ones thought of as correct, be applied to current laws
and governmental practices. The correct criteria for the concept “cruelty” can differ from what
the original authors of the Constitution thought, but that should not concern judges. Insofar
as formalists want true objectivity in the practice of legal interpretation, they must obey the
objective meaning of words, not the subjective meanings ascribed to words by other people.
A truly objective observer must ‘call it like it is,’ unabashedly calling balls and strikes even if
rule-makers intended different interpretations of their rules.
IV. “Writtenness” and Natural Rights
As a jurisprudential theory, Justice Scalia’s formalism is not the only motivation for originalism as an interpretive theory. Rather than build from formalism, Randy E. Barnett emphasizes the protection of natural rights as the source of constitutional legitimacy,43 and his efforts
are directed at finding an interpretive theory that acknowledges their existence and affirms
their protection by the Constitution (and courts). He argues that to preserve the original legitimacy of a constitution, we need an interpretive theory—originalism—that will constrain
government officials to the prescriptions of that legitimate document.44 Barnett’s defense of
originalism is, in some ways, more nuanced and creative than that of Justice Scalia, combining a formalistic premise regarding the normative jurisprudential significance of ‘writtenness’
38 Id.
39 Id. at 192.
40 Id.
41 Id. at 195 (espousing a form of scientific realism, that is, the idea that there are things in and facts
about the world that exist independent of my knowledge of them).
42 Id. at 211.
43 See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 32-52 (2004).
44 Id. at 109-13.
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with an overarching concern for natural rights. While this valiant effort works better than the
one motivated by formalism, there remain similar objections.
A. Writtenness
One of Barnett’s arguments for originalism centers on the fact that our Constitution is
a written document. While this writtenness provides formality in the everyday sense of the
word—e.g., a “formal agreement” or “that’s just a formality”—Barnett identifies certain functions which underlie this formality: providing evidence, allowing caution, channeling intentions, and clarifying.45 A written document provides physical evidence of its content to the
signatories and any other interested parties, and it clarifies terms in unchanging textual language46; all these functions relate to the concept of having a concrete object to refer to when
rules must be accessed. Of course, the rules to be accessed in the Constitution are (mostly)
those concerning limits on the government. On Barnett’s view, these limits were expressed in a
written constitution in order that they would bind government officials in no uncertain terms.47
The functions of writtenness are preserved when the constitutional text is interpreted in
the context of its original understanding. If the Constitution was written to express certain
ideas agreed upon by the delegates to the ratifying conventions, and no language exists in the
document to clearly note that shifts in meaning can occur, then the document’s text must be
interpreted based on the original understanding of the delegates to the Constitutional Convention of 1787. As Barnett notes, “[If] either a constitution or a contract is reduced to writing and
executed, where it speaks it establishes or ‘locks in’ a rule of law from that moment forward.”48
Interpretations of the text that significantly change its meaning, or assign to words concepts
inconsistent with those of the ratifiers, undermine the functions of a written constitution such
as ours.49 Barnett’s originalism, then, is not motivated by a Scalia-type formalist desire for
judicial restraint or objectivity. Rather, originalist interpretation is inherent in and demanded
by all written laws: “[Barnett’s writtenness argument] contends that the Originalist interpretive
method is the natural, logical corollary of having a written constitution.”50
B. Natural Rights and Legitimacy
A respect for constitutional protections of natural rights also motivates Barnett’s originalism. For him, it is imperative for him that a legitimate constitution, one that is to receive
prima facie obedience, “provid[e] adequate procedural assurances that enacted laws properly
45 Id. at 101 (discussing the views of Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799
(1941) and John Calamari & Joseph Perillo, Contracts (3d ed. 2003) (1970)).
46 The meaning of the language may change for some people, but the actual words (text) are meant to
be immutable.
47 Barnett, supra note 43, at 104.
48 Id. at 105-106.
49 Id.
50 Tara Smith, Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective,
26 Const. Comment. 1, 8 (2009).
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respect the rights of those on whom they are imposed and are necessary to protect the rights
of others.”51 If our Constitution is found to be legitimate by providing these assurances, then
only originalism can preserve them. As the discussion of writtenness above suggests, the writtenness of the Constitution implies that the meaning of its provisions are immutable from the
time they were legally adopted. Whether the Constitution is illegitimate, as it may be, must be
ascertained by interpreting its text using the unchanging original meaning to the contemporaneous public at large. Otherwise, judges could contradict Congress without formal amendment
to either expand rights or limit them. Anything would be possible once a settled, authoritative
interpretation of the law were abandoned.
Promoting original meaning originalism, however, does not preclude the use of extratextual sources to determine the specific meaning of certain provisions. In fact, Barnett argues
that certain amendments to the Constitution—including the Ninth and Fourteenth—specifically provide for “supplementation of [their] express terms” based on an originalist reading.52
As one might expect from someone so focused on liberty rights, this constitutional “construction,” which fills in gaps purposefully created, is supposed to be conducted in order to identify
and protect rights left unnamed in the Constitution itself.53 But Barnett emphasizes that the act
of filling in constitutional gaps must come as a directive from the language of the Constitution,
gleaned through originalist interpretation, not from someone’s subjective desire to impart her
morality onto the document.54 For example, Amendment X may have been interpreted by the
public at the time of its adoption to refer to natural rights nowhere listed in the Constitution.
In that case, one may refer to the original meaning of the terms “natural rights” or “liberty
rights” to give content to the Amendment. Whatever method one uses to construct meaning
from gaps, the meaning must supplement the text and preserve legitimacy, i.e., protect natural
rights retained by the people.55
C. Objectivity Revisited
Tara Smith’s criticisms of the supposed objectivity of Justice Scalia’s originalism likewise
apply to Barnett’s originalism. Like Justice Scalia, Barnett relies on the conceptual criteria of
meaning imagined by the general public. As we have seen, Smith argues that the objective
meaning of concepts must actually be determined by reality-based criteria. A cat is a “cat” not
because it fits the criteria for cat-ness of an 18th-century politician but because it fits the criteria for the kinds of things cats actually are, independent of our beliefs about them. But Smith
dedicates a whole separate article,Why Originalism Won’t Die, to talking about Barnett’s writtenness defense of originalism. In Originalism’s Misplaced Fidelity56 she criticizes Barnett’s
51 Barnett, supra note 43, at 85-86.
52 Id. at 108.
53 Id.
54 Id. at 122-24. Constitutional construction can also occur when language is vague enough that
originalism might yield two or more differing interpretations.
55 Id. at 126-27.
56 Tara Smith, Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective, 26 Const.
Comment. 1 (2009).
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insistence that we implement the beliefs of our political predecessors because “they spoke
first” and wrote down their ideas first.57 She sees this as unfair because they may have been
wrong about their conception of terms. Further, this “finders, keepers” doctrine, which gives
constitutional authority to those groups of politicians who happened to create the first constitution, admits of no cooperation and dialogue between the legal academy and the population
at large. Barnett would that the will and semantic understanding of an increasingly dynamic
American society be trumped by that of a long-dead generation of white, male aristocrats.
Nevertheless, one must note that Barnett is not interested in the objectivity of formalists
like Justice Scalia.58 His motivation for originalism is not formalist; it is based on a desire
to establish the constitutional protection of rights.59 If provisions of the Constitution do this,
then they must be interpreted with their original meanings to preserve or establish their proper
functioning. In other words, Barnett sees originalism as valuable insofar as it “preserve[s] or
‘lock[s] in’ an initially legitimate lawmaking scheme,”60 one that “provides adequate procedural assurances that enacted laws properly respect the rights of those on whom they are imposed and are necessary to protect the rights of others.”61 This is the functioning intended by
the drafters of the provisions and understood by the general public at the time, whose delegates
voted for the Constitution at their state ratifying conventions.
D. The Best Constitution?
Leaving aside objectivity, one might also question how well natural rights are protected
by submitting to the original meaning of our particular Constitution, as amended. Barnett’s
interpretation of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment is key to his argument that the Constitution does procedurally assure the
protection of our retained rights, and is thus legitimate. Yet, it is hard to imagine that he thinks
our Constitution is the best document to protect natural rights and “privileges or immunities.”
In fact, neither of these constitutional provisions are actively enforced by federal courts. The
Privileges or Immunities Clause of the Fourteenth Amendment, for example, has mostly rested
dormant as a protection of natural rights.62 Similarly, the Ninth Amendment has been used
only a few times to defend unenumerated rights retained by individuals.63 Barnett may argue
that weak or unfaithful interpretations of these provisions have had a role to play in their underutilization. But these are faults with the vague language of the Constitution that even originalism cannot solve. He cannot claim that constitutional construction faithful to originalism truly
57 Id. at 36-37.
58 Along with other reasons, I would argue that his rather arbitrary “presumption of liberty” is proof
enough that Barnett does not mind subjectivity.
59 Barnett, supra note 43 passim.
60 Id. at 89.
61 Id. at 85-86.
62 S����������������������������������������������������������������������������������������������
áenz v. Roe, 526 U.S. 489, 521 (1999) (Thomas, J., dissenting) (“[T]he Court all but read the
Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases . . . .”).
63 See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (Goldberg, J., concurring); Gibson v.
Matthews, 926 F.2d 532 (6th Cir. 1991).
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makes the Constitution “the best it can be” if it doesn’t protect natural the best it can.64
While he declares that problems with the Constitution itself do not undermine the need
for originalism in order to respect writtenness,65 Barnett must admit that a commitment to
writtenness could and has stifled the vigorous protection of rights. For example, Chief Justice
Roger B. Taney’s opinion in Dred Scott v. Sandford66 declared that American blacks could
not be considered, barring some profound change to the constitutional structure,67 federal
citizens, even for the mere purpose of suing in court. Chief Justice Taney focused on the common governmental definitions of who was a citizen at the time of the Constitution’s adoption,68
applying an originalist interpretation of citizenship law within the context of a founding generation mostly approving of institutional slavery.69 Clearly, then, a respect for writtenness by
embracing originalism in the Dred Scott case led to the withholding of basic citizenship rights
from American blacks. This is something Barnett would find detestable, since he takes rights
as preceding any interpretive method like originalism.70 Such contradiction could be avoided,
however, if Barnett allowed another interpretive method, one more amenable to protecting
rights. He is right to note that a nonoriginalist interpretation can be used to increase or decrease
rights, but certainly there must be one such method which can focus solely on increasing all
the natural rights of people.
V. Formalism or Rights?
This discussion of the formalist and natural rights motivations for originalism paints a
64 Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 128 (rev. ed
2014) (“One can call this making the Constitution ‘the best it can be,’ as Ronald Dworkin might, but this
method of construction—as distinct from interpretation—is appropriate only when terms are genuinely vague,
when the original level of generality can be satisfied by more than one rule of law, or when the Constitution
authorizes supplementation.”).
65 See Barnett, supra note 43, at 111 (“To repeat, if the original meaning of the constitution is not
‘good enough,’ then originalism is not warranted because the Constitution is itself defective and illegitimate.
This represents a rejection of the Constitution, not a rejection of originalism per se. . . . Once again, to claim
that [judges] are not bound [by the Constitution] is to reject the Constitution, not originalism.”).
66 60 U.S. (19 How.) 396 (1854).
67 Such a change occurred in 1868 upon adoption of the Fourteenth Amendment, U.S. Const. amend.
XIV, § 1.
68 60 U.S. (19 How.) at 407 (“We must inquire who, at that time, were recognised [sic] as the people or
citizens of a State . . . .”).
69 Given Barnett’s claim that only a “legitimate” constitution’s writtenness should be respected, a
critic of my Dred Scott example might claim that Taney’s use of originalism was misguided because that preFourteenth Amendment Constitution was illegitimate. However, nowhere in Restoring the Lost Constitution
does Barnett go as far as to say that our Constitution is or has been illegitimate. I also find it difficult to argue
that that pre-1868 Constitution was illegitimate solely on the basis of allowing a racist system to exist, since
the text of that document did not affirmatively deny citizenship rights to people of color (though the text of the
document is obviously problematic if applied according to its original meaning).
70 Barnett, supra note 43, at 4 (“With this analysis of constitutional legitimacy and natural rights, we
will then be in a position to understand why the words of the Constitution should be interpreted according to
their original meaning . . . .” (emphasis added))
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mixed picture of the much maligned theory. Originalism remains heavily criticized despite
its shift from intentions to original meanings but it refuses to go away for good.71 Insofar as
originalism remains alive and popular among some scholars—and even a few Supreme Court
justices—it has won an enduring battle against nonoriginalism. Still, it survives by the skin of
its teeth.
A. Originalism at Odds with Formalism
Originalism does not reliably further the formalist goals of judicial restraint and objectivity. Formalists who value judicial restraint continue to overturn key legislation after engaging
in originalist interpretation.72 In that way, originalism may, in practice, encourage the very
judicial activism formalists would like to eliminate.73 Neither does originalism help formalists attain true objectivity, as described by Smith. Originalism implicitly asserts that unbiased
interpretation of the constitutional text based on the original meanings of words is the epitome
of objectivity. Yet, while this alleged objectivity of originalism is, perhaps, its most alluring
quality,74 the term is misunderstood by originalists and nonoriginalists alike.75 It is interesting
to consider that they might be mistaking the subjective intent of the drafters for the objective
original meaning of the constitutional text.76
B. Barnett and Originalism
Barnett stands on slightly firmer ground than the formalists. His logical progression is:
1. Establishing the legitimacy of the Constitution requires the protection of natural rights, which leads to
2. A respect for the writtenness of the Constitution, which necessarily leads to
71 See, e.g., Smith, supra note 23, at 160-61; Barnett, supra note 43, at 89-92. Barnett admits, “The
received wisdom among law professors is that originalism in any form is dead, having been defeated in
intellectual combat sometime in the 1980s.” Id., at 89-90.
72 See Part III.A.
73 The liberal activities of the Warren Court and the passage of laws conforming to nonoriginalist
interpretations of the Constitution may be the reason that originalist judges increasingly turn to activism.
Judicial activism in this sense can be considered a logical reaction to what they would call the atrocious
jurisprudence of the last few decades. Nevertheless, it would be interesting to test whether and to what extent
antecedent nonoriginalism has been a cause of judicial activism by so-called originalists.
74 See Smith, supra note 23, at 161 (“The deeper reason that Originalism will not die, I think, is that it
has staked out the moral high ground, championing the objectivity of interpretation that is essential to the ideal
of the rule of law.”).
75 Id. (“What I will suggest is that the very objectivity which explains Originalism’s appeal is
misunderstood by Originalists themselves. And part of the reason that criticisms have not inflicted more
crippling damage is that the leading alternatives also suffer from confusions about appropriate standards of
objectivity in the legal domain . . . .”).
76 Smith, supra note 50, at 55 (“If we take the meaning of law’s words to be merely what certain
people’s words meant to them—those individuals’ conceptions, no more and no less—we revert to the mindreading games and invariability that sank the Original Intent school.”).
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3. The adoption of original meaning originalism.
He can make the argument that “a written constitution requires originalist interpretation”
because of the way he understands writtenness.77 If true, this makes his case more compelling
than that of the formalists, who are motivated to originalism because of their personal desire
for order and restraint. Barnett’s motivation is constitutional legitimacy, which is absolutely
necessary for it to be authoritative and binding in the first place. The objectivity criticism from
Smith, while valid, is irrelevant to Barnett because objectivity was never his primary concern.
VI. Conclusion
A complete review of the merits of originalism is not conducted here. Rather, I have described inconsistencies between some motivations for originalism and the actual outcomes
of originalist jurisprudence. Justice Scalia’s formalism dooms him to an almost unattainable
goal: achieving true objectivity while doing so in a restrained fashion. Supreme Court jurisprudence has moved in the direction of originalism in recent years, but true objectivity would
require judges to reverse many decisions to fit constitutional meaning from objective sources,
not the public of the late 18th century. Also, Justice Scalia’s “faint-hearted” originalism lacks
vigor and logical consistency at the extremes. Why wouldn’t he allow originally acceptable
public floggings? I argue that the best kind of interpretive methodology would be comprehensive and accommodating enough that no “diluting” exceptions would be needed. Barnett,
on the other hand, does not strictly adhere to judicial restraint, so radical structural changes
that he advocates given his originalism are unproblematic. At the very least, such changes are
motivated by an originalism logically following from his conception of natural rights and the
writtenness of our constitutional document. He doesn’t need to hold formalist values. In fact,
no outside values, other than the normative insistence on the legitimacy of the Constitution,
must be held for him to advocate originalism.
Hector Quesada is a senior at Virginia Tech, majoring in Political Science and minoring in
Philosophy. He would like to thank Dr. Luke Plotica for edits he suggested on an earlier version
of this paper, which Hector wrote as part of an independent study in constitutional interpretation
that Dr. Plotica supervised.
77
Id. at 9.
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Alumni Spotlight
Each year, some of our members graduate and move into exciting new endeavors.
This space highlights some of our alumni and their current pursuits.
Nicole Bailey
Nicole, from Haymarket, VA, was a member of the University of Virginia class of 2013. She
majored in Political Philosophy, Policy, and Law as an undergraduate. She served as Editor in Chief
of the Virginia Advocate while attending the University, and was an active member of the Burke
Society. She graduated UVa early and took a gap year before graduate school. Nicole spent half of
the year working as a conservative editorial intern for Townhall, and is spending the second half
in Oman, where she is studying Arabic and teaching English. Nicole will begin a Master’s degree
program in Global Communication at the George Washington University’s Elliott School of International Affairs in Fall 2014.
Kyle O’Donnell
Kyle came to the University in 2008 from Loudoun County, Virginia, where he had lived all of
his life previously. At the Activities Fair, it was the blazer-clad, cigar-smoking, wittily condescending gentlemen of the Burke Society who peaked his interest; he and his roommate, Mr. Nicholas
Shaffer, were a part of the then-novice society ever since. As an officer of the Society, Kyle served as
Events Chair, Membership Chair, Vice President, and President. While also a member of the Burke
Society, Mr. O’Donnell participated in other groups and activities, such as avid weightlifting, Chi
Alpha Christian Fellowship, and Sustained Dialogue. He graduated with distinction from the University in 2012 with a Bachelors of Arts in History and Foreign. After graduation, Mr. O’Donnell
spent a year with Trinity Presbyterian Church here in Charlottesville as a Trinity Fellow, learning
how serve the local church well. He has stayed in Charlottesville, where he now works as Assistant
Director at Clayborne Education, a locally-owned, one-on-one test prep and tutoring service.
Mike Watson
Mike Watson (History, 2012), is from Midlothian, VA. He was also a member of the Alexander
Hamilton Society and Reformed University Fellowship while at UVA. He now works as a research
assistant for Charles Krauthammer, where he assists Dr. Krauthammer’s preparation for his daily
appearances on Special Report with Bret Baier and his weekly columns in the Washington Post.
Mike also helped with the publication of Things That Matter, Dr. Krauthammer’s New York Times
bestselling book. He lives in Arlington, Virginia.
Joel Taubman
Joel, from Fairfax, VA, was a member of the University of Virginia class of 2013. He majored
in Mechanical Engineering and served as Social Chair for the Society as a member. After school he
moved to Scottsdale, Arizona where he works in telecom for Crown Castle International as a Tower
Structural Analyst. He was a regular fixture at his local synagogue (Beth Tfillah), his local young
Jewish group (Moishe House), and Arizona State University where he currently assists in Israel
advocacy.
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VE
R IT
A T E V A LIBI
S
U
M
The elevation of the mind ought to be the principal end of all our studies; which if they do not in
some measure effect, they are of very little service to us. But, beside this great purpose, a consideration
of the rationale of our passions seems to me very necessary for all who would affect them upon solid
and sure principles. It is not enough to know them in general: to affect them after a delicate manner, or
to judge properly of any work designed to affect them, we should know the exact boundaries of their
several jurisdictions; we should pursue them through all their variety of operations, and pierce into the
inmost, and what might appear inaccessible, parts of our nature,
Quod latet arcand non enarrabile fibrâ.
Without all this it is possible for a man, after a confused manner, sometimes to satisfy his own mind
of the truth of his work; but he can never have a certain determinate rule to go by, nor can he ever make
his propositions sufficiently clear to others. Poets, and orators, and painters, and those who cultivate
other branches of the liberal arts, have, without this critical knowledge, succeeded well in their several
provinces, and will succeed: as among artificers there are many machines made and even invented
without any exact knowledge of the principles they are governed by.
- Edmund Burke, On the Sublime and Beautiful