


























FINAL COPY: Law Journal: Volume 11, Annual Issue


Brandeis University Law Journal 2023-2024, Volume 11

Mission Statement

The Brandeis University Law Journal aims to provide Brandeis
University with the opportunity to contribute to discussions of
law and law-related topics with the publication of
undergraduate scholarship. We hope to aid in the furtherance of
Brandeis University’s motto of “truth even unto its innermost
parts” through publishing rigorously researched articles and
engaging in respectful, thoughtful, and insightful debates. This
journal is both a publication and a constant work in progress as
we are grounded in an undergraduate academic environment
and constantly trying to learn, grow and improve. Our journal
provides a platform for intellectual growth and debate where
academic scholarship can flourish. We focus on academic
excellence, encouraging expressions of scholarship, and
encouragement of educational purposes.

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Brandeis University Law Journal 2023-2024, Volume 11

Statement of Neutrality

The Brandeis University Law Journal is an independent publication,
managed entirely by undergraduate students, that functions as a
neutral platform for the unrestricted circulation of community

members’ views on legal matters. The views expressed in the Journal
do not necessarily reflect those of the Journal’s Executive Board or

its other authors and editors.

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Brandeis University Law Journal 2023-2024, Volume 11

Submissions

Our journal requires all submissions of articles and abstracts to
be:

1) Original and written by members of the Brandeis
community.

2) Related to law and/or using legal reasoning.

We welcome submissions from undergraduates for publication
at any time.

Interest in involvement through writing, editing, or
administrative roles is always welcome. Please direct any
queries to deislawjournal@gmail.com.

Archives

To access the Brandeis University Law Journal archives and
explore past and current issues, please visit the Brandeis
University Library Archives at:

https://journals.library.brandeis.edu/index.php/blj

3

mailto:deislawjournal@gmail.com
https://journals.library.brandeis.edu/index.php/blj


Brandeis University Law Journal 2023-2024, Volume 11

Brandeis University Law Journal ©2024

ISSN: 22154-4468

e-ISSN: 2836-7251

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Brandeis University Law Journal 2023-2024, Volume 11

Brandeis University Law Journal©2024

Fall 2023 & Spring 2024 VOLUME 11

Executive Board
Co-Editor-In-Chief Co-Editor-In-Chief

Emanuel (Manny) Glinsky Gonny D. Nir

Content Editor Publisher and Treasurer
Daniel Block Peyton Gillespie

Layout Editor Library Liaison
Alyssa Golden Noah Levy

Editorial Librarian Archival Librarian
Aimee Slater Wendy Shook

Faculty Advisor Faculty Advisor
Professor Rosalind Kabrhel Professor Daniel Breen

Technical Editors:
Ada Rose Wagar, Alyssa Golden*, Casey Shea Dinkin, Dalya Koller, Daniel

Block*, Gabby Grunfeld*, Gonny D. Nir*, Emanuel (Manny) Glinsky*,
Noah Levy*, Peyton Gillespie*, Zachary Miller*

Editorial Board

Senior Editors:
Julia Fair, Lauren Lederer, Noah Risley, Samara Miller, Tavorr

Vaxman-Magid

Junior Editors:
Adira Muskat, Alexis Demircan*, Alina Nowakowski, Anna Ertischek,

Ariel Schultz*, Ava Ferrigno, Benjamin Grimes, Cameron Chase, Eamonn
Golden, Eve Polvay*, Hannah Golub*, Hannah Messinger, Harry Watkin

Fox*, James Carven, Kana Goldstein*, Kaylin Ger*, Koby Gottlieb,
Madison Sirois, Maia Katsnelson, Maria Antonio, Max Klein, Momoca

Mairaj, Sadie Lieberman*, Tehilla Oami

(*) Indicates editor engaged in workshops and training to learn The Bluebook: A Uniform
System of Citations

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Brandeis University Law Journal 2023-2024, Volume 11

CONTENTS

Letter from the Editor-in-Chief..........................................7

The Bluebook: A Uniform System of Citation

The Israeli-Hamas War: The Legality of Israel’s Invasion
of Gaza Under International Law, Koby Gottlieb.............. 9

States of Emergency: The History and Legal
Ramifications, Maia Katsnelson...................................... 30

Coverture: For the Benefit of All Man[kind], Audrey
Kiarsis.............................................................................. 43

Covid and the Court: Why the Supreme Court Should Not
Diffuse European Speech Restrictions into American Law,
Brandon King...................................................................61

A Proposal to Reform the Practice of Solitary
Confinement, Kaia Minkin...............................................79

The Development of Privity of Contract as the Common
Law Standard for Product Liability: An Analysis of
Winterbottom v. Wright, Thomas v. Winchester, and
Industrialization, Harrison Sugarman............................117

Chicago Manual of Style 17th Edition

Immigrant Labor and Civil Rights in the United States,
Peyton Gillespie............................................................. 134

“Decisions We Do Not Like”: Flag Desecration Case Law
and the Culture War, Jack Granahan.............................148

The Psychedelic Surge and its Threats to Native American
Communities, Leora Karoll........................................... 167

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Brandeis University Law Journal 2023-2024, Volume 11

Letter from the Editor-in-Chief
Dear Reader,

Your Executive Board is proud to present the 2023-24 issue of the Brandeis
University Law Journal. This year has been one of many firsts for our Journal. Chief
among these is the transition from a bi-annual to an annual publication. The
following nine undergraduate-penned articles explore a range of legal issues: from
the legal history of coverture and the precedent governing flag desecration to the
legal protections needed to safeguard immigrant workers’ civil rights.

This publication is indebted to our exceptional team of authors and editors. We are
grateful to our gifted editorial team who consistently volunteer their finite time to
edit submissions. The E-Board is equally grateful to our authors who have devoted
their time and care to revisiting their work over many arduous editing cycles.

Longtime readers may notice a new referencing style in some of this year’s articles.
Indeed, in a trailblazing initiative at the undergraduate level, the Journal is adopting
The Bluebook: A Uniform System of Citation to conform to the citation system used
by the legal profession and other academic legal publications. To accommodate this
transition and support our authors, we allowed citations to be completed in either
Chicago 17th ed. or Bluebook. The articles written in Bluebook comprise the first half
of the issue and those written in Chicago comprise the second. We are appreciative
of our Government Information & Social Sciences Librarian, Aimee Slater, for
lending so much of her time and expertise to enact this strenuous transition.

The E-Board extends its utmost gratitude to our faculty advisors, Professors Breen
and Kabrhel, for their invaluable expertise. Their support has been instrumental in
keeping the Journal faithful to its original mission established by Judah Marans. We
thank the Student Union’s Allocations Board for contributing the funds necessary to
publish this issue.

The Journal’s E-Board, which has grown to its largest size yet, is staffed by a team
of gifted undergraduates who have dedicated many hours to the Journal’s success.
They are deserving of the utmost praise for their hard work and commitment.

Finally, I must thank my Co-Editor-in-Chief, Emanuel Glinsky. Manny, you’re
among the most hard-working people I have ever met. Your unwavering
commitment to our shared project has pushed me to become a better and more
accountable leader. You are the best teammate I have ever had; I wish you the best.

Sincerely yours,
Gonny D. Nir

Co-Editor-in-Chief

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Brandeis University Law Journal 2023-2024, Volume 11

The following articles are
written in:

The Bluebook: A
Uniform System
of Citations

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Brandeis University Law Journal 2023-2024, Volume 11

The Israeli-Hamas War: The Legality of Israel’s Invasion

of Gaza Under International Law

Koby Gottlieb1

The ongoing Israeli-Hamas war continues to cause untold
human suffering, dominate media coverage, and attract the
attention of international organizations. This article seeks to
clarify normative controversy related to the legality of Israel’s
invasion of the Gaza Strip by using international legal norms
regarding self-defense, terrorism, and sovereignty. Using
international legal theory and the expansion of customary law,
as well as the politics between Palestinian factions, the article
finds that Israel’s invasion is legal under current international
law.

I. Roadmap

About three months into the current Israeli-Hamas war,
South Africa brought genocide charges against Israel in the
International Court of Justice (ICJ).2 This article addresses
some of the Israeli arguments made during the court
proceedings, especially those related to self-defense.3 It is

3 State of Israel, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide in the Gaza Strip (South Africa v.
Israel): Verbatim Record, (2023).

2 António Guterres, Secretary-General’s Remarks to the Security Council -
on the Middle East, (2024),
https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-general
s-remarks-the-security-council-the-middle-east; Mat Nashed, Western
Coverage of Israel’s War on Gaza - Bias or Unprofessionalism?, AL

JAZEERA, Oct. 29, 2023,
https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-w
ar-on-gaza-bias-or-unprofessionalism; Republic of South Africa,
Application Instituting Proceedings, (2023).

1 Brandeis University, Class of 2026.

9

https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-generals-remarks-the-security-council-the-middle-east
https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-generals-remarks-the-security-council-the-middle-east
https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-war-on-gaza-bias-or-unprofessionalism
https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-war-on-gaza-bias-or-unprofessionalism


Brandeis University Law Journal 2023-2024, Volume 11

important to first establish the theoretical framework governing
self-defense, terrorism, and territorial sovereignty. This
framework will then be applied to the present case of Israel’s
invasion of the Gaza Strip. After concluding these assessments,
it will become clear that Israel’s invasion on October 27, 2023,
is legal according to international law.

II. Introduction

On October 7, 2023, Hamas carried out a massacre in
Israel, killing about 1,200 people and abducting approximately
240 people.4 In the days following the massacre, Hamas
indiscriminately launched barrages of rockets towards Israel.
Israel consequently launched retaliatory airstrikes. On October
27, Israel began its ground invasion of the Gaza Strip.5 An
in-depth evaluation of the actions on October 7 is not within
the scope of this article; instead, this article evaluates the
legality of Israel’s invasion. Acknowledging the difficulties of
analyzing events during wartime, this article will only address
one question—whether the invasion of the Gaza Strip was legal
under international law—and not the legality surrounding the
events that transpired during the invasion itself. This excludes
any attempt to evaluate Israeli conduct under international legal

5 Israel pummels Gaza with strikes as it expands ground operations, France
24, Oct. 27, 2023,
https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-wit
h-strikes-as-it-expands-ground-operations; ARTHUR VAN COLLER,
Israel-Hamas 2024 Symposium - Qassam Rockets, Weapon Reviews, and
Collective Terror as a Targeting Strategy, (2024),
https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terro
r-targeting-strategy/.

4 Police say they’ve identified 859 civilian victims from October 7
massacre, up 16, The Times of Israel, Nov. 14, 2023,
https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified-
859-civilian-victims-from-october-7-massacre-up-16/.

10

https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-with-strikes-as-it-expands-ground-operations
https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-with-strikes-as-it-expands-ground-operations
https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terror-targeting-strategy/
https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terror-targeting-strategy/
https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified-859-civilian-victims-from-october-7-massacre-up-16/
https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified-859-civilian-victims-from-october-7-massacre-up-16/


Brandeis University Law Journal 2023-2024, Volume 11

principles, since any such inquiry would require an in-depth
knowledge of classified information.6

III. The Right of Self-Defense

The United Nations Charter is the foundational text of
the organization, and it is binding upon all member states.7
Article 2(4) of the Charter enshrines the importance of
refraining “from the threat or use of force against the territorial
integrity or political independence of any state.”8 However,
Article 51 of the Charter notes that “nothing in the present
Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a
Member of the United Nations.”9 Additional codification of
self-defense can be found in United Nations General Assembly
(UNGA) Resolution 3314, which criminalizes state aggression
from the perspective of international law and helps clarify the
definition of an “armed attack” under Article 51 of the
Charter.10 This resolution includes a few examples of acts of
aggression, such as “invasion or attack by the armed forces of a
State… or any military occupation, however temporary.”11 It is
worth noting that the definition of “[s]tate” in this resolution
“is used without prejudice to questions of recognition or to

11 Definition of Aggression, U.N. GAOR (1974).

10 Thomas Bruha, The General Assembly’s Definition of the Act of
Aggression, in The Crime of Aggression: A Commentary, 142 (2016);
Report of the 1956 Special Committee on the Question of Defining
Aggression, (1956).

9 U.N. Charter art. 51.
8 U.N. Charter art. 2, para.4.

7 Alfred Verdross, General International Law and the United Nations
Charter, 30 Royal Institute of International Affairs 342 (1954).

6   NOAM LUBELL, JELENA PEJIC & CLAIRE SIMMONS, Guidelines on
Investigating Violations of International Humanitarian Law: Law, Policy,
and Good Practice, (2019),
https://www.geneva-academy.ch/joomlatools-files/docman-files/Guidelines
%20on%20Investigating%20Violations%20of%20IHL_%20FINAL.pdf.

11

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Brandeis University Law Journal 2023-2024, Volume 11

whether a state is a member of the United Nations,” meaning
that self-defense against a state can also be legal if the United
Nations does not recognize that state, if that state is not a
member of the United Nations, or even if both are applicable.12

In addition to the Charter and Resolution 3314, the
ICJ’s decision in The Republic of Nicaragua v. United States of
America (1986) is also important in defining self-defense. In
1984, American military intervention in Nicaragua caused the
latter to launch legal proceedings at the ICJ the same year.13

Nicaragua v. USA adds an additional condition for an act of
aggression to justify the right of self-defense: these acts must
be “classified as an armed attack rather than as a mere frontier
incident.”14 The difference between an armed attack and a
frontier incident is based on the “scale and effects” of the
operation.15 The ICJ judgment furthers the importance of
UNGA Resolution 3314 by considering the resolution a
document of customary international law.16 This decision
changed UNGA Resolution 3314 from a non-binding General
Assembly resolution to one that is binding upon all nations, as
is the nature of customary international law.17

The right of self-defense against terror organizations is
more complicated than the right of self-defense against a state;
in fact, it may appear that UNGA Resolution 3314 limits the

17 South West Africa Cases, ICJ 98 (1966); James Crawford, Brownlie’s
Principles of Public International Law 19–28 (9 ed. 2019).

16 Id.
15 Id.

14 Case Concerning Military and Paramilitary Activities in and Against
Nicaragua, ICJ 195 (1986).

13 Carlos Arguello Gomez, Request for the Indication of Provisional
Measures of Protection Submitted by the Government of Nicaragua, (1984),
https://www.icj-cij.org/sites/default/files/case-related/70/9629.pdf; Carlos
Arguello Gomez, Application Instituting Proceedings, (1984),
https://www.icj-cij.org/sites/default/files/case-related/70/9615.pdf.

12 Id.

12

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Brandeis University Law Journal 2023-2024, Volume 11

right of self-defense to attacks from a state.18 In the interest of
this article, it is imperative to define terrorism under
international law, so that we can evaluate it according to
international legal principles. According to the Special
Tribunal for Lebanon, terrorism has three elements:
“perpetration of a criminal act… or threatening such an act; the
intent to spread fear among the population or directly or
indirectly coerce a national or international authority to take
some action, or to refrain from taking it; when the act involves
a transnational element.”19 As previously noted, UNGA
Resolution 3314 claims that a state must be the body invading
or attacking for it to be considered an act of aggression.

In 2003, the General Assembly requested that the ICJ
investigate “the legal consequences arising from the
construction of the wall being built by Israel” in the West
Bank.20 The opinion of the court became known as The Wall
Advisory Opinion, and while it is only an advisory opinion, it
carries normative weight.21 The Wall Advisory Opinion (2004)
recognized that “Article 51 of the [UN] Charter thus recognizes
the existence of an inherent right of self-defense in the case of
armed attack by one State against another State.”22 Judge
Higgins, former President of the ICJ, offers a dissenting
opinion, concluding that “there is, with respect, nothing in the
text of Article 51 that thus stipulates that self-defense is
available only when an armed attack is made by a state.”23

23 Id. at 33. (separate opinion of Judge Higgins)

22 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ 139 (2004).

21 Niccolò Lanzoni, The Authority of ICJ Advisory Opinions as Precedents:
The Mauritius/Maldives Case, THE ITALIAN REVIEW OF INTERNATIONAL AND

COMPARATIVE LAW (2022).

20 General Assembly Resolution ES-10/14, (2003),
https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8
CD3-CF6E4FF96FF9%7D/ICJ%20ARESES1014.pdf.

19 The Prosecutor v. Ayyash et al., 85 (2011).
18 Definition of Aggression, U.N. GAOR (1974).

13

https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/ICJ%20ARESES1014.pdf
https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/ICJ%20ARESES1014.pdf


Brandeis University Law Journal 2023-2024, Volume 11

Professor Vaughan Lowe, author of numerous books on
international law and professor of international law at the
University of Oxford, strengthens Judge Higgins’ view by
arguing that “the source of [an] attack, whether a state or
non-state actor, is irrelevant to the existence of the right” to
self-defense.24 The opinions of both Judge Higgins and
Professor Lowe carry a level of legal weight because the
International Court of Justice’s Statute recognizes that “judicial
decisions and teachings of the most highly qualified publicists
of the various nations” are means for determining law.25 Based
on their aforementioned qualifications, Judge Higgins and
Professor Lowe demonstrate that they are, as stated by the ICJ,
“highly qualified.”26 Therefore, their opinions are significant
for future evaluation, even though they are not binding.

Raising a further possibility for a right of self-defense,
Nicaragua v. USA states that if a state has “effective control of
the military or paramilitary operations” of a terror organization
while the terrorist organization is conducting acts of
aggression, the state has a level of legal responsibility.27

Moreover, UN Special Rapporteur Philip Alston remarked that
“a targeted killing conducted by one State in the territory of a
second State does not violate the second State’s sovereignty
if… the first, targeting, State has a right under international law
to use force in self-defense under Article 51 of the UN Charter,
because … the second State is unwilling or unable to stop
armed attacks against the first State launched from its
territory.”28 This interpretation allows room for states to fight

28 PHILIIP ALSTON, Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, 35 (2010).

27 Case Concerning Military and Paramilitary Activities in and Against
Nicaragua, 115.

26 Judge Dame Rosalyn Higgins; Vaughan Lowe, QC.
25 Statute of the ICJ, 38(1)d, https://www.icj-cij.org/statute.

24 Vaughan Lowe, Principles of International Law on the Use of Force by
States in Self-Defence, 22 (2005).

14

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Brandeis University Law Journal 2023-2024, Volume 11

terror organizations in foreign territory without the explicit
permission of the sovereign.

Another advancement in the right of self-defense
relating to terror is represented by UN Security Council
Resolution (UNSCR) 2249. The Security Council passed
Resolution 2249 in November 2015 as a means of combating
the Islamic State throughout the Middle East and the wider
world.29 This resolution “calls upon Member States … to
eradicate the safe haven [the Islamic State of Iraq and Syria
(ISIS)] have established.”30 Importantly, the resolution uses the
language “calls upon,” and these words are “exhortatory rather
than mandatory language and … therefore, they do not purport
to impose any legal duty on any State.” 31 Given the lack of a
legal duty on a state to eradicate ISIS, Marc Weller, Professor
of International Law at the University of Cambridge, argues
that UNSCR 2249 “does not grant any fresh authority for states
seeking to take action,” but rather that this ability has already
existed within international customary law.32 Dapo Akande,
Professor of Public International Law at the University of
Oxford, and Marko Milanovic, Associate Professor in Law at
the University of Nottingham, agree with the assessment that
UNSCR 2249 “neither adds to, nor subtracts from, whatever
authority” states already have in fighting terror.33 The language

33 Dapo Akande & Marko Milanovic, The Constructive Ambiguity of the
Security Council’s ISIS Resolution, Blog of the European Journal of
International Law (Nov. 21, 2015),

32 Arabella Lang, Legal Basis for UK Military Action in Syria, 8 (2015),
https://www.voltairenet.org/IMG/pdf/CBP-7404.pdf.

31 Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) Notwithstanding Security Council
Resolution 276, ICJ 114 (1971).

30 Resolution 2249, (2015).

29 Threats to international peace and security caused by terrorist acts,
(2015),
https://documents.un.org/doc/undoc/pro/n15/383/49/pdf/n1538349.pdf?toke
n=S5UY6uLl3akxOfNVQa&fe=true.

15

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Brandeis University Law Journal 2023-2024, Volume 11

in UNSCR 2249 indicates that the right of states to attack terror
regimes in foreign countries is not new, and that the resolution
simply codified an established rule of customary international
law that has been developing since the Nicaragua vs. USA
ruling.34 The majority of the academic discussion thus far
relates to the right of self-defense against terror organizations
and whether a terror organization is operating in another
sovereign’s territory. Therefore, discussions of what constitutes
sovereign territory and the relevant principles for this
conversation are essential.

IV. Sovereignty, Elements of a State, and Occupation

Article 2(1) of the UN Charter recognizes the idea of
sovereignty of states through the principle of “sovereign
equality” of nations.35 In the Case Concerning the Frontier
Dispute between Burkina Faso and Mali, the ICJ recognized
the principle of uti possidetis juris (as possessing of law) as an
aspect of customary international law. Through this, the court
recognized that the borders of post-colonial states could result
“from mere internal administrative divisions” of the previous
colonial ruler. In this court case, the previous colonial ruler was
France with the former French territories of French Upper
Volta, later Burkina Faso, and French Sudan, later Mali. The
ICJ applied the principle of uti possidetis juris to establish the

35 United Nations Charter, 2(1) (1945),
https://treaties.un.org/doc/publication/ctc/uncharter.pdf.

34 ARABELLA LANG, Legal Basis for UK Military Action in Syria, (2015),
https://www.voltairenet.org/IMG/pdf/CBP-7404.pdf; Michael Scharf, How
the War Against ISIS Changed International Law, (2016).

https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils
-isis-resolution/.

16

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Brandeis University Law Journal 2023-2024, Volume 11

border between Burkina Faso and Mali based on the French
colonial borders.36

Notably, the case Land and Maritime Boundary
Between Cameroon and Nigeria notes that “the fundamental
principle of respect for frontiers inherited from colonization
[is] uti possidetis juris” and other relevant commitments.37

Other decisions, such as the Land, Island and Maritime
Frontier Dispute between El Salvador and Honduras, have also
recognized the importance of uti possidetis juris.38 Professor
Malcolm Shaw, Professor of International Law at the
University of Leicester, has written that the principle of uti
possidetis juris means that “a new state has the boundaries of
the previous entity.” 39

The Montevideo Convention on the Rights and Duties
of States (1933) is a document of customary international law
that lays out the requirements for a state to be granted
statehood according to international law.40 The Convention
enumerates that for a state to be considered a state under
international law, it must have “(a) a permanent population; (b)
a defined territory; (c) government; and (d) capacity to enter
into relations with other states.”41

41 Montevideo Convention on the Rights and Duties of States, 1 (1933).
40 DJ HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW (6th ed. 2010).
39 MALCOLM SHAW, INTERNATIONAL LAW 450 (9th ed. 2021).

38 Land, Island and Maritime Frontier Dispute, ICJ (1992),
https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-JU
D-01-00-EN.pdf.

37 The Land and Maritime Boundary Between Cameroon and Nigeria, ICJ
18d (1998),
https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-JU
D-01-00-EN.pdf.

36 Case Concerning the Frontier Dispute, ICJ 21–22 (1986),
https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-JU
D-01-00-EN.pdf.

17

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https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-JUD-01-00-EN.pdf
https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-JUD-01-00-EN.pdf
https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-JUD-01-00-EN.pdf
https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-JUD-01-00-EN.pdf
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V. Palestine and the Montevideo Criteria

There are two paths set out in international law—as
previously explained—that Israel could use to justify its
invasion of Gaza. The first is a determination that it benefits
from a right of self-defense, and the second involves
establishing a connection between previous customary law on
terrorism and Hamas, without relying on the doctrine of
self-defense.

Although both Judge Higgins and Professor Lowe offer
insight into the view that the right of self-defense may come
from a non-state actor, in the interest of a strengthened
argument, the remainder of the article will proceed on the basis
of the majority’s reasoning in the International Court of
Justice’s Wall Advisory Opinion.42 Under that reasoning, the
right of self-defense outlined in Article 51 of the UN Charter
must be self-defense from a state. It is also worth mentioning
that it does not matter whether the state is a member of the
United Nations per UNGA Resolution 3314.43 The determining
factor, therefore, is whether Gaza is a state—which would
include being part of a more comprehensive state—or not.

There is considerable debate among legal scholars on
whether to consider Palestine a state under international law.44

Within the pre-trial proceedings of an International Criminal
Court case to determine whether Palestine is a state, Professor
Malcolm Shaw claimed that “Palestine is not a state according
to international law as it does not conform with the

44 Errol Mendes, Statehood and Palestine for the Purposes of Article 12(3)
of the ICC Statute.

43 Definition of Aggression, U.N. GAOR (1974).

42 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, at 33 (separate opinion of Judge Higgins); Vaughan
Lowe, Principles of International Law on the Use of Force by States in
Self-Defense, 22 (2005); Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, 139.

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internationally recognized Montevideo criteria.”45 However, in
the same case, the opposition argued for a more lenient
application of the Montevideo criteria in determining whether
Palestine is a state, which could allow it to fulfill the
definition.46 One way or another, however, in determining
whether Palestine is a state that includes Gaza, one must
deploy the Montevideo principles.47

The first point, a permanent population, is easy to
prove—the population of Gaza in 2002 was about 1.1 million
and about 2.1 million in 2023.48 However, it is trickier for a
Palestinian “state” in Gaza to prove it has a defined territory in
accordance with the second criteria. In demonstrating a defined
territory, it must be shown that the “territory is both the object
of the State’s right and the space within which its sovereignty
and jurisdiction are exercised,” as accepted by Professor
Shaw.49 Therefore, it is important to definitely determine the de
facto (based on the reality) and de jure (based on laws) ruler of
Gaza. The borders of the British Mandate on May 14, 1948,
included the Gaza Strip as delineated in an agreement between
the Ottomans and British-ruled Egypt in 1906. This was further
confirmed in a speech in 1925 by the British Minister of State
where he said that “the line dividing the territories under
Egyptian and Turkish administration [was] defined in 1906 by

49 MALCOLM SHAW, TITLE TO TERRITORY IN AFRICA: INTERNATIONAL LEGAL

ISSUES (1986), 15.

48 The West Bank and Gaza: A Population Profile, (2002),
https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile
/; Gaza Strip, (2024),
https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-s
ociety.

47 Montevideo Convention on the Rights and Duties of States.

46 Office of the Prosecutor, Situation in the State of Palestine,
https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01746.PD
F.

45 Malcolm Shaw, Situation in the State of Palestine,
https://legal-tools.org/doc/p5ixh2/pdf/.

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https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile/
https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-society
https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-society
https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01746.PDF
https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01746.PDF
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a boundary commission and has not since been modified.”50

Using the aforementioned principle of uti possidetis juris, the
Gaza Strip de jure belongs to Israel because the Palestinians
only made a declaration of independence in 1988, whereas
Israel did so on May 14, 1948, at the termination of the
Mandate.51

Some may claim that Egypt continued the colonization
of Gaza and therefore, the principle of uti possidetis juris
cannot apply; however, this view is fundamentally wrong. Only
in February 1949, nine months after Israel’s declaration of
independence, did Egypt officially gain control over Gaza
through an armistice agreement.52 But, this armistice agreement
“is not to be construed in any sense as a political or territorial
boundary,” meaning that under the principle of uti possidetis
juris, Egypt’s control of Gaza has no effect on Israel’s
borders.53 Furthermore, in 1979, Egypt and Israel signed a
peace treaty whereby “the permanent boundary between Egypt
and Israel is the recognized international boundary between
Egypt and the former mandated territory of Palestine …
without prejudice to the issue of the status of the Gaza Strip.”54

While this peace treaty recognizes a special status for Gaza,
this does not jeopardize the principle of uti possidetis juris.
Using this principle, Israel could be the only inheritor of the

54 Peace Treaty Between the State of Israel and the Arab Republic of Egypt,
II (1979).

53 Id. at V(2).

52 Armistice Agreement Between Egypt and Israel, (1949),
https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?toke
n=Oo9YV9LqmAevgIPshD&fe=true.

51 Palestinian National Council Declaration of Independence, (1988),
https://fmep.org/wp/wp-content/uploads/2015/01/PNC-declaration-of-indep
endence.pdf; Declaration of Israel’s Independence, (1948),
https://avalon.law.yale.edu/20th_century/israel.asp.

50 XX REPORTS OF INTERNATIONAL ARBITRAL AWARDS: CASE CONCERNING THE

LOCATION OF BOUNDARY MARKERS IN TABA BETWEEN EGYPT AND ISRAEL, 24–25,
114–116 (1988), https://legal.un.org/riaa/cases/vol_xx/1-118.pdf.

20

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https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?token=Oo9YV9LqmAevgIPshD&fe=true
https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?token=Oo9YV9LqmAevgIPshD&fe=true
https://www.zotero.org/google-docs/?broken=D4AgAk
https://fmep.org/wp/wp-content/uploads/2015/01/PNC-declaration-of-independence.pdf
https://fmep.org/wp/wp-content/uploads/2015/01/PNC-declaration-of-independence.pdf
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Brandeis University Law Journal 2023-2024, Volume 11

territory based on the preceding information and the fact that
Israel and Egypt signed the peace treaty nine years before a
Palestinian declaration of independence.55

Others argue that the Israeli withdrawal from Gaza in
2005 indicates a loss of Israel’s de jure status over the Gaza
Strip. However, the Israeli Cabinet Resolution detailing the
withdrawal never mentioned a loss of de jure status and
maintained Israeli operational capabilities within Gaza.56

Therefore, a Palestinian state in Gaza failed on this point—a
defined territory—of the Montevideo Convention.

The third criterion in the Montevideo Convention, the
existence of a government, is also tricky to establish, especially
within Gaza. The challenges arise because the PLO “has been
recognized as the sole legitimate representative of the
Palestinian people” by the Arab League.57 However, since
2006, Hamas has been controlling Gaza, and the PLO,
primarily controlled by the Palestinian Authority, has not been
able to exercise its rule over Gaza.58 A more accurate
presentation would be to label it as controversial whether a

58 Kali Robinson, Who Governs the Palestinians, (2024).; Ian Slesinger, The
Limits of Control: Technological Agency, Urban Terrain, Strategy and the
State in the 2014 Gaza War, POLITICAL GEOGRAPHY (2022); Yezid Sayigh,
Hamas Rule in Gaza: Three Years On, BRANDEIS UNIVERSITY CROWN CENTER

FOR MIDDLE EAST STUDIES (2010).

57 SALEM BARAHMEH, The Palestinians, the PLO, and Political
Representation: The Search for Palestinian Self-Determination, (2014),
https://icsr.info/wp-content/uploads/2014/07/ICSR_Atkin-Series_Salem-Bar
ahmeh.pdf.

56 The Cabinet Resolution Regarding the Disengagement Plan, (2004),
http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revise
d%20disengagement%20plan%206-june-2004.aspx; I acknowledge that
Israel does not claim sovereignty over Gaza, however this does not make
any substantive differences in Israel’s de jure status over the territory.

55 Palestinian National Council Declaration of Independence, (1988),
https://fmep.org/wp/wp-content/uploads/2015/01/PNC-declaration-of-indep
endence.pdf

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http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revised%20disengagement%20plan%206-june-2004.aspx
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Palestinian state in Gaza fulfills the third criterion due to the
lack of a well-established government.

The last point in the Montevideo Criteria is much easier
to prove, irrespective of the controversial status of whether the
PLO or Hamas governs Gaza. The PLO has observer status in
the United Nations and diplomatic representation in about
ninety countries.59 Hamas has definite relations with Qatar and
Turkey and suspected relations with several other countries,
thereby demonstrating its ability to enter into relations with
foreign states.60

While not explicitly a document of customary law, the
European Political Cooperation Declaration on the Recognition
of New States in Eastern Europe and the Soviet Union states
that unless a new state commits itself “to the rule of law … the
Community and its Member States will not recognize” the
state.61 This statement has led individuals such as Tal Becker,
legal advisor for the Israeli Ministry of Foreign Affairs, and
Professor Robbie Sabel, professor of International Law at the
Hebrew University of Jerusalem, to believe that, “even if the
Palestinian entity were to meet those [Montevideo] criteria, the
illegality associated with its current unilateral claim to
statehood demands that recognition be withheld.”62 The

62 Tal Becker, International Recognition of a Unilaterally Declared
Palestinian State: Legal and Policy Dilemmas,
https://www.jcpa.org/art/becker2.htm.; ROBBIE SABEL, INTERNATIONAL LAW

AND THE ARAB-ISRAELI CONFLICT i, 397 (2022); Jeremy Sharon, Israel Rejects

61 Statement by an extraordinary EPC Ministerial Meeting concerning the
“Guidelines on the Recognition of New States in Eastern Europe and in the
Soviet Union,” (1991), http://aei.pitt.edu/36871/1/A2880.pdf.

60 Mirren Gidda, Hamas Still Has Some Friends Left, (2014),
https://time.com/3033681/hamas-gaza-palestine-israel-egypt/; Henri
Barkey, Turkey, the United States, and the Israel-Hamas War, (2023),
https://www.cfr.org/article/turkey-united-states-and-israel-hamas-war.

59 General Assembly resolution 3237, (1974). List of Diplomatic Missions
in Palestine & Palestinian Diplomatic Missions abroad,
https://www.embassy-worldwide.com/country/palestine/.

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illegality that Becker and Sabel refer to is the violations of the
Oslo Accords if the Palestinians establish a Palestinian state
unilaterally.

The Oslo Accords were a series of peace agreements
between Israel and the Palestinian Liberation Organization
(PLO) in the 1990s.63 Professor Watson, former
attorney-advisor in the U.S. Department of State and professor
of international law, regards the Oslo Accords as “binding
international agreements.”64 Unilaterally establishing a
Palestinian state would violate the portion of the Oslo Accords
stipulating that the Palestinian National “Council will not have
powers and responsibilities in the sphere of foreign relations,”
which would be covered by Israel. Thus, unless Israel gives
explicit permission for a Palestinian state, it would be illegal
under the Oslo Accords.65 The Oslo Accords also state that
“neither side shall initiate or take any step that will change the
status of the West Bank and the Gaza Strip.”66 The unilateral
establishment of a Palestinian state would clearly change the
status of the territory that this state occupies. Although the
merits of a Palestinian state fulfilling the Montevideo Criteria
and whether a Palestinian state is legal are unconvincing due to
the aforementioned disagreement on this topic, it is still
important to discuss the legality of Israel’s invasion, assuming
that a Palestinian state exists in Gaza.

66 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip, Chapter 5 Article XXXI (7) (1995).

65 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip, Chapter 1 Article IX (5)(a), Chapter 3 Article XVII (4) (1995).

64 GEOFFREY WATSON, THE OSLO ACCORDS: INTERNATIONAL LAW AND THE

ISRAELI-PALESTINIAN PEACE AGREEMENTS (200AD), 101.

63 Oslo Accords, (2024), https://www.britannica.com/topic/Oslo-Accords.

Genocide Claims at The Hague, Says South Africa’s Allegations
“Baseless,” Jan. 12, 2024.

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VI. The Legality of Israel’s Invasion

As previously explained, there are two possible
Palestinian sovereigns of Gaza: Hamas and the PLO. First,
assuming that Hamas is the state sovereign of Gaza, it does not
matter that Hamas does not have representation at the United
Nations nor official recognition as detailed in UNGA
Resolution 3314. One must classify Hamas’ attacks on October
7th as an armed attack. Hamas murdered about 1,200 Israelis
during this invasion, and Hamas forces occupied specific
locations within Israel for at least twenty-four hours.67

Moreover, the attacking forces reached over thirty kilometers
into Israeli territory, reaching Israeli towns as far from the
Gaza border as Ofakim.68 These attacks included about one
thousand Hamas fighters and the combined forces of about five
different Palestinian armed groups.69 Moreover, in the first few
hours of the Hamas invasion, Hamas fired about three thousand
rockets at Israel.70 As defined in the Nicaragua case, this attack

70 Emanuel Fabian, IDF: 9,500 Rockets Fired at Israel since Oct. 7,
Including 3,000 in 1st Hours of Onslaught, Nov. 9, 2023,
https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-isra
el-since-oct-7-including-3000-in-1st-hours-of-onslaught/.

69 DANIEL BYMAN ET AL., Hamas’s October 7 Attack: Visualizing the Data,
(2023),
https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data;
ABDELALI RAGAD ET AL., How Hamas Built a Force to Attack Israel on 7
October, (2023), https://www.bbc.com/news/world-middle-east-67480680.

68 Gil Lewinsky, Bravery in Ofakim: The Civilians, Police Who Thwarted
Hamas Massacre Plan, Nov. 4, 2023,
https://www.jpost.com/arab-israeli-conflict/gaza-news/article-771532.

67 TAMSIN WESTLAKE, An Analysis of the 7th of October 2023 Casualties in
Israel, (2023),
https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-i
n-israel-as-a-result-of-the-hamas-attack/; Michael Bachner & Emanuel
Fabian, Israel Evacuates Civilians From Gaza-Area Towns as Forces Scour
for Remaining Gunmen, THE TIMES OF ISRAEL, Oct. 9, 2023,
https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-to
wns-as-forces-scour-for-remaining-gunmen/.

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https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-israel-since-oct-7-including-3000-in-1st-hours-of-onslaught/
https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-israel-since-oct-7-including-3000-in-1st-hours-of-onslaught/
https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data
https://www.bbc.com/news/world-middle-east-67480680
https://www.jpost.com/arab-israeli-conflict/gaza-news/article-771532
https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-in-israel-as-a-result-of-the-hamas-attack/
https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-in-israel-as-a-result-of-the-hamas-attack/
https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-towns-as-forces-scour-for-remaining-gunmen/
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Brandeis University Law Journal 2023-2024, Volume 11

is not “a mere frontier incident,” but a full-scale invasion, with
ground forces assaulting numerous towns, combined with an
air and rocket attack.71 Therefore, assuming that Gaza is a state
governed by Hamas, Israel would have the right of
self-defense.

The other grounds for an Israeli invocation of the right
of self-defense does not depend on identifying a specific
sovereign of Gaza. Rather, it depends on an analysis of laws
governing state responses to terrorism. The first step is to apply
the definition of terrorism to Hamas. Irrespective of the fact
that over eight countries and the European Union, have
designated Hamas as a terror organization, it is crucial to apply
this definition according to international law as opposed to
domestic law.72 For international law to consider an
organization a terrorist organization, three criteria must be met:

72 El gobierno argentino incluirá al grupo Hamás en la lista de
organizaciones terroristas, FRENTE A CANO, Dec. 23, 2023,
https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-e
n-la-lista-de-organizaciones-terroristas/.; Hamas to be listed in entirety as a
terrorist organisation by Australian government, ABC NEWS, Feb. 17, 2022,
https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrori
st-group-australia-government/100839262.; Trudeau affirms support for
Israel in call with war cabinet member Benny Gantz, CITY NEWS, Nov. 16,
2023,
https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-fo
r-the-rafah-border-crossing-hundreds-still-stuck/.; Daniel Boffey, EU Court
Upholds Hamas Terror Listing, THE GUARDIAN, Jul. 26, 2017,
https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-te
rror-listing.; Paraguay adds Hamas, Hezbollah to terrorism list, MIDDLE

EAST MONITOR, Aug. 20, 2019,
https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbo
llah-to-terrorism-list/.; Ashlyn Messier, Israel, Australia, Japan, UK, US,
Others Have Officially Designated Hamas a Terrorist Organization, FOX

NEWS, Oct. 13, 2023,
https://www.foxnews.com/world/countries-designate-hamas-terrorist-organi
zation.

71 Case Concerning Military and Paramilitary Activities in and Against
Nicaragua, 195.

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https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-en-la-lista-de-organizaciones-terroristas/
https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrorist-group-australia-government/100839262
https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrorist-group-australia-government/100839262
https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-for-the-rafah-border-crossing-hundreds-still-stuck/
https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-for-the-rafah-border-crossing-hundreds-still-stuck/
https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-terror-listing
https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-terror-listing
https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbollah-to-terrorism-list/
https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbollah-to-terrorism-list/
https://www.foxnews.com/world/countries-designate-hamas-terrorist-organization
https://www.foxnews.com/world/countries-designate-hamas-terrorist-organization


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a criminal act, intent to spread fear or coerce a national or
international body to take or refrain from action, and
transnationality.73 International Criminal Court prosecutor
Karim Khan remarked that the cruelties that occurred on
October 7th led him to have “reason to believe” that Hamas’
actions are criminal in nature according to international law.74

Non-state actors are bound by doctrines of customary
international law, including the Geneva Conventions.75

Hamas violated Article III of the 1949 Geneva
Conventions through “murder … mutilation, cruel treatment
and torture; taking of hostages” and more.76 They murdered
over eight hundred civilians on October 7th, raped women, and
kidnapped about 240 civilians and soldiers into Gaza.77 Experts
at the Combating Terrorism Center at West Point have
determined that Hamas’ motivations before, on, and after
October 7th are political, seeking to destroy the State of
Israel.78 Moreover, U.S. President Joe Biden believes that
Hamas intended to disrupt Israeli-Saudi normalization with the

78 Devorah Margolin & Matthew Levitt, The Road to October 7: Hamas’
Long Game, Clarified, 16 CTC SENTINEL (2023).

77 WESTLAKE; Bethan McKernan, Evidence Points to Systematic Use of Rape
and Sexual Violence by Hamas in 7 October Attacks, THE GUARDIAN, Jan.
18, 2024,
https://www.theguardian.com/world/2024/jan/18/evidence-points-to-system
atic-use-of-rape-by-hamas-in-7-october-attacks.; Police say they’ve
identified 859 civilian victims from October 7 massacre, up 16.

76 The Geneva Conventions of 12 August 1949, III.

75 Tatiana Londoño-Camargo, The Scope of Application of International
Humanitarian Law to Non-International Armed Conflicts, VNIVERSITAS 207
(2015).; Legality of the Threat or Use of Nuclear Weapons, ICJ (1996).

74 Yael Freidson, ICC Prosecutor Calls Oct. 7 Hamas Attack on Israelis
“Serious International Crimes,” HAARETZ, Dec. 3, 2023,
https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-c
alls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3
069-da74-afce-b5f926bb0000.

73 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging, 85.

26

https://www.theguardian.com/world/2024/jan/18/evidence-points-to-systematic-use-of-rape-by-hamas-in-7-october-attacks
https://www.theguardian.com/world/2024/jan/18/evidence-points-to-systematic-use-of-rape-by-hamas-in-7-october-attacks
https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000
https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000
https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000


Brandeis University Law Journal 2023-2024, Volume 11

said attack, indicating that Hamas had political goals.79 These
points answer the second and third criteria for terrorist
organizations. Using violence for political purposes fulfills the
second criterion; the de facto rulers of Israel and the Gaza Strip
are different, thus making Hamas’ attacks within the de facto
sovereign territory of Israel, a transnational event.80

Given that Hamas is a terrorist organization under
international law, one can use the customary international law
of UNSC Resolution 2249 to prove the legality of Israel’s
invasion.81 Since it is legal under international law for one state
to attack terror organizations outside of their state, one can also
focus on UN Special Rapporteur Philip Alston’s
aforementioned comments on targeted killings in the territory
of another state if that state is “unwilling or unable to stop
armed attacks against the first State launched from its
territory.” 82 While the Israeli invasion is not a targeted killing,
this reasoning may help to establish grounds on which to build
a legal case to prove the legality of Israel’s invasion.83

Benjamin Netanyahu, the Prime Minister of Israel, and other
Israeli defense officials have clearly stated that Israel’s ultimate
goal in launching the invasion is the elimination of Hamas,
which is in line with customary international law.84

84 Chris Brown, After More than 3 Months of Fighting, Even Small Victories
for Israel Are Elusive, CBC, Jan. 20, 2024;
https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:
text=have%20been%20elusive.-,War%20aims,a%20news%20conference%
20on%20Saturday; Matt Gutman, Israeli Defense Minister Predicts 2 More
Months of War, Then “Mop Up,” ABC NEWS, Dec. 6, 2023,

83 LANG.
82 ALSTON, 35.
81 Resolution 2249.

80 Yezid Sayigh, Hamas Rule in Gaza: Three Years On, BRANDEIS

UNIVERSITY CROWN CENTER FOR MIDDLE EAST STUDIES (2010).

79 Hamas Attack Aimed to Disrupt Saudi-Israel Normalization, Biden Says,
Oct. 20, 2023,
https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-sau
di-israel-normalization-biden-2023-10-20/

27

https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,War%20aims,a%20news%20conference%20on%20Saturday
https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,War%20aims,a%20news%20conference%20on%20Saturday
https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,War%20aims,a%20news%20conference%20on%20Saturday
https://www.zotero.org/google-docs/?broken=UbIabV
https://www.zotero.org/google-docs/?broken=UbIabV
https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-saudi-israel-normalization-biden-2023-10-20/
https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-saudi-israel-normalization-biden-2023-10-20/


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Some may argue that based on the International Court
of Justice Wall Advisory Opinion, Israel does not benefit from
a right of self-defense because Israel does not recognize a
Palestinian state. Hence, the argument may go, the invasion is
not legal.85 However, this ruling is not fully relevant because
the ruling was decided well before the development of the
customary doctrine on dealing with terrorism in 2015, and the
remarks by Special Rapporteur Philip Alston in 2010. This new
evidence demands a fresh understanding of Israel’s rights in
dealing with terror.86

VII. Conclusion

Based on current standing international laws and rules
governing conflict, it is apparent that Israel’s invasion of Gaza
on October 27, 2023 is legal under international law. Since
Gaza is not part of a Palestinian state, Israel does not benefit
from the traditional understanding of self-defense. However,
recent expansions in customary international law, as well as the
opinions of Special Rapporteur Philip Alston, legally
substantiate Israel’s invasion of Gaza, even if Gaza is not a
state in the traditional sense. Although Israel’s invasion may be
legal under international law, this article makes no comment on
the legality of Israel’s conduct during the war. This war has
harmed thousands of Israelis and Palestinians. Moreover, there
is no clear end in sight.87 Hopefully, this article can aid those
seeking to understand the legality of Israel’s invasion by

87 Police say they’ve identified 859 civilian victims from October 7
massacre, up 16; Mounting death tolls in Gaza, war could take months -
WSJ, THE JERUSALEM POST, Dec. 25, 2023,
https://www.jpost.com/israel-hamas-war/article-779421.

86 Resolution 2249, 17.; ALSTON, 35.

85 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, 139.

https://abcnews.go.com/International/israeli-defense-minister-predicts-2-mo
nths-war-mop/story?id=105377308.

28

https://www.jpost.com/israel-hamas-war/article-779421
https://abcnews.go.com/International/israeli-defense-minister-predicts-2-months-war-mop/story?id=105377308
https://abcnews.go.com/International/israeli-defense-minister-predicts-2-months-war-mop/story?id=105377308


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showing that it is legal under current understandings of
international law regarding self-defense.

29



Brandeis University Law Journal 2023-2024, Volume 11

States of Emergency: The History and Legal Ramifications

Maia Katsnelson88

Emergencies happen globally on a daily basis, underscoring
the pivotal role of governmental responses in managing these
situations. The extent of a government's ability, specifically its
Executive branch, to respond to an emergency can be a
determining factor in disaster mitigation and future
government stability. In the US, the power of the executive
branch has been a longstanding issue, evident in the founders'
aim to limit it and prevent a new monarchy in the Early
Republic. Despite their intentions, this article highlights the
significant increase of executive branch authority during times
of emergencies. To explore the historical and legal foundations
of State of Emergency jurisprudence, this article details how
this concept developed across Europe, but more specifically in
the United States. Lastly, further reforms to the doctrine as it is
practiced in the United States are proposed.

I. Introduction

Pages upon pages of history books describe
catastrophes: wars, disease, famine, and terror. Human
suffering is thereby processed, recounted, cataloged, and
taxonomized. This article addresses what often becomes
occluded in retrospection, namely the immediate response to
emergencies, rather than the eventual outcome. The expansion
of governmental power in the aftermath of a disaster is the
subject of this investigation.

The concept of a “State of Emergency” has existed for
centuries without consensus on the limit of government power

88 Brandeis University Undergraduate, Class of 2026.

30



Brandeis University Law Journal 2023-2024, Volume 11

during such times.89 Cornell’s Legal Dictionary defines the
legal concept as “a government declaration stating that because
of some crisis, the normal workings of political and social life
are suspended in the given jurisdiction. A state of emergency
may alter government operations, order specific action by
individuals, and suspend regular civil rights.”90

States of Emergency have recently come to the
forefront of the news cycle due to events such as the
COVID-19 Pandemic, the war in Ukraine, and, most recently,
the October seventh terror attacks by Hamas militants on Israel.
This article addresses how the U.S. and European countries
have grappled with questions such as: what constitutes a State
of Emergency, which constitutional procedures and personal
liberties can a government suspend, and how long can a State
of Emergency last? This article also proposes a mechanism by
which Congress can place necessary limits on executive power
during States of Emergency and proposes narrowing the
definition of the concept.

II. Historical Perspective

A. Europe

Modern invocations of States of Emergency originate
from the legal traditions of democracies in nineteenth-century
Western Europe.91 The concept traces back to the ancient
Roman practice of designating an auctoritas, a dictator, in
times of external attack or rebellion within the republic.92 The
auctoritas had the power to grant or suspend laws and operate

92 Id.
91 Scott P Sheeran, supra note 89.

90 State of emergency | Wex |U.S.Law | LII / Legal Information Institute,
https://www.law.cornell.edu/wex/state_of_emergency (last visited Nov 26,
2023).

89 Scott P Sheeran, Reconceptualizing States of Emergency under
International Human Rights Law: Theory, Legal Doctrine, and Politics, 34.

31

https://www.law.cornell.edu/wex/state_of_emergency
https://www.law.cornell.edu/wex/state_of_emergency


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outside the potesta (the normal binding power of law).93 In the
eighteenth and nineteenth centuries, European states began to
codify this Roman tradition into modern law.

The French Revolution constituted the most prominent
European event that worked to establish the modern
understanding of States of Emergency. The French
revolutionaries proposed the idea of suspending the
Constitution in response to a great danger.94 Subsequently, in
1848, the Second French Republic created a new article for its
Constitution, which formalized the definition of a “state of
siege.”95 The post-Enlightenment definition was, therefore,
born in a short-lived democratic historical moment.

Historically, States of Emergency have often been
swiftly followed by dictatorships, human rights abuses, and the
breakdown of constitutional government. The twentieth
century saw a proliferation of States of Emergency, especially
during the World Wars.96 Governments worldwide took
extraordinary measures, from rationing to censorship, to
address wartime challenges.97 However, this era also witnessed

97 Id.

96Arend Lijphart, Emergency Powers and Emergency Regimes: A
Commentary, 18 ASIAN SURVEY 401 (1978).

95 The Second French Republic is defined by Britannica as the republic
established after the revolution which lasted from 1848-1852; Agamben,
Giorgio, “The State of Exception” (Kevin Attell trans., Univ. of Chi. Press
2005) (2003). Article 14 of the Constitution granted the government the
power to “make the regulations and ordinances necessary for the execution
of the laws and the security of the State'' and the Acte Additional to the
Constitution first mentioned a “state of siege”; Sheeran, Scott P.
“Reconceptualizing States of Emergency under International Human Rights
Law: Theory, Legal Doctrine, and Politics” Michigan Journal of
International Law, vol. 34, Issue 3, pp. 491-557.

94 Giordanengo, Davide “The State of Exception”, June 21, 2016,
https://www.e-ir.info/pdf/63909.

93 Botha, Marc “Review: Untitled”, Review of: State of Exception by
Giorgio Agamben, Kevin Attell, Oxford Literary Review, vol. 31, No. 2, pp.
255-259.

32

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State of Emergency misuse, with some regimes using the
doctrine to justify the suppression of political opposition.98

Notably, the breakdown of constitutional government in the
Weimar Republic, Germany 1918, was partly due to the abuse
of States of Emergency declarations.99 Article 48 of the Weimar
Constitution described the emergency powers of the president,
stating that the president protects against great threats with
“measures necessary to reestablish law and order, if necessary
using armed force and including the suspension of a particular
and limited set of rights.”100 The drafters of the Weimar
Constitution attempted to prevent a situation in which a ruler
could take advantage of the State of Emergency laws, but these
attempts failed. Article 48 was invoked approximately 250
times throughout the relatively brief lifetime of the Weimar
Republic.101 Once Adolf Hitler and the Nazi Party rose to
power, they suspended all articles of the Weimar Constitution
pertaining to personal liberties.102 Weimar politicians had made
a major mistake–they had “normalized” emergencies. It was all
the easier therefore for Nazi’s to end Constitutional norms
entirely.

B. The United States

The United States played a key role in establishing
States of Emergency as a feature in the modern rule of law.
Since President Abraham Lincoln’s administration and his
suspension of habeas corpus during the Civil War, U.S. history

102 Id.

101 Sheeran, Scott P. “Reconceptualizing States of Emergency under
International Human Rights Law: Theory, Legal Doctrine, and Politics”
Michigan Journal of International Law, vol. 34, Issue 3, pp. 491–557.

100 The Reich Constitution of August 11th 1919 (Weimar Constitution) with
Modifications, PSM DATA,
http://www.zum.de/psm/weimar/weimar-vve.php.

99 Id.
98 Id.

33

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Brandeis University Law Journal 2023-2024, Volume 11

is riddled with instances of Executive use of emergency
powers.103

The Alien and Sedition Acts of 1798 were a defining
moment in the codification of emergency powers. Although a
formal State of Emergency was not declared at the time, the
United States stood on the brink of the Quasi-War with France,
a limited naval conflict centered on American trading rights.104

The Federalist government of the time, afraid the
Democratic-Republic criticism of Federalist policies would
endanger the war effort and that ‘aliens’ who were subjects of
foreign enemies would sympathize with the French during the
conflict, passed four laws known as the Alien and Sedition
Acts.105 The president at the time, John Adams, criminalized
criticism of his party through these acts, specifically through
The Sedition Act.106 Freedom of the press was the main
freedom curtailed by the Sedition Act which stated that: “if any

106 The Alien and Sedition Acts (1798) | Constitution Center,
https://constitutioncenter.org/the-constitution/historic-document-library/deta
il/the-alien-and-sedition-acts-1798 (last visited Dec 6, 2023); Avalon
Project - An Act in Addition to the Act, Entitled "An Act for the
Punishment of Certain Crimes Against the United States,
https://avalon.law.yale.edu/18th_century/sedact.asp (last visited Dec 6,
2023).

105 Alien and Sedition Acts (1798), National Archives (2021),
https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last
visited Dec 6, 2023).

104 The Quasi-War with France (1798 - 1801), USS Constitution Museum,
https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/
(last visited Dec 6, 2023).

103 Habeas corpus ad subjiciendum | Wex |U.S.Law | LII / Legal Information
Institute, https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum
(last visited Nov 28, 2023)., defined as ““that you have the body to submit
to” in Latin. It is also known as the “Great Writ” and is a writ that is
directed to someone detaining another person to inquire as to the legality of
the detention; Declared National Emergencies Under the National
Emergencies Act | Brennan Center for Justice,
https://www.brennancenter.org/our-work/research-reports/declared-national-
emergencies-under-national-emergencies-act (last visited Nov 28, 2023).

34

https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798
https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798
https://avalon.law.yale.edu/18th_century/sedact.asp
https://www.archives.gov/milestone-documents/alien-and-sedition-acts
https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/
https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum
https://www.law.cornell.edu/wex/writ
https://www.law.cornell.edu/wex/detain
https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act
https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act


Brandeis University Law Journal 2023-2024, Volume 11

person shall write, print, utter or publish [...] any false,
scandalous and malicious writing or writings against the
government of the United States, [...], or to excite against them,
or either or any of them, the hatred of the good people of the
United States, or to stir up sedition within the United States,
[...] shall be punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years.”107 This
is a clear restriction of First Amendment free speech and an
expansion of executive power during a time of national
emergency, although it was not considered as such by President
Adams in 1798. These Acts and the subsequent Sedition Act
Trials led to a sharp increase in criticism of the Federalist Party
and contributed to their defeat in 1800.108 When Thomas
Jefferson won the presidency in 1800, the Acts expired and he
pardoned those convicted under them.109

There were other instances in the past 200 years which
include the suspension of habeas corpus under President
Lincoln, the Espionage Act of 1917 and the amendment to Title
I of the Act - the Sedition Act of 1918 which curtailed free
speech rights during war-time.110 Additionally, President
Franklin Delano Roosevelt declared an Unlimited National
Emergency in May of 1941.111

111 Radio Address Announcing an Unlimited National Emergency. | The
American Presidency Project,
https://www.presidency.ucsb.edu/documents/radio-address-announcing-unli
mited-national-emergency (last visited Feb 11, 2024).

110 Espionage Act of 1917 and Sedition Act of 1918 (1917-1918) |
Constitution Center, National Constitution Center – constitutioncenter.org,
https://constitutioncenter.org/the-constitution/historic-document-library/deta
il/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 (last visited
Feb 11, 2024).

109 The Alien and Sedition Acts (1798) | Constitution Center, supra note
106.

108 Alien and Sedition Acts (1798), supra note 105.
107 Id.

35

https://www.presidency.ucsb.edu/documents/radio-address-announcing-unlimited-national-emergency
https://www.presidency.ucsb.edu/documents/radio-address-announcing-unlimited-national-emergency
https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918
https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918
https://www.zotero.org/google-docs/?broken=8AAnGS


Brandeis University Law Journal 2023-2024, Volume 11

In 1976, the U.S. Congress passed the National
Emergencies Act (NEA), which created a time limit on existing
declared States of Emergency.112 It also included termination
methods for a State of Emergency, such as the “automatic
termination of national emergency upon its anniversary every
year, if the President does not act to renew it.”113 The NEA
aimed to formalize the process of declaring and renewing the
State of Emergency.114

III. Legal Framework

A. Constitutional Provisions

Modern constitutions often contain provisions for States
of Emergency.115 For instance, the U.S. Constitution allows for
the suspension of habeas corpus “when in Cases of Rebellion
or Invasion the public safety may require it.”116 This principle
was called into question in 2001 after the terror attacks on
September eleventh, 2001. On November twelfth, 2001,
President George W. Bush issued a military order to protect the
United States from terrorist attacks, terrorists, or those in any

116 U.S.Const., Article 1, Section 9.

115 States of Emergencies: Part I, HARVARD LAW REVIEW,
https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/
(last visited Mar 5, 2024). “Over 90% of constitutions in force today include
emergency clauses that allow the government to step outside of the ordinary
constitutional framework and to take actions that would not otherwise be
permitted.”

114 Michael Greene, National Emergencies Act: Expedited Procedures in the
House and Senate, February 21, 2023.

113 Emergency powers | Wex | US Law | LII / Legal Information Institute,
https://www.law.cornell.edu/wex/emergency_powers (last visited Nov 26,
2023).

112 50 USC Ch. 34: NATIONAL EMERGENCIES,
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi
on=prelim (last visited Nov 26, 2023).

36

https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/
https://www.law.cornell.edu/wex/emergency_powers
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim


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way affiliated or suspected to be affiliated with Al-Qaeda.117

The government could detain and try those suspected of being
affiliated with Al-Qaeda without applying “the principles of
law and the rules of evidence generally recognized in the trial
of criminal cases in the United States district courts.”118 This
order led to a landmark case, Hamdan v. Rumsfeld, in 2006,
which raised questions about the limits on Executive power.119

In the case, Salim Ahmed Hamdan was captured by
militia forces in Afghanistan and turned over to the U.S.
military, after which he was transferred to the Guantanamo Bay
military detention center.120 In April of 2004, Hamdan
petitioned for a writ of habeas corpus in federal district court.
However, before the court could rule on his petition, a military
tribunal designated him as an enemy combatant.121 The district
court granted Hamdan’s petition and ruled that he must be
allowed a hearing to determine his status as a prisoner of war
under the Third Geneva Convention before he could be tried by
a military tribunal.122 This decision was reversed by the Circuit
Court of Appeals for the District of Columbia with the
rationale that the Geneva Convention could not be enforced by
federal courts and that the military tribunals were authorized by
Congress and were therefore not unconstitutional.123

The Supreme Court held, in a 5-3 decision, that the
Bush Administration’s attempt to try a prisoner of war (the
plaintiff) by a military commission was outside the bounds of

123 Id.
122 Id.
121 Hamdan v. Rumsfeld, supra note 119.

120 Peter J. Spiro, Hamdan v. Rumsfeld. 126 S.Ct.2749, 100 Am. J. Int. Law
888 (2006).

119 Hamdan v. Rumsfeld, Oyez, https://www.oyez.org/cases/2005/05-184
(last visited Nov 28, 2023).

118 Id.

117 President Issues Military Order,
https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011
113-27.html (last visited Nov 26, 2023).

37

https://www.oyez.org/cases/2005/05-184
https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html
https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html


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executive powers and violated the constitutional rights of the
plaintiff.124 This decision imposed a clear limit on emergency
executive authority. However, this constraint was soon
disregarded when Congress passed the Military Commissions
Act (MCA) in 2006, eliminating the right of habeas corpus to
prisoners at Guantanamo Bay and other detainment facilities.125

B. Powers Granted to Government during Emergencies

The United States Constitution does not detail any
extraordinary executive powers in times of emergency or war.
However, many scholars believe that the Framers implied these
powers by creating an Executive Branch that is more efficient
than the Legislative Branch.126 For this reason, Congress
passed the NEA, granting the president 123 statutory powers
during a declared emergency—ensuring that during a national
emergency, decisions could be made quickly and efficiently to
protect the nation.127 Seven years later, the Supreme Court's
decision in Immigration and Naturalization Service v. Chadha
emphasized a check to emergency executive power by restating
the traditional position that Congress can not veto an
administrative decision with a majority vote, a two-thirds

127 Executive Powers Are a National Emergency - Harvard Political Review,
https://harvardpolitics.com/executive-powers-emergency/ (last visited Nov
26, 2023).

126 Emergency powers, supra note 113.

125 Legal Resources | Intelligence Committee,
https://www.intelligence.senate.gov/laws/military-commissions-act-2009-tit
le-xviii-national-defense-authorization-act-fiscal-year-2010 (last visited
Nov 28, 2023).

124 Office of the Solicitor General | Hamdan v. Rumsfeld - Brief (Merits) |
United States Department of Justice, (2014),
https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-brief-merits (last
visited Nov 27, 2023); Hamdan v. Rumsfeld, United States Reports, June 29,
2006; NCC Staff, “  Hamdan v. Rumsfeld: Applying the Constitution to
Guantánamo prisoners”, June 19, 2017.

38

https://harvardpolitics.com/executive-powers-emergency/
https://www.intelligence.senate.gov/laws/military-commissions-act-2009-title-xviii-national-defense-authorization-act-fiscal-year-2010
https://www.intelligence.senate.gov/laws/military-commissions-act-2009-title-xviii-national-defense-authorization-act-fiscal-year-2010
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majority is required in order to override executive power.128

Although this ruling established a greater balance between
Executive and Legislative powers, it still did not impose a
significant enough limit of Executive power. This “legislative
veto” that was reinforced for the NEA following the Chadha
decision, has led to a situation where it is nearly impossible to
collect enough votes to block declarations of emergencies.129

Individual states in general have their own separate
laws relating to States of Emergency. In times of crisis, the
governor has the power to declare a State of Emergency, at
which point executive powers are increased. However, state
legislatures generally have relatively strong checks on
executive power, even in exigent circumstances.130 For
example, state laws on executive authority cannot be changed
by an executive order, and legislatures can create firm limits on
executive power.131 These widespread checks demonstrate that
bulwarks against growing executive power are a crucial

131 Id.

130 Legislative Oversight of Emergency Executive Powers,
https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emerg
ency-executive-powers (last visited Nov 26, 2023).

129 Trust the Process: How the National Emergency Act Threatens
Marginalized Populations and the Constitution—And What to Do About It,
N.Y.U. REVIEW OF LAW & SOCIAL CHANGE (2020),
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-e
mergency-act-threatens-marginalized-populations-and-the-constitution-and-
what-to-do-about-it/ (last visited Mar 5, 2024).

128 Immigration and Naturalization Service v. Chadha, United States
Reports, June 23, 1983. This case called into question a section of the
Immigration and Nationality Act which allowed either House of Congress
to suspend the deportation rulings of the U.S.Attorney General. The
Constitutional question was whether the separation of powers doctrine was
violated by authorizing a veto of executive power from only one House of
Congress. The decision was 7-2, the Court held that the Immigration and
Nationality Act did in fact violate the Constitution. The consequences of
this were that Congress essentially needed a two-thirds majority to override
executive power because a simple majority in both Houses would be vetoed
by the President.

39

https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emergency-executive-powers
https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emergency-executive-powers
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/


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component of preserving the necessary balance of power
between the arms of the government of a constitutional
republic.

IV. Proposed Reforms

During times of crisis, a fine line must be walked by the
Executive branch as to the extent of its powers. However,
without proper limits and regulations on Executive emergency
powers, there is no guarantee that the Executive branch will
limit its powers.

“As long as the two elements [law and life] remain
correlated yet conceptually, temporally, and
subjectively distinct ... their dialectic [...] can
nevertheless function in some way. But when they tend
to coincide in a single person, when the state of
exception, in which they are bound and blurred
together, becomes the rule, the juridico-political system
transforms itself into a killing machine.”132

The dangers of an unlimited government cannot be
understated. Our current system allows for a situation in which
the president seizes considerable power under the guise of
protecting the nation against an emergency.133 To address this
problem, Congress ought to create a set definition, and/or
series of conditions, for declaring a State of Emergency. This
would remedy the potential concern that the Executive branch
can declare an emergency during a non-emergent situation.
However, defining such a broad concept is a difficult feat and
Congress would have to create and pass a law that defines and

133 Executive Powers Are a National Emergency - Harvard Political Review,
supra note 127.

132 Agamben, Giorgio, “The State of Exception” (Kevin Attell trans., Univ.
of Chi. Press 2005) (2003), 86.

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narrows emergency powers. Some disasters are completely
unexpected and cannot be anticipated in such a way. In such a
case, there should be a condition that Congress must approve
of the determination of a State of Emergency. This would
prevent unnecessary renewals of States of Emergency and
ensure that our rulers cannot take liberties with emergency
powers.

V. Conclusion

A potentially dangerous situation is created when the
Executive Branch is granted an exceeding amount of power
during any national emergency. The argument that this
discretion increase is necessary as it expedites a usually
lengthy decision-making process during circumstances in
which time is often finite, willfully ignores the threat of
unrestrained presidential power. Regardless of conditions,
unchecked executive power is a threat to democracy.

Delineating between necessary and superfluous power
in times of calamity is a difficult job, but one the American
legislature must take head-on, considering the history of
rampant abuse of emergency executive power.134 The 100-plus
powers granted to the president during a declared State of
Emergency include giving the president the power to deploy
U.S. troops to any foreign country, take over domestic
communications, and seize American bank accounts.135 These
powers are enormously broad and, without proper oversight,

135 Elizabeth Goitein, Joseph Nunn, “Emergency Powers”, Brannan Center
for Justice,
https://www.brennancenter.org/issues/bolster-checks-balances/executive-po
wer/emergency-powers.

134 States of Emergencies: Part I, HARVARD LAW REVIEW,
https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/
(last visited Mar 5, 2024).

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can easily be abused by over-ambitious politicians.136 Although
the NCA exists as a sort of safeguard, it is not strong enough to
place adequate restrictions on emergency executive
powers—mainly because it fails to define what qualifies as an
emergency.137 The NCA grants a president the power to declare
a State of Emergency simply by signing an executive order.
Although the law creates a semi-time limit for these powers, it
allows the president to renew the State of Emergency status
indefinitely.138

The checks and balances put in place by the founding
fathers must be protected from erosion. Separation of powers is
key to maintaining a limited executive branch, without which
there is a danger of dictatorial power. The current legislative
framework, while designed with the intention of swift and
decisive action in times of crisis, also fails to ensure an
equilibrium between executive agility and legislative oversight.
Such a balance is crucial not only for safeguarding democratic
principles, but also for maintaining public trust in
governmental institutions. The development and
implementation of stricter guidelines and definitions of States
of Emergency would serve as a vital step toward mitigating the
risk of abuse. The ultimate goal should be the creation of a
framework that allows for the effective management of crises
while simultaneously protecting the democratic freedoms and
liberties of the United States.

138 50 USC Ch. 34: NATIONAL EMERGENCIES,
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi
on=prelim (last visited Nov 26, 2023).

137 Id.

136 Trust the Process: How the National Emergency Act Threatens
Marginalized Populations and the Constitution—And What to Do About It,
supra note 129.

42

https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim


Brandeis University Law Journal 2023-2024, Volume 11

Coverture: For the Benefit of All Man[kind]

Audrey Kiarsis139

Coverture was a central facet of 18th and 19th-century
jurisprudence and legal thinking. Coverture stipulated that
upon entering into a marriage contract, the legal identity of a
wife would be entirely subsumed by that of her husband. At a
time when the courts, both state and federal, often functioned
as agents of marginalization, coverture was presented as a
system intended to protect and provide for the very women it
legally incapacitated. This paper examines the motivations
behind coverture, how it perpetuated a patriarchal society
devoid of female socio-political mobility, and its practical
consequences in legal precedent and doctrine.

I. Introduction

William Blackstone writes in his 1769 Commentaries on the
Laws of England:

By marriage, the husband and wife are one person in
law; that is, the very being or legal existence of the
woman is suspended during the marriage, or at least is
incorporated and consolidated into that of the husband;
under whose wing, protection, and cover, she performs
every thing; and {...} is said to be {...} under the
protection and influence of her husband {...}; and her
condition during her marriage is called her coverture.140

140 Sir William Blackstone, renowned 18th Century English legal scholar
and philosopher, upon whose writings the U.S. Constitution was heavily
based; William Blackstone, Commentaries on the Laws of England,
Volume 1: A Facsimile of the First Edition of 1765-1769 15 (1979),
https://press.uchicago.edu/ucp/books/book/chicago/C/bo3636418.html (last
visited Nov 30, 2023).

139 Brandeis University Undergraduate, Class of 2025.

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This “coverture” was a facet of the common law until the
mid-late 19th century. At its core, coverture was the absorption
of the complete legal identity of a wife into that of her
husband. By modern legal standards, this may appear drastic;
however, coverture prevailed throughout American law for
decades, with roots in English common law.141 Legislators,
judges, and lawyers who were instrumental in perpetuating this
practice often justified it based upon the assumed ineptitude of
women.142 Such assumptions regarding female ineptitude were
enough to warrant that their care be placed solely in the hands
of one better equipped to guide and manage them throughout
their life.143 However, the question regarding whether coverture
was enacted and maintained with the best interests of women in
mind, namely their reproductive and homemaking capacities,
remains unclear.

As distressing as it may be, one must consider if
coverture was merely wielded as a tool by which a
disingenuous patriarchy could keep women in a state of
permanent subjugation and legal incapacitation. While outright
discrimination against women on the basis of sex alone would
be blatantly unconstitutional by today’s standards, the law
could very well have provided an alternative avenue to
perpetuate such subjugation. Under the guise of due process,
and with foundations in both 18th century English legal doctrine
and American jurisprudence, subjugation was lent a measure of
constitutionality, allowing proponents to surmount objections
of arbitrariness and discrimination.144

This paper begins by exploring 19th century legal
documents and court opinions detailing how coverture was
treated by the judges and legal professionals that put it into

144 Blackstone, supra note 140.
143 Id.

142 BARNES’ LESSEE v. IRWIN, 2 U.S. 199 (1793), Justia Law,
https://supreme.justia.com/cases/federal/us/2/199/ (last visited Dec 6, 2023).

141 Blackstone, supra note 140.

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practice, followed by an examination of writings from some of
the philosophical and feminist minds who argued against it.
Court opinions and legal documents lay the groundwork for
establishing the true intentions behind coverture and its
supporters by providing a sample of the rationale shared in its
defense. The writings to follow, those authored by the very
women subject to coverture’s limitations, will hold a mirror to
the preceding justifications and reveal whether or not they
conveyed the purported benefits. In seeking answers to these
questions of intent and legality, special attention is paid to
court cases, judicial opinions, and articles by legal scholars and
professionals, as these are the few perspectives properly
informed on the law with an adequate grasp of its history and
nuances.

Upon the conclusion of these examinations, it ought to
be apparent that the true impacts of coverture were not in the
interest of women, nor were they ever intended to be. Rather,
coverture was a re-packaging of patriarchal values and white,
upper-middle class, male socio-political dominance, designed
to pass as constitutional legislation under the guise of
American legal doctrine.145

II. The Fragility of the Feminine

Coverture was first formally conceptualized by
Blackstone, in Book the First: Chapter the Fifteenth: Of
Husband and Wife of his Commentaries on the Laws of
England, yet he offers little decisive explanation as to why
such a system not only exists but is needed in the first place.
Fortunately, surviving texts serve to illustrate the thoughts of
philosophical and legal scholars on the subject of coverture and

145 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, 26 NorthAm. Rev. 316 (1828),
https://www.jstor.org/stable/25102704 (last visited Dec 6, 2023).

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the female sex at various points throughout the 18th and 19th

centuries. John Stuart Mill, widely considered to be the greatest
English-language philosopher of the 19th century,146 wrote on
this very subject.147 He, like many during the 18th and 19th

centuries, wholeheartedly believed that women belonged in a
place of total subjugation and dependence upon men.148 This is
especially evident in his 1870 pamphlet entitled The Subjection
of Women, where he writes:

It had been decided, on the testimony of experience,
that the mode in which women are wholly under the
rule of men, having no share at all in public concerns,
and each in private being under the legal obligation of
obedience to the man with whom she has associated her
destiny, was the arrangement most conducive to the
happiness and well being of both.149

Mill asserts that the state most conducive to the satisfaction of
men and women alike is the latter’s complete dependence
upon, and allegiance to, the former. While coverture is not
mentioned outright in this passage, this allusion to a “legal
obligation of obedience” is clear. Specific words such as
“mode” and “arrangement” are effective stand-ins for
coverture. By using these allusions in place of the term itself,
Mill’s word choice serves to soften the impact of an otherwise
clinical and harsh term, which conjures to mind all manner of
oppression. His further inclusion of the phrase “on the
testimony of experience” lends this excerpt a sense of authority

149 Id. at 3.

148 John Stuart Mill, The Subjection of Women (1870),
https://jstor.org/stable/60244766 (last visited Nov 30, 2023).

147 Id.

146 Christopher Macleod, John Stuart Mill, in The Stanford Encyclopedia
of Philosophy (Edward N. Zalta ed., Summer 2020 ed. 2020),
https://plato.stanford.edu/archives/sum2020/entries/mill/ (last visited Dec 6,
2023).

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beyond the academic, by citing real-world experience rather
than philosophy or legal doctrine. For all these reasons, Mill’s
writing champions coverture as an institution in service of the
people, and one desired by them as conducive to their general
quality of life.

This pamphlet is certainly later in time than the height
of coverture-related legal discourse, as by the mid to late 19th

century, coverture was slowly being phased out of the
courtroom.150 That being said, it serves as an excellent example
of the pervasive mindset that the subjugation of women,
specifically in a legal sense, would facilitate the happiness and
well-being of men and women alike.151

Mill’s explanation is one affirming that by subjugating
women, and giving men complete dominion over them, society
would be preserved in its most natural, pleasant state. Mill was
a philosopher, not an attorney, judge, or legal scholar. His
perspective on coverture is helpful when establishing a more
general explanation of the issue, but it falls short of reliable
legal doctrine or precedent. To that end, court cases dealing
with coverture offer unique insight into the legal rationale
behind decisions regarding the rights of women.

In the 1793 Pennsylvania Supreme Court case Barnes’s
Lessee v. Irwin, et al., Chief Justice M’Kean wrote a majority
opinion regarding the right of women to give away property
acquired prior to entering their coverture.152 In keeping with the
trend thus far, Justice M’Kean stipulated “by the maxims and
rules of the law she is disabled, as having no will of her
own.”153 Here, M’Kean identifies the “maxims and rules of the
law” as the source of women’s disability, demonstrating the

153 Id.
152 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142.
151 Mill, supra note 148.

150 MarriedWomen and the Law: Coverture in England and the Common
LawWorld, (2013), https://www.jstor.org/stable/j.ctt32b7jq (last visited
Dec 6, 2023).

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manner in which the legal system was blatantly used as a tool
to deprive women of portions of the basic rights and autonomy
enjoyed by the opposite sex. M’Kean goes on to offer an
explanation for this facet of common law, stating, “[t]he reason
or ground of a wife’s being disabled {...}, is, from her being
under the power of the husband, not from want of judgment, as
in the case of an infant, or idiot.”154

M’Kean here makes a crucial, and telling admission; it
is not some mental or physical handicap that demands the legal
subjugation of women, rather it is a product of the dominance
allotted to a husband upon entering into the contract of
marriage.155 The implication of this is that coverture was not, in
fact, a condition rendered for the protection of women from
themselves, as would be warranted in the case of an inherently
vulnerable individual like a child or disabled person. Rather,
this condition is an artificial one, arising solely from the legally
recognized dominance of men. “Artificial” in this context is
descriptive of coverture as a fabrication. Coverture was
fabricated for women in the sense that it would never have
arisen naturally by virtue of any general defect in the
constitution of women, it had to be forcibly created and
assigned a purpose by a legal system desiring a measure of
control over them.156

The 1864 case of Drury v. Foster further illustrates the
true nature of coverture. The U.S. Supreme Court was tasked
with determining if a deed signed by Mrs. Foster was
enforceable without the added signature of her husband.157 In
the opinion delivered by Justice Nelson, he opened with the
acute observation that coverture “exist[s] by statute and the
common law for her protection, in consideration of her

157 Drury v. Foster, 69 U.S. 24 (1864), Justia Law,
https://supreme.justia.com/cases/federal/us/69/24/ (last visited Dec 6, 2023).

156 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142.
155 Id.
154 Id. at 202.

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dependent condition, and to guard her against undue influence
and restraint.”158 The inclusion of words relating to protection
and guarding indicate that coverture was, at the very least,
presented as existing for the sake of women. However,
Nelson’s opinion identifies the marriage contract, “her
dependent condition,” as the primary justification for a
woman’s condition under coverture. This is made evident by
his inclusion of the phrase “in consideration of,” which can be
taken to mean as a result of, or because of.159 To rephrase
Nelson’s writing in simpler terms, he acknowledges that
coverture exists because of the condition of women as
dependent upon men.

Nelson’s sentiment was similar to that expressed by
M’Kean. Both opinions establish that coverture was not solely
intended to protect women and their interests, nor was it an
institution necessarily arising from the nature of women
themselves.160 Rather, it was an effective tool employed to keep
men in power and to keep women as the helpless subjects of
their totalitarian control.161 The arbitrary deprivation of the
rights of women would have been deemed brazenly
unconstitutional, so those wishing to maintain this authority
needed a pretext in which to ground it, and a legitimate avenue
through which they could exercise it. As the previous cases
have demonstrated, this pretext was found in the ineptitude of
women themselves, demanding a level of protection contingent
upon their domination by men. The law provided the ideal
avenue through which to carry out this “necessary” oppression,
as it lent the legitimacy of any other hallowed legal doctrine of
American jurisprudence.

161 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142 at 202; Drury
v. Foster, 69 U.S. 24 (1864), supra note 157 at 33.

160 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142 at 202; Drury
v. Foster, 69 U.S. 24 (1864), supra note 157 at 33.

159 Id.
158 Id. at 33.

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III. Challenges to Coverture Arise

The preceding cases certainly indicate that the
condition of coverture was more a product of male dominance
than a necessary means of protecting women. Such verdicts,
however, are by their very nature, tailored to the individual
case at hand. To answer questions regarding coverture as it
pervaded both the legal sphere and society as a whole, sources
containing broader reasoning are essential. To supplement the
opinions of Barnes’s Lessee v. Irwin, et al. and Drury v. Foster,
one must draw from 18th and 19th century sources that discuss
the issues posed by coverture in light of more general public
discourse, beyond the scope of the courtroom.

An excellent touchstone that offers context within
which one can better place and interpret Justice M’Keen and
Nelson’s opinions is the April 1828 issue of The North
American Review. In a piece entitled “The Law of Infancy and
Coverture,” author Peregrine Bingham explores societal
standards and perceptions for and of so-called civilized
women. Within the first few paragraphs, Bingham notes coldly
that “a spirit [men], {...} has too often presided over the
formation of the laws, which fix the rights and obligations of
woman in the social scheme.”162 Bingham’s inclusion of the
phrasing relating to the frequency of instances of oppression
indicates his distaste for the role men have long played in
regulating the place of women, both in society and under the
law.

Bingham goes on to describe the place of women in
various cultures, and upon reaching what he considers the most
civilized world, Europe, he points to the equality European
women have as something for Americans to strive towards. It
is evident that Bingham himself believes women to be

162 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, supra note 145 at 316.

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inherently deserving and capable of enjoying the same rights
and freedoms as men when he writes that “just equality with
the other sex, which the sober and rational pursuit of their
common felicity requires she should possess.”163 By including
language such as “sober,” “rational,” and “common,” Bingham
acutely emphasizes how straightforward and indisputable this
stance ought to be.164 He thereby insists that the rights of
women are nothing short of undeniable and should be treated
as such by any individual with the capacity for rational thought
and reasoning.

Bingham concedes that if the rights of women were to
be left solely to a competition of physical strength, women
would surely lose.165 This is an interesting point, that because
men have the power to bestow and deny the rights of women,
largely as they see fit, it becomes something that reflects well
on the men that do, and appreciated by the women that
benefit.166 Put simply, if women are at the mercy of men from a
purely physical standpoint, every action taken by men to
benefit women is one taken not out of necessity, but out of
generosity.167 A generous act is commonly understood to be a
commendable one on the part of the giver, and something
worthy of gratitude on the part of the recipient. By framing the
capacity to bestow rights upon women as a gift, Bingham
portrays the act of granting women such privilege as socially
desirable and in good taste.168 These sentiments, taken together,
demonstrate Bingham’s belief that women are perfectly
capable of, and deserving of, exercising rights.

168 Id.
167 Id. at 316, 317.

166 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, supra note 145.

165 Id.
164 Id.
163 Id. at 317.

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Despite his evident belief in the capacity of women to
occupy a position in society on par with that of men, Bingham
asserts that the promises of men to improve the status of
women are oftentimes performative and done in the interest of
securing said “gift and its acceptance,” which “are alike
honorable to humanity.”169 Seeing as these promises are
applauded as honorable, there is little incentive to fulfill them,
as the desired effect of garnering praise has already been
achieved. Given this stance, it is unsurprising that Bingham
pointedly states, “the disabilities incident to a married woman
are not designed for her benefit and protection; but for the
security of her husband.”170 This directly answers the question
posed at the outset of this paper—was coverture a system for
preserving the best interests of women, or was it merely a tool
employed to keep women in a state of permanent subjugation,
and legal incapacitation, thus furthering the interests of men?

Bingham is convinced of the latter, as is evidenced by
his stance that coverture was never enacted for the benefit or
protection of women, but rather for that of her husband.171

Unlike the opinions of Justice M’Keen and Nelson, Bingham’s
conclusion that coverture was for the benefit of men alone was
reached not in the narrow legal context of a specific court case,
but through careful consideration of what the author had
experienced in everyday life. His reflections on the civilized
world, as well as his recognition of the performative
inclinations of men, are illustrative of a perspective shaped by
the broader influences of society and dynamic socio-political
affairs.172 It is this broad perspective that fleshes out the narrow
ones offered in Barnes’s Lessee v. Irwin, et al. and Drury v.
Foster, providing a framework in which to better contextualize
them. Bingham’s “The Law of Infancy and Coverture” serves

172 Id. at 318, 319.
171 Id.
170 Id. at 332.
169 Id.

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as but one example of the growing defiance of coverture and
the limitations it posed upon women.

While Bingham’s writings are certainly invaluable for
the purpose of framing and expanding upon relevant court
opinions in light of broader social contexts, they are limited by
the perspective of their author, a man, to whom the regulations
of coverture did not apply. The voices of women, the true
victims of this legal means of systematic oppression, are
integral to understanding its real-life consequences. To that
end, the following writings come from female authors, sharing
their thoughts on an institution they themselves were subject to,
with or without their consent.

Judith Sargent Murray was a preeminent female
essayist and early proponent of women’s equality during the
late 18th century.173 In 1790, Murray penned an article entitled
“On the Equality of the Sexes,” for an edition of The
Massachusetts Magazine.174 In this article, Murray challenges
long-held assumptions regarding her sex, quipping, “suffer me
to ask, in what the minds of females are so notoriously
deficient, or unequal.”175 She continues,

May not the intellectual powers be ranged under these
four heads – imagination, reason, memory and
judgment. The province of imagination hath long since
been surrendered to us, and we have been crowned and
undoubted sovereigns of the regions of fancy. Invention
is perhaps the most arduous effort of the mind; this

175 Id. at 132.

174 Judith Murray, On the Equality of the Sexes., Digital.library.upenn,
https://digital.library.upenn.edu/women/murray/equality/equality.html (last
visited Dec 6, 2023).

173 Kerri Alexander, Biography: Sarah Moore Grimké, NationalWomen’s
HistoryMuseum,
https://www.womenshistory.org/education-resources/biographies/sarah-moo
re-grimke (last visited Dec 6, 2023).

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branch of imagination hath been particularly ceded to
us, and we have been time out of mind invested with
that creative faculty.176

Here, Murray is describing how the female mind is uniquely
capable. By referencing categories of intellect often attributed
to women, such as being “fanciful” and overly imaginative,
Murray reclaims them as pillars of one form of “intellectual
power”—imagination. This, in turn, is a reclamation of the
very traits identified by cases such as Barnes’s Lessee v. Irwin,
et al. and Drury v. Foster as justifications for the existence of
coverture. By doing so, Murray reframes these alleged
deficiencies of women as strengths.177 This resultantly negates
the need for coverture arising from her position under the
dominance of the husband as described by Justice M’Kean and
her condition of dependence upon him as described by Justice
Nelson.178

In place of these justifications, Murray’s writings
indicate that the obligation to provide protection and
benevolent influence described by Blackstone was not so much
born of necessity, as for the security of the position of the
husband as concluded by Bingham.179 In short, Murray’s
writings identify the aforementioned characteristics of women
as strengths of the mind and character. Given the numerous
justifications of coverture as contingent upon these
characteristics as weaknesses, Murray’s reframing of them
necessitates a different justification.180 It is here that the
recurrent idea of coverture being used as a tool benefitting the
dominance of men seems the only viable explanation in their
stead.

180 Murray, supra note 174 at 132, 133.
179 Blackstone, supra note 140.
178 BARNES’ LESSEE v. IRWIN, 2 U.S. 199 (1793), supra note 142.
177 Id.
176 Id. at 132, 133.

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Murray does concede certain shortcomings common to
her sex, but here too she identifies men as the party at fault,
rather than the women themselves.181 When it comes to
knowledge and education, for example, she points to the fact
that women cannot reasonably be expected to possess any
significant measure of the former without proper access to the
latter.182 In Murray’s own words, “Are we deficient in reason?
We can only reason from what we know, and if an opportunity
of acquiring knowledge hath been denied us, the inferiority of
our sex cannot fairly be deduced from thence.”183 Women have
long been condemned as irrational, prone to fit and fancy, and
as such, unfit for aspects of life demanding critical thought and
reasoning.

Murray offers a logical explanation: women cannot
exercise sound reason if they are denied the opportunity to
learn when and how to do so.184 That is, if men are able to keep
women from educating themselves on reason and its proper
uses, then women cannot be expected to be reasonable. It is not
the fault of women that they have been denied the chance to
learn and expand their knowledge, it is merely a consequence
of the patriarchal and misogynistic society that prevailed
during the 18th and 19th centuries.185 Women were relegated
from a young age to realms of domesticity, which excluded any
manner of higher education.186 Since women were handicapped
in such a manner, their full intellectual potential could never
truly be reached. The rest of society would have to pass
judgment upon women who had been unfairly stunted by
reduced opportunities for self-improvement and learning.187

187 Id. at 133.
186 Id. at 132, 133.
185 Id.
184 Id.
183 Id.
182 Id.
181 Id. at 133.

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Continuing on the topic of education, Murray illustrates
her point with a poignant observation:

May we not trace [judgement’s] source in the difference
of education, and continued advantages? {...} how is
the one exalted, and the other depressed, by the
contrary modes of education which are adopted! The
one is taught to aspire, and the other is early confined
and limited. As their years increase, the sister must be
wholly domesticated, while the brother is led by the
hand through all the flowery paths of science. Grant
that their minds are by nature equal.188

The above quote is evidence that, like Bingham, Murray
contends that women have the capacity for rational thought and
intelligence equal to that of men. However, from a young age
that capacity is cultivated in males, and stunted in females,
leaving women at an increasingly large disadvantage as both
sexes age.189 Murray’s perspective on the issue is unique. She
herself is a woman, and is thus better equipped to speak on the
topic than most philosophical and legal writers of the time (as,
needless to say, the vast majority were men). Murray went
through life knowing firsthand what it was to be viewed and
treated as a second-class citizen, deprived of opportunities
equal to those of men. This firsthand experience is key, as her
writing comes from experience, rather than speculation. This is
evident from her repeated use of the words “we,” us,” and
“our,” whereby she includes herself in the women whose fate
has been so constricted by men.190

The perspective of women on coverture and their own
alleged disabilities is invaluable. To that end, the writings of
Sarah M. Grimké, renowned 18th century abolitionist and

190 Murray, supra note 174.
189 Id.
188 Id.

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women’s rights advocate, offer themselves up as an ideal
companion to those of Judith Sargent Murray.191 In an 1837
letter addressed to her sister entitled “Legal Disabilities of
Women,” Grimké laments and systematically proposes
solutions to the numerous laws that existed solely to restrict the
rights and legal identities of women.192 The opening lines of
this letter echo the sentiments expressed hitherto,

There are few things which present greater obstacles to
the improvement and elevation of woman to her
appropriate sphere of usefulness and duty, than the laws
which have been enacted to destroy her independence,
and crush her individuality; laws which, although they
are framed for her government, she has had no voice in
establishing, and which rob her of some of her essential
rights.193

Like Murray, Grimké asserts that the distinct lack of equality
between women and men is a direct result of laws that have
limited the independence and identity of the former.194 That is
to say women, given the proper chance through education, are
perfectly capable of the self-improvement proposed by
Grimké.195 Murray and Grimké wholeheartedly believe women
to possess capabilities equal to those of men, though both agree
that their sex has been unjustly hindered in this pursuit by the
laws and restrictions imposed by the latter.

Moreover, the “laws” to which Grimké attributes the
oppression of women, she also condemns as merely contrived

195 Grimké, supra note 192.
194 Id.
193 Id. at 1.

192 Sarah M. Grimké, 30_Letter_XII_legal_disabilities_grimke.Pdf, Civics
Online, http://www.civics-online.org/library/formatted/texts/grimke.html
(last visited Jan 21, 2024).

191 Alexander, supra note 173.

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for their benefit.196 Grimké’s comment that these laws “are
framed for her government” speaks to the central question of
coverture. These laws, of which coverture was essentially an
performative amalgamation used the prevailing belief in the
dependencies and vices of the “fairer sex” as an excuse to
secure male power.197 The inclusion of the word “framed”
suggests the laws were presented as being in the best interest of
women, but were, in reality, a way by which the law and courts
could deny women many of their most fundamental rights.198

Suffice to say, the courts did not have the best interests of
women in mind and chose, on numerous occasions, to uphold
their legal yoke by men.

Recalling one sentiment shared by Murray, it is men
who have prevented women from expanding their knowledge.
Thus, any judgments passed on the intelligence of the female
sex are flawed, as they are based on the functioning of stunted
minds rather than educated ones.199 Grimké appears to share in
her observation that women had been systematically made
ignorant by men such that the former lacked the proper
knowledge and confidence to challenge the decrees of the
latter.200 In combination with this, and in keeping with the
prevailing mindset of the time, women were thought of as
being “placed completely in the hands of a being subject like
herself to the outbursts of passion, and therefore unworthy to
be trusted with power.”201 In this manner, women were both
denied knowledge and autonomy directly, and taught they
lacked the basic capacity to make use of either. However, like
Murray, Bingham, and M’Kean, Grimké, too, rejects this
assumption, finding no fault with the intellectual powers of

201 Id. at 3.
200 Grimké, supra note 192 at 1.
199 Murray, supra note 174 at 132, 133.
198 Id.
197 Id. at 1.
196 Id.

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women themselves.202 Instead, she echoes the sentiments
expressed hitherto, rejecting the notion that the laws and
doctrines consolidated under coverture were, in truth, intended
for the betterment and protection of womankind.203 Grimké
decidedly concludes that, “the laws which have generally been
adopted in the United States, for the government of women,
have been framed almost entirely for the exclusive benefit of
men, and with a design to oppress women, by depriving them
of all control over their property, is too manifest to be
denied.”204 There can be no doubt that women of the time,
those best equipped to speak on the true nature and
implications of the coverture that afflicted them, did not view it
as a state intended for their protection, nor one warranted by
the nature of their sex. Rather, coverture was established and
perpetuated as an instrument of their own oppression, rendered
unto them, heedless of their objections, by the very men sworn
to guard and shepherd them.

IV. Conclusion

After close examination of case law, legal
commentaries, scholarly publications, and the writings of
prominent female thinkers, an indisputable set of historical
facts has emerged which recounts the repressive nature of
coverture. The works of Blackstone and Mill serve to illustrate
the mindset and rationalizations of those in support of the
coverture of women, chiefly that it is a condition deemed
necessary for the protection of women and one under which
society will be the most stable. This is a sentiment echoed by
Nelson in Drury v. Foster as well. The cases of Drury v. Foster
and Barne’s Lessee v. Irwin, however, demonstrate that in
practice, at least in the realm of the courts, coverture was more

204 Id. at 4.
203 Id.
202 Id. at 3, 4.

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contingent on the husband and the state of marriage itself,
rather than any disabilities or deficiencies found inherent
within women.

To expand upon this idea, Bingham, Murray, and
Grimké concur that coverture was a condition arising from the
relationship of women to men, rather than the state of women
themselves. Furthermore, they identify it as one knowingly
tailored for the benefit of men and the protection of their
assumed superiority, at the expense of women and their
intellectual and legal opportunities. Hence, it may be concluded
that coverture was never a product of the needs of women as
inferior beings. Any such inferiority referenced at the time was
demonstrably either entirely absent or merely manufactured by
a system of imposed ignorance created by men.

In all, this article has described how coverture was a
scheme intended to subjugate women and deprive them of their
legal identity. In doing so, coverture’s true purpose was to
elevate men to a status far above women, thus protecting mens
rights and ensuring their dominance. By perpetuating such a
system, American jurisprudence not only allowed for the
patriarchy to extend itself into the legal sphere, but also
actively endorsed it.

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Covid and the Court: Why the Supreme Court Should Not

Diffuse European Speech Restrictions into American Law

Brandon King205

Speech constitutes an immense power which, at its best, can
lead to open dialogue that creates the opportunity to achieve
positive political and social change. At its worst, the freedom
to speak can precipitate hate speech and violence. Across the
world, the standards governing free speech are not necessarily
the same. This article aims to analyze the constructs of free
speech in both Europe and the United States. To this end, this
article concerns two major questions: should the United States
adopt legislation to combat hate speech in line with the Digital
Services Act which the European Union previously enacted;
and should this be enacted via the Supreme Court’s opinion in
Murthy v. Missouri, a case analyzing possible infringement of
Free Speech by the federal government on social media sites.
This article discusses the nature of how and which
comparative law principles and jurisprudence should be
diffused into judicial opinions written by U.S. judges. As well
as why this issue is not one that should be handled by the
courts, especially through the diffusion of European authored
regulations on speech.

In February 2020, COVID-19 emerged as the worst
pandemic in almost a century.206 Hospitals were overwhelmed,
store shelves were emptied, masks were mandated, and the

206 Please note, Murthy v. Missouri is an ongoing case currently pending a
decision in the United States Supreme Court. Any perspectives or
interpretations provided in this article have been completed as of April 2024
and may be subject to alteration pending the court's decision.

205 Brandeis University Undergraduate, Class of 2026.

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global economy came to an abrupt halt.207 Globally, to pursue
prudent public health measures at the time, masks were worn,
social distancing mandates were enacted, and individuals were
forced to make hard decisions. Decisions such as attending
funerals of loved ones over Zoom and kids attending classes
online rather than in person, all in an effort to stop the spread.
Across the world, many individuals followed protocols aimed
at preventing the virus’ spread, while others, contrary to the
advice of the United States Center for Disease Control at the
time, did not.208 Subsequently as time went on, the unity of the
nation exhibited at the start of the pandemic transitioned into
polarized partisanship, with staunch opposition to policies
such as mask and vaccination mandates.209 Nowhere was this
opposition to COVID-19 policies more evident than on social
media.

Over time, governments across the world, particularly
the United States government, came to understand the risks
associated with social media during a pandemic.210 In response
to misinformation regarding COVID-19 which circulated
across social media and the negative impacts of this
misinformation on the nation; the Biden Administration
initiated communications through both electronic and physical

210 Hichang Cho et al., The Bright and Dark Sides of Social Media Use
during COVID-19 Lockdown: Contrasting Social Media Effects through
Social Liability vs. Social Support, 146 Comput. Hum. Behav. 107795
(2023).

209 Lu He et al., Why Do People Oppose Mask Wearing? A Comprehensive
Analysis of U.S. Tweets during the COVID-19 Pandemic, 28 J. Am. Med.
Inform. Assoc. JAMIA 1564 (2021).

208 Judy Stone, Public Pushes Back On CDC’s Plan To Weaken Infection
Control, Forbes,
https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-on-
cdcs-plan-to-weaken-infection-control/ (last visited Jan 9, 2024).

207 Kate Li, Mona Al-Amin & Michael D. Rosko, Early Financial Impact of
the COVID-19 Pandemic on U.S. Hospitals, 68 J.Healthc. Manag. 268
(2023).

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means with social media companies such as Facebook, X
(formerly known as Twitter), and Google via the White House,
Office of the Surgeon General, and Department of Justice.211

Through these communications, the Biden Administration
urged social media companies, often by threat of future
government scrutiny and antitrust prosecution, to take down
and/or “shadow ban” certain posts and accounts.212 The Biden
Administration’s goal as shown by the majority opinion issued
in the United States’ Fifth Court of Appeals in the case of
Missouri v. Biden, the prior name for Murthy v. Missouri
currently pending in front of the United States Supreme Court,
was to limit the dissemination of COVID-19 misinformation
via platforms’ internal algorithms, as well as to limit the reach
of the accounts of influential individuals who were deemed by
the Administration to be spreading COVID-19
misinformation.213

As a result of these requests, many social media
companies began a widespread crackdown on misinformation,
often utilizing data provided to them by executive agencies.214

In response to this crackdown, a group of plaintiffs, including
the State of Missouri, sued the Biden Administration in federal
court, alleging that the administration coerced social media
platforms into censoring certain social media content. Plaintiffs
alleged that these actions amounted to the state suppression of
speech and at times “prior restraint,” violating the First
Amendment’s freedom of speech clause.215 In response, the
United States Court of Appeals for the Fifth Circuit issued a
ruling in favor of the plaintiffs, stating that the Biden

215 Id.
214 Id.
213 Id.
212 Id.

211 Biden v. Missouri, 595 U.S. (2022),
https://supreme.justia.com/cases/federal/us/595/21a240/ (last visited Dec 5,
2023).

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Administration, both directly and through executive agencies,
“coerced and significantly encouraged the platforms to
moderate content … unlawfully violating the plaintiffs (First
Amendment) rights.”216

COVID-19 misinformation was not just a domestic
issue, but a global one, affecting nearly every country in the
world, including those within the European Union (EU). In
response to the rise in misinformation through social media
channels, the EU Parliament on July 5, 2022 enacted the
Digital Services Act (DSA). The legislation set January 1,
2024 as the date on which affected companies had to begin
complying with the legislation.217 In this enactment, the EU set
forth a comprehensive list of regulatory procedures to control
the spread of misinformation, hate speech, terrorist
propaganda, as well as specific provisions relating to the
suppression of content during times of emergency. The
legislation also established penalties for companies not in
compliance, including a fine of up to six percent of a
company’s global revenues, and the barring of the company
from operating in EU countries for a period determined by an
independent commision.218

Through the case of Murthy v. Missouri, the Supreme
Court has the opportunity to incorporate aspects of
comparative law, by adopting ideals of other nations' laws into
the laws of the United States, as the Court has done in the past

218 Sweeping EU digital misinformation law takes effect, Legal Dive,
https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation
-law-propaganda-compliance-facebook-gdpr/691657/ (last visited Dec 21,
2023).

217 The Digital Services Act package | Shaping Europe’s digital future,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
(last visited Dec 21, 2023).

216 Id.

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with cases such as Roper v. Simmons.219 Though uncommon,
the practice of adopting the ideals of other nations' laws into
the laws of the United States is not unprecedented for the US
Supreme Court; in fact, the landmark decision in Roper v.
Simmons referred to international sources of law, including
The United Nations Convention on the Rights of the Child, in
order to articulate how the Eighth Amendment’s cruel and
unusual punishments clause bars the sentencing to death of a
minor found guilty of a capital offense.220

In his opinion in Roper v. Simmons, Justice Kennedy
not only utilized the laws of Western European nations that bar
the execution of minors, but he also compared the United
States to nations deemed “international pariahs'' in the 1990s,
including Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the
Democratic Republic of Congo, and China.221 As shown by this
example, it is not unprecedented for the United States Supreme
Court's jurisprudence to reference the laws and doctrines of
other nations. Utilizing this precedent, this paper will analyze
three major questions regarding the implementation of other
nations’ laws in the legal system of the United States.222

1) Under what circumstances should the Supreme Court
or lower courts utilize laws and or cases from other nations in

their deliberation of cases?

2) In the case of Murthy v. Missouri, should the Supreme
Court incorporate the ideals or principles of the EU’s DSA in

its jurisprudence of this case?

222 John Marshall, Murray v. The Charming Betsey, 6 U.S. 64 (1804), Justia
Law, https://supreme.justia.com/cases/federal/us/6/64/ (last visited Mar 30,
2024).

221 Id.
220 Id.

219 Roper v. Simmons, 543 U.S. 551 (2005),
https://supreme.justia.com/cases/federal/us/543/551/ (last visited Dec 21,
2023).

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3) What is a potential counter argument to this type of
Jurisprudence?

I. Circumstances in which United States’ Courts
should Utilize the Laws and Cases of Other Nations

“Courts were designed to be an intermediate body
between the people and the legislature, in order, among other
things, to keep the latter within the limits assigned to their
authority.”223 In the United States, courts impose checks on the
elected bodies of government in accordance with their
interpretation of the Constitution. While the Supreme Court
was created by Article 3 Section 1 of the Constitution, its role
in government was not fully realized until the landmark
opinion of Marbury v. Madison.224 In this opinion, Chief
Justice Marshall lays out the judiciary’s role to review the
constitutionality of acts from other branches of government
through judicial review.225 While the courts may have the
power to determine the constitutionality of legislative acts,
they cannot act in a legislative capacity. This inability is the
primary argument against the usage of foreign laws and cases
in the deliberation of cases in American courts.226

In a democratic system, laws are passed by the
people's representatives based on the interests and goals of

226 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

225 John Marshall, Marbury v. Madison, 5 U.S. 137 (1803),
https://supreme.justia.com/cases/federal/us/5/137/ (last visited Dec 21,
2023).

224 The Constitution of the United States: A Transcription, National
Archives (2015),
https://www.archives.gov/founding-docs/constitution-transcript (last visited
Dec 5, 2023).

223 The Avalon Project : Federalist No 78,
https://avalon.law.yale.edu/18th_century/fed78.asp (last visited Dec 21,
2023).

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those affected by the enacted laws.227 Therefore, it is argued
that courts should not base their decisions on the laws and
cases of other nations. Looking at the current case at hand,
the decision in Murthy v. Missouri has no bearing upon the
citizens of EU countries, the organization which enacted the
DSA; furthermore, the representatives of the American
people were not party to the passage of the DSA, and
therefore legislative actions enacted by the EU should have
no bearing on American courts.

In the case of Roper v. Simmons, Justice Kennedy
presents a comprehensive argument for the barring of the
death penalty for minors. The opinion applies previous case
law, conducts an analysis of states that barred the practice,
and examines the psychological and biological differences
between minors and adults.228 These arguments alone would
have sufficiently demonstrated that the imposition of the
death penalty on minors violated the Eighth and Fourteenth
Amendments.229 However, Justice Kennedy goes further in
his opinion, bringing in the laws and practices of other
nations to determine if a punishment is cruel or unusual. By
mentioning the laws and practices of other nations to justify
his opinion, Justice Kennedy grossly misstepped his
authority and weakens the strength of his argument.230

In his opinion, Justice Kennedy references Article 37
of the United Nations Convention on the Rights of the Child,
which prohibits capital punishment for crimes committed by
individuals under the age of eighteen.231 Justice Kennedy

231 General Assembly resolution 44/25, Convention on the Rights of the
Child, OHCHR (1989),

230 Id.
229 Id.
228 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

227 Overview - Rule of Law | United States Courts,
https://www.uscourts.gov/educational-resources/educational-activities/overv
iew-rule-law (last visited Dec 21, 2023).

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specifically mentions how every nation has ratified the treaty,
with the exception of the United States and Somalia.232 He
uses this fact to further his point that most of the world has
outlawed capital punishment for juveniles, and thus, the cruel
and unusual punishment clause of the Eighth Amendment
should apply in this case.233 This rationale is a blatant overstep
of separation of powers; and should not have been used in the
opinion. The United States Constitution is clear about the
procedure of ratifying treaties, as Article 2 Section 2 of the
Constitution states that the president “shall have Power, by
and with the Advice and Consent of the Senate, to make
Treaties, provided two-thirds of the Senators present
concur.”234 The judicial branch of government is not
mentioned in this section of the Constitution and plays no role
in negotiating and ratifying treaties, therefore should not
incorporate laws or beliefs set forth by international treaties in
which the United States is not a signatory nation.

Furthermore, Justice Kennedy reads into the rest of the
world banning capital punishment for minors (with the
exception of the United States and Somalia) as a clear
example of times changing, and the world now viewing
capital punishment for minors as a cruel and unusual
punishment, thus he argued that the United States should
follow suit.235 On the contrary, the fact that the United States
Senate did not ratify this treaty, speaks louder than the treaty’s
ratification by a large majority of the world. By referencing
the actions of other legislatures in ratifying this treaty as a
motive for baring the practice of imposing capital punishment
against juveniles, Justice Kennedy places greater value on the

235 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.
234 The Constitution of the United States, supra note 224.
233 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.
232 Id.

https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-
rights-child (last visited Jan 9, 2024).

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will of other nations’ legislatures, values, and people over that
of the American Congress, the American Constitution, and
most importantly, the American People. Congress did not
ratify Article 37 of the United Nations Convention on the
Rights of the Child, and this failure to ratify is the best proof
that the American people as a whole were not in favor of
departing from the imposition of capital punishment for
juveniles on the federal level. Given the evolving standards of
the Eighth Amendment and his belief on the will and actions
of other nations rather than his own, Justice Kennedy decided
to override this implicit articulation by Congress.236

In general, courts should avoid applying the laws and
cases of other nations in their jurisprudence of cases, with one
exception. Since the act of creating law is vested in the
legislature, lawmakers have immense freedom to craft laws
given constituent needs, as long as such laws are in line with
the Constitution. Given this freedom, legislatures are free to
derive ideas from various sources, one such source can be
other nations.237 A congressperson is free to look at the laws
and policies of other nations and decide if it could benefit the
United States. That legislator must then go through the
process of proposing a bill which diffuses the laws and
policies of another nation. The bill must then be passed by the
House of Representatives and the Senate, and subsequently
signed by the President.238

If a legal case arises before a court regarding the
meaning of this new law which was passed incorporating the

238 The Legislative Branch, The White House,
https://www.whitehouse.gov/about-the-white-house/our-government/the-leg
islative-branch/ (last visited Apr 3, 2024).

237 Toni Johnson, Congress and U.S. Foreign Policy, Council on Foreign
Relations,
https://www.cfr.org/backgrounder/congress-and-us-foreign-policy (last
visited Jan 9, 2024).

236 Id.

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laws and policies of another nation.A court who decides to
utilize legislative intent as a means to decide what the true
intention of the law is could examine the diffused law or
policy from the country of origin which served as inspiration
for the act of Congress. While the courts should be free to
look at the laws and policies of other nations in order to
establish legislative intent, the court should only take the
lessons learned from the other countries' laws and policies in
an advisory capacity. If there are better means of finding
legislative intent, those means should take priority over the
other countries’ cases and enactments.

II. Should the Supreme Court Incorporate the Ideals
or Principles of the DSA in their decision on
Murthy v. Missouri?

Applying the principles articulated in the prior
question, the Supreme Court should not incorporate the ideals
or principles of the EU’s DSA in their decision of Murthy v.
Missouri. Courts in the United States, as referenced in question
I, should not apply the laws and doctrines of other nations in
their jurisprudence of cases in the US.239 In fact, applying
foreign law to this case necessitates condemnation in even
stronger terms than did Justice Kennedy’s use of international
examples as applied in Roper v. Simmons.240 In the case of
Roper v. Simmons, one could argue for an international
consensus, excluding the United States and Somalia, in regards
to the imposition of capital punishment against minors.241 It
cannot be argued that the same international consensus exists
in regards to deciding the appropriate regulations to curb
misinformation in the age of social media, as this issue is very

241 General Assembly resolution 44/25, supra note 231.
240 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

239 Cornell Law School, Jurisprudence, LII / Legal Information Institute,
https://www.law.cornell.edu/wex/jurisprudence (last visited Jan 9, 2024).

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new and there has been far less time for consensus to emerge
than there was in the case of capital punishment for juveniles.
While as argued prior, such consensus should not impact the
jurisprudence of American courts, this lack of consensus
serves to differentiate between the cases of Roper v. Simmons
and Murthy v. Missouri. Some, such as Justice Kennedy, have
made the argument that comparative principles must be
diffused into the United States jurisprudence in regards to
Roper v. Simmons. This same argument cannot be made for
Murthy v. Missouri, given the lack of an international
consensus on the issue, as the international consensus which
existed in regards to capital punishment for minors, which was
a core aspect of Justice Kennedy’s opinion, does not exist in
regards to the American interpretation of governmental
intrusion on free speech.

The First Amendment of the United States
Constitution—and subsequent interpretations by the
courts—have endowed the US with some of the strongest
protections for the freedoms of speech and expression in the
world.242 With particular reference to Europe, almost every
country within the EU can be described as a western
democracy with certain protections for free speech.243

However, many members of the EU have freedom of speech
laws which are not nearly as strong or go as far as those in the
United States. For example, in Germany, an EU member state,
Section 130 of the German Criminal Code bans “incitement to
hatred and insults that assault human dignity against people
based on their racial, national, religious or ethnic

243 Id.

242 Alex Gray, Freedom of Speech: Which Country Has the Most?, World
Economic Forum (2016),
https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-com
parison/ (last visited Jan 9, 2024).

71

https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-comparison/
https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-comparison/


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background.”244 This law has been used to prosecute
individuals who publicly deny the Holocaust, as well as those
who distribute Nazi propaganda both on and offline.245

Laws like this undoubtedly would be deemed
unconstitutional in the United States, as freedom of speech is a
fundamental concept strictly enforced by the Supreme
Court.246 Given that the restrictions imposed by the DSA
would constitute a content based restriction, a restriction on
speech imposed by the government that regulates speech on
the basis of the content that the speech entails.247 The doctrine
of strict scrutiny applies in which the government is required
to demonstrate a compelling state interest, as well as a
narrowly tailored least restrictive approach, to any legal
limitations imposed in the form of content based restrictions.248

One of the most famous cases in regards to content
based restriction on speech is the case of Cohen v.
California.249 In this case, Paul Robert Cohen entered the
corridor of a court room wearing a jacket which stated “Fuck
the Draft”, in reference to the Draft associated with the

249 Cohen v. California, Oyez, https://www.oyez.org/cases/1970/299 (last
visited Apr 1, 2024).

248 Strict scrutiny, supra note 246.

247 Content Based Regulation, LII / Legal Information Institute,
https://www.law.cornell.edu/constitution-conan/amendment-1/content-based
-regulation (last visited Mar 30, 2024).

246 Strict scrutiny, LII / Legal Information Institute,
https://www.law.cornell.edu/wex/strict_scrutiny (last visited Mar 30, 2024).

245 Germany: Constitutional Court Upholds Free Speech Restriction in
Banning Public Support of Former Nazi Regime, Library of Congress,
Washington, D.C. 20540 USA,
https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constit
utional-court-upholds-free-speech-restriction-in-banning-public-support-of-
former-nazi-regime/ (last visited Apr 3, 2024).

244 Dan Glaun, Germany’s Laws on Antisemitic Hate Speech and Holocaust
Denial,
https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-
speech-nazi-propaganda-holocaust-denial/ (last visited Jan 9, 2024).

72

https://www.oyez.org/cases/1970/299
https://www.law.cornell.edu/constitution-conan/amendment-1/content-based-regulation
https://www.law.cornell.edu/constitution-conan/amendment-1/content-based-regulation
https://www.law.cornell.edu/wex/strict_scrutiny
https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/
https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/
https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/
https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/
https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/


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Vietnam War ongoing at the time.250 He was subsequently
arrested for violating section 415 of the California Penal Code
which criminalizes “maliciously and willfully disturbing the
peace or quiet of any neighborhood or person … by …
offensive conduct.”251 When this case was ruled on by the
Supreme Court of the United States, Justice John Harlan wrote
one of the most famous majority opinions in the courts history
stating, “while the particular four-letter word being litigated
here is perhaps more distasteful than most others of its genre,
it is nevertheless often true that one man’s vulgarity is
another’s lyric. … The Constitution leaves matters of taste and
style so largely to the individual.”252 As demonstrated by the
strong opinion written by Justice Harlan, California had no
good reason to enforce this statute, given that the statement on
Paul Cohen’s jacket was speech, California did not have a
compelling state interest that was threatened by his use of
explicit terminology.253 This case is demonstrative of the many
differences in the legal interpretations of free speech in the
United States versus Europe. Given this difference in the levels
of speech protections, it is clear that fundamental cultural,
constitutional, and legal differences exist between the US and
EU countries. These divisions would make any attempted
implementation of the DSA, within the opinion of Murthy v.
Missouri, to go against the court's established precedent on this
issue. This is due to the First Amendment concerns that would
make any implementation of the DSA not only controversial,
but also raise additional constitutional questions, given the

253 Strict scrutiny, supra note 246.
252 Cohen v. California, supra note 249.

251 Cohen v. California, Global Freedom of Expression,
https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/
(last visited Apr 3, 2024).

250 Vietnam Lotteries, Selective Service System,
https://www.sss.gov/history-and-records/vietnam-lotteries/ (last visited Apr
3, 2024).

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high level of scrutiny the Supreme Court takes regarding
regulations of speech, especially ones that are content based.

Third, the issue of misinformation being spread via
social media, and particularly the power of large tech
companies in the United States, is a topic that is discussed
often in Congress.254 Many hearings have taken place between
members of Congress and the Chief Executive Officers’ of
major tech companies. Many Members of Congress have also
advocated in favor of many ideas to curb the power of Big
Tech, including the targeting of misinformation to vulnerable
users.255 If the Supreme Court were to rule in the case of
Murthy v. Missouri based on the principles of the DSA, they
would severely limit the ability for members of Congress to
impose regulations on Big Tech. This would be due to the
court implementing the principles of the European DSA in a
manner that would likely interfere with the ability of American
legislators to pass legislation which best serves the American
public.

III. Counter Argument to this Method of
Jurisprudence?

While freedom of speech is one of the most
fundamental rights in the United States, many point to the rise
of hate online hate speech and misinformation such as foreign
adversaries attempts to influence the American electorate
through digital means, as a rationale for why the United States
government should implement a European-style approach to

255 House approves antitrust bill targeting Big Tech dominance | AP News,
https://apnews.com/article/2022-midterm-elections-technology-business-lob
bying-congress-6e49cfc65668b99c633647898d114a8b (last visited Jan 9,
2024).

254 A. B. C. News, Congress Grills Tech CEOs in Wide-Ranging Hearing on
Monopoly, Political Bias, China and More, ABC News,
https://abcnews.go.com/Technology/ceos-amazon-apple-facebook-google-fa
ce-congressional-antitrust/story?id=72034939 (last visited Jan 9, 2024).

74

https://apnews.com/article/2022-midterm-elections-technology-business-lobbying-congress-6e49cfc65668b99c633647898d114a8b
https://apnews.com/article/2022-midterm-elections-technology-business-lobbying-congress-6e49cfc65668b99c633647898d114a8b
https://abcnews.go.com/Technology/ceos-amazon-apple-facebook-google-face-congressional-antitrust/story?id=72034939
https://abcnews.go.com/Technology/ceos-amazon-apple-facebook-google-face-congressional-antitrust/story?id=72034939


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combating misinformation online.256 Furthermore, concerned
citizens may conclude that if the legislative and executive
branches of government cannot figure out how to combat
these issues, the Supreme Court ought to do it unilaterally.
The government has a duty to target misinformation online;
the country does not benefit from external actors posting
misinformation during elections and times of national
emergencies.257 This is a major issue that requires major
government action in order to promote the public good.
However, the public good must be weighed against
individuals’ civil liberties in regards to the First Amendment.
This issue must be treated appropriately under our current
system of government, in accordance with current precedent
concerning government regulations regarding speech. The
fact that Congress has not acted in a major way regarding the
rise in misinformation online, is indicative of the fact that no
general consensus has formed in regards to the best way to
target the problems associated with misinformation.258

It is not the role of the judicial system to impose upon
the American people a solution to a problem of which other
branches of government have not solved yet. This would be
vastly in contradiction with the democratic process. Instead,

258 Gabriel Sanchez & Keesha Middlemass, Misinformation Is Eroding the
Public’s Confidence in Democracy, Brookings,
https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-c
onfidence-in-democracy/ (last visited Mar 30, 2024).

257 OECD, Transparency, Communication and Trust: The Role of Public
Communication in Responding to the Wave of Disinformation about the
New Coronavirus, OECD,
https://www.oecd.org/coronavirus/policy-responses/transparency-communic
ation-and-trust-the-role-of-public-communication-in-responding-to-the-wav
e-of-disinformation-about-the-new-coronavirus-bef7ad6e/ (last visited Mar
30, 2024).

256 Russian Interference In 2016 U.S. Elections, Federal Bureau of
Investigation,
https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-election
s (last visited Mar 30, 2024).

75

https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-confidence-in-democracy/
https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-confidence-in-democracy/
https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/
https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/
https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/
https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections
https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections


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Congress must be the one that passes a bill into law which
addresses the issues of misinformation online, which the
President must then sign. If Congress chooses to implement a
European-styled DSA approach to that legislation, that is
entirely permissible, as Congress is free to derive ideas from a
variety of sources, including other nations. Additionally, the
issue regarding misinformation on social media, especially
during elections and public health emergencies, is a complex
political issue. In times of emergency, Congress and the
Executive Branch, which unlike the federal courts is directly
answerable to the American people, must take the lead over
the judicial branch of government in solving this complex
issue.

The role of Congress is to identify problems, research
the best ways to solve the problems, and build a consensus
strong enough to allow the passage of a bill to deal with the
problems.259 This process is purely political and must take into
account the views of citizens throughout the nation through
their representatives in order to build a consensus and step
forward. In contrast, the Supreme Court's role is to review
laws and balance them with constitutional principles in order
to make sure that the law does not conflict with the civil
liberties and rights afforded to the American people by the
Constitution.260 The Supreme Court’s role is not to engage in
the political process, and therefore, the court should not apply
the laws and doctrines of other nations, in what would
effectively be a legislative capacity, by implementing the DSA
and the European principles of free speech through their ruling
in Murthy v. Missouri. Even if one were to assert that the

260 About the Supreme Court | United States Courts,
https://www.uscourts.gov/about-federal-courts/educational-resources/about-
educational-outreach/activity-resources/about (last visited Mar 30, 2024).

259 About Congress | U.S. Capitol - Visitor Center,
https://www.visitthecapitol.gov/explore/about-congress# (last visited Mar
30, 2024).

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https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about
https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about
https://www.visitthecapitol.gov/explore/about-congress#


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implementation of a DSA type law in the United States would
bring more public good than harm, its enactment must go
through proper channels of government via the people's
representatives, not forced through by an unelected assortment
of nine Justices. The act of balancing goods and harms is a
classic legislative function and as the nine justices of the Court
are not tasked with the political process of legislating bills into
law, the issue of combating misinformation online is a political
issue that requires a legislative solution, not a judicial one.261

Those who support the DSA may argue that countries
within the EU such as Germany are strong democracies, often
with less polarized electorates than the United States;
therefore, given the polarized nature of the United States, a
court should step in to implement a DSA-styled approach to
regulate free speech protections in order to guard against
misinformation and the dangers that can come from it. It is
important to note that from speech comes power, and power
has the possibility of leading to tyranny and abuse. Free
speech, by nature, is a double-edged sword, which at times it
can be used for good in order to defend the rights of the
minority and offer necessary criticism to individuals in power
without fear of prosecution.262 On the other hand, the
allowance of absolute free speech can lead to rhetoric designed
to enthrall hate groups, leading towards violence.263 While the
dark side of free speech may be dangerous and one may not
like what someone else says, the law must protect the other
person’s right to speak freely and if the roles were reversed, the

263 Daniel Byman, How Hateful Rhetoric Connects to Real-World Violence,
Brookings,
https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-w
orld-violence/ (last visited Mar 30, 2024).

262 Genevieve Lakier, The First Amendment’s Real Lochner Problem, Univ.
Chic. Law Rev.

261 The Court and Constitutional Interpretation - Supreme Court of the
United States, https://www.supremecourt.gov/about/constitutional.aspx (last
visited Feb 5, 2024).

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https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-world-violence/
https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-world-violence/
https://www.supremecourt.gov/about/constitutional.aspx


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same dynamics would apply.
In conclusion, the Supreme Court should not utilize the

laws of other nations in their jurisprudence of cases in the
United States, with the exception of the accepted use of such
laws and cases in order to establish legislative intent when
relevant. Additionally, in the case of Murthy v. Missouri, The
Supreme Court should not diffuse the principles of the DSA
within their jurisprudence of the case. By doing such, the Court
would impede the separation of powers between the judicial
and legislative branches of government, severely impacting the
legislature’s ability to create policy and law tackling
misinformation online, as the court would be forcing laws upon
the American people that they did not put in place on
themselves, through their elected representatives. In summary,
the Supreme Court should decide the case of Murthy v.
Missouri based upon current precedent regarding the First
Amendment, including relevant US case law, and the close
nexus test.264

264 State Action Doctrine and Free Speech, LII / Legal Information Institute,
https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-d
octrine-and-free-speech (last visited Apr 3, 2024).

78

https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech
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A Proposal to Reform the Practice of Solitary Confinement

Kaia Minkin265

Solitary confinement is a desolate prison within the
penitentiary itself. Extreme isolation in a cell barely equipped
to house human life manipulates the psyche of the prisoner and
works to achieve a dehumanizing experience in the name of the
penological interest of the state. It is common for individuals
in solitary confinement to endure decades alone in windowless
cement rooms the width of a king-sized bed, listening to the
echoing cries of other inmates. While some policymakers and
correction officers argue that the practice of solitary
confinement for extended periods maintains the safety of staff
and the other prisoners, the harmful mental toll taken on the
inmate is an inappropriate bargain against the protections
demanded by the Eighth Amendment for law enforcement to
take.

The Eighth Amendment to the United States
Constitution states: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.”266 The cruel and unusual component of the Eighth
Amendment is shrouded in ambiguity, as what it means for a
punishment to be cruel is anything but obvious. In order to
establish a “cruel and unusual punishment” violation of the
Eighth Amendment, the appellate must demonstrate: an
“objectively, sufficiently serious act or omission resulting in
the denial of necessities; a culpable state of mind on the part of
prison officials amounting to deliberate indifference to his
health and safety; and that he has exhausted the
prisoner-grievance system and that he has petitioned for relief

266 U.S Const. Amend. VII § 2.
265 Brandeis University Undergraduate, Class of 2025

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under Article 138, UCMJ.”267

Studies delineating a link between the experience of
social pain and an adverse impact on the mental well-being of
incarcerated individuals have been perpetually replicated. The
results confirm the detrimental consequences of living in
isolation. The harm incurred by an inmate, derived because of
prolonged isolation, manifests in emotional, cognitive, and
psychosis-related symptoms.268 Solitary confinement was
designed to encourage inmates to feel proper repentance, but a
shift in paradigm has led to a devastating, exacerbated
psychological impact on mentally ill.269 Social isolation,
idleness, and lack of control over aspects of daily life—all
phenomena maximized by the practice of solitary
confinement—incite rapid, dramatic psychological
deterioration in inmates with mental illness. This mental
deterioration, including maladaptive social tendencies and
socially inept behaviors, can also manifest as extreme acts of
self-harm or suicide.270 In one Indiana supermax facility,
Wabash Valley Correctional Facility Secured Housing Unit, a
prisoner with mental illness committed suicide by
self-immolation, and another man choked himself to death
with a washcloth.271 A mentally ill adolescent incarcerated in a
New York supermax facility told Washington Post reporter Ian
Kysel she attempted to hang herself within the first 24 hours of

271 Karin Grunden, Man found hanging in cell at Wabash Valley
Correctional Facility, TERRE HAUTE TRIBUNE-STAR, Oct. 1, 2003.

270 Id, at 8.

269 ACLU (2014) The Dangerous Overuse of Solitary Confinement in the
United States, Briefing Paper - American Civil Liberties Union. Available
at: https://www.aclu.org/sites/default/files/assets/stop
solitary_briefing_paper updated_august_2014.pdf?source=post_page at 6.

268 Shalev, S. (2008). The health effects of solitary confinement. In
Sourcebook on solitary confinement. Retrieved from
http://solitaryconfinement.org

267 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm.

80

https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf?source=post_page
https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf?source=post_page
http://solitaryconfinement.org
https://www.armfor.uscourts.gov/digest/IB4.htm


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solitary confinement.272These few instances, among the
thousands of stories that exist, encapsulate the severe
psychological trauma affecting mentally ill individuals in
solitary confinement.

Extensive social neuroscience research on the impact of
environmental and social deprivation on the brain exists as
another avenue of challenging the constitutionality of solitary
confinement.273 The results of this research attest to the vital
importance of social interaction and stimulating environment
on brain function, as studies have revealed brain deterioration
imparted by isolation in restrictive housing units within only a
couple of days.274 Despite overwhelming evidence of the social
pain induced through solitary confinement, the Supreme Court
refuses to recognize that this mental harm caused is
sufficiently “cruel” to be considered a violation of the Eighth
Amendment.275 With these standards in place, the Court has
been generally unwilling to recognize that the psychological
harm incurred from extreme isolation is sufficient to constitute
a violation of the Eighth Amendment.276

The Court’s neglect of the generalized demand for
effective clinical support for mentally ill individuals suffering
in isolation units stems from two fundamental discrepancies
pertaining to basic human needs. The first is a tendency to
dismiss social interaction as a basic human necessity, as

276 Coppola, supra note 273.

275 Claire A. Nolasco et al., Construing the Legality of Solitary
Confinement: Analysis of United States Federal Court Jurisprudence, AM.
J. CRIM. J. (2018). DOI: https://doi.org/10.1007/s12103-018-9463-5

274 Id.

273 Federica Coppola, THE BRAIN IN SOLITUDE: AN (OTHER) EIGHTH AMENDMENT

CHALLENGE TO SOLITARY CONFINEMENT JOURNAL OF LAW AND THE BIOSCIENCES

(2019)

272 Ian Kysel, SOLITARY CONFINEMENT MAKES TEENAGERS DEPRESSED AND

SUICIDAL. WE ... THE WASHINGTON POST (2015),
https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-co
nfinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/

81

https://doi.org/10.1007/s12103-018-9463-5
https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-confinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/
https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-confinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/


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deprivation of human needs is interpreted in terms of concrete
physical demands such as nutrition and sanitation.277 This
myopic interpretation disregards psychological health as a
human need and highlights the immense underestimation of
the adverse mental effects of isolation. The ethical dimension
of cruelty in punishment remains important within the
parameters of basic human needs, and underpins the argument
that current solitary confinement conditions meet the
“substantial risk of physical harm” stipulation of the objective
prong of the conditions standard. The mental, physical, and
physiological harms imposed by the conditions of solitary
confinement are on par with physical risk involved in
starvation and sleep deprivation.278 Therefore, although the
harm of socio-environmental deprivation may translate into
mental deterioration, the damage to the confined individual’s
psyche is ultimately due to physical harm to the brain similar
to the damage done by starvation.279

As Aristotle notably wrote in The Politics, “a social
instinct is implanted in all men by nature.”280 Over two
thousand years later, the disciplines of neuroscience and
behavioral psychology have produced immense empirical data
establishing that the human psyche is biologically rooted in the
need to be connected.281 This social connection is as critical to
a truly human life as food and water is to survival, and
mentally ill or cognitively impaired individuals in solitary
confinement should be afforded this fundamental need.
Eliminating all social and environmental stimulation of

281 Coppola, supra note 273.
280 Aristotle, Politics 5 (Benjamin Jowett trans., 1999)

279 Bennion, Elizabeth (2015) "Banning the Bing: Why Extreme Solitary
Confinement Is Cruel and Far Too Usual Punishment," Indiana Law
Journal: Vol. 90: Iss. 2, Article 7.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6813937/#fn223,

278 Id.
277 Id.

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incarcerated individuals is to deprive them of a basic human
need and to impose a substantial risk of neurological,
physiological, and psychological deterioration. Complete
isolation involved in current solitary confinement practices
risks inflicting unnecessary suffering, characterized by
debilitating, and potentially permanent consequences. A
punishment that entails unwarranted and possibly permanent
damage through deprivation of basic human necessities fails to
meet contemporary standards of societal decency, and should
not be institutionalized in practice. The Court has stated that
the interpretation of the “cruel and unusual punishment” aspect
of the Eighth Amendment changes in tandem with the
knowledge of an evolving society, and a civilized society
should not tolerate the infliction of unnecessary pain on
another human being.282

The second reason for this neglect is the dualistic
perception of harm endorsed in principle by U.S. law.283 This
entails the separation of physical harm from mental suffering,
creating a hierarchy of pain in which mental suffering is
subjective and less important than physical ailments. As a
result of this distinction, social interaction falls outside of the
spectrum of constitutionally protected human needs. This has
led courts to dismiss cases of mental harm without evidence of
physical distress.284 This judicial deference and unwillingness
of the Court to intervene in the methods of inmate discipline
and introduce uniform regulations to mitigate psychological
harm incurred from solitary confinement was exemplified in
the case of Scarver v. Litscher.285

In this case, the Seventh Circuit acknowledged that the
plaintiff, who was repeatedly banging his head against the
walls of his cell, had endured substantial psychological distress

285 Scarver, 434 F.3d 972, at 976.
284 Id.
283 Coppola, supra note 273.
282 Trop, 856 U.S. 86, at 101.

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as a result of placement in solitary confinement. However, in
2006, the Supreme Court remained hesitant to interfere with
correctional management in prisons and deferred to the prison
administration to defend a legitimate penological interest in
enforcing solitary confinement.286 Often, judicial analysis of
whether a punishment is cruel and unusual lacks scrutiny of
the conditions of supermax facilities.287 Supermax prisons do
not have a single definition, but their essence is complete
social isolation, deprivation of all environmental stimulation,
and enforced idleness.288 These qualities of an impoverished
social environment are enforced only upon the individuals held
in solitary confinement within one of these facilities. The
Supreme Court defined the foundation of the penological
evaluation of solitary confinement conditions as the “effect
upon the imprisoned”289 and that “deference to the findings of
state prison officials in the context of the Eighth Amendment
would reduce that provision to a nullity in precisely the context
where it is most necessary.”290 This tendency of courts to show
deference to state prison officials risks the penological interests
of prison administrations superseding the well-being of
incarcerated individuals. The Supreme Court has stated that
constitutional protections relating to the conditions of
confinement derive from the acknowledgment that inmates
retain the dignity inherent in all humans.291 Additionally, the
Court has established that only “extreme deprivation”
adequately supports a condition of confinement claim, and this
requirement is met when the socio-environmental deprivation

291 Brown v. Plata, 563 U.S. 493, 510 (2011)
290 Johnson v. California, 543 U.S. 499, 511
289 Rhodes, 452 U.S. 337, at 364.

288 David C Fathi, THE NEW ASYLUM: SUPERMAX AS WAREHOUSE FOR THE

MENTALLY ILL PRISON LEGAL NEWS (2007),
https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm
ax-as-warehouse-for-the-mentally-ill/

287 Id.
286 Coppola, supra note 273.

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of solitary confinement denies “the minimal civilized measure
of life’s necessities.”292 Therefore, the punishment of extreme
isolation deprives a human of basic human needs. It involves
the infliction of unnecessary pain, and is therefore
incompatible with the concept of human dignity as it exists in
civilized society today.

Inmates who endure substantial mental harm within
prison conditions are further burdened by the subjective prong
of proving that prison officers were indifferent to their
suffering.293 This subjective prong of the conditions standard
refers to the prison official’s culpable state of mind and the
requirement of proof that substantial risk to an inmate’s health
and safety was disregarded.294 The decision of Farmer
established the parameters of the prison official’s culpability,
as the Court held that deliberate indifference is equivalent to
subjective recklessness.295 While this test of deliberate
indifference remains individualized to each solitary
confinement case, the Court in Farmer also recognized that
some risks of harm are objective such that “a fact finder may
conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.”296 The challenge of
proving prison official’s knowledge of the incurred mental
harm became instrumental in cases regarding solitary
confinement conditions, and establishing this deliberate
indifference may rely on circumstantial evidence that the risk
was known and ignored.

Proving the deliberate indifference of prison officials
constitutes an obstacle to challenging objectively harmful
conditions of supermax facilities, particularly in cases

296 Id, at 842
295 Farmer, 511 U.S. 825, at 839
294 Id.
293 Coppola, supra note 273.
292 Rhodes, 452 U.S. 337, at 347

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involving mentally ill incarcerated individuals.297 Due to the
lack of mental health training for prison officials, prison
administrations may avoid liability by claiming to have no
knowledge of the symptoms or risks of mental illness.298 This
creates the perverse incentive for prison staff; subpar
knowledge of mental illness facilitates an avoidance of
Constitutional responsibility as this condition stands. In light
of the questionability of the subjective prong condition in
solitary confinement litigation, the court should consider if the
condition of extreme social isolation itself is sufficient to
warrant a presumption of intentional disregard of prison
administrations.

The personal testimonies of incarcerated individuals
confined in restrictive cells paired with the research of the
psychological harm imposed by prolonged social isolation
demonstrates the need for reevaluation of what qualifies as an
essential condition of human life. The Court should place more
emphasis on social interactions among incarcerated individuals
and the prison staff, and introduce regulations for solitary
confinement which comport with constitutionally afforded
protections for mentally ill inmates. Recent state reforms
provide new insight into the impact of reforming solitary
confinement and show a consensus that recognizes the need for
change.299

299 Jessica Sandoval, J. (2023, March). How solitary confinement
contributes to the mental health crisis. National Alliance on Mental Illness.
https://www.nami.org/Blogs/NAMI-Blog/March-2023/How-Solitary-Confin
ement-Contributes-to-the-Mental-Health-Crisis#:~:text=Among%20many%
20other%20mental%20health,of%20an%20acute%20mental%20illness.

298 Lori Marschke, Proving Deliberate Indifference: Next to Impossible for
Mentally Ill Inmates, VALP. U. L. REV. 487 (2004)

297 Coppola, supra note 273.

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I. Arguments Against Unlimited Use of Solitary
Confinement

Through testimonial accounts, hundreds of inmates in
solitary confinement have attested to the devastating cognitive
effects of isolation, such as perceptual distortions and
hallucinations, increased anxiety and depression, fantasies of
revenge on society, and other aspects of mental pain.300 The
effects of isolation also manifest in decreased cognitive
function, as a decline in brain activity was found in inmates
incarcerated in solitary confinement for only seven days.301

When the only social stimulation available is sporadic
conversations with guards and officers, sentiments of
humiliation and meaninglessness compound to damage the
mental well-being and neurological health of the prisoner.

Technological advancements such as video
surveillance and virtual platforms of communication have
eliminated even that fleeting human contact, facilitating a
method of further isolation that was unforeseen in the earlier
stages of prison development.302 For example, in decades past,
individuals in solitary confinement were able to regularly see
and interact with human guards as they made their rounds. As
technology developed and was integrated into the surveillance
mechanisms of supermax prisons, even fleeting social contact
is revoked for inmates in solitary confinement. In a 2007 study
conducted by the Red Cross, the clinical impacts of isolation in
solitary confinement were compared to those of physical
torture, revealing similarities in negative psychological and

302 David C Fathi, THE NEW ASYLUM: SUPERMAX AS WAREHOUSE FOR THE

MENTALLY ILL PRISON LEGAL NEWS (2007),
https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm
ax-as-warehouse-for-the-mentally-ill/

301 Paul Gendreau, N.L. Freedman, G.J.S. Wilde & G.D. Scott, Changes in
EEG Alpha Frequency and Evoked Response Latency During Solitary
Confinement, 79 J. of Abnormal Psychol. 54, 57–58 (1972)

300 Coppola, supra note 273.

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physiological reactions.303

The socio-environmentally deprived conditions of
isolation cells bear a devastating toll on the psychological
well-being of those they confine. Hardened by psychological
and physical abuse by prison administrations maximizing
control of an individual, inmates have expressed suicidal
ideation merely for the chance of an escape.304 Correctional
officers frequently misuse physical restraints and chemical
agents as disciplinary measures, and the isolated nature of
solitary confinement units render detection of staff abuse much
more difficult.305 The apathetic attitude of prison
administrations to this mistreatment facilitates its practice, and
the negative psychological effects of social deprivation are
further intensified with this abuse. As stated by a California
State prison psychologist in 2002, “It’s a standard psychiatric
concept, if you put people in isolation, they will go insane. . . .
Most people in isolation will fall apart.”306

The claim that solitary confinement cells harbor only
the “worst of the worst,” most threatening criminals who were
convicted of heinous crimes or assaulted other inmates while
incarcerated does not realistically reflect the practice of solitary
confinement. Mentally ill individuals are disproportionately
represented in restrictive housing facilities, and prison officials
across the U.S. fill solitary confinement cells with inmates who
pose any difficulty to management, whether that be a violation
of minor prison rules or launching a lawsuit against the prison

306 Human Rights Watch, Ill-Equipped: U.S. Prisons And Offenders With
Mental Illness 149 n. 513 (2003).

305 Reyes, supra note 303.

304 Calloway, K. (2023, February 27). I spent 16 months in solitary
confinement and now I’m fighting to end it: ACLU. American Civil
Liberties Union.
https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi
nement-and-now-im

303 Dr. Hernàn Reyes, The Worst Scars Are in the Mind: Psychological
Torture, 89 Int’l Rev. Red Cross 591, 607 (2007)

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administration.307 If prison administration guidelines upheld
this exclusivity and supermax facilities were restricted to only
the most predatory, solitary confinement cells would stand
virtually empty.308 Nationwide data documenting the use of
solitary confinement in prisons in the U.S. estimates that as of
July 2021, 48,000 individuals are confined in their cells for at
least twenty two hours a day for a minimum of fifteen days.309

While this statistic has decreased from the 100,000 individuals
housed in solitary confinement in 2014, the population of
inmates confined in restricted housing among the two million
individuals in state and federal prisons is massively
unbalanced.310

A 2003 report based on data from state prisons
throughout the U.S. by Human Rights Watch found one-third to
one-half of inmates in solitary confinement cells to be mentally
ill.311 Cognitively impaired and mentally ill individuals who
struggle to comprehend and abide by strict prison regulations
without treatment garner reputations as troublesome inmates,
and are cast aside in solitary confinement cells.312 This
facilitates a destructive cycle in which mentally ill inmates are
misinterpreted as willfully defiant by under-trained prison staff
and are subjected to prolonged periods of disciplinary

312 Fathi, supra note 302.

311 Zoltan Lucas, LOCKING DOWN THE MENTALLY ILL THE CRIME REPORT (2010),
https://thecrimereport.org/2010/02/18/locking-down-the-mentally-ill/

310 Wendy Sawyer & Peter Wagner, MASS INCARCERATION: THE WHOLE PIE

2023 PRISON POLICY INITIATIVE (2023),
https://www.prisonpolicy.org/reports/pie2023.html (last visited Dec 9,
2023).

309 Correctional Leaders Association, NATIONWIDE REPORT FINDS REDUCTION IN

REPORTED USE OF SOLITARY CONFINEMENT YALE LAW SCHOOL (2022),
https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-repor
ted-use-solitary-confinement#:~:text=Time%2DIn%2DCell%3A%20A,for
%2015%20days%20or%20more.

308 Fathi, supra note 302.
307 ACLU supra note 269, at 9.

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segregation in solitary confinement cells.313 This “willful
defiance” perceived by the prison administration is unfounded,
as the psychological damage inflicted by the conditions of
solitary confinement alongside pre-existing mental illness
compromises the cognitive and affective abilities of the
inmates.314 These cognitive and affective capacities are what
contribute to logical reasoning and decision-making, and
solitary confinement promotes the further atrophy of inmate
ability to comprehend and respond to the emotions of others.
The maladaptive psychological processes and anti-social
behavior patterns identified as risks of confinement in isolation
units will continue to comprise the individual's social
functioning, and the rehabilitation process intended in solitary
confinement is rendered ineffective.

Inmates with poor mental health are more susceptible to
conflict within the prison community and demonstrate
increased rates of misconduct and assault. This increases the
existing threat to inmates and law enforcement within the
prison walls, as complete social isolation of mentally ill
inmates only exacerbates symptoms of psychiatric distress.315

Along with compromised security, rampant mental illness
among inmates demands more from already scarce resources,
increasing the limited budgets of correctional facilities to offset
the pressure put on correctional officers in deprived prisons.316

The alternative solution to prison security maintenance relies
on mitigation of the most oppressive features of supermax
facilities. This step toward reform has been found to be
effective. For example, a state prison in Washington

316 Kim KiDeuk, Becker-Cohen Miriam, Serakos Maria. 2015. The
Processing and Treatment of Mentally Ill Persons in the Criminal Justice
System. Washington, DC: Urban Institute.

315 Lucas, supra note 311.

314 William Heirstein Et Al., Responsible Brains: Neuroscience, Law, and
Human Culpability 222–24 (2018).

313 Lucas, supra note 311.

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experienced a dramatic decrease in violence and the use of
punitive force following increased staff interaction with
inmates and introduction of communal activities.317

The overproduction and overuse of supermax facilities,
or prisons containing solitary confinement housing units, has
also led to fiscal consequences for the entire federal prison
institution.318 Supermax facilities are three times more
expensive to build and operate compared to maximum-security
prisons. This fiscal strain was evident in a 2009 study revealing
that criminal correction spending exceeded budget growth in
all areas of federal and state spending except for Medicaid.319

When mentally ill inmates are held in an overcrowded prison
system that is simultaneously seeking to occupy expensive
solitary confinement cells, these individuals are often
transferred to isolation housing.320

The argument that placing certain inmates in solitary
confinement protects other prisoners and officers from danger
is cast into grave doubt by the fact that their complete seclusion
from other inmates further impairs mental and social
capabilities, increasing their risk of misconduct.321 Isolation
exacerbates inmates’ existing mental illnesses and increases the
threat posed to the rest of the prison community.322 Only five
percent of inmates housed in solitary confinement remain there
permanently, and thus facilitating effective reentry into the

322 Edgemon, T. G., & Clay-Warner, J. (2019). Inmate Mental Health and
the Pains of Imprisonment. Society and Mental Health, 9(1), 33–50.
https://doi.org/10.1177/2156869318785424

321 ACLU supra note 269, at 9.
320 Id.

319 Solomon Moore, Study Shows High Cost of Criminal Corrections, N.Y.
TIMES, Mar. 3, 2009, at A13.

318 Fellner Jamie. 2006. “A Conundrum for Corrections, a Tragedy for
Prisoners: Prisons as Facilities for the Mentally Ill.” Washington University
Journal of Law & Policy 22:135–44

317 Rhodes, at 192–193.

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greater prison population is essential.323 The American
Psychological Association reports that forty-five percent of
federal prisoners experience mental health issues. Furthermore,
with over two million people incarcerated in the United States,
a tremendous number of mentally ill inmates suffer in an
environment devoid of psychological treatment.324

The extreme security measures maintained in supermax
units render adequate therapy sessions and mental health
assessments unavailable. Intensified security measures entail
being fed through a slot in a door, denial of physical or social
contact, and a lack of access to medical services afforded to
inmates within the greater prison population.325 The only
available therapy for individuals in solitary confinement cells
consists of conversations through a steel door, surrounded by
other prisoners and officers.326 The inability to receive intimate
and personal therapy in solitary confinement makes the
available treatment largely ineffective. The withholding of
effective therapy to inmates with mental illness in supermax
facilities, coupled with the devastating impact of social
isolation lays bare the substantial argument that solitary
confinement of mentally ill inmates violates the Eighth
Amendment.327 Those that argue this suggest that ensured

327 Id.
326 ACLU supra note 269, at 9.
325 Sandoval, supra note 299.

324 Taylor, E. (n.d.). Mental Health and Reentry: How Court Services
Offender Agency Meets the Challenge of Mental Health Community
Supervision.
https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#:
~:text=Approximately%20half%20the%20people%20in,path%20for%20pri
soners%20returning%20home.

323 Timothy Hughes & Doris James Wilson, Reentry Trends in the United
States, U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Statustics (2004), available at
http://www.bjs.gov/content/pub/pdf/reentry.pdf (reporting that 95% of all
state prisoners will eventually be released).

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psychological decline of mentally ill prisoners paired with a
lack of treatment renders the practice of total social isolation
cruel and unusual as understood in the context of the Eighth
Amendment. As aforementioned, to establish a “cruel and
unusual punishment” violation of the Eighth Amendment, the
appellate must demonstrate: an “objectively, sufficiently
serious act or omission resulting in the denial of necessities; a
culpable state of mind on the part of prison officials amounting
to deliberate indifference to his health and safety; and that he
has exhausted the prisoner-grievance system and that he has
petitioned for relief under Article 138, UCMJ.”328 The human
neurobiological demand for social interaction is complemented
by environmental stimulation, both contributing to proper brain
function and behavior. Thus, the social and environmental
stimulation deprived in solitary confinement is to deprive
incarcerated individuals with the conditions necessary for
physiological brain function, and thus the very nature of
themselves. In acknowledging the vital importance of human
interaction and environmental stimulation is an implication that
forcing inmates into six by eight feet cells in complete isolation
is sufficient per se to deprive them of basic human needs.329

Courts have endorsed the view that solitary confinement
conditions are legitimate as long as they guarantee the same
basic necessities afforded to the general prison population.330

However, this notion of equivalence disregards the fact that
extreme socio-environmental isolation is the condition that
renders the difference between solitary confinement and
confinement in the general prison. Extreme isolation deprives
inmates in solitary confinement of a biological based need that
is provided to the general prison population, and social
interaction should be regarded as a basic need rather than a

330 Hutto 437 U.S. 678, at 686.
329 Coppola, supra note 263.

328 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm

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mere privilege.
With the vast amount of evidence attesting to the

harmful psychological effects of solitary confinement, the
detriment to larger policy goals of prisons has become a
pertinent topic of conversation. As a result, a reevaluation of
the legitimacy of current solitary confinement practices is now
in progress.331 Federal courts have called into question whether
the placement of mentally ill inmates in restrictive housing
constitutes cruel and unusual punishment.332 The U.S. Senate
held its first congressional meeting to discuss the use of
isolation measures in prisons in June 2012 and discussion is
ongoing.333 Several other influential organizations, such as the
American Civil Liberties Union, American Bar Association,
and National Alliance of Mental Illness, also vouch in
opposition to the use of solitary confinement.334 Since 2021,
state-level efforts to regulate use of solitary confinement have
increased with two hundred fifty-eight pieces of proposed
legislation filed across forty-one states, the majority seeking to
wholly eliminate some of the aforementioned components of
the practice.335

Alongside state reform efforts and discussion of the
depravity of solitary confinement conditions within federal
courts, nationwide polling data demonstrates widespread
bipartisan support for restrictions on the practice of complete
isolation in prisons.336 This evidence of limited political
resistance minimizes deterrence for legislation, and functions
as the foundation for constructive reform. Legislators and
advocates for the regulation of solitary confinement practices
are poised for genuine improvement, but some prison

336 Id.
335 Sandoval, supra note 299.
334 Id.
333 Bennion, supra note 279.
332 Id.
331 Sandoval, supra note 299.

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administrations and a widespread judicial hesitancy to interfere
with prison security deter change. Corrections officers and
policy makers who consider solitary confinement an effective
strategy to promote order in the prison system maintain that the
potential benefits of solitary confinement to the individual
inmate, other inmates, and prison staff counterbalances the
adverse effects linked with stays in isolation.337 This stance of
penological interest is implicitly supported by the Court’s
exercise of judicial deference to solitary confinement
management and condition regulations which prison officials
deploy.338 Despite the lack of established criteria to assess the
penological interest of a prison in solitary confinement
litigation, Courts often have “deferred to prison officials when
they claim that a particular condition or treatment is
necessary.”339 This notion posits that prison administrations and
officials, who lack required mental health training, have a more
accurate sense of which individuals are in need of additional
psychological treatment.340 Maintaining this skewed
perspective on the expertise of prison officials creates a
considerable barrier in solitary confinement litigation cases
where conditions of isolation pose a risk of substantial harm
which should trigger Eighth Amendment protections.

If an inmate without psychological illness is isolated in
confinement, the harm to their psyche resulting from a solitary
holding cell is enough to induce mental impairment.341 Recent
studies delineate the lasting detrimental effects of solitary
confinement on the mental status of the individual,
corroborating the notion that solitary confinement leads to the

341 Taylor, supra note 314.

340 Lea Johnston, Conditions of Confinement at Sentencing: The Case of
Seriously Disordered Offenders, 63 CATH. U. L. REV. 625, 626 (2014)

339 Rhodes, 452 U.S. 337, at 364.

338 Id.
337 Coppola, supra note 263.

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development of acute mental disorders.342 These mental
disorders often manifest among incarcerated individuals as
difficulties with impulse control, feelings of hostility and
mania, and severe anxiety and depression.343 Individuals
without documentation of previous mental illness are found to
become symptomatic with ranging severity after just brief stays
in solitary confinement, and the negative psychological impact
of isolation affects post-release outcomes of inmates.344

The persisting detriment inflicted by extended time in isolation
can be fatal. Research identifies a correlation between time
spent incarcerated in restrictive housing and an increased risk
of death within the first year following release.345 Individuals
previously incarcerated within solitary confinement units are
overall twenty-four percent more likely to die within the first
year after release, including seventy-eight percent greater risk
of suicide within that demographic.346 The psychological and
physical destitution induced through confinement in supermax
sections of prisons not only fuels a disproportionately high rate
of mental illness and self-harming tendencies compared to the
general prison population, but also manifests in other
symptoms, including social isolation, loss of identity, and
sensory hypersensitivity.347 Mental illness originating from an

347 Reiter K, Ventura J, Lovell D, Augustine D, Barragan M, Blair T,
Chesnut K, Dashtgard P, Gonzalez G, Pifer N, Strong J. Psychological
Distress in Solitary Confinement: Symptoms, Severity, and Prevalence in
the United States, 2017-2018. Am J Public Health. 2020

346 Id.
345 Corcoran, supra note 343.

344 Dean, J., & June 16, 2020. (2020, June 16). Short stays in solitary can
increase recidivism, unemployment. Cornell Chronicle.
https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-re
cidivism-unemployment.

343Mary Corcoran, Effects Of Solitary Confinement On The Well Being Of
Prison Inmates APPLIED PSYCHOLOGY OPUS,
https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement
-on-the-well-being-of-prison-inmates/

342 Sandoval, supra note 299.

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https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement-on-the-well-being-of-prison-inmates/
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inmate’s experience in solitary confinement further prevents
them from a successful reentry into society, ultimately posing
an even greater impact on the larger population.348

Amongst the chilling accounts of solitary confinement
published, Kiana Calloway details his devastating experience
of entering “Camp J.”349 Camp J is a Louisiana prison noted for
its severe lockdown units, and Calloway was confronted with
this stark image of what the rest of his life would be like when
he entered the prison at only seventeen years of age in 2019.350

Entering Louisiana State Penitentiary, Calloway was sentenced
to solitary confinement for twenty-three hours a day for sixteen
months. Struggling to retain his humanity under the torturous
“23 and 1” regime, he languished in an environment
constructed to maximize control over the individual and
minimize the sense of self. Amidst the twenty-three hours a
day spent within the perpetually lit cell, Calloway describes a
single hour where a phone call or shower was permitted.351

Deprived of educational or vocational programs, inmates are
reduced to sitting in their cells listening to the anguished cries
of neighboring prisoners who are also suffering the effects of
long-term solitary confinement.352 Testifying on the
consequences of prolonged isolation, Calloway states, “It’s
been 22 years since my time in solitary and 8 years since my
release from prison, but I still have flashbacks and nightmares.
Even when I’m with someone else, I find myself secluded in

352 Id.
351 Id.
350 Id.

349 Calloway, K. (2023, February 27). I spent 16 months in solitary
confinement and now I’m fighting to end it: ACLU. American Civil
Liberties Union.
https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi
nement-and-now-im

348 Taylor, supra note 324.

Jan;110(S1):S56-S62. doi: 10.2105/AJPH.2019.305375. PMID: 31967876;
PMCID: PMC6987940.

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my own mind. I call it being psychologically incarcerated.”353

Calloway, who maintains his innocence, was initially
convicted on two counts of first degree murder by a
non-unanimous jury, receiving two life sentences without the
possibility of parole and was immediately confined in a
supermax facility. However, Calloway received an additional
trial once it was revealed that the initial judge prohibited him
from calling certain witnesses and neglected to require the
prosecution to turn over two witness statements. His sentence
was reduced to thirty four years in the general prison
population.354 Kiana Calloway is now an advocate for the Voice
of the Experience (VOTE) organization, a foundation created
in New Orleans by formerly incarcerated individuals, that
strives for the reformation of the Louisiana Department of
Corrections disciplinary procedures in prison.355 The complete
prohibition of access to education in the name of discipline is
another manifestation of the ineffective policies surrounding
solitary confinement in U.S. prisons.

Alongside the development of psychological and
physical conditions from complete isolation, the increase in
suicide rates and self-harm of inmates in solitary confinement
has been repeatedly acknowledged and verified. Dr. Stuart
Grassian, a practicing psychologist on the faculty of Harvard
Medical School for over twenty five years, encapsulates the
devastating psychiatric effects of solitary confinement by citing

355 Frances Madeson et al., LOUISIANA HUNGER STRIKERS - ALREADY IN SOLITARY

- ARE BEING BRUTALLY PUNISHED TRUTHOUT (2021),
https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-are-
being-brutally-punished/ (last visited Nov 28, 2023).

354 Hutchinson, P. (2023, November 28). Louisiana considers education
access for the incarcerated - including those on Death row. News From The
States.
https://www.newsfromthestates.com/article/louisiana-considers-education-a
ccess-incarcerated-including-those-death-row#:~:text=One%20task%20forc
e%20member%2C%20Kiana,count%20of%20feticide%20in%201997.

353 Id.

98

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https://www.newsfromthestates.com/article/louisiana-considers-education-access-incarcerated-including-those-death-row#:~:text=One%20task%20force%20member%2C%20Kiana,count%20of%20feticide%20in%201997


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testimony from an individual confined in California’s Pelican
Bay state prison.356 By 2011, Pelican Bay had showcased
widespread, unregulated utilization of isolation in segregated
units for over a decade, affecting approximately forty-five
percent of inmates.357 The incarcerated individual described in
Dr. Grassian’s testimony, lacking previously documented
psychiatric disorders, emerged from restrictive housing
afflicted with severe mental illness arising from the trauma he
endured.

Dr. Grassian states that the individual became “overtly
psychotic and suicidal.”358 At one point, the inmate resorted to
writing a suicide note in his own blood and confessed to the
doctor, “I'm tired of people talking in my head. I was mentally
clear before . . . sometimes I get so confused, I don't even know
what's going on.”359 Through research and personal contact
with many formerly and currently incarcerated individuals, Dr.
Grassian established a specific psychiatric disorder called
Security Housing Unit (SHU) Syndrome, giving a name to the
distress arising from periods in solitary confinement.360 The
practice of prolonged solitary confinement manifests as a
psychological detriment to those it confines, having the power
not only to aggravate pre-existing mental illnesses but to create
them.

In 2017, The Department of Justice guidelines
recognized that extreme isolation causes mentally ill inmates'
already fragile psychiatric conditions to decline, which led to
the launch of reform bills that advocated for limiting the use of

360 Sandoval, supra note 299.
359 Id.
358 Id.

357 Tiana Herring, THE RESEARCH IS CLEAR: SOLITARY CONFINEMENT CAUSES
LONG-LASTING HARM PRISON POLICY INITIATIVE (2020),
https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ (last
visited Nov 28, 2023).

356 ACLU, supra note 269.

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solitary confinement in American prisons.361 Fueled by the
recognition of the substantial risk of psychological harm
imposed by solitary confinement practices, a profusion of bills
were introduced between 2018 and 2023.362 These bills aimed
to create reporting and oversight mechanisms to increase
transparency of the inner workings of incarceration and
regulate solitary confinement through legislation. However,
only 29 states enacted these bills.363 While ideas for reform
circulate to regulate the practice, solitary confinement, as a
form of security maintenance, in lieu of mental health
treatment must be eliminated. Although maintaining order and
safety within the prison and psychological treatment for
mentally ill inmates are not mutually exclusive, the current
practice of punitive isolation without access to psychological
therapy does not achieve the goal of security. Moreover,
restricting the use of solitary confinement is linked to a decline
in prison misconduct.364 Corroborating this phenomenon, a
reduction in the number of inmates in solitary confinement has
resulted in a decline in prison violence in Michigan.365 When
all isolation cells rates of violence in Mississippi prisons
plummeted by seventy percent when all isolation cells were
removed.366

366 Terry A. Kupers et al., Beyond Supermax Administrative Segregation:
Mississippi’s Experience Rethinking Prison Classification and Creating

365 Jeff Gerritt, Pilot Program in UP Tests Alternatives to Traditional Prison
Segregation, DETROIT FREE PRESS, January 1, 2012, available at
www.frep.com/fdcp/?unique=1326226266727.

364 ACLU, supra note 269.

363 Banning Torture: Legislative Trends and Policy Solutions for Restricting
and Ending Solitary Confinement Throughout the United States, Unlock the
Box Campaign, January 2023.

362 Sandoval, supra note 299.

361Report and recommendations concerning the use of restrictive housing.
The United States Department of Justice. (2017, March 13).
https://www.justice.gov/archives/dag/report-and-recommendations-concerni
ng-use-restrictive-housing

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Theories supporting the use of solitary confinement
emphasizes its capacity to deter future crime among inmates,
however, empirical evidence in supermax prisons does not
comport with this notion. When comparing the recidivism rates
of inmates released from solitary confinement versus the
normal prison population, there is an increased risk of
recommitting a violent crime among those confined in
isolation.367 This increased risk of recidivism is largely rooted
in the adverse psychological symptoms imposed by
confinement in isolation cells, and present risk factors for
socially dysfunctional behaviors.368 Alongside its failure to
decrease risk of recidivism, solitary confinement oppresses
rehabilitation by removing the possibility of positive
relationships with other perpetrators and the rest of society.
This self-reform based on relational processes is stunted, and
inmates in solitary confinement are unable to reintegrate into
society as law-abiding and self-sufficient individuals.

With the devastating impacts of complete isolation
units on psychological well-being being so well-documented,
every federal court has been confronted with the question of
whether or not placing individuals with mental illness in
solitary confinement is cruel and unusual punishment in
violation of the Eighth Amendment.369 Despite the formal
position statement released by the American Psychiatric
Association stating that inmates afflicted with mental illness
should never be confined in restrictive housing units without
access to additional clinical support, the practice continues.370

Courts endorse the notion that solitary confinement is not cruel
and unusual punishment as long as its provisions of nutrition

370 Id.
369 ACLU, supra note 269, at 12.
368 Id.
367 Coppola, supra note 273.

Alternative Mental Health Programs, 36 CRIM. JUST. & BEHAV. 1037,
1041 (2009).

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and shelter do not differ from those provided to the general
prison population.371 Implicit in that precedent is the failure to
recognize that extreme social isolation is the fundamental
difference in condition between solitary confinement and the
general prison population. Housing an inmate in supermax
deprives inmates of a fundamental need that normal
confinement facilitates, and social interaction should be
acknowledged as a human necessity, not a mere privilege.372

The proposed policy restrictions on isolated
confinement do not prevent the devastating consequences of
the inmates’ experience in restrictive housing cells on
psychological health. Continued access to psychiatric treatment
in conjunction with therapy and programs supporting
rehabilitation should be demanded of federal and state
institutions alike. Yet, repeated court mandates have not led to
an established and protected right to psychological treatment
for mentally ill inmates in solitary confinement.373 Inmates are
sentenced to live in insufferable confines with no treatment nor
codified rights. The rights afforded to inmates in the general
prison population include contact with other inmates,
participation in programming and communal activities, and
visitations.374 Solitary confinement strips inmates of those
opportunities and the benefits of social interaction.

Access to therapy and psychiatric treatment in prison is
incredibly stunted, as three in five inmates do not receive

374 Andreea Matei, SOLITARY CONFINEMENT IN US PRISONS URBAN INSTITUTE

(2022),
https://www.urban.org/sites/default/files/2022-08/Solitary%20Confinement
%20in%20the%20US.pdf.

373 NAMI. (2023). Mental health treatment while incarcerated. National
Alliance on Mental Illness.
https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental
-Health-Treatment-While-Incarcerated.

372 Coppola, supra note 273.
371 Hutto 437 U.S. 678, at 686.

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appropriate mental health treatment while incarcerated.375

Along with the deficit of effective mental health services,
treatment regimens must grind to a halt for prisoners with
previously diagnosed mental illness, as fifty percent of inmates
who were medicated for mental illness upon admission did not
continue to receive medication during their sentence in
prison.376 To circumvent the challenges faced by mentally ill
incarcerated individuals and enhance the medical services
provided to those in solitary confinement, consistent
psychological screening and regular access to mental health
professionals must be implemented in prisons. While isolation
unit conditions vary depending on state legislature, systematic
policies of confinement–including isolation behind a steel door
for twenty-two to twenty-four hours a day, physical discipline
including hog-tying and restraint chairs, severely limited
contact with other humans, and inadequate rehabilitative and
educational programming—are universal in the United
States.377

As they serve their sentences, inmates experience
immense anxiety surrounding social conduct after being
deprived of interaction. If they are released from solitary
confinement into larger society, many former inmates exhibit
maladjustment disorders and difficulty acclimating to social
contact after release from isolation units compared to inmates
released from maximum security prisons.378 In 2006, the
Commission on Safety and Abuse in America’s Prisons
expressed concern for the practice of releasing inmates from
isolation settings directly into the community due to the
diminished social skills incurred from stays in solitary

378 Corcoran, supra note 343.

377 Madeodev. (2023). Solitary confinement facts. American Friends Service
Committee. https://afsc.org/solitary-confinement-facts.

376 Id.
375 NAMI, supra note 373.

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confinement.379 Considering ninety five percent of inmates in
solitary confinement will be released, the successful
reintegration into society of previously incarcerated individuals
should be the pinnacle of a correctional administration’s
mission.380

The practice of prolonged incarceration excluding the
use of solitary confinement for “higher risk” inmates is already
highly damaging due to the internalized prisonization effect.
The unregulated, unlimited use of solitary confinement in
federal prisons perpetuates and intensifies the cycle of “catch
and release.” This refers to the fundamental concept of
recidivism among individuals released from prison, relating to
a relapse into criminal behavior.381 Drawn from linked prison
records in the U.S. from 2006 to 2013, the recidivism rate for
inmates released from solitary confinement increased by
fifteen percent beyond the recidivism rate of fifty percent for
general population inmates.382 This correlation between release
from isolation and increased risk of recidivism is documented
in research conducted in state penitentiaries.

Preliminary research in California shows that
recidivism rates are twenty percent higher for those released
from solitary confinement as opposed to the general prison
population.383 In Colorado two-thirds of inmates released from
restrictive housing units return to prison within three years of
release.384 Additional research comparing the behavioral
trajectories of inmates who were not placed in solitary

384 Id.
383 ACLU, supra note 269, at 12.
382 Dean, supra note 344.

381 NIJ. (n.d.). Recidivism. National Institute of Justice.
https://nij.ojp.gov/topics/corrections/recidivism#:~:text=Recidivism%20is%
20one%20of%20the,intervention%20for%20a%20previous%20crime.

380 Hughes, supra note 323.

379 Commission On Safety and Abuse In America’s Prisons, Confronting
Confinement 55 (2006), available at
http://www.vera.org/download?file=2845/Confronting_Confinement.pdf

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confinement with the inmates housed in isolation units
confirms that the risk of conviction of another crime within
three years of release is increased by fifteen percent.385 One
potential factor driving recidivism is the psychological trauma
incurred from prolonged periods of solitary confinement, and
when individuals are labeled as “problem inmates” by
correctional officers due to mental health issues, the cycle of
detriment continues.386

While research demonstrating the psychological
damage from confinement in supermax units has become more
widespread over the last two decades, the United States has a
prolonged and dismal record of psychological harm resulting
from use of isolation units.387 In 1959, the American
Correctional Association’s Manual of Correctional Standards
dictated that use of solitary confinement for mentally ill
individuals should not exceed fifteen days and should only be
utilized as a last resort, stressing that inmates must be provided
with individual or group therapy to preserve mental
well-being.388 Despite previous efforts being made to regulate
the practice of solitary confinement in the U.S., its widespread
use was reignited in the 1980s, and the research demonstrating
these effects is too often cast aside in U.S. prisons.389

It is important to note that the resurrection of isolation
units in prisons was also spurred by the widespread dissolution
of mental hospitals in the 1960s. This forged an era of
“transinstitutionalization” where mentally ill individuals are
transferred from psychiatric hospitals to prisons.390 The

390 Bennion, supra note 279.

389 Herring, T. (2020, December). The research is clear: Solitary
confinement causes long-lasting harm. Prison Policy Initiative.
https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/

388 Craig Haney, Mental Health Issues in Long-Term Solitary and
“Supermax” Confinement, 49 Crime & Delinq. 126, 126 (2003).

387 Bennion, supra note 279.
386 Id.
385 Dean, supra note 344.

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intention was to house mentally ill persons in less-restrictive
environments with treatment provided in group settings.
However, once the mental hospitals closed, funding for support
services and community housing failed to materialize.391 As a
result, America’s largest inpatient facilities became not
hospitals, but jails.392 This concept manifests in the
concentration of mentally ill individuals in prison that is
observed in current society, as individuals diagnosed with
psychological illness are three times more likely to be
incarcerated than hospitalized for treatment.393 The U.S. has
been grappling with the facilitation of positive change among
inmates for decades, and it remains critical that the
psychological health of incarcerated individuals is preserved to
create a rehabilitative environment.

II. Arguments For the Unlimited Use of Solitary
Confinement

Advocates for unlimited use of solitary confinement
claim that the isolating conditions imposed on a single prisoner
preserve the safety of correctional officers and other
inmates.394 It is argued that segregation cells deter misconduct
and properly punish inmates who are unwilling to abide by the
prison’s rules, promoting generalized orderly conduct.395 The
fundamental justifications for the use of solitary confinement
rely on the deluded notion that only the “worst of the worst”
are placed in social isolation cells, working to create a safer
general prison environment.396 The reality is wholly different,

396 Id.
395 Id.
394 ACLU, supra note 269, at 10.
393 Fathi, supra note 302.

392 Nation’s Jails Struggle with Mentally Ill Prisoners, NPR (Sept. 4, 2011),
http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-ment
ally-ill-prisoners.

391 Fathi, supra note 302.

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as incarcerated individuals cast into solitary confinement are
generally placed there for one of three reasons beyond the
presence of a genuine security threat. Isolation cells are
utilized to control individuals perceived as a current or
potential threat to the prison community, to shield certain
inmates from threats and violence from other inmates, or to
discipline dissent for prison rules.397 Within the realm of the
perceived threat, the majority of inmates housed in supermax
facilities indefinitely are allegedly involved in gang activity.398

Despite remaining free of disciplinary write-ups during their
sentence and a lack of discrete evidence confirming affiliation
with organized crime, inmates suspected of gang membership
are confined in restrictive housing without a timeframe for
release back into the greater prison population.399

Alongside inmates suspected of gang affiliation and
those who commit minor infractions, mentally ill inmates are
disproportionately represented in restrictive housing.
Conforming to a heavily regimented prison environment is
made even more difficult by the symptoms of severe mental
illness, and thus minor infractions are more frequently
committed by this group of inmates.400 Correctional officers
often treat this ‘disordered behavior as disorderly behavior’,
and place mentally ill inmates in solitary confinement

400 Bennion, supra note 279.

399 Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An
Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary
Confinement on Inmates with a Mental Illness, 90 DENV. U. L. REV. 1, 10
(2012).

398 Bennion, supra note 279.

397 Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Judith Resnik,
Julia Spiegel, Haran Tae, Alyssa Work & Brian Holbrook, Administrative
Segregation, Degrees Of Isolation, and Incarceration: A National Overview
Of State And Federal Correlation Policies 2 (2013),
https://www.aclu.org/files/assets/Administrative%20Segregation,%20Degre
es%20of%20Isolation,%20and%20Incarceration.pdf.

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indefinitely, ultimately exacerbating the disordered behavior.401

Due to the poorly defined policies regarding which inmates
may be placed in solitary confinement, restrictive housing
units become densely populated with inmates who committed
small transgressions or petty annoyances.402 Imposing
complete isolation on an inmate is entirely left to the discretion
of individual prison administrations, and without definitive
guidelines restricting the length of confinement in restrictive
housing units, inmates may be left to suffer in solitary
confinement indefinitely. These low-risk inmates may pose
minor management difficulties for the corrections officers, but
do not demand complete sensory deprivation and social
isolation.

Evaluating whether solitary confinement units deprive
inmates of a basic human need entails weighing the gravity of
the harm caused to an individual against the penological
demands of the prison, such as security and inmate
management.403 Inherent in this comparison of the risk of harm
and security needs, is the indifference of the prison guards to
the psychological interests of the inmates.404 This functions
only to perpetuate the intransient trade-off between the mental
well-being of the individuals incarcerated in solitary
confinement and maintaining discipline within the prison.
Neglecting the overwhelming research confirming the
damages caused by solitary confinement leads to the use of
supermax housing as the predominant solution for any conflict
arising in the prison environment, including aforementioned
alleged gang affiliation and minor infractions.405 There is an

405 Ring, K. A., & Gill, M. (n.d.). Mental Health Policies and practices
surrounding mental health. Prison Policy Initiative.
https://www.prisonpolicy.org/research/mental_health/

404 Id.
403 Coppola, supra note 273.
402   Atul Gawande, Hellhole, New Yorker, Mar. 30, 2009, pg. 36, 39.
401 Id.

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imbalance between the traumatic and permanent implications
of social isolation and the penological interests that solitary
confinement is intended to serve. This emerging imbalance is
derived from the fact that socio-environmental deprivation
presents an excessive risk of severe brain deterioration and
psychological consequences; this extremely unbalanced cost
fails to be justified by any penological interest.406 The evidence
of excessive risk of psychological damage reinforces existing
evidence that neither short nor prolonged sentences in solitary
confinement reduces infractions or prison incidents as
intended.407 In fact, prisons that have restricted the use of
solitary confinement have noted a decrease in inmate violence,
and thus limited use of isolation cells does not undermine
capacity of prison administrations to maintain prison safety.408

The reality remains that solitary confinement cells are
consistently overused, causing a disproportionate isolation of
mentally ill or cognitively-impaired prisoners struggling to
navigate in prison settings.409 Once placed in solitary
confinement and excluded from the greater prison population,
the prisoner must endure the detrimental effects of social
isolation which increases the likelihood of psychological harm.
The infliction of social deprivation on inmates through
extended periods of solitary confinement is counterproductive
to the release of a convict back into the greater prison
community, and the release of a rehabilitated individual into

409 Ring, supra note 405.

408 ASCA-Liman, Working to Limit Restrictive Housing: Efforts in Four
Jurisdictions to Make Changes (Oct. 2018),
https://law.yale.edu/sites/default/files/documents/pdf/Liman/asca_liman_20
18_workingtolimit.pdf.

407 Joseph Lucas & Matthew Jones, An Analysis of the Deterrent Effects of
Disciplinary Segregation on Institutional Rule Violation Rates, CRIM. J.
POL. REV. 1 (2017).

406 National Committee on Correctional Health Care, Position Statement:
Solitary Confinement (Isolation), 22(3) J. Correct. Health Care 257, 258
(2016).

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greater society. Mental illness originating from an inmate’s
experience in solitary confinement further prevents them from
a successful reentry into society, posing an even greater impact
on the larger population.410 The pervasive use of the practice of
solitary confinement results in the release of thousands of
mentally ill inmates from incarceration with diminished social
capacities and life skills, and a greater likelihood to reoffend.411

Unlimited use of solitary confinement may also be
preferred when alternative disciplinary options are ineffective
in controlling high-risk inmates.412 Supporters of the use of
solitary confinement argue that other methods of discipline,
including education programs and cognitive-behavioral
therapy, are only applicable treatments to a minute portion of
the prison population. However, with over fifty percent of the
population in federal and state prisons suffering from mental
illness, the need for more comprehensive psychological
treatment is impertinent.413 According to a prison report
published by the Prison Policy Initiative organization, in 2017
and revised in 2023, sixty-six percent of mentally ill inmates
do not receive, nor are they offered, psychological treatment
while incarcerated.414 In addition to the lack of psychological
treatment, contact visits, rehabilitative therapy, work, and all
other recreational activities that are afforded to the general
prison population are prohibited for inmates in solitary
confinement.415

The disproportionate incarceration of individuals with

415 Madrid v. Gomez, 889 F. Supp. 1146, 1229 (N.D. Cal. 1995);
Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public
Safety Consequences: Hearing Before the Subcomm. on the Constitution,
Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th
Cong. 20–21 (2012).

414 Ring, supra note 405.
413 Id.
412 Id.
411 ACLU, supra note 269.
410 Taylor, supra note 324.

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mental health issues paired with the lack of accessible
treatment in prisons illuminates the U.S.’s deficit in attention
to the psychological needs of inmates, and the glaring need for
reform. The implementation of more opportunities for mental
health treatment and the improvement of staff training would
enhance communication regarding high-needs prisoners and
replace solitary confinement to maintain prison security. The
proliferation of supermax facilities as a more fiscally
conservative alternative to high-quality therapy is a paradox.
Supermax facilities are far more expensive to construct and
maintain, and holding a prisoner in solitary confinement
housing costs more than three times as much as incarceration
in a maximum security prison per day.416 The majority of the
additional expenses of supermax prisons are rooted in higher
staffing costs, as cleaning and food services are typically
performed by inmates for no compensation in maximum
security prisons.417 Through reallocation of funds,
community-based activities and increased group therapy
programs within the prison can be arranged to maintain a safer
prison environment without excessive additional cost.

III. Proposal To Eliminate the Unlimited Use of Solitary
Confinement in Federal Prisons:

In this section, I will introduce five achievable reforms
designed to mitigate the harm induced by solitary confinement
without wholly eliminating the practice. As stated by Justice
Sotomayor in Apodaka, “a punishment need not leave physical
scars to be cruel and unusual.”418 While discontinuation of the
use of supermax facilities to house mentally ill incarcerated
individuals is necessary to uphold the Eighth Amendment,

418 Apodaka, 586 U.S.
417 Fathi, supra note 302.

416 American Correctional Association, 2004 Directory (65th Ed. 2004), at
286, 288, 568, 570.

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implementing the following reforms will alleviate some of the
scars imposed by current practices of solitary confinement.

1. Prioritize mental health training for correctional
officers to place greater emphasis on the psychological
treatment of high-risk inmates; high-risk would entail those
with pre-established mental illness or cognitive impairments.
Contact visits, rehabilitative therapy, work, and all other
recreational activities that are afforded to the general prison
population are prohibited for inmates in solitary confinement.
This would ensure that correctional officers have the skills and
knowledge necessary to effectively and compassionately
manage situations with non-compliant inmates without
resorting to solitary confinement. In 2001, Appelbaum and
colleagues published an article regarding the state of mental
health training for correctional officers.419 The article identified
the discrepancy between professional cultures of security staff
and mental health staff as a prominent issue within prison
administrations. The article noted how many members of
security and mental health staff actually collaborate effectively
and share a common goal of humane treatment of inmates, and
the capacity of mental health training sessions to hone these
skills. Introducing collaborative training sessions focused on
mental illness would function to create a multidisciplinary staff
equipped with more skills to conduct a safe prison
environment, and prevent inmate abuse. In the Estelle and
Wilson420 cases, the Supreme Court determined that claims of
violation of the Eighth Amendment arising from solitary
confinement conditions requires the subjective aspect of
“deliberate indifference” of corrections officers to the risk to

420 Estelle, 429 U.S. 97; Wilson, 501 U.S. 294, at 300

419 Kenneth L. Appelbaum, James M. Hickey & Ira Packer, The role of
correctional officers in multidisciplinary mental health care in prisons, 52
PSYCHIATRIC SERVICES 1343–1347 (2001).

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inmate health.421 Through implementation of trauma-response
training and established methods of accommodating mentally
ill incarcerated individuals, the possibility of ignorant
indifference to inmates’ psychological suffering would be
eliminated. This would facilitate litigation of solitary
confinement conditions to appropriately deliver justice to those
individuals who have suffered.

2. Establish solitary confinement for mentally ill
individuals as a violation of the Eighth Amendment. This
entails the need for the Court to uphold that the degree of
mental injury endured as a result of prolonged isolation
significantly exceeds the psychological pain compatible with
Eighth Amendment standards.422 The justification for this
reform is predicated on the research indicating the increased
vulnerability to detrimental effects of social isolation in people
with pre-existing mental illness.423 Once this discrepancy is
acknowledged, comprehensive evaluation of the practice of
solitary confinement can occur, and Congress may pass a
statute that would effectively end solitary confinement in the
future. Within the criteria to establish a punishment as “cruel
and unusual” is a demonstration of an “objectively, sufficiently
serious act or omission resulting in the denial of
necessities…”424 and the mental, physical, and physiological
harms imposed by the conditions of solitary confinement are
on par with physical risk involved in starvation and sleep
deprivation. Given the biologically-based human need for
social interaction and the irreversible neurological and
psychological damage incurred from confinement in isolation
units, the complete isolation imposed by solitary confinement

424 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm

423 Id.
422 Id.
421 Coppola, supra note 273.

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constitutes a deprivation of necessities.

3. Reconfigure the layout of isolation cells to align with
defined environmental standards. The Constitution does not
mandate comfortable cells.425 However, empirical studies have
confirmed that environmental surroundings influence
psychological well-being and behavior, and severely
under-furnished cells function to magnify the effects of social
deprivation.426 Research surrounding suicides in prisons have
noted that prison characteristics constitute almost half of the
variation of distress among inmates who had attempted suicide,
highlighting the substantial impact of prison-level factors on
compromised mental health.427 Affording small personal
amenities to incarcerated individuals, such as proper bedding
and natural lighting, contributes to more generalized well-being
of inmates and overall reduced prison misconduct.428

4. Develop alternative disciplinary measures that address
the psychological root of an inmate's poor conduct. This could
include providing more intensive therapy and vocational
training outside of the cell in a consistent routine. Access to
skills training and preparation for future employment would
provide a constructive purpose for inmates to direct the
intellectual and creative energies that are suppressed by
confinement in Supermax housing. Access to social activities
for inmates, and access to reading material, in-cell
programming, and telephone calls can be maintained even if
inmates remained segregated from the rest of the prison
population. This routine should be maintained for as long as it

428 Id.

427 Liebling Alison. 2006. “The Role of the Prison Environment in Prison
Suicide and Prisoner Distress.” Pp. 16–28 in Preventing Suicide and Other
Self-harm in Prison, edited by Dear G. London: Palgrave Macmillan.

426 Coppola, supra note 273.
425 Eg Rhodes, 452 U.S. 337, at 349.

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is deemed necessary through evaluation by a psychologist.
Research of brain plasticity has indicated that social
engagement induces positive alterations in the neural circuits
underlying socio-affective skills such as empathy, cognitive
functions, and social behavior that persist throughout the
individual’s lifespan.429 Facilitating positive social interaction
through group therapy and interactive training courses allows
for inmates to experience environmental stimulation and
develop normal sociable tendencies.430 Acknowledging the
bidirectional link between cognitive function and social
environment in the development of alternative disciplinary
measures is key in protecting brain health among inmates and
functional reentry into society.431

5. Increase the accessibility to enriching activities and
group therapy sessions within the general prison population to
generate a sense of community and trust between inmates and
officers. Research indicates that the frequency of prison
violence in America is more closely correlated to the manner in
which inmates are treated by prison staff than the presence of a
minute number of “high-risk” inmates.432 By cultivating an
environment of respect as opposed to a skewed hierarchy of
power, a safer general prison population can be attained. The
current vehicle for achieving respect in maximum security
facilities is through repression, and this would be rectified by
demonstrating that mentally ill inmates would form bonds of
respect through constructive avenues. The availability of work

432 Leena Kurki & Norval Morris, The Purposes, Practices, and Problems of
Supermax Prisons, 28 CRIME AND JUST. 385, 389 (2001).

431 Id.
430 Coppola, supra note 273.

429 Riitta Hari et al., Centrality of Social Interaction in Human Brain
Function, 88 NEURON 181 (2015); Sophie Valk et al., Structural Plasticity
of the Social Brain: Differential Change After Socio-Affective and Cognitive
Mental Training, 3 SCI. ADVANCES e1700489 (2017).

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and recreational activities have an immense impact on inmates’
mental health, as activity deprivation is linked to depression
and aggressive behavior.433 Establishing these aspects of
functional life within prison walls would decrease hostility
between inmates and officers, as well as among inmates
themselves. The implementation of this proposal eliminates the
need for solitary confinement of mentally ill inmates while
establishing a balance between maintaining order and safety
within the prison and accommodating the psychological
demands of the inmates.

Current progress towards the limitation and uniform
regulation of the use of solitary confinement has proven to be
inconsistent, therefore, ongoing dialogue and collaboration
with all advocates for and against the unlimited use of solitary
confinement must be maintained.

433 Tartaro Christina, Lester David. 2009. Suicide and Self-harm in Prisons
and Jails. Lanham, MA: Lexington Books.

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The Development of Privity of Contract as the Common

Law Standard for Product Liability: An Analysis of

Winterbottom v. Wright, Thomas v. Winchester, and

Industrialization

Harrison Sugarman434

This article explores the development of standards of product
liability during the Market Revolution, arguing that jurists
adopted the standard of privity of contract to protect
manufacturers from the legal consequences of
industrialization. This article surveys the history of product
liability prior to the Market Revolution, and then it describes
how Winterbottom v. Wright and Thomas v. Winchester
radically departed from this tradition. This article then
analyzes how judges specifically feared the increased volume
of liability cases under a strict liability framework that would
have arisen from a depersonalized and mechanized economy.
The article concludes with parallels between questions
surrounding product liability in the Market Revolution and the
present day.

I. Introduction

James McGreevey, former Governor of New Jersey,
once said, “the arc of American history almost inevitably
moves toward greater individual legal rights.”435 Since the
1930s, his statement applies to much of American history, but

435 James McGreevey, James McGreevey Quotes, BrainyQuote.com,
https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://ww
w.brainyquote.com/quotes/james_mcgreevey_468732.

434 Brandeis University Undergraduate, Class of 2024.

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there have also been long periods where legislatures and courts
restricted individual rights. For example, American courts
dismantled a series of 17th and 18th-century legal privileges
during the Market Revolution (1815-1855). This was a period
of unprecedented economic growth, industrialization, and
corporatization in the rapidly maturing republic. During these
years, the courts particularly targeted product liability, a
“condition of being bound to respond because a wrong has
occurred… with reference to property, proceeds[, or] yield.”436

Under the colonial standard of strict liability, average
consumers could have successfully sued for injuries caused by
a manufacturer "when neither care nor negligence, neither good
nor bad faith, neither knowledge nor ignorance will save [the]
defendant.”437

Winterbottom v. Wright (1842) and Thomas v.
Winchester (1852), two court cases decided within a decade of
each other, overturned strict liability and replaced it with a
standard of privity of contract. Jurists define this concept as
“that connection or relationship which exists between two or
more contracting parties.”438 In other words, these two cases
limited a manufacturer’s duty of care strictly to consumers with
whom a contract was agreed. This sudden shift in jurisprudence
left scholars of American legal history perplexed as to what
caused this departure from precedent. This article argues that
judges established privity of contracts to protect manufacturers
from the potential legal ramifications of industrialization. This
article provides background on the strict liability era, and the
two cases that overturned it. It will also connect the factual
background of the cases with the two trends, the emergence of

438 Id. at 1362.
437 Black, supra note 436 at 1591.

436 Henry Campbell Black, Black’s Law Dictionary, 1060, 1374 (4th ed.
1968),
https://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.
pdf.

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a “faceless economy” and dangerous industrial technology, that
led judges to legally insulate manufacturers. Lastly, the article
will establish broader connections between late 19th century
product liability standards and modern tort jurisprudence.

II. Background

Prior to Winterbottom v. Wright, product liability was an
obscure field of the law that had hardly changed since its
inception. Historians have determined that early Roman law
includes the first mention of product liability as a legal
concept.439 Laws, such as the Twelve Tables of 450 BC,
presumed that goods purchased by consumers at a fair price
should be of a fair quality, and therefore, the manufacturer was
liable for any injury the purchaser suffered as a result of the
manufacturer’s negligence.440 When Rome conquered Britain
in 43 AD, Roman law strongly influenced English common
law and continued to prove fundamental long after the fall of
the Western Roman Empire.

In his Summa Theologica, St. Thomas Aquinas —
among the foremost Western philosophers — defended the
virtue of strict liability on the basis that selling a product with a
known liability was a sin according to scripture.441 Scholars
agree that his endorsement contributed to strict liability’s
survival throughout the Medieval Era.442 English colonists
imported English common law to the New World, including its
understanding of product liability, and it remained foundational
into the Antebellum Period.443 Until 1842, American courts

443 Id. at 959–960.
442 Id. at 958–959.
441 Owen, supra note 439 at 958.

440 John C. Reitz, A History of Cutoff Rules as a Form of Caveat Emptor:
Part II-From Roman Law to the Modern Civil and Common Law, 37 Am. J.
Comp. Law 247, 249 (1989).

439 David G. Owen, The Evolution of Products Liability Law, 26 Rev. Litig.
955, 956 (2007).

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upheld this standard of product liability which remained
virtually unchanged since antiquity.444

It was in Winterbottom v. Wright that courts took the
first step to dismantle the ancient standard of strict liability.
Winterbottom, a stagecoach driver, was severely injured when
his stagecoach broke down on August 8, 1840.445 An
investigation revealed that the carriage broke down because
Wright, a stagecoach repairman and builder, did not properly
maintain it.446 Consequently, Winterbottom sued Wright for
damages, and the case went all the way to the Court of
Exchequer, which ultimately ruled in favor of the
respondent.447 The court reasoned that Wright acted negligently
but was not liable for Winterbottom’s injuries because Wright
owed Winterbottom no duty of care.448

The court ruled that a manufacturer could only owe a
consumer a duty of care within privity of contract; that is, only
a well-established contract between parties could, in case of
breach, give rise to damages.449 Winterbottom and Wright did
not have a contractual relationship due to the absence of privity
between them as consumer and servicer.450 Winterbottom
worked as a driver for the Postmaster-General, and the
Postmaster-General was, in turn, employed by Nathaniel
Atkinson, a wealthy aristocrat.451 Atkinson also employed

451 Id. at 109.
450 Id.
449 Winterbottom v. Wright, supra note 445 at 110–116.
448 Black, supra note 436 at 267.

447 Id; the Court of Exchequer was one of the four major courts of England
prior to the reorganization of the English court system during the late 19th
century. The court heard common and natural law cases, especially those
relating to financial matters and equity.

446 Id.

445 Winterbottom v. Wright, 110–116,
https://sites.la.utexas.edu/judpro/files/2016/02/Winterbottom-v.pdf.

444 Id. at 960.

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Wright to maintain his fleet of carriages.452 Hence, Wright had
no contractual obligations to Winterbottom because they did
not sign a contract to formally establish any duty of care.453

Wright vanished from the historical record after this case, but
Winterbottom remained handicapped for the rest of his life and
did not receive compensation for his injuries.454

Ten years later, Thomas v. Winchester affirmed the
legality of Winterbottom v. Wright’s precedent, with certain
exceptions. The facts of the case are as follows: Mrs. Mary
Ann Thomas became ill in 1849.455 After visiting the doctor,
Mrs. Thomas received a prescription for dandelion extract.456

Her husband picked up a dose from Dr. Foord’s drug store, but
immediately after Mrs. Thomas took the medication, she fell
almost fatally ill.457 An investigation discovered that the jar
was mislabeled and contained belladonna, a poison that
resembles dandelion extract. Mr. Thomas sued the labeler, an
employee of Winchester named A. Gilbert. Gilbert sold the
mislabeled belladonna to a distributor named Aspinwall, who
then sold it to Dr. Foord.458

The case eventually reached the New York Court of
Appeals in 1852 and the court ruled in favor of Thomas.459 The
court upheld the legality of privity of contract, but it ruled that
the danger and blatancy of Winchester’s negligence made it
almost tantamount to manslaughter.460 Justice Ruggles made
this argument by first defining manslaughter as “[when]

460 Thomas v. Winchester, supra note 456.
459 Id.
458 Id.; Daniel Breen, supra note 454.
457 Id.

456 Thomas v. Winchester,
https://www.nycourts.gov/reporter/archives/thomas_winchester.htm (last
visited Dec 3, 2023).

455 Id.
454 Daniel Breen, The Role of the Judge in Formulating Legal Rules, (2021).
453 Id. at 110–116.
452 Id.

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culpable negligence, [an individual] causes the death of
another, although without intent to kill.”461 He then included
several examples of case law where a court found a pharmacist
or chemist guilty of manslaughter due to mislabeling by an
employee, improper mixing of chemicals, or any other such act
of negligence.462 Mrs. Thomas' survival of the poisoning
shielded him from criminal prosecution, but the court found
“no doubt of his liability in a civil action” according to their
understanding of equity.463 Thus, Thomas v. Winchester
crystalised the precedent of Winterbottom v. Wright that a
manufacturer could only be liable for damages within the
privity rule, except in cases where products were “imminently
dangerous to human life.”464

III. Connections from the Case to the Argument

This article primarily relies upon two sources of
information. The first is a set of legal opinions from the Market
Revolution, Winterbottom v. Wright and Thomas v. Winchester.
These legal decisions offer the fact patterns or the key facts of
a particular legal case, and the court’s reasoning behind each
decision. Second, this article utilizes scholarly articles that
trace the development of Anglo-American product liability law,
and provide invaluable context and an overview of broad
American legal and historical trends. Articles written by
Donald G. Gifford, a Professor of tort law at the Francis King
Carey School of Law, and David G. Owen, a professor
emeritus at the Joseph F. Rice School of Law support my
argument that courts established the privity of contract standard
to protect nascent industry from legal repercussions. These
articles provide invaluable contextualization and overviews of

464 Id.; Daniel Breen, supra note 454.
463 Id.
462 Id.
461 Id.

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broad legal and historical trends that will help understand the
development standards of product liability. Thus, these two
types of sources create a robust explanation for the switch in
standards of product liability.

The establishment of the privity rule had a profound
impact on American society because it facilitated American
industrialization during the second half of the 19th century. To
this effect, Owen writes, “the privity requirement was an
effective instrument of social policy for a nation bent on
promoting the development of its infant industries.”465 In other
words, American manufacturers were left uninhibited by the
fear of product liability litigation.466 This allowed
manufacturers to expand in size, develop new technologies,
and take risks that contributed to the US’s unparalleled
economic supremacy by the beginning of the 20th century.467

Gifford best summarizes this development:

“[t]he liability exposure of businesses [that] heavily
invested in new technologies was almost assuredly
substantially reduced. As a result, railroads, mines, and
factories flourished. In effect, the change from a strict
liability to a negligence-based regime created a
‘subsidy’ for railroads and other newly emerging
industries.”468

The decision to establish the privity of contract standard
represented a massive departure from the tradition of
formalism in American jurisprudence.469 Formalist political and

469 Michael Willrich, The Making of the U.S. Constitution, Part II, (2022).
468 Id. at 30–31.

467 Donald G. Gifford, Technological Triggers to Tort Revolutions: Steam
Locomotives, Autonomous Vehicles, and Accident Compensation, 30 (2017),
https://digitalcommons.law.umaryland.edu/fac_pubs/1590.

466 Id.
465 Owen, supra note 439 at 963.

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legal theorists of the Early Republic, such as Alexander
Hamilton and other Federalists (and later Whigs), maintained
that judges “[had] no active resolution whatsoever.”470 Law, in
the formalist tradition, evolves by applying a precedent to
different fact patterns, which leads to the gradual “discovery of
new law.”471 However, as American historian Morton Horowitz
writes, the Market Revolution (the period of economic,
technological, and political growth during the Antebellum
Period) “reflected the overthrow of eighteenth-century
pre-commercial and anti-developmental common law
values.”472 This included the anachronistic judicial paradigm of
formalism. In replacement of formalism, legal instrumentalism,
which advanced that the law could be directed toward a
collective social good, began to dominate American courts,
including the NY Court of Appeals.473

According to accredited sources, any discussion about
American product liability, privity of contract, and Thomas v.
Winchester would be fundamentally incomplete without
discussing Winterbottom v. Wright at length.474 Although the
case was adjudicated under English law, applying the
principles of Winterbottom v. Wright to American jurisprudence
is essential because the NY Court of Appeals adopted the Court
of Exchequer’s approach, exemplifying the concurrent
socioeconomic and legal challenges Great Britain and the US
faced as a consequence of industrialization and economic
expansion.

474 Daniel Breen, supra note 454; Gifford, supra note 467 at 50; Owen,
supra note 439 at 960.

473 Michael Willrich, supra note 469.

472 Morton J. Horwitz, The Rise of Legal Formalism, 19 Am. J. Leg. Hist.
251, 251 (1975).

471 Id.

470 Alexander Hamilton, No. 78, in The Federalist 401, 409 (by Alexander
Hamilton ed. et al. eds., Gideon ed. 2001).

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IV. Analysis

A. The Technology-Expansion Fear

Judges also feared that strict liability left manufacturers
vulnerable to litigation resulting from the expansion of the
market of manufactured goods.475 The Market Revolution and
industrialization increased the overall efficiency of production
and distribution which dramatically lowered prices for
consumers.476 The lower cost of finished products allowed
more consumers to engage in the market and created a middle
class of high-paid workers and managers who could now afford
these products.477 Because they were part of the emerging
consumer class themselves, judges keenly realized that the
combination of these factors would produce more injuries
inflicted by defective products.478 Other businesses also
constituted a large share of the manufactured goods market,
and the amount of product liability lawsuits coming from the
private sector dramatically rose in the decades prior to 1842.479

Faulty machinery caused 63 percent of injuries in the textile
industry—among the largest aspects of American
industry—and many of these injured people successfully sued
the manufacturers.480 Judges understood that, in the words of
Gifford, the “darker side to this unprecedented expansion of
technology and industry,” would engulf American industry if
strict liability was not modified or replaced.481

Even more, judges feared the consequences of an
expanding market with increasingly dangerous products and

481 Id.
480 Id. at 18.
479 Id. at 19.
478 Gifford, supra note 467 at 31.
477 Michael Willrich, supra note 469.

476 Michael Willrich, Legal Instrumentalism in the Age of the Market
Revolution, (2022).

475 Gifford, supra note 467 at 17.

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machinery. Lewis Mumford, a foremost American historian
and sociologist of the 20th century, described the Industrial
Revolution as “a transition from the ‘ecotechnic’ era,
characterized by wood, water, and handicrafts, to a new
‘paleotechnic’ world of steam, iron, and factories.”482

Essentially, the Industrial Revolution represented a shift in both
the materials and methods of manufacturing, moving away
from craftsmanship toward industrialization. The industrial
machines that dominated this new paleotechnic era provided
“much greater [power] than that supplied during the
pre-industrial era by humans and animals and, as a result, the
severity of the injury was likely to be much greater.”483 Market
Revolution judges presumed that the increased severity of
injuries caused by paleotechnic technology would increase the
likelihood that a consumer would seek legal action against a
negligent manufacturer.484 A trend in tort law vindicated this
belief because, before 1842, mechanized transportation
(railroads and steamships) generated a disproportionate amount
of litigation, and the severity of the injuries incentivized
victims to sue tortfeasors.485 Judges found the idea of
mechanized transportation companies being litigated to
bankruptcy especially likely, and disturbing, because of their
risk, profitability, and economic importance.486 Chief Justice
Lemuel Shaw, in the Massachusetts Supreme Court’s ruling on
Farwell v. Boston & Worcester Railroad Company (1842),
wrote that the protection of the nascent railroad industry “is an
action of new impression in our courts, and involves a principle
of great importance.”487 In that case, a railroad engineer sued

487 Farwell v. Boston & W. R. R. Corp, 55,
https://advance.lexis.com/api/document?collection=cases&id=urn:contentIt

486 Michael Willrich, supra note 469.
485 Gifford, "Technological Triggers," 10.
484 Id. at 19.
483 Id.
482 Id.

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his employer for damages he suffered from the negligence of a
fellow employee.488 Shaw understood that affirming the
plaintiff’s suit would set a precedent that transportation and
heavy industry must assume the financial risk associated with
the dangers of their business, so Shaw elected to err on the side
of business and pen his infamous “assumption of risk”
doctrine.489 Judges, compelled by concerns about severity and
frequency, decided to act decisively in favor of installing
privity of contract.

The ruling in Winterbottom v. Wright illustrates the fear
of judges at a time when technology, specifically mechanized
transportation, was expanding and becoming more innovative.
Justice Byles provided, in his dissent, the example of a recent
railroad accident in France to support his argument:

“For example, every one of the sufferers by such an
accident as that which recently happened on the
Versailles railway, might have his action against the
manufacturer of the defective axle. So…every person
affected, either in person or property, by the accident,
might have an action against the manufacturer, and
perhaps against every seller also of the iron.”490

He embedded the key presumption of unreasonableness in this
example to illuminate the absurdity of Winterbottom’s case.491

His usage of the phrase “every one” suggests that the railroad
accident resulted in broad and severe damages.492 Paying
remedies for so many severe injuries would have bankrupted

492 Id.
491 Id.
490 Winterbottom v. Wright, supra note 445 at 111.
489 Id.
488 Michael Willrich, supra note 469.

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H0-00KR-F49D-00000-00&context=1516831.

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the manufacturer of the defective axle. He warned that
“alarming consequences” would have followed for the
economy if the court ruled for Winterbottom and defended
strict liability.493

The opinion in Thomas v. Winchester voices a concern
for unfamiliar products, and this illustrates the issues of the
technology expansion theory.494 Ruggles wrote that belladonna
and extract of dandelion “ may on careful examination be
distinguished the one from the other by those who are well
acquainted with these articles.”495 In a pre-industrial world,
someone consuming either belladonna or dandelion extract
would likely not have possessed the expertise necessary to
differentiate between the two substances themselves or
immediate access to expert supervision. Here, Ruggles
recognized that consumers buying and using unfamiliar
products was an inevitable consequence of consumerism’s
upsurge.496 Prior to industrialization, consumer expertise was a
final safeguard against injuries, but the court reaffirmed the
privity of contract to reduce manufacturer liability from
consumer unfamiliarity.

However, Ruggles somewhat accounted for the severity
of injuries caused by modern technology through the
“imminent danger” exception. Pre-industrial pharmacists could
not make enough of a drug, with sufficient concentrations of
chemicals, to accidentally kill a consumer through their
negligence.497 However, new machinery allowed pharmacists to
increase the quantity and quality of their products, so they
faced increased legal risk through producing better drugs.498

Even though the court decided to penalize Winchester, the

498 Id.
497 Daniel Breen, supra note 454.
496 Id.
495 Id.
494 Thomas v. Winchester, supra note 456.
493 Id.

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exception of “imminent danger” leaves ample space for
manufacturers of possibly hazardous products to defend
themselves from product liability lawsuits.499

B. The Faceless Economy Theory

Through analysis of the relevant literature and sources,
it became evident that judges worried that depersonalizing the
relationship between the consumer and the manufacturer would
create additional product liability lawsuits. For the purposes of
clarity, I shall refer to the aforementioned process as the
faceless economy theory. Before 1820, Gifford concluded that
few product liability lawsuits were argued because most
consumers personally knew the artisan who made their
product; they were often relatives, friends, or personally
connected.500 This connection further disincentivized the
consumer from filing a product liability lawsuit.501 Litigation
remains an inherently acrimonious and arduous process that
destroys any personal relationship between the parties.
Industrialization fundamentally depersonalized the relationship
between the manufacturer and the consumer, who started to see
manufacturers as “anonymous…large industrial enterprises that
had access to significant resources to pay for the costs of the
accidental injuries they had inflicted.”502 Judges sensed the
change in public opinion toward manufacturers and the
subsequent increased prosperity to sue them for negligence.
The privity standard theoretically remedied this issue by
rehumanizing litigation because an injured party could only sue
a manufacturer with whom he shared a contract. This implies a
certain familiarity between both parties, and therefore a desire
to avoid any acrid litigation.

502 Id.
501 Id. at 11.
500 Gifford, supra note 467 at 9, 11.
499 Id.

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The opinion in Winterbottom v. Wright demonstrates the
Court of Exchequer’s conviction in the faceless economy
theory. Lord James Scarlett Abinger, who wrote the main
opinion for the court, maligns that “if the plaintiff can sue,
every passenger, or even any person passing along the road,
who was injured by the upsetting of the coach, might bring a
similar action.”503 He foresaw that ruling in favor of
Winterbottom, based on the old standard of strict liability,
would have “le[t] in …an infinity of actions.”504 Abinger’s
language implies that any individual with the slightest injury
from the accident would try to sue Wright, a man they likely
had no personal connection with. The subsequent “infinity of
actions” would financially ruin Wright’s business and swamp
the courts with seemingly frivolous litigation.505 Therefore, the
court would prevent these opportunistic litigants by ruling for
Winterbottom.

The NYSC’s decision in Thomas v. Winchester
demonstrates the faceless economy theory because it ruled in
favor of the plaintiff and against privity of contract, based on
the exception of “imminent danger.”506 Chief Justice Charles
Ruggles, the author of the court’s unanimous opinion, upheld
the legality of the decision on Wright v. Winterbottom.
However, he stated that the court ruled against the defendant
because “the case …stand[s] on a different ground.”507 Unlike
the negligence of a repairman failing to maintain a carriage or a
“horse be[ing] defectively shod by a smith[,] … [t]he death or
great bodily harm of some person was the natural and almost
inevitable consequence of the sale of belladonna by means of
the false label.”508

508 Id.
507 Thomas v. Winchester, supra note 456.
506 Daniel Breen, supra note 454.
505 Id.
504 Id.
503 Winterbottom v. Wright, supra note 445 at 112.

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The court ruled in favor of the plaintiff for
“considerations of public policy or safety.”509 Otherwise,
manufacturers would have faced no civil legal liability for
virtual manslaughter. This decision held manufacturers more
culpable for injuries arising from their negligence.510 However,
it established such a high threshold for the “imminent danger”
exception that it shielded manufacturers from the opportunistic
litigants that judges feared.511

IV. Conclusion

Judges stimulated industrial growth during the Market
Revolution by reducing manufacturers’ legal liability to
consumers. The NYSC overturned its previous ruling on
Thomas v. Winchester with its 1916 decision on MacPherson v.
Buick Motor Company, and legal scholars view this as the
beginning of modern product liability law; the case established
the standard of reasonability, but a series of product liability
cases further reestablished the ancient standard of strict
liability.512 Justice Benjamin Cardozo of the NY Court of
Appeals astutely realized that the economy had become so
industrialized and integrated by the early 20th century that
consumers almost exclusively purchased products from
manufacturers they did not know personally.513 The distribution
of burden that privity of contract placed on consumers by that
point was so unacceptable that even conservative formalists,
like Carodozo, knew that the faceless economy theory outlived
its utility.514 In a broader context, the analysis of the shift in
product liability standards assesses the distribution of risk

514 Id.
513 Id.

512 Daniel Breen, Old Rules in Modern Settings: How the Rule of Law
Provides for Change, Even as It Strives for Consistency, (2021).

511 Id.
510 Daniel Breen, supra note 454.
509 Id.

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associated with technological progress. New forms of
industries and products unavoidably generate accidents and
injuries, so the legal system ought to establish order and assign
blame accordingly.515 Keeping pace with a rapidly globalizing
and digitizing world will continue to bedevil contemporary
jurists, as questions of industrialization frustrated them during
the Industrial Revolution.516

516 Gifford, supra note 467 at 5.
515 Michael Willrich, supra note 469.

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The following articles are
written in:

The Chicago
Manual of Style
17th Edition

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Immigrant Labor and Civil Rights in the United States

Peyton Gillespie517

Immigration has been the subject of intense political debate in
the United States for decades. It is consistently a high policy
priority for presidential administrations, a subject of endless
stalled action from the U.S. Congress, and an issue that
ultimately fuels mass anti-immigrant rhetoric such as the idea
that immigrants take away domestic jobs. This paper addresses
the intersection of immigration and labor in the U.S. and
refutes such rhetoric as inaccurate and grossly misinformed. In
reality, immigrant laborers, regardless of legal status, are
indispensable contributors to the U.S. economy and endure
arbitrary U.S. immigration laws and policies that enable
repeated violations to their fundamental human rights.

I. Context and Guiding Questions

Immigrant laborers constitute a substantial
demographic in the U.S. labor market. According to a 2022
report by the U.S. Bureau of Labor Statistics, immigrants make
up about 18.1 percent of the U.S. civilian labor force.518 That
same year, over 500,000 various types of work visas were
issued by the U.S. government to immigrants seeking work in
the country.467 The same report indicates that, as of 2022, the
U.S. labor force participation rate of foreign-born adults was
higher than that of native-born adults: 65.9 percent of all
workforce-eligible (16-years and older) foreign-born adults
participate in the workforce, compared to just 61.5 percent of
all workforce-eligible native-born adults.519 Thus, analyzing the

519 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

518 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

517 Brandeis University Undergraduate, Class of 2025.

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nexus of immigration and labor is critical to providing a better
understanding of the U.S. economy and its labor market. As
will be discussed subsequently, the interplay of these fields is
marked by inconsistent applications of legal protections for the
fundamental human rights of immigrants.

Accordingly, this article seeks to answer the following
questions:

1. How do immigrant laborers with and without legal
status contribute to and interact differently with the
U.S. economy?

2. What is the process for becoming an immigrant worker
in the U.S.? How are immigrant laborers in the U.S.
without legal status treated differently in the legal
system and by employers as opposed to immigrant
laborers who have legal status?

3. What implications do these differences have on the
fundamental human rights entitled to every person
within the jurisdiction of the U.S.?

To begin answering these questions, we first need a clearer
understanding of the specific ways in which immigrants
interact with the economy and labor market.

II. Interactions with the Economy

Immigrant workers in the U.S. are frequently the
subject of harsh assertions about “stealing jobs” from
native-born workers.520 A quote from a report by the American
Civil Liberties Union (ACLU) encapsulates and addresses this
assertion directly: “Contrary to popular belief, immigrants do
not take away jobs from American workers. Instead, they
create new jobs by forming new businesses, spending their
incomes on American goods and services, paying taxes, and

520 American Civil Liberties Union, Immigrants and the Economy, 1-2.

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raising the productivity of U.S. businesses.”521 In the same
report, the ACLU contextualizes the contributions of
immigrants in terms of tax payments: each year, immigrants
(with and without status) pay over $90 billion in taxes and only
receive $5 billion in welfare benefits. Per person and
household, immigrants receive significantly less in welfare
benefits than U.S. Citizens while simultaneously paying their
fair share and contributing substantially to the U.S. economy.522

There is also significant evidence to indicate that one of
the only reasons the Social Security and Medicare programs
continue to obtain the necessary funding to stay afloat is
because of immigrant laborers. A 2018 report from the Social
Security Administration articulated this, noting that:
“increasing average annual total net immigration by 100,000
persons improves the long-range actuarial balance by about
0.08 percent of taxable payroll.”523 This 0.08 percent represents
a substantial sum, especially when multiplied by the hundreds
of thousands of immigrants who are issued work permits every
year, plus undocumented workers. It is important to understand
in the context of these contributions, which will be explained
later in this paper, as it helps to show that immigrants are not
reaping benefits or experiencing treatment that is proportional
to their contributions to the economy.

Finally, the specific jobs that immigrants fill in the
labor market provide additional context for understanding their
treatment in the workplace and the crucial role they play in the
U.S. economy. A 2015 report by the Panel of Experts from the
National Academy of Sciences observed that “...immigrants
appear to be taking low-skilled jobs that natives are either not

523 The Social Security Administration, The 2018 Annual Report of the
Board of Trustees of the Federal Old-Age and Survivors Insurance and
Federal Disability Insurance Trust Funds, 181.

522 Sherman, Immigrants Contribute Greatly to U.S. Economy, Despite
Administration’s “Public Charge” Rule Rationale, 2.

521 American Civil Liberties Union, Immigrants and the Economy, 1-2.

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available or unwilling to take.”524 The vast majority of
immigrant laborers (with and without status) in the U.S. are
employed in low-skill positions and make up a substantial
portion of the workforce in numerous industries. According to
research conducted by the Center on Budget and Policy
Priorities, industries with large percentages of immigrant
workers include farming, fishing, and forestry (36 percent),
grounds and maintenance (36 percent), textile and apparel
manufacturing (29 percent), food manufacturing (27 percent),
hotels (27 percent), and construction (24 percent).525 These
industries, critical to the function of the U.S. economy, would
undoubtedly collapse without the support and contributions of
immigrant laborers.

III. The Process

The legal process for becoming an immigrant laborer in
the U.S. depends largely on the individual’s immigration status,
what their country of origin is, whether they have parents or a
spouse with U.S. citizenship, whether they have obtained a job
prior to arriving, and other factors. These specifics won’t be
covered in this article. However, for the purposes of this article,
it is important to understand that each individual seeking to
obtain status and work in the U.S. is additionally subject to
“grounds of inadmissibility,” or categorizations defined by the
government that disqualify certain individuals from working in
the U.S. entirely. These grounds of inadmissibility are often
arbitrary and unfairly enforced, making the process to become
immigrant laborers incredibly difficult in the first place for too
many people..

525 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

524 National Academies Press, The Integration of Immigrants into American
Society, 6.

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One such ground of inadmissibility is the “public
charge” rule, which was originally established in the late
nineteenth century and has been continually modified to this
day.472 The rule gives the Department of Homeland Security
(responsible for immigration enforcement) the ability to
“determine that a noncitizen is likely at any time to become a
public charge if the noncitizen is likely at any time to become
primarily dependent on the government for subsistence, as
demonstrated by either the receipt of public cash assistance for
income maintenance or long-term institutionalization at
government expense.”526 Many immigrants who come to the
U.S., especially those fleeing persecution, natural disaster, and
economic downturn, arrive with few resources and require aid.
The nature of the public charge rule thus allows the
government unfair and arbitrary enforcement power to turn
away a large number of immigrants at their discretion. It is
hard to imagine that this practice is fair, given that so many
millions of Americans access welfare benefits from the
government (including food and economic assistance) as a
result of economic downturn, environmental disasters, and
more—in other words, millions of Americans are public
charges themselves. In fact, it is widely believed that Congress
continues to implement the rule in order to actively discourage
migrant workers from coming to the U.S. seeking employment,
a clear violation of fundamental human rights and dignity.

Another example of the arbitrary policies immigrants
encounter in the U.S. pertains to asylum seekers. Individuals
seeking to be granted asylum in the U.S. (which, per the
Immigration and Nationality Act, is granted to individuals
fleeing from persecution based on one or more grounds of race,
religion, nationality, political opinion, or membership in a
particular social group) have one year from their time of entry
into the U.S. to file their asylum application. Asylum

526 Federal Registrar, Public Charge Ground of Inadmissibility, 1.

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applications are lengthy filings, often reaching hundreds or
sometimes thousands of pages of detailed information,
documents, and testimony about the individual’s story. Such
applications take time to file, and in the meantime, individuals
applying for asylum are not legally permitted to work in the
U.S.; in fact, they must wait until six months after their asylum
application is filed to be eligible for an employment
authorization document, according to the Immigration and
Nationality Act. There seems to be no good reason for this rule.
It is one of the many examples in which immigration laws
make the legal process for becoming an immigrant laborer in
the U.S. so needlessly difficult and arbitrary.

The above processes, of course, do not pertain to
immigrants who are in the U.S. without lawful status, yet still
seek to engage in employment opportunities to provide for
themselves and their families. These individuals often work
“under the table,” meaning they work without benefits, proper
pay, and often in dangerous working conditions.527 Many of the
aforementioned low-skill industries in which immigrant
laborers are employed involve more hazardous working
conditions than an average office job environment. The nature
of these positions combined with the already vulnerable legal
state of the undocumented immigrant workers breeds
conditions for unfair treatment and abuse on the part of their
employers.

IV. U.S. Labor Law and Civil Rights

The U.S. Constitution applies to all people within the
jurisdiction of the United States, regardless of legal
immigration status. Crucially, its language consistently

527 Sherman, Immigrants Contribute Greatly to U.S. Economy, Despite
Administration’s “Public Charge” Rule Rationale, 2.

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references “people” or “peoples” as opposed to “citizens.”528

While certain fundamental rights are established in the
Constitution, the right to work is not one of them. However,
despite the lack of a Constitutional “right to work,” laborer
rights are still applicable to all workers, whether they are
citizens, undocumented people, or permanent residents.
According to the ACLU, “Federal labor and employment laws
generally apply to all employees regardless of an individual's
immigration status.”529 A report from the University of Chicago
clearly states that all immigrant laborers, regardless of legal
status, share in the right to minimum wage and overtime pay,
breaks and tips, and protections under health, safety, and
anti-discrimination laws.530 Not only are all immigrants
protected under the Constitution as having certain fundamental
rights, they are also entitled to protections as laborers as a
matter of statute.

Given the context that has thus far been established,
many undocumented workers routinely face exploitation,
dangerous working conditions, wage theft, and physical and
emotional abuse.531 The same report from the University of
Chicago notes that 37 percent of undocumented immigrant
laborers receive less than minimum wage and 76 percent of
immigrant laborers experience wage theft.532 In addition, the
report reveals: “Immigrant workers experience 300 more
workplace fatalities and 61,000 more workplace injuries

532 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

531 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

530 Garcia Quijano, Workplace Discrimination and Undocumented
First-Generation Latinx Immigrants, 4.

529 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

528 The National Archives, The Constitution of the United States of America.

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annually than native-born workers…”533 This research
empirically supports these claims. The vast majority of
immigrant laborers work in low-skilled industries with more
dangerous working conditions and experience high levels of
exploitation.

Neither U.S. labor nor immigration laws prevent
immigrants from serving as independent contractors, exposing
them to even more possibilities of exploitation; this is
especially true in cases of the many immigrant laborers who
work in private residences.534 For example, the report from the
University of Chicago goes on to confirm that many of the 22
percent of undocumented immigrants working in private
homes, the majority of whom are women, experience
exploitative and inhumane working conditions: “In addition to
unregulated pay, they are often victims of physical and mental
abuse, ranging from rape and verbal abuse to 12-hour work
days with little to no breaks and no overtime pay.”535 Despite
the fact that each person in the U.S. is entitled to fundamental
rights and labor rights, current laws fail to protect immigrant
workers equally, irrespective of their legal status, and, in fact,
enable their ill-treatment.

This ill-treatment raises the question: if immigrant
workers enjoy the same fundamental laborer rights as
native-born people in the U.S., aren’t they entitled to legal
remedies for that mistreatment? Technically, the answer is
“yes”—but there’s a catch. Any undocumented immigrant who
takes a case to court, especially pertaining to work-related

535 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

534 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

533 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

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rights, becomes vulnerable to deportation. According to the
University of Chicago report:

“An undocumented worker bringing a dispute to
court risks punishment if found to have used false
documentation in obtaining work. For example, an
undocumented worker unfairly terminated from a job is
not actually entitled to back pay or reinstatement
because such remedies would directly violate the IRCA.
Anti-retaliation provisions make it unlawful for
employers to use undocumented status to terminate
employment in retaliation of a worker complaint.
However, if employer retaliation does occur,
Immigration and Customs Enforcement (ICE) can still
follow up on a report and attempt to deport the
undocumented worker.”536

Here exists an absurd and apparent legal paradox: immigrant
workers can seek legal redress for workplace discrimination,
yet they're exposed to serious legal repercussions if they dare
to take action to obtain said redress. This treatment of
immigrant workers, enshrined in law, unequivocally makes a
mockery of American legal principles of fairness, consistency,
and rationality.

V. Conclusions and Recommendations:

In what follows, this article proposes some policy
solutions which address the issues pertaining to violations of
fundamental human rights and dignity throughout this article.
To start, there must be a substantive effort by government
leaders to curb rhetoric and ideology that mischaracterizes
immigrants and their contributions to the economy. Especially

536 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

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in the U.S., where major decisions are made by representative
bodies composed of elected officials, shaping public opinion is
a critical component of influencing policy outcomes. The
executive branch plays an immensely important role in the
shaping of public opinion and must be strategic about
employing methods for both 1) acting to influence public
opinion on particular issues and 2) exercising executive power
to achieve policy outcomes. This, in turn, may lay the
groundwork for eliminating arbitrary policies like unreasonable
limits on work permit applications and rules like the “public
charge” rule in the name of fundamental human rights and
dignity.

An excellent example of this proposal in action is the
Obama Administration’s implementation of Deferred Action
for Childhood Arrivals (DACA). According to the Migration
Policy Institute, roughly one-third of the over 11 million
noncitizens currently in the U.S. were brought here as children
(commonly known as “Dreamers”).537 The issuance of DACA
by the executive branch provided work permits and temporary
protection from deportation for these young immigrants. In a
2012 speech to the American public following DACA’s
implementation, President Obama seized the opportunity to
provide a compassionate perspective on the immigration
debate:

“These are young people who study in our schools, they
play in our neighborhoods, they’re friends with our
kids, they pledge allegiance to our flag. They are
Americans in their heart, in their minds, in every single
way but one: on paper. They were brought to this
country by their parents -- sometimes even as infants --
and often have no idea that they’re undocumented until

537 Migration Policy Institute, Profile of the Unauthorized Population - US,
1-2.

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they apply for a job or a driver’s license, or a college
scholarship.”538

Although much of DACA was ultimately struck down by a
federal court in Texas, its implementation provides a key
example of how the executive branch may take action to
address policy issues. Such actions are crucial in the face of an
increasingly polarized Congress and effective in working to
reshape public opinion. Presidential administrations have the
ability to create fairer conditions for immigrants and vouch for
their rights. This is crucial for implementing effective
immigration policy in the face of a deadlocked legislature and
increases in anti-immigrant rhetoric.539

Additionally, the federal government must ensure that
labor laws are being equally enforced across the U.S. with the
intent to protect all workers, regardless of status, in the name of
safety, fairness, and equality. Special attention must be paid to
workers in low-skill industries because, as mentioned
previously, these laborers are the most susceptible to
exploitation and abuse. Moreover, this is especially true for
independent contractors who, for example, work in private
homes and are at even greater risk of experiencing
mistreatment.540 Ensuring that labor law protections are
enforced and apply equally to all people is not just humanly
decent, but it is enshrined in the law and entitled to each and
every person within the jurisdiction of the U.S. Constitution.

Lastly, immigrants must have equal access to fair legal
processes and legal remedies. Arbitrary policies like
unreasonable limits on work permit applications and rules like

540 White House Office of the Press Secretary, Remarks by the President on
Immigration, all.

539 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

538 White House Office of the Press Secretary, Remarks by the President on
Immigration, all.

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the “public charge” rule must cease. They are violations of
fundamental human rights and dignity. Immigrants should not
feel the need to refrain from seeking legal relief because they
are worried about the threat of deportation. Hence, another
proposal, stemming from the interest of fundamental rights and
dignity, is that all courts in the U.S. should adopt an amnesty
rule that legally protects personal information from agencies
like ICE when individuals bring suits, as is their legal right.
Upholding policies that place a burden on an individual’s right
to seek legal remedies is entirely against American values.
Finally, the same rights of citizens should unquestionably apply
to immigrants in terms of receiving back pay when unfairly
terminated from a job.

The assertion that immigrant workers are “taking our
jobs” is an ignorant mischaracterization that not only
invalidates the vital contributions of immigrants to the U.S.
economy, but also their lived experiences as human beings
seeking a better life. Immigrants are an essential cornerstone of
the livelihoods of all people in the U.S., especially in a country
built by, for, and of immigrants. Upon examination, it is
apparent that U.S. immigration laws and policies not only
make the legal process of obtaining work unnecessarily
difficult, but also don’t adequately protect immigrants. Rather,
these laws actively discourage immigrants from seeking legal
relief, essentially depriving them of their fundamental rights.
The federal government must ensure laws and policies are
consistent with upholding the equal treatment of all people in
the U.S., regardless of status.

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https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US
https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility
https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility


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"Remarks by the President on Immigration." The White House.
Office of the Press Secretary, June 15, 2012.
https://obamawhitehouse.archives.gov/the-press-office/
2012/06/15/remarks-president-immigration.

Sherman, Arloc. "Immigrants Contribute Greatly to U.S.
Economy, Despite Administration’s “Public Charge”
Rule Rationale." Center on Budget and Policy Analysis.
August 15, 2019.
https://www.cbpp.org/research/immigrants-contribute-g
reatly-to-us-economy-despite-administrations-public-ch
arge-rule.

The 2018 Annual Report of the Board of Trustees of the
Federal Old-Age and Survivors Insurance and Federal
Disability Insurance Trust Funds. United States Social
Security Administration.

"The Constitution of the United States." Nationalarchives.Gov.
The National Archives, September 21, 2022.
https://www.archives.gov/founding-docs/constitution.

Waters, Mary. 2015. The Integration of Immigrants into
American Society. Washington, DC: National Academic
Press.
https://nap.nationalacademies.org/read/21746/chapter/8.

147

https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration
https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration
https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule
https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule
https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule
https://www.archives.gov/founding-docs/constitution
https://nap.nationalacademies.org/read/21746/chapter/8


Brandeis University Law Journal 2023-2024, Volume 11

“Decisions We Do Not Like”: Flag Desecration Case Law

and the Culture War

Jack Granahan541

The years following the Reagan Administration were defined
by a newfound American cultural conservatism. The First
Amendment’s protection of flag desecration as a form of
symbolic speech was one of the most divisive issues in
American politics, and it comprised a major facet of the
cultural conflict between liberals and conservatives.542
Although the Supreme Court issued several conservative
rulings on cultural issues at this time, the decisions of Texas v.
Johnson (1989) and United States v. Eichman (1990) did not
follow this trend. This paper analyzes the extent to which the
Supreme Court in general, and the Court’s conservative wing
in particular, repudiated culture war pressures to uphold
constitutional civil liberty.

I. Introduction

During the 1992 Republican National Convention
(RNC), presidential candidate and traditionalist conservative
stalwart Pat Buchanan gave a speech in which he described the
political division of the United States as “a cultural war, as
critical to the kind of nation we will one day be as was the Cold
War itself,” and called upon Republican voters to “take back
[their] culture, and take back [their] country.”543 According to
Buchanan, this marked an increased political relevance of
cultural issues, which positioned traditionalist, nationalist, and

543 Collins, Transforming America, 171.
542 Henderson, “Today’s Symbolic Speech Dilemma,” 534.
541 Brandeis University Undergraduate, Class of 2026.

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religious conservatives against countercultural, secular, and
multicultural liberals.544

Over three decades later, America still appears to be in
the midst of a culture war. In the 2022 U.S. midterm elections,
three prominent cultural issues—abortion, gun policy, and
parental oversight of education—held special significance in
the eyes of voters, with over half of registered voters
considering these issues to be “very important.”545

The shift of American politics toward a focus on the
cultural issues Buchanan described can be traced back ten to
twenty years prior to his RNC speech. Following the
conservative backlash against the counterculture movement
during the Nixon era, American politics experienced a
liberalization under Gerald Ford and Jimmy Carter’s
presidencies. Shortly thereafter, the presidency of Ronald
Reagan ushered in a period of increased conservatism,
religious faith, and American patriotism. Increased reverence
for the American flag was indicative of the Reagan era
resurgence of patriotism—one of the most prominent facets of
the culture war.546 Conversely, desecration (usually by burning)
of the American flag became a symbol for some of Reagan’s
political opponents.547

With few exceptions, the holdings of cases heard by the
late Burger Court and early Rehnquist Court overwhelmingly
took traditionalist stances on cultural issues. In the 1986 case
of Bowers v. Hardwick, which upheld Georgia’s criminal
statute prohibiting sodomy, Chief Justice Warren Burger
appealed to traditional perceptions of sexuality. More
specifically, he pointed to the Blackstonian view of
homosexuality as an “infamous crime against nature,” stating

547 Goldstein, Flag Burning and Free Speech, 44.
546 Hunter, Culture Wars, 147.

545 Schaeffer and Green, “Key Facts about U.S. Voter Priorities Ahead of the
2022 Midterm Elections.”

544 Ibid, 171.

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that “to hold that the act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside
millennia of moral teaching.”548 Although it upheld Roe v.
Wade’s federal protection of reproductive rights, the Supreme
Court’s 1992 holding in Planned Parenthood v. Casey also
rolled back many of Roe’s provisions and created additional
obstacles for those seeking abortions.549 In his concurrence,
Chief Justice William Rehnquist compared abortion to the
other traditional vice of bigamy, “with which entire societies of
reasonable people disagree.”550 The Supreme Court’s
traditionalist streak during and after the peak of the Reagan era
was indicative of a “spiteful kulturkampf” (or cultural clash),
motivated by religious and national conservative values.551 The
Supreme Court’s decisions in Texas v. Johnson and United
States v. Eichman are unique in that, unlike in cases regarding
other cultural issues, they rejected the application of cultural
conservatism to their jurisprudence in favor of protecting the
constitutional rights of Americans.

II. History of Flag Customs

Although reverence for the American flag is usually
seen as ubiquitous in the United States, this was not the case
for much of the country’s history. In the decades following the
American Revolution, even the United States military did not
fight under the flag, and the “demand for flags was so low that
no private company manufactured them until after 1845.”552 In
fact, it was not until the Civil War that the American flag
received its current reputation, as it was Union veterans of the

552 Goldstein, Flag Burning and Free Speech, 1.
551 Schulman, “Kulturkampf and Spite,” 62.
550 Ibid.

549 Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 112 S.
Ct. 2791 (1992).

548 Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841
(1986).

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Civil War who founded the Flag Protection Movement (FPM)
in the 1890s.553 This movement was a conglomeration of
organizations that sought to prevent the flag from being
desecrated, commercialized for profit, or otherwise
disrespected.

The first state law banning flag desecration was enacted
in South Dakota, in 1897.554 By 1932, every state had a ban on
flag desecration.555 In the first half of the 20th century,
approximately two dozen individuals were prosecuted for flag
desecration, most of whom committed such acts in protest of
American entry into World War I.556 However, only one of
these prosecutions, that of New York clergyman Bouck White
in 1916, involved the burning of the flag, which is generally
considered the gravest offense against the flag.557

Flag desecration, particularly flag burning, made a
resurgence in the late 1960s, following the deployment of
American troops in the Vietnam War. This protest was
accompanied by a spike in popularity for the anti-establishment
counterculture movement.558 In response, Congress passed the
Flag Protection Act of 1968, a federal statute that banned
“publicly mutilating, defacing, defiling, burning, or trampling
upon” the American flag.559 Shortly after the passage of this
law, the American flag became, as described by a 1970 Time
story, “the emblem of disunity.”560 Many cultural liberals saw
the desecration of the flag as a symbol of protest, whereas their
conservative counterparts saw the flag itself as a powerful
symbol of traditional American culture.561 The conservative

561 Ibid, 23.
560 Goldstein, Flag Burning and Free Speech, 24.
559 H.R.10480 - 90th Congress (1967-1968).
558 Goldstein, Flag Burning and Free Speech, 23.
557 Goldstein, Flag Burning and Free Speech, 27.
556 Guenter, The American Flag, 1777-1924, 167–169.
555 Guenter, The American Flag, 1777-1924, 144.
554 Codified Law 22-9-1.
553 Ibid, 7.

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Reagan Revolution of the 1980s coincided with the increased
flying of the American flag.562 As Reagan-era American
patriotism eclipsed the counterculture movement’s skepticism
of the idealist American vision, so too did reverence for the
flag eclipse disdain for the flag. This is perhaps why so many
Americans had such visceral reactions to flag burnings,
including the one by Gregory Lee Johnson on August 22, 1984.

III. Background of Texas v. Johnson

The 1984 RNC in Dallas, Texas, was met with
left-wing political demonstrations against President Reagan.
One particular protest was carried out by the Revolutionary
Communist Party (RCP), an anti-capitalist organization that
“advocated violent revolution in the United States,”
particularly in light of the rise of Reagan-era nationalist
conservatism.563 At the end of the protest, RCP member
Gregory Lee Johnson set an American flag, in his possession,
on fire.564 Johnson’s disdain towards the American flag was
certainly a product of his reaction to cultural conservatism. In
his own words, Johnson saw “a need to condemn and
repudiate” Reagan’s “belligerent American patriotism” by
“burning the flag of the empire.”565 Johnson also compared
Dallas, which had “flags draped all over the place,” to “a
modern Nuremberg Rally.”566

Johnson was convicted under Texas’s flag desecration
law and sentenced to one year in prison and a $2,000 fine.567

He subsequently appealed his case to the Texas Supreme Court,

567 Taylor, “The Protection of Flag Burning as Symbolic Speech and the
Congressional Attempt to Overturn the Decision,” 1477.

566 Ibid.
565 Johnson, Gregory Lee Johnson Interview.

564 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

563 Goldstein, Flag Burning and Free Speech, 44.
562 Hunter, Culture Wars, 147.

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which struck down the state’s law and vacated Johnson’s
conviction.568 When Texas appealed to the U.S. Supreme Court,
famed civil liberties attorney William Kunstler defended
Johnson. Kunstler’s defense hinged upon the First Amendment
to the Constitution, which states that “Congress shall make no
law [...] abridging the freedom of speech.”569 In previous cases,
however, the Supreme Court had ruled that speech can be
restrained when it is “likely to produce a clear and present
danger of a serious substantive evil that rises far and above
public inconvenience, annoyance, or unrest.”570

Kunstler’s argument explained that flag desecration,
while controversial and inflammatory, did not produce a clear
and present danger.571 Kunstler cited West Virginia State Board
of Education v. Barnette, a 1943 Supreme Court ruling that
held students could not be legally compelled to recite the
Pledge of Allegiance to the American flag in their
classrooms.572 The Barnette decision specifically held that
mandating respect for the flag “cannot be justified as a means
of meeting a ‘clear and present danger’ to national unity,” with
Justice Robert Jackson famously opining that “compulsory
unification of opinion achieves only the unanimity of the
graveyard.”573

According to Kunstler, Barnette and Johnson shared the
same premise, and if the government “can’t order you to salute
the flag,” it also “can’t order you to do all these obeisances
with relation to the flag,” such as not burning it.574 In
addressing Chief Justice William Rehnquist, who was “easily

574 Texas v. Johnson.

573 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L.
Ed. 1628, 63 S. Ct. 1178 (1943).

572 Ibid.
571 Texas v. Johnson.

570 Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 2d 1131, 69 S. Ct. 894
(1949).

569 Constitution Annotated.
568 Ibid.

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the most conservative member” on the bench at the time,
Kunstler stated that the predicament created by Johnson’s
burning of the flag was exactly what the First Amendment was
written to protect.575 Kunstler reasoned that “to hear things or
to see things that we hate test[s] the First Amendment more
than seeing or hearing things that we like [...] it wasn’t
designed for things we like.”576

District Attorney Kathi Drew, who argued on behalf of
the state of Texas, pushed back against Kunstler’s reasoning.
While being questioned by Justice Antonin Scalia, Drew stated
that the “preservation of the flag as a symbol of nationhood and
national unity is a compelling and valid state interest,” and the
flag desecration law was crucial to preventing a “breach of the
peace.”577 Drew also attempted to frame the American flag’s
status as one transcending private property ownership in favor
of being “this nation’s cherished property,” to which Justice
Scalia responded, “I never thought that the flag I owned is your
flag.”578 This was the first indication of Scalia’s hesitancy to
rule on behalf of traditional patriotic values in Johnson, despite
his conservative approach to jurisprudence. He was not
convinced that the collective interest of the state outweighed
the personal agency of the individual burning the flag.

IV. Politics of the Rehnquist Court

For William Kunstler, arguing before the Supreme
Court in Texas v. Johnson was an uphill battle. At the time of
this case, the judicial branch of the federal government was not
immune to the culture wars. In his two terms, President Reagan
appointed more federal judges than any other American
president, and the Supreme Court was no exception. Three

578 Ibid.
577 Ibid.
576 Texas v. Johnson.
575 “Biography: Chief Justice William Rehnquist.”

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conservative Supreme Court justices—Anthony Kennedy,
Sandra Day O’Connor, and Antonin Scalia—were appointed
by Reagan, while the Nixon-appointed William Rehnquist had
been elevated to the position of Chief Justice in 1986.579

Additionally, the Ford-appointed John Paul Stevens,
while known for his more liberal tendencies, fell squarely
within the conservative wing of the Supreme Court on
questions of American patriotism.580 Stevens, an outspoken
World War II veteran, gave an emotionally charged response to
Kunstler’s argument that flag desecration constituted free
expression. During these exchanges with Kunstler, Stevens
reportedly “turned red and was clearly quite angry.”581 The
reliably centrist Byron White similarly had a history of ruling
conservatively on flag use cases, having previously joined
Rehnquist’s dissent in the 1974 case of Spence v. Washington.
In Spence, the Supreme Court held that adorning an American
flag with peace symbols was a constitutionally protected form
of free speech.582 This left three liberal justices—Harry
Blackmun, William Brennan, and Thurgood Marshall—for
Kunstler to rely on, compared to the six justices who would
ostensibly be eager, as evidenced by their past decisions
regarding cultural issues, to reinstate the conviction of a man
who had committed, what many had deemed to be, the most
egregious offense against the American flag.583

V. The Johnson Decision

On June 21, 1989, the Supreme Court handed down its
decision in Texas v. Johnson. In an unexpected rebuke of
culture war conservatism, the ruling was 5-4 in favor of

583 Ibid, 98.
582 Ibid, 99.
581 Ibid, 95.
580 Goldstein, Flag Burning and Free Speech, 106–107.
579 Hunter, Culture Wars, 251–252.

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Gregory Lee Johnson. As expected, Rehnquist, O’Connor,
Stevens, and White sided with the state of Texas and voted to
reinstate Johnson’s conviction for flag desecration. Anthony
Kennedy and Antonin Scalia, however, defected from their
conservative colleagues to side with the liberal wing of the
Court in opposition to the legal prohibition of flag
desecration.584 Justice William Brennan wrote the opinion for
the majority, in which he applied several legal standards to
Texas’s flag desecration law.585

First, Brennan clarified that Johnson’s burning of the
American flag, especially outside of a political convention in
protest of a political action or entity, constitutes “expressive
conduct” of an “overtly political nature.”586 Though Johnson
himself had uttered no words in the process of setting the flag
alight, he had, in Brennan’s view, made a powerful enough
non-verbal statement for the First Amendment to be
applicable.587 Brennan also discredited Kathi Drew’s testimony
on behalf of the state of Texas under the O’Brien test. The
O’Brien test stipulates that, for the government to prohibit an
act of symbolic speech, there must be a “legitimate
governmental interest” in doing so that “is unrelated to
restricting expression.”588

This test originated from O’Brien v. United States, a
1968 case that held that the First Amendment did not protect
draft card burning because such an act, while expressive,
interfered with the state interest of raising a military force via
conscription.589 Therefore, to uphold the Texas statute would

589 Taylor, “The Protection of Flag Burning as Symbolic Speech and the
Congressional Attempt to Overturn the Decision,” 1479–1480.

588 Henderson, “Today’s Symbolic Speech Dilemma,” 550–551.

587 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

586 Goldstein, Flag Burning and Free Speech, 103.
585 Ibid.

584 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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require the state to prove that flag desecration impedes the
government’s ability to further its interests. Upon analyzing the
purported interest of the state of Texas in preventing a breach
of the peace, the Supreme Court found that Johnson’s burning
of the flag did not increase the risk of such an event, nor did
Texas’s legal counsel even attempt to prove such a risk.590

Brennan’s opinion also challenged the supposed
importance of the Texas law in maintaining “nationhood and
national unity,” which the Supreme Court found to be an
insufficient interest, due to the inherently expressive nature of
opposing such a form of patriotism.591 Brennan wrote that the
motive behind the Texas law was instead to prohibit an action
that an audience could take “serious offense” to, a concern that
Brennan countered by pointing out that the “bedrock principle
underlying the First Amendment” is that “the government may
not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.”592

VI. Justice Kennedy’s Concurrence

Justice Anthony Kennedy’s concurrence in Texas v.
Johnson was perhaps the most powerful indicator of the case’s
rejection of the culture war. Agreeing with Brennan’s definition
of flag burning as a form of constitutionally protected political
expression, Kennedy emphasized that “the hard fact is that
sometimes we must make decisions we do not like. We make
them because they are right, right in the sense that the law and
the Constitution, as we see them, compel the result.”593 Justice
Kennedy, a Reagan-appointed conservative, made no secret of
his opposition to flag desecration. However, he also firmly

593 Henderson, “Today’s Symbolic Speech Dilemma,” 573.

592 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

591 Ibid, 642.
590 Birkett, “Flag Desecration Statutes after Texas v. Johnson,” 640.

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argued that “the flag is constant in expressing beliefs
Americans share, beliefs in law and peace and that freedom
which sustains the human spirit,” and that “it is poignant but
fundamental that the flag protects those who hold it in
contempt.”594 Despite his own disgust with the practice of flag
burning, he acknowledged that the law is not to be solely based
on his own personal views, and that the First Amendment’s
protection of free expression had been settled long before
Gregory Lee Johnson burned the flag.

VII. Dissenting Opinions

Chief Justice William Rehnquist, joined by Justice
Sandra Day O’Connor and Justice Byron White, wrote the
primary dissenting opinion. The Chief Justice’s dissent rejected
the overtly legal angle to flag desecration law taken by the
majority, in favor of an emotionally charged exaltation of the
American flag as a unique symbol deserving special legal
protection.595 Most importantly, Chief Justice Rehnquist
disagreed with the premise that the flag represented “simply
another ‘idea’ or ‘point of view’ competing for recognition in
the marketplace of ideas.”596 Instead, he claimed that “millions
and millions of Americans regard it with an almost mystical
reverence” and a “uniquely deep awe and respect” that would
create a legitimate interest under the O’Brien test.597 Sentiment
like that of the Chief Justice was well at home in the 1980s; as
a result of the culture war, the American flag was
“monopolized” as a “symbol of legitimacy” for the
conservative movement.598 Among an American populace that

598 Hunter, Culture Wars, 147.
597 Goldstein, Flag Burning and Free Speech, 106.
596 Ibid.

595 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

594 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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had elected Ronald Reagan president twice in a row in
landslide victories, it is likely that very few individuals would
not take offense to the destruction of the American flag.599

Following this surge of American patriotism, Justice
John Paul Stevens wrote a separate dissenting opinion that
decried the majority’s belief that the flag was but an
expendable symbol of a political ideology. A testament to
Justice Stevens’ military service and immense patriotism, this
dissent drew heavily on military iconography, stating that the
flag, which had motivated “the Philippine Scouts who fought at
Bataan and the soldiers who scaled the bluff at Omaha Beach,”
was “itself worthy of protection from unnecessary
desecration.”600 In contrast with the conservatives of the
majority, Stevens, a justice with moderate
conservative-to-liberal tendencies, heavily incorporated
cultural conservatism in his decision.601

VIII. Reactions to Johnson

The Supreme Court’s ruling in Texas v. Johnson, which
invalidated all state laws prohibiting flag desecration, received
nearly instantaneous backlash. According to a Washington,
D.C. dispatch from the day following the decision, “citizens
across America were outraged by the Supreme Court decision
yesterday ruling that flag burning is not a crime.”602 Some

602 Hunter, Culture Wars, 28.

601 There is academic skepticism that cultural conservative assumptions are
able to fully explain Stevens’ dissent. I am grateful to Professor Daniel
Breen of the Brandeis University Legal Studies Department for pointing out
that Justice Stevens’ use of cultural conservatism is not the most important
or heaviest part of this descent. To read more on why this skepticism is
warranted, see the words of one of his former clerks: “The Least Popular
Dissent,” SCOTUSblog (blog), May 4, 2010,
https://www.scotusblog.com/2010/05/the-least-popular-dissent/.

600 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

599 Goldstein, Flag Burning and Free Speech, 108.

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opponents of the decision went as far as “gather[ing] on the
steps of the high court… to burn a mock Supreme Court
justice’s robe.”603

On the night of the decision, Peter Jennings told ABC
evening news viewers that “there are very few Supreme Court
decisions which we can imagine evoking such a gut reaction as
this one,” while a USA Today poll taken two days after the
Johnson decision found that “69 percent [of Americans]
supported a constitutional amendment” prohibiting flag
desecration.604 President George H.W. Bush stated that the
Supreme Court’s decision to effectively legalize the
desecration of a “banner of freedom” was “wrong, dead
wrong.”605 Meanwhile, the House of Representatives voted
411-15 to condemn the ruling and the Senate voted 97-3 to
express “profound disappointment” with the Supreme Court.606

Although the Johnson decision struck down all
state-level flag desecration statutes, it did not preclude the
federal government from acting on the issue. Both houses of
Congress quickly moved to legally circumvent Johnson, with
Jack B. Brooks (D-TX) leading the charge in the House of
Representatives and Joseph R. Biden (D-DE) in the Senate.607

After initial arguments over whether to introduce a
constitutional amendment or a more feasible federal statute,
Representative Brooks and Senator Biden each proposed a bill
to amend the Flag Protection Act of 1968 in their respective
chambers. To avoid a challenge similar to Johnson, the Flag
Protection Act of 1989 amended the 1968 Act to criminalize
flag desecration in the name of any ideology. The Flag

607 Ibid, 115.
606 Goldstein, Flag Burning and Free Speech, 114.
605 Henderson, “Today’s Symbolic Speech Dilemma,” 564.
604 Goldstein, Flag Burning and Free Speech, 108–112.
603 Ibid, 28.

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Protection Act of 1989 passed in both houses, before President
Bush allowed it to pass without signing it.608

IX. United States v. Eichman Tests the Johnson Decision

The immense public backlash to the Johnson ruling
may suggest that the decision was a regrettable mistake by the
Supreme Court. This possibility was soon eliminated when the
Flag Protection Act of 1989 received its first test. On the day of
the law’s codification into federal law, Gregory Lee Johnson
and seven others burned American flags in protest of the law in
Washington, D.C. and Seattle, Washington.609 All eight were
charged with violating the 1989 law, though charges against
Johnson were dropped after witness testimony confirmed that
his flag had not ignited.610 Just as supporters and opponents of
the Flag Protection Act had planned, the case was appealed to
the Supreme Court, with the case being submitted as United
States v. Eichman (Johnson’s fellow activist, Shawn Eichman,
was listed as the primary appellee).611

After almost a year of the public relations firestorm that
had resulted from the Johnson decision, it certainly would not
have been surprising for any of the five justices who had voted
with the majority—especially a conservative justice who had
only tentatively sided with Johnson—to change their mind on
the flag desecration issue. Nevertheless, on June 11, 1990, the
Supreme Court once again ruled 5-4 that the flag desecration
ban was unconstitutional, and every justice voted the same as
in Texas v. Johnson.612 William Brennan’s majority opinion in
Eichman was nearly identical to his Johnson opinion,
slamming the Flag Protection Act as “suppression of free

612 Goldstein, Flag Burning and Free Speech, 206.

611 United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110 S. Ct.
2404 (1990).”

610 Ibid, 175.
609 Goldstein, Flag Burning and Free Speech, 174.
608 Text - H.R.2978 - 101st Congress (1989-1990).

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expression.”613 John Paul Stevens’s Eichman dissent also
mirrored his Johnson dissent, claiming that the federal
government, like Texas’s state government, “has a legitimate
interest in protecting the symbolic value of the American
flag.”614

Since the Supreme Court’s decision in Eichman, the
focus of supporters of a flag desecration ban has shifted
towards passing a constitutional amendment to circumvent
Johnson and Eichman. Such an amendment would supersede
the First Amendment to prohibit flag desecration, exempting
the ban from the O’Brien test. The most recent of these
attempts was in 2006 when Orrin Hatch (R-UT) introduced a
Senate resolution proposing an amendment to ban flag
desecration, which would ultimately fall one vote short of the
two-thirds majority needed to pass in the Senate.615

X. Conclusion

Shortly before his 1990 retirement from the Supreme
Court, William Brennan expressed his disappointment with the
Supreme Court’s shift towards cultural conservatism but also
stated firmly that he was “not discouraged to the point of
giving up [...] after all, Kennedy and Scalia joined me on the
flag-burning case, for God’s sake.”616 In the words of Gregory
Lee Johnson, “being able to criticize the government is at the
heart of the First Amendment—without that, the First
Amendment really means nothing.”617 This was the view of
flag desecration taken by five members of the Supreme Court
in Texas v. Johnson and United States v. Eichman, not the least
surprising of whom were Anthony Kennedy and Antonin

617 Johnson, Gregory Lee Johnson Interview.
616 Goldstein, Flag Burning and Free Speech, 101.
615 S.J.Res.12 - 109th Congress (2005-2006).
614 Ibid.

613 United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110 S. Ct.
2404 (1990).

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Scalia. For these two conservative, Reagan-appointed justices
to join the liberal wing of the Supreme Court in affirming a
constitutional civil liberty, not once, but twice, was no
accident.

By choosing to rule in favor of Gregory Lee Johnson
and later Shawn Eichman, et. al., Kennedy and Scalia were
able to set their own conservative leanings aside to rule in a
way that they believe most appropriately interpreted the First
Amendment. To paraphrase Kennedy, the two made a decision
they did not like, but in doing so made the right decision,
compelled by the law and the Constitution.618 Thus, as the
Supreme Court becomes more motivated by partisan politics,
perhaps the sitting justices should heed the words of Anthony
Kennedy and make more decisions they do not like.

618 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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Bibliography

Birkett, William C. “Flag Desecration Statutes after Texas v.
Johnson - A Legislative Solution to a Political
Problem.” Southern Illinois University Law Journal 14,
no. 3 (1990 1989): 625–56.

Collins, Robert M. Transforming America: Politics and Culture
in the Reagan Years. New York: Columbia University
Press, 2007.

Congress.gov. “H.R.2978 - 101st Congress (1989-1990): Flag
Protection Act of 1989.” Legislation, October 28, 1989.
10/28/1989.
https://www.congress.gov/bill/101st-congress/house-bil
l/2978.

Congress.gov. “S.J.Res.12 - 109th Congress (2005-2006): A
Joint Resolution Proposing an Amendment to the
Constitution of the United States Authorizing Congress
to Prohibit the Physical Desecration of the Flag of the
United States.” Legislation, June 27, 2006. 06/27/2006.
https://www.congress.gov/bill/109th-congress/senate-jo
int-resolution/12/.

Constitution Annotated: Analysis and Interpretation of the U.S.
Constitution. “First Amendment.” Accessed March 9,
2023.
https://constitution.congress.gov/constitution/amendme
nt-1/.

Goldstein, Robert Justin. Flag Burning and Free Speech: The
Case of Texas v. Johnson. Landmark Law Cases &
American Society. Lawrence, Kan: University Press of
Kansas, 2000.

GovTrack.us. “H.R.10480 - 90th Congress (1967-1968): Flag
Protection Act of 1968.” Legislation, July 5, 1968.
07/05/1968.
https://www.govtrack.us/congress/bills/90/hr10480/text.

Guenter, Scot M. The American Flag, 1777-1924: Cultural

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https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12/
https://constitution.congress.gov/constitution/amendment-1/
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https://constitution.congress.gov/constitution/amendment-1/
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https://www.govtrack.us/congress/bills/90/hr10480/text


Brandeis University Law Journal 2023-2024, Volume 11

Shifts from Creation to Codification. Rutherford, N.J:
Fairleigh Dickinson University Press, 1990.

Henderson, Michael A. “Today’s Symbolic Speech Dilemma:
Flag Desecration and the Proposed Constitutional
Amendment Comment.” South Dakota Law Review 41,
no. 3 (1996): 533–73.

Hunter, James Davison. Culture Wars: The Struggle to Define
America. New York: BasicBooks, 1991.

Johnson, Gregory Lee. Gregory Lee Johnson Interview.
Interview by Author. SoundCloud audio, April 1, 2021.
https://soundcloud.com/user-565827568/gregory-lee-jo
hnson-interview.

PBS NewsHour. “Biography: Chief Justice William
Rehnquist,” September 4, 2005.
https://www.pbs.org/newshour/politics/law-july-dec05-r
ehnquist_09-04.

Schaeffer, Katherine, and Ted Van Green. “Key Facts about
U.S. Voter Priorities Ahead of the 2022 Midterm
Elections.” Pew Research Center. Accessed April 22,
2023.
https://www.pewresearch.org/short-reads/2022/11/03/ke
y-facts-about-u-s-voter-priorities-ahead-of-the-2022-mi
dterm-elections/.

Schulman, Alex. “Kulturkampf and Spite: The Rehnquist Court
and American ‘Theoconservatism.’” Law and
Literature 22, no. 1 (2010): 48–75.

SCOTUSblog. “The Least Popular Dissent,” May 4, 2010.
https://www.scotusblog.com/2010/05/the-least-popular-
dissent/.

South Dakota Legislature. “Codified Law 22-9-1.” Accessed
November 17, 2023.
https://sdlegislature.gov/Statutes/22-9-1.

Taylor, R. Neil III. “The Protection of Flag Burning as
Symbolic Speech and the Congressional Attempt to
Overturn the Decision: Texas v. Johnson Case Note.”

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https://soundcloud.com/user-565827568
https://soundcloud.com/user-565827568/gregory-lee-johnson-interview.
https://soundcloud.com/user-565827568/gregory-lee-johnson-interview.
https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04
https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04
https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04
https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/
https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/
https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/
https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/
https://www.zotero.org/google-docs/?broken=tPINhE
https://www.scotusblog.com/2010/05/the-least-popular-dissent/
https://www.scotusblog.com/2010/05/the-least-popular-dissent/
https://www.zotero.org/google-docs/?broken=Oi4x5G
https://sdlegislature.gov/Statutes/22-9-1
https://sdlegislature.gov/Statutes/22-9-1


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University of Cincinnati Law Review 58, no. 4 (1990
1989): 1477–1508.

Cases Cited

Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S.
Ct. 2841 (1986).

Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d
674, 112 S. Ct. 2791 (1992).

Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 2d 1131, 69 S.
Ct. 894 (1949).

Texas v. Johnson, 491 US 397 (1989).
Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct.

2533 (1989).
United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110

S. Ct. 2404 (1990).
West Virginia State Board of Education v. Barnette, 319 U.S.

624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943).

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The Psychedelic Surge and its Threats to Native American

Communities

Leora Karoll619

The psychedelic substances market is preparing to outpace the
legal cannabis market in the United States by 2027. The
country’s federal policies are not prepared to protect Native
Americans in the potential acquisition of their traditional
resources such as peyote (Lophophora williamsii), a small and
spineless cactus that contains psychoactive alkaloids. Through
case studies of biopiracy instances in the United States and
around the world, this paper demonstrates the vulnerability of
Indigenous Knowledge and resources and advocates for its
protection as the popularity of psychedelics surges. These
cases prove how easily and recklessly Indigenous Knowledge
and resources are exploited, barring Indigenous people from
accessing them due to new patent rights, laws, or scarcity.
President Biden pledged to incorporate Indigenous Knowledge
in federal research and policymaking in 2022, but due to the
lack of a Tribal consultation model and international
agreements signed to protect Native Americans, the
administration risks enabling further exploitation of these
invaluable resources in the United States.

I. Introduction

America is surging into psychedelic research. An
unprecedented amount of funding is being allocated to
psychedelic research to bring promising discoveries to the field
of mental health.620 However, to many Native Americans, the

620 “Johns Hopkins Center for Psychedelic and Consciousness Research,”
Johns Hopkins Medicine, accessed November 9, 2023,

619 Brandeis University Undergraduate, Class of 2024.

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powerful healing properties of the psychoactive plant peyote
have been known and used in religious ceremonies for
thousands of years.621 As more research is done, policymakers
and more than half of American voters begin to wake up to the
wealth of benefits that many currently illegal substances may
bring to American society.622 Although exciting to many, this
phenomenon causes concern for many traditional peyote users.
Many believe peyote should remain a closed practice, and
staunchly oppose genetic manipulation of the plant and
commercialization of what many Native Americans consider
an “ancestor and a living relative.”623 Even more pressing is the
threat of biopiracy, the act of taking knowledge and genetic
resources from Indigenous communities without consent or
compensation.624 Companies and individuals have historically
used United States patent law to gain the sole right to produce
and distribute medical plants that have long been part of the
Traditional Knowledge of Indigenous people. The legalization
of psychedelics has the potential to improve countless
American lives; however, numerous protections need to be
established to protect Native American sovereignty over their
traditional resource. The United States has signed the United
Nations Declaration on the Rights of Indigenous Peoples

624 John Reid, “Biopiracy: The Struggle for Traditional Knowledge Rights,”
American Indian Law Review 34 (2009).

623 Louis Sahagun, “Legalization Efforts Spur ‘Peyote Crisis’; As Cities
Move to Allow Psychedelic Plants, Some Native Americans Cry Foul.,”
Los Angeles Times, May 17, 2020.

622 Catherine Ho, “Majority of U.S. Voters Support Therapeutic Use of
Psychedelic Drugs,” San Francisco Chronicle, July 13, 2023,
https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-the
rapeutic-use-18197873.php.

621 James D. Muneta, “Peyote Crisis Confronting Modern Indigenous
Peoples: The Declining Peyote Population and a Demand for
Conservation,” American Indian Law Journal 9, no. 1 (December 23,
2020), 139.

https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-researc
h.

168

https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php
https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php
https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-research
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Brandeis University Law Journal 2023-2024, Volume 11

(UNDRIP), but has yet to meaningfully ratify it. In doing so,
the United States would be obligated to prioritize Native
American voices by improving its Tribal consultation model by
establishing free, prior, and informed consent (FPIC) standards.
In addition to UNDRIP, the United States must sign and uphold
international agreements such as the Nagoya Protocol to
protect the rights of Native Americans.

Led by emerging medical studies funded by the United
States National Institutes of Health625 and the United States
Department of Veterans Affairs, a 21st century term,
“psychedelic renaissance,” has been coined to describe this
new period of acceptance of psychedelics.626 Psychedelics are
psychoactive substances that are either lab-made or naturally
occurring in plants. Peyote, methylenedioxy-methamphetamine
(MDMA), ayahuasca, psilocybin, and lysergic acid
diethylamide (LSD) are common psychedelic drugs.627

Consumption of these drugs generally does not lead to
dependence or addiction.628 From 2007 to 2020, 105 registered
clinical trials took place around the world examining the use of
psychedelic drugs.629 Notably, Johns Hopkins Medicine

629 Joshua S Kurtz et al., “The Use of Psychedelics in the Treatment of
Medical Conditions: An Analysis of Currently Registered Psychedelics

628 Nichols, “Psychedelics,” 264–355.

627 David E. Nichols, “Psychedelics,” Pharmacological Reviews 68, no. 2
(February 3, 2016): 264–355, https://doi.org/10.1124/pr.115.011478.

626 “Correa, Bergman Applaud House-Passage of Their Amendment
Pushing VA to Study Impact of Psychedelics on Veterans: United States
Congressman Lou Correa of California,” Congressman Correa, July 27,
2023,
https://correa.house.gov/news/press-releases/correa-bergman-applaud-house
-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-
on-veterans.

625 Brian S. Barnett, Sloane E. Parker, and Jeremy Weleff, “United States
National Institutes of Health Grant Funding for Psychedelic-Assisted
Therapy Clinical Trials from 2006–2020,” International Journal of Drug
Policy 99 (January 2022): 103473,
https://pubmed.ncbi.nlm.nih.gov/34624734/.

169

https://doi.org/10.1124/pr.115.011478
https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans
https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans
https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans
https://pubmed.ncbi.nlm.nih.gov/34624734/


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received a federal grant of nearly $4 million to research the
impacts of psilocybin630 on tobacco addiction in 2021.631 A
breakthrough study by Johns Hopkins (2022) found that
psilocybin relieved symptoms of major depressive disorder for
up to a month in adults, and a follow-up study proved that
benefits lasted up to a year for some participants.632

In 2010, the Journal of Psychopharmacology found that
83 percent of formerly treatment-resistant patients who
underwent two MDMA treatments were cured of PTSD.633 A
long-term follow-up study found the positive results to be
stable for 3.5 years.634 In response to the promising results of
these studies, the United States Congress unanimously passed
an amendment to the Military Construction, Veterans Affairs,
and Related Agencies Appropriations Bill in 2023 to encourage
the United States Department of Veterans Affairs to utilize
federal funding for research of psychedelic therapies to help
treat veterans suffering from PTSD.635 A growing proportion of
Americans report using psychedelic drugs, and 53 percent of
users say they used it therapeutically.636 Fifty-six percent of
United States voters also express support for federal regulators
to approve the use of psychedelics for prescription use,

636 Ho, “Voters Support Therapeutic Use.”
635 Congressman Correa “Applaud House-Passing Amendment.”
634 Krediet et al., “Psychedelics Treatment of PTSD,” 385–400.

633 MDMA is also known as Ecstasy, a synthetic stimulant and psychedelic
drug; Erwin Krediet et al., “Reviewing the Potential of Psychedelics for the
Treatment of PTSD,” International Journal of Neuropsychopharmacology
23, no. 6 (2020): 385–400, https://doi.org/10.1093/ijnp/pyaa018.

632 Natalie Gukasyan et al., “Efficacy and Safety of Psilocybin-Assisted
Treatment for Major Depressive Disorder: Prospective 12-Month
Follow-Up,” Journal of Psychopharmacology 36, no. 2 (2022): 151–58,
https://doi.org/10.1177/02698811211073759.

631 Johns Hopkins Medicine “Psychedelic Research.”

630 Psilocybin is a psychedelic chemical compound naturally occurring in
some species of fungi.

Studies in the American Drug Trial Registry,” Cureus, September 14, 2022,
https://doi.org/10.7759/cureus.29167.

170

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according to a survey by the UC Berkeley Center for the
Science of Psychedelics.637 As more studies provide fruitful
findings, the psychedelic substances market is projected to
rapidly expand, from $2 billion in 2020 and expected to reach
$10.75 billion by 2027.638 These studies display the increased
readiness of the American medical community, government,
and general public to accept the legality of psychedelics.

II. Peyote in Native American Communities

Although the medical community in the United States
may only begin to accept the benefits of psychedelic remedies,
they have long been understood by Native Americans. Herbal
medicines and psychedelics such as peyote have been used for
thousands of years by Native Americans as part of their
medicinal and spiritual practices and rituals; carbon dating
proves that peyote was used 6,000 years ago at an
archaeological site in Texas.639 However, many Tribes further
claim that peyote has been used by them since time
immemorial.640 Peyote is often ingested during a night-long
ceremony shared by a community involving singing, praying,
drumming, and communication with a creator or some other
metaphysical entity.641 Members sit in a tipi or other ceremonial
structure facing a crescent-shaped altar with a fire. There are
four elements to the ceremonies, including praying, singing,

641 Peter N. Jones, “The Native American Church, Peyote, and Health:
Expanding Consciousness for Healing Purposes,” Contemporary Justice
Review 10, no. 4 (2007): 411–25,
https://doi.org/10.1080/10282580701677477, 415.

640 Fannie Kahan, “The Struggle for Peyote,” in A Culture’s Catalyst
(University of Manitoba Press, 2016),
https://doi.org/10.1515/9780887555084-007.

639 Muneta, “Peyote Crisis,” 139.
638 Phelps, “Investment in Psychedelics.”
637 Ho, “Voters Support Therapeutic Use.”

171

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ingestion of peyote, and quiet contemplation.642 Ceremonies are
usually called by a Tribe to pray for the healing of a sick
person or to give thanks for being cured.643 Additionally,
ceremonies take place to heal other problems or to pray for a
loved one who is away at school or in the military.644

According to personal anecdotes, the revelations experienced
through these ceremonies can lead to forgiveness, the
alleviation of physical and emotional illness, and bonding with
others in the community.645

As peyote offers both religious, emotional, and physical
healing, it has helped countless Native Americans recover from
life challenges such as substance abuse, mental illness,
homelessness, poverty, and food insecurity.646 The tradition of
the peyote ceremony strengthens communities through a shared
intergenerational ritual, not only by connecting individual
community members but also by linking generations through a
common experience. Losing this ritual endangers the wellness
of individuals, the strength and continuity of their
communities, and their religious freedom. However, with the
arrival of settlers from the West, this tradition became
vulnerable.

European conquerors and their descendants have long
been critical of peyote and its religious uses by Indigenous
people. When the Spanish Conquistadors arrived on the land in
1492, they tried to eradicate the plant entirely.647 As the Natives
reported visiting God when using peyote, the Spanish
identified it as a threat to the priesthood of their Catholic

647 Michael Pollan, “Chapter 4: Mescaline,” How to Change Your Mind,
directed by Alison Ellwood and Lucy Walker, 2022, Netflix.

646 Muneta, “Peyote Crisis,” 172–173.
645 Jones, “Native American Church,” 415.
644 Jones, “Native American Church,” 415.
643 Jones, “Native American Church,” 415.
642 Jones, “Native American Church,” 415.

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faith.648 In 1620, the Roman Catholic Church deemed peyote
“an evil to be rooted out in the New World.”649 During the
Mexican Inquisition, the plant was labeled the “diabolical root”
and was a “heretical perversity opposed to the purity and
integrity of our Holy Catholic faith.”650 From the start of
Western colonization of the land, Indigenous rights to peyote
have been imperiled.

After thousands of years of Native American use of
peyote, Congress passed the Indian Religious Crime Code of
1883, enforcing the imprisonment and withholding of
government rations from anyone in possession of peyote.651

The legislation stated that “dances and so-called religious
ceremonies, shall be considered ‘Indian offenses’... cognizable
by the court of Indian offenses.”652 Upon losing the ability to
legally practice these traditional and spiritual rituals, the
alienation of Native Americans and their cultures became
codified in law. This law forced these practices to move
underground out of threat of persecution. It fragmented the
passing down of Indigenous Knowledge from one generation to
the next, severing a connection between past and present. This
infringement of Indigenous rights to peyote fractured identity,
sovereignty, community connection, spirituality, healing, and
freedom.653

As of the 1994 Amendment of the American Indian
Religious Freedom Act (AIRFA), Native American Church of
North America (NACNA) members alone are legally allowed
to use peyote for solely religious purposes.654 The potential
mainstream legalization of the plant raises concerns for many

654 Muneta, “Peyote Crisis,” 139.
653 Muneta, “Peyote Crisis,” 140.
652 Muneta, “Peyote Crisis,” 140.
651 Muneta, “Peyote Crisis,” 140.
650 Pollan, “Mescaline.”
649 Muneta, “Peyote Crisis,” 139.
648 Pollan, “Mescaline.”

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Indigenous people, especially in the wave of decriminalization
of other psychedelics such as psilocybin. Colorado became the
first state to legalize psilocybin for therapeutic uses in 2019,
and Oregon followed in 2020.655 Based on data from the
trajectory of cannabis legalization, it is projected that most
states will have passed legislation legalizing psychedelics by
2033–2037.656

Nonprofit organizations such as Decriminalize Nature
have emerged in recent years, aiming to grant the healing
properties of natural hallucinogens including peyote accessible
to all.657 Some Native Americans, including   Navajo spiritual
leader Steven Benally, beg outsiders to “leave peyote alone”
and ask, “is that too much to ask?”658 Benally claims that “the
spiritual healing power peyote offers is only attainable through
Native American protocol,” and that the illegality of the plant
for non-Natives “is one of the few federal laws on our
side…We want to hold on to it.”659 Benally is one voice of
many who believe that peyote should remain inaccessible to
the general public. From his perspective, peyote usage is a
closed practice and should only be ingested ceremonially with
the proper protocol traditionally performed by Tribes. The
concept of a closed practice asks only members of a certain
culture to perform traditional practices as a way of preserving
the culture and practices and often the sanctity centered around
them. Close practices for some cultures are a way of
self-protection against colonial infiltration, especially if the
group suffers from a history of settler colonialism.

659 Sahagun, “Legalization Efforts.”
658 Sahagun, “Legalization Efforts.”
657 Sahagun, “Legalization Efforts.”
656 Siegel et al., “Psychedelic Drug Legislative Reform,” 80.

655 Joshua S. Siegel et al., “Psychedelic Drug Legislative Reform and
Legalization in the US,” JAMA Psychiatry 80, no. 1 (January 1, 2023): 77,
https://doi.org/10.1001/jamapsychiatry.2022.4101.

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In a commercialist society, many traditional peyote
users fear what could happen if the sacred plant becomes
accessible to the general public. Dawn Davis, a member of the
Shoshone-Bannock Tribes, worries about any “cultivation of
peyote outside of the ancient terrain it shares with Indigenous
people” and that “it is a step toward hybridization and
commercialization.”660 She is concerned that this reborn
national interest in psychedelic experiences reminds her of the
1960s when peyote was illegally bought and sold to
non-Natives. This illegal activity decreased access to Native
Americans and led many non-Natives to profit from the illegal
exploitation of the sacred plant. Although to most Americans
peyote is just a psychoactive plant, Davis explains that “to us,
peyote is an ancestor and a living relative,” holding immense
spiritual significance.661 For this reason, the hybridization and
commercialization of it poses serious concerns.

However, some Native Americans believe that the use
of the plant should not be restricted to Native Americans alone.
Indigenous leaders such as Comanche William Voelker claim
that the decriminalization of peyote may be best for all.662

Voelker is also the director of the nonprofit group Sia, which is
dedicated to the preservation of eagle feathers. He argues that
“it wouldn't be very humble of us to claim exclusive ownership
to peyote and prevent others from using it. It wasn't just given
to us.”663 However, in opening up the practice to outsiders,
there should be intentional respect for the plant and
consideration for its conservation needs. Miriam Volat, a soil
scientist and co-director of the RiverStyx Foundation, which
funds psychedelic research while simultaneously collaborating
with Tribes to contribute to the conservation of peyote argues
that “instead of saying, ‘[y]ou owe us this plant, the

663 Sahagun, “Legalization Efforts.”
662 Sahagun, “Legalization Efforts.”
661 Sahagun, “Legalization Efforts.”
660 Sahagun, “Legalization Efforts.”

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decriminalization movement should be saying, ‘[w]e’d like to
help you take care of your sacred medicine.’”664 Researchers
should work with Tribal leaders to ensure respectful use of the
sacred plant.

However, Native Americans have previously witnessed
an exploitative pattern of their traditional resources. Jon Brady,
the former president of the Native American Church of North
America (NACNA), worries that

[a] lot of people want to tap into [peyote] because they
see the potential, the almighty dollar … They’ve done
that to a lot of our medicines already … This is kind of
the last of our medicines of our Native American
people, so we’re trying every avenue to have its
protection.665

According to Brady, with the influence of capital, peyote will
inevitably become exploited if it becomes legal for all. He
believes that NACNA “should not have to fight endless efforts
to decriminalize Peyote,” and that “it requires that the federal
government to anticipate and act to cease states’ usurpation of
American Indian religious rights.”666 Brady argues that
legalization and decriminalization of peyote violates the
religious right of peyote as outlined in the 1994 Amendment of
the American Indian Religious Freedom Act (AIRFA). He
therefore instigates the federal government to initiate actions to
prevent states’ legalization or decriminalization efforts.

666 Jon Brady, “Strengthening the Indigenous Communities Through
Cultural and Environmental Preservation” (Testimony before the House
Natural Resources Committee, United States Congress, November 8, 2021),
2.

665 Hallie Golden, “Inside the Battle to Save the Sacred Peyote Ceremony:
‘We’re in Dire Straits,’” The Guardian, December 9, 2022,
www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medici
ne-nacna-federal-protection.

664 Sahagun, “Legalization Efforts.”

176

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However, as the federal government falls short on
meeting many necessary protections for Native Americans,
many Tribal governments are empowered to implement their
own legislation for protecting their cultural property.
Indigenous rights scholar Angela Riley is concerned that “in an
age of globalization…property and quasi-property can spread
across the world…in a matter of moments.”667 Once Indigenous
cultural ideas and practices gain exposure, they are subject to
appropriation and exploitation, and therefore need protection.
Although Tribal law has limited jurisdiction, its development
or revitalization is uniquely capable of accommodating the
specific needs and circumstances of each Tribe.668 Therefore,
Tribes can determine how to protect themselves within each
cultural context and normative framework. As Tribal law gains
prevalence, it will gain legitimacy and standing in American
courts.669 Riley advocates for a tiered system approach of
incorporating international, national, and Tribal law to protect
cultural property.670 However, Tribal law must be the
foundation.671

III. The Threat of Biopiracy

Many Indigenous communities in the United States and
abroad have historically been exploited by biopiracy, executed
by individuals and companies. This process often involves
using patent law to grant the patent holder the sole right to
manufacture and distribute a plant. Consequently, Indigenous
people are criminalized for using the plant in their traditional
way if they lose their rights to it.

671 Riley, “Straight Stealing.”
670 Riley, “Straight Stealing.”
669 Riley, “Straight Stealing.”
668 Riley, “Straight Stealing.”

667 Angela R. Riley, “‘Straight Stealing’: Towards an Indigenous System of
Cultural Property Protection,” Washington Law Review, 2005, 69–164, 79.

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This process often involves pharmaceutical companies
using Indigenous Knowledge to identify medicinal plants.
Indigenous Knowledge is a body of knowledge, observations,
practices, philosophies, and beliefs developed by Indigenous
people, passed down from generation to generation, based on
lived experiences, and interactions with the environment.672 As
pharmaceutical companies seek treatments in plants such as
psychedelics, the research process is lengthy and expensive.
Using Indigenous Knowledge of medicinal plants instead of
discovering them individually increases efficiency by over 400
percent.673 Therefore, the world market for medicinal plants
discovered by Indigenous communities is valued at up to $43
billion.674

The United States has a history of lenient patent laws,
allowing the biopiracy of many plants and their medicinal
applications. In 1995, a United States patent was granted to two
researchers at the University of Mississippi Medical Center
filed for the oral and topical use of turmeric powder from India
as a surgical wound and ulcer healing agent.675 This was
allowed despite the fact that evidence of ancient Ayurvedic
texts on traditional Indian medicine, books about home
remedies. Simultaneously, previous scientific publications
proved that turmeric has been known and used as a wound
healer long before the University of Mississippi Medical
Center even existed.676 Similarly, in 1993, American company
AgriDyne received a United States patent for the use of neem
oil extract as an insecticide and fungicide in the United States

676 Jayaraman, “Patent on Indian Herb.”

675 K. S. Jayaraman, “US Patent Office Withdraws Patent on Indian Herb,”
Nature 389, no. 6646 (1997), https://doi.org/10.1038/37838.

674 Reid, “Biopiracy.”
673 Reid, “Biopiracy.”

672 “Indigenous Knowledge and Traditional Ecological Knowledge,”
National Parks Service, accessed February 29, 2024,
https://www.nps.gov/subjects/tek/description.htm.

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and the European Union.677 Neem is a tree that has been used in
India for over two thousand years as a medicine, cosmetic, and
insect repellent. Once the patent was approved and came into
effect, the European Union struck it down for lack of novelty
because it had proof of traditional usage, although the patent
was upheld in the United States. The Indian government spent
nearly six million dollars fighting these cases.678

Lack of novelty can help protect these resources when
backed by Indigenous Knowledge of these resources. However,
especially seen with historically marginalized people, novelty
can often be difficult to prove. For an invention to be patented
in the United States, it needs to be qualified as a novel
invention. To be novel, “it either could not have been known or
used by others in the United States or have previously been
patented or described in a printed publication in the United
States or a foreign country.”679 Therefore, if a medicinal plant is
known to Indigenous people or published, it should be
protected from patenting. However, with lack of publishing, it
can be challenging to prove if it is known by Indigenous
people. Additionally, by tweaking a minor part of the plant or
the procedure in which the plant is used for medicinal
purposes, novelty can be justified, especially against
historically marginalized people.680 Most Indigenous
Knowledge on medicinal resources is not written or published
and is instead passed down orally, which increases the
vulnerability of patenting by non-Natives. If the traditional
Indian documents on turmeric were officially published and
reviewed by the United States patent office, India would not
have needed to spend millions of dollars fighting the case.681

681 Reid, “Biopiracy,” 90.
680 Reid, “Biopiracy,” 92.
679 Reid, “Biopiracy,” 82.
678 Reid, “Biopiracy,” 90.
677 Reid, “Biopiracy,” 89.

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Following the turmeric and neem cases, India’s
National Institute of Science Communication and Information
Resources (NISCIR) started collecting information on 130,000
traditional Indian medicinal products to publish in a database.
The European Patent Office (EPO) entered an agreement with
India to gain access before granting any patents involving
botanical knowledge to the database to help prevent future
cases like these.682 This was a progressive step towards
preventing biopiracy, as if the knowledge of a plant’s medicine
uses has been previously published, it cannot be patented.

Implementing this system with Native American
medicine would prove to be almost impossible. Tracking down
all Traditional Knowledge on medicinal plants spanning
thousands of years and all over the country would be a nearly
impossible and costly feat, if possible at all. The database
project in India had a budget of $2 million. Much Indigenous
Knowledge is passed down orally and uses different names for
plants than what scientists use. Additionally, due to the closed
nature of many Native American practices, community
members may feel uncomfortable sharing their sacred
knowledge that has traditionally only been passed down orally
from generation to generation.683

A database may pose additional concerns and may
inadvertently subject this knowledge to further biopiracy. An
estimated 4,000 plants with medicinal properties have been
patented on plants that are already known.684 Therefore,
Traditional Knowledge could more easily be obtained and
copied. It is also subject to being misconstrued or distorted and
then patented. For example, a United States Patent was granted
for a solution of leaves from the aloe vera plant and water that
was documented in Indian literature.685 The patent was granted

685 Reid, “Biopiracy,” 92.
684 Reid, “Biopiracy,” 92.
683 Reid, “Biopiracy,” 82.
682 Reid, “Biopiracy,” 91.

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on the grounds that the solution used only chlorinated water.686

By changing one element such as the kind of water or the
temperature of the water, the practice is then eligible to be
patented. The United States often exercises leniency when
defining novelty; therefore, companies that pirate and profit
from Indigenous resources often rely on United States patent
law.

In 1974, the founder of the International Plant Medicine
Corporation based in California, Loren Miller, traveled to
Ecuador, where he obtained samples of ayahuasca from a local
Indigenous tribe. Ayahuasca is a psychoactive plant that has
been used by Indigenous South Americans and is often
administered by a shaman in a long healing ceremony for its
therapeutic and medicinal benefits.687 The plant is sacred to
many Indigenous South Americans; the name translates from
Quechua as the vine of “souls.”688 Miller took samples back to
California to reproduce and study for its potential uses in
cancer treatment and psychotherapy. In 1986, Miller obtained
United States Plant Patent No. 5,571 for the specific strain,
awarding him the exclusive right to grow and sell it.689 In a
statement, Miller claimed: “If this patent was causing any harm
to the Indigenous people, I would have it canceled myself.”690

However, in 1994, the Amazon Alliance, Center for
International Environmental Law, and Coordinating Body of
Indigenous Organizations of the Amazon Basin challenged the
patent. They were successful on the basis that the strain was no

690 Press, “Ayahuasca on Trial,” 352.
689 Press, “Ayahuasca on Trial,” 329.

688 Sara V. Press, “Ayahuasca on Trial,” History of Pharmacy and
Pharmaceuticals 63, no. 2 (2022): 328–53,
https://doi.org/10.3368/hopp.63.2.328, 329.

687 Jonathan Hamill et al., “Ayahuasca: Psychological and Physiologic
Effects, Pharmacology and Potential Uses in Addiction and Mental Illness,”
Current Neuropharmacology 17, no. 2 (January 7, 2019): 108–28,
https://doi.org/10.2174/1570159x16666180125095902.

686 Reid, “Biopiracy,” 92.

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different from the original form of the plant that Miller
collected and therefore lacked novelty. In 1999, the United
States Patent and Trademark Office revoked the patent.
However, Miller succeeded in his patent reinstatement in 2001
based on evidence that the shapes of the leaves and stems of his
breed were novel.691 Miller left many Indigenous people
concerned with his actions, despite his supposed good
intentions to study the beneficial uses of a plant. Miller’s patent
reinstatement by the United States after protests and legal
action from Indigenous-led groups demonstrates the
unwillingness to listen to and consider Indigenous voices in
these matters. This case demonstrates again how lenient patent
law in the United States can be, and how easily novelty can be
proven.

In 2022, San Francisco-based company Journey Colab,
which uses psychedelics to study addiction treatment, obtained
a patent for lab-made mescaline (the active ingredient in
peyote). However, it became the first company of its kind to
publish a patent non-assertion pledge. This means that the
company vowed to not sue Indigenous people for patent
infringement for using peyote in their traditional way.692

Additionally, Journey Colab established The Journey
Reciprocity Trust, devoting a small portion of the company’s
founding equity to Indigenous communities; however, the
company does not specify which Indigenous communities and
whether they are solely ones that use peyote.693 Although this
initiative is a progressive addition to studying psychedelics for
medical research and innovation in mental health care, it is
unclear to what extent Indigenous communities were

693 Journey Colab, “Reciprocity Trust.”

692 “The Journey Colab Reciprocity Trust,” Journey Colab, accessed
November 9, 2023,
https://www.journeycolab.com/the-journey-colab-reciprocity-trust.

691 Press, “Ayahuasca on Trial,” 331.

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thoroughly consulted, and whether they provided consent and
are receiving benefits from this process.

Hopefully, companies continue to follow this precedent.
However, there are no regulations or incentives to follow suit.
A non-assertion pledge is not required, enforceable by law, or
even encouraged. As psychedelic lab research accelerates
companies continue to receive patents, the federal government
must have a role in protecting the rights of Indigenous people
to not be sued for patent infringement for using their crucial
traditional resource of peyote.

IV. The Federal Government’s Role

Protected by the patent laws of the United States,
private companies can become the new gatekeepers of
Indigenous Knowledge and resources. As this surge in
psychedelic research accelerates, policies need to be
implemented quickly to protect against exploitation and
biopiracy of Indigenous resources such as peyote on United
States soil. Patent law leniency jeopardizes the autonomy of
Indigenous people’s right to use peyote if companies gain the
right to peyote or mescaline.

New medical research of psychedelics spearheads
potential progress in the mental health medical field.
Discoveries in psychedelics have the potential to improve
countless lives. Many supporters of these initiatives argue that
no more roadblocks or limitations should be placed on these
endeavors.694 However, “progress” in the United States often
comes at the expense of Native American livelihoods.695

695 John Gast, “American Progress,” An allegorical female figure of
America leads pioneers westward, as they travel on foot, in a stagecoach,

694 Alicia Victoria Lozano, “Candidates Who Support Psychedelics as
Medicine Get a Political Action Committee,” NBCNews.com, March 20,
2023,
https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-
medicine-get-political-action-committe-rcna75295.

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While the pursuit of these new medical advances for
Americans accelerates, Native Americans still experience
unequal access to health care. The life expectancy of Native
Americans is five years shorter than the general United States
population.696 Native Americans are 20 percent more likely
than white Americans to experience colon and lung cancer.697

Native Americans are more likely to commit suicide than white
Americans, with those under the age of 25 being three times
more likely.698 The Indian Health Service (IHS) expenditures
per patient are three times lower compared to Medicare.699 The
IHS struggles with the retention and recruitment of
professional staff, causing grave limitations and a lack of
continuity of care. IHS primary care physicians often feel
overworked and are forced to take on a higher degree of patient
complexity than they can manage without specialty
consultation.700 Lack of attention and funding for the IHS from
Congress leads to poor health and the premature deaths of
Native American individuals. Funding towards research in
psychedelics has the potential to deliver transformative health
care, however, simultaneously, the Indigenous people of this
land still lack the funding and support to meet their basic
healthcare needs.

700 Kruse et al., “The Indian Health Service.”

699 Desiree L Fox, Ciara D Hansen, and Ann M Miller, “Over-Incarceration
of Native Americans: Roots, Inequities, and Solutions,” Safety and Justice
Challenge, n.d., https://doi.org/https://safetyandjusticechallenge.org/, 35.

698 Kruse et al., “The Indian Health Service.”
697 Kruse et al., “The Indian Health Service.”

696 Gina Kruse et al., “The Indian Health Service and American
Indian/Alaska Native Health Outcomes,” Annual Review of Public Health
43, no. 1 (2022): 559–76,
https://doi.org/10.1146/annurev-publhealth-052620-103633.

conestoga wagon, and by railroads, where they encounter Native Americans
and herds of bison., The Library of Congress, 1872, Autry Museum of the
American West, Los Angeles, California,
https://www.loc.gov/item/97507547/.

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V. Legislation and Agreements

One hundred and forty-four other countries have vowed
to take steps against the exploitation of Indigenous resources
by signing the Nagoya Protocol on Access and Benefit
Sharing.701 The Nagoya Protocol was established by the United
Nations in 2014 to protect Indigenous resources such as peyote,
turmeric, and neem against biopiracy. This international treaty
stresses working with Indigenous communities to agree upon
terms in an informed, consensual manner with an emphasis on
benefit sharing. When countries abide by the Nagoya Protocol,
Indigenous communities need to consent to the utilization of
their traditional knowledge and genetic resources by any
government, individual, or company.702 Further, they also need
to negotiate mutually agreed upon written terms for the
equitable and fair sharing of profits and subsequent third-party
use.703 Each party may take legislative, administrative, or
policy measures to ensure that the terms of their agreement are
upheld.

The Nagoya Protocol also promises that Indigenous
Knowledge associated with genetic resources is accessed with
the prior and informed consent of the Indigenous communities.
In addition, under the Protocol, there must be consideration for
the Indigenous and local communities' customary laws,
community protocols, and procedures. Parties who benefit
from the utilization of genetic resources are encouraged to
contribute to the conservation efforts and sustainable uses of
the resource. Although the Protocol was opened for signatures

703 United Nations Treaty Collection, “Nagoya Protocol.”
702 United Nations Treaty Collection, “Nagoya Protocol.”

701 “Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from Their Utilization to the
Convention on Biological Diversity,” United Nations Treaty Collection,
n.d.,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X
XVII-8-b&chapter=27&clang=_en.

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in the United Nations headquarters in New York for a full year,
the United States has never signed it.704

In 2021, the Biden- Harris administration announced
new pledges to support Native American communities and
elevate Indigenous Knowledge to inform federal
policymaking.705 The administration outlined its goals of
growing mutually beneficial relationships with Tribal Nations
and Indigenous people, as well as “considering, including, and
applying Indigenous Knowledge in Federal research, policies,
management, and decision making.”706 This is a tremendous
and properly celebrated achievement in legitimizing
Indigenous Knowledge and elevating Indigenous voices in
initiatives such as climate resilience and environmental
restoration. Along with this statement, the administration
vowed to strengthen the Tribal consultation model.707 Tribal
consultation is the government-to-government dialogue
between official representatives of Tribes and Federal agencies
to discuss Federal proposals before the Federal agency makes
decisions on those proposals.708 New consultation training and
guidebooks will be created to ensure that Tribal
self-government, sovereignty, and rights are respected and
upheld. These statements sound promising. However, the

708 Government-to-government dialogue between official representatives of
Tribes and Federal agencies to discuss Federal proposals before the Federal
agency makes decisions on those proposals.

707 The White House “Indigenous Knowledge Guidance.”
706 The White House “Indigenous Knowledge Guidance.”

705 “Fact Sheet: Biden-Harris Administration Announces New Actions to
Support Indian Country and Native Communities Ahead of the
Administration’s Second Tribal Nations Summit,” The White House,
November 30, 2022,
https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/
fact-sheet-biden-harris-administration-announces-new-actions-to-support-in
dian-country-and-native-communities-ahead-of-the-administrations-second-
tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,p
romote%20environmental%20sustainability%20and%20the.

704 United Nations Treaty Collection, “Nagoya Protocol.”

186

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https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,promote%20environmental%20sustainability%20and%20the
https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,promote%20environmental%20sustainability%20and%20the
https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,promote%20environmental%20sustainability%20and%20the
https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,promote%20environmental%20sustainability%20and%20the


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guidebook, which was published in 2023, is seriously flawed. It
includes tips for consulting with Tribal Nations such as
“[a]void using patronizing language when working with
Tribes” and “do not mistake kindness, silence, or politeness for
consent or agreement,” but does not require obtaining consent
from Tribes. In fact, in the 121-page document, requiring
consent is only mentioned when it involves removing Native
American human remains, cultural items, and archeological
resources from Tribal lands.709 Therefore, although the federal
government may use Traditional Knowledge to guide federal
agencies, Native Americans are still powerless to consent to
how Indigenous Knowledge is used.710 Additionally, the federal
government is still not required to receive consent from Native
Americans about federal proposals involving Tribes.

Free, prior, and informed consent (FPIC) must be
implemented in the United States. FPIC is the right of
self-determination of Indigenous people, established by the
United Nations. Under FPIC, when decisions are made by

710 Editorial Note: Here, the author intended to justify the use of capitalizing
Indigenous and Traditional Knowledge. These terms are capitalized by the
DOI and White House. See the following sources for inspiration of this
capitalization: “Departmental Policy on Indigenous Knowledge | Indian
Affairs,” accessed March 23, 2024,
https://www.bia.gov/service/tribal-consultations/departmental-policy-indige
nous-knowledge; “Indigenous Knowledge | OSTP,” The White House,
accessed March 23, 2024,
https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indi
genous-knowledge/; However, I have also seen literature fail to capitalize
Indigenous Knowledge and Traditional Knowledge. See the Harvard Public
Health Magazine for recent works without capitalization:Harvard Public
Health Magazine and Makepeace Sitlhou Tu Lucy, “How Indigenous
Knowledge May Shape the Future of U.S. Policy,” Harvard Public Health
Magazine (blog), June 5, 2023,
https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-a
pproach-to-health-climate/.

709 DoD Legacy Resource Management Program, Department of Defense
Tribal Engagement Guidebook, 2023.

187

https://www.bia.gov/service/tribal-consultations/departmental-policy-indigenous-knowledge
https://www.bia.gov/service/tribal-consultations/departmental-policy-indigenous-knowledge
https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/
https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/
https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/
https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/


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governments that impact Indigenous people, resources, or land,
Indigenous people must consent without coercion, intimidation,
or manipulation prior to authorization of activities. They must
also receive sufficient knowledge about the proposed activities.
In the federal government’s aim to strengthen ties with Tribal
Nations, no effort has been made to implement FPIC. FPIC in
Tribal consultation is outlined in Article 19 of the United
Nations Declaration On The Rights Of Indigenous Peoples
(UNDRIP), declaring that states must consult with and obtain
FPIC from Indigenous people “before adopting and
implementing legislative or administrative measures that may
affect them.”711

The United States did not support UNDRIP when it was
adopted by the General Assembly in 2007 but later endorsed it
in 2010 due to administration change. However, alongside the
endorsement came a preface; a document expressing that the
Declaration will have limited legal power.712 The United States
announced that instead, the “[d]eclaration expresses aspirations
that the United States seeks to achieve.”713 Although the
Biden-Harris administration’s steps to improve Tribal
consultation display progress, the United States, if it wants to
keep its word about aspiring to uphold UNDRIP, must begin to
implement FPIC in Tribal consultation.

VI. Conclusion

Before proceeding with the expansion of psychedelic
research and legalization, the United States must instate
protections for Native American. First, the United States must
sign and abide by the Nagoya Protocol. This will codify Native

713 Arndt, “‘Rights of Indigenous Peoples.’”

712 Jordyn Arndt, “Explanation of Position on ‘Rights of Indigenous
Peoples’” (New York, New York, November 7, 2019).

711 United Nations, United Nations Declaration on the Rights of Indigenous
Peoples, 2007.

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Americans’ ability to use peyote without risk of criminalization
for patent infringement. It will ensure that Native American
people, communities, Indigenous Knowledge, and resources
are protected and used under mutually agreed-upon terms.
Second, the Biden-Harris administration must fully ratify and
abide by UNDRIP. This will require Native Americans to
provide free, prior, and informed consent for the use of their
resources and Indigenous Knowledge. Tribes and companies
must reach mutual agreements on the sharing of benefits,
extraction, and use of peyote. Third, Tribal law must be
legitimated and considered in matters involving Tribes. Fourth,
funding for the IHS including addiction, trauma, and mental
health treatment must be increased to mitigate unacceptable
disparate health outcomes that leave Native Americans behind.
These actions are not just empty promises, statements, or
aspirational documents. Native American rights and
sovereignty over their traditional resources must not be
protected “aspirationally,” but protected by no less than United
States law.

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