Current and Emerging Issues: Persepectives from Students at The University of Tulsa

By Mikayla Pevac

A collection of essays by Honors Students with topics ranging from Police Brutality to the future of Artificial Intelligence. These essays are primarily focused on The United States of America and are motivated by a desire to be informative rather than persuasive.

• Language: English
• Publisher: Mikayla Pevac
• Release date: May 31, 2016
• ISBN: 9781311708991

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Contemporary and Emerging Issues: Perspectives from Students at the University of Tulsa

By Mikayla Pevac

Copyright © 2016 by Mikayla Pevac

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

Preface

In the late fall of 2015 I was asked to offer an honors course on current and emerging issues.  The expectation was that enrolled students would be completing their honors curriculum and would represent a diversity of undergraduate majors.

When the class was informed that the semester would consist of independent work on informative contributions resulting in a published edited collection, they were a bit intimidated.  Within a week they had selected topics, formed pairs of co-authors, developed a schedule of due dates, agreed on general style guidelines, and chosen a designated editor.  They were acutely aware that a semester is a short time period, and they began their work in earnest.  The challenge was not the development of original research, but the mastery of very broad and deep existing literature and resources associated with their chosen topics – often outside the comfort zone of their primary field of study. The result is this collection of papers.

For the students, the benefit of developing these contributions included increased research skills, enhanced writing skills, and more experience with collaborative cooperation.  For the reader, these papers offer a glimpse of what a group of high performance undergraduates perceive as important issues which will affect their lives and the culture they expect to live in. Equally interesting, and perhaps impressive, is the way they think and write about such topics.  

The student selection of topics reveals concerns of individual students, and the list was a consensus choice with little discussion. The list of selected topics is interesting as is the list of potential topics not selected. In my policy analysis course I have often receive papers focused on LGBT rights and on marijuana law.  Has the passage of marriage equality and the state level evolution of marijuana laws created the impression that these issues are resolved?  Are these topics simply not perceived as the most pressing? The reader is free to speculate.

Obviously the group of 15 authors, nor the Professor, speak for the University of Tulsa, and the University of Tulsa does not restrict their right to speak.

Steve B. Steib

Kendall Professor of Economics

The University of Tulsa

Reproductive and Religious Rights: A Discussion of Individual Rights in the Modern United States

By Brennen VanderVeen, Senior, Economics

Giselle Willis Cuauhtle, Senior, Chinese Studies

Introduction

In the United States, certain ideas transcend political divisions. One such notion is the idea of rights. The Declaration of Independence references unalienable Rights, including Life, Liberty, and the pursuit of Happiness. It goes further, stating that Governments are instituted in order to secure these Rights. Appeals to rights have not dwindled since the near quarter millennium since those words were written. Yet despite the intrinsic nature of rights, it is still difficult to pinpoint their origins and appropriate interpretations.

Indeed, while Americans would agree that the U.S. Constitution imbues them with rights, they would also differ in their interpretations of those rights. Some would emphasize certain rights over others, or argue over the practical implications of vaguely-worded rights such as the pursuit of happiness. Different political parties are especially likely to have conflicting perceptions of our rights. Politicians refer to various forms of action and inaction as rights when they want to convey that what they are doing is good for people. For example, Democratic candidates in the current presidential race refer to universal health care as a right, whereas Republican candidates are reluctant to call it a right, even if they support aspects of a widespread health care plan. On the other hand, Republicans emphasize the right to bear arms more often than the Democrats. The word right thus acts as a form of moral and legal immunity, because once something is called a right, anyone who argues against it appears to be limiting human potential. Thus, when someone opposes a supposed right, they are more likely to argue that the concept in question is not a right than they are to argue that the right should just be ignored.

Ultimately, debates about rights center on one’s own definition of rights. To aid in forming that definition, this paper aims first to detail a common framework for the understanding of the origins of rights, and second, to discuss the rise of reproductive and religious rights in the United States. The framework that we will use is one of positive and negative rights, as it happens to align well with the United States’ political parties. This conception of rights as negative and positive is credited to Czech-French jurist Karel Vasak, who was the first Secretary-General of the International Institute of Human Rights in Strasbourg.¹ In an attempt to demonstrate the evolution of rights, he described three generations: the first carried negative rights, the second brought positive rights, and the third is now dealing with rights of solidarity.²

According to Vasak, negative rights are generally civil and political, while positive rights are economic and social.³ His interpretations are based on the adoptions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights in 1966. Negative rights prohibit action against an individual. For example, the right to freedom of speech prohibits institutional repercussions for vocalized criticisms of the government. Positive rights, on the other hand, demand certain institutional actions, such as a fair wage. Finally, solidarity rights can only be accomplished with the input of individuals and institutions and encompass ideals like peace and preservation of the environment.

Yet Vasak’s generational approach and subsequent distinction between positive and negative rights are criticized as overly simplistic in two ways. The first is chronological. Although his ideas reached international legal prominence,⁴ there are many scholars who argued against his premises. Asbjørn Eide, for example, implied that economic, social, and cultural matters, or positive rights, were already covered before the 1948 Universal Declaration of Human Rights (UDHR) and even before the establishment of the International Covenant on Economic, Social, and Cultural Rights. Therefore, the Declaration’s biggest contribution to international human rights law was actually its ability to codify those rights so that they had to enter the political and civil spectrum.⁵ In this sense, positive rights would have come before negative rights. Patrick Macklem added that the generational metaphor is problematic because positive rights did not eventually replace negative rights the way human generations replace each other.⁶ The framework, however, still gives an idea of when certain kinds of rights peaked or gained traction in relation to each other, even if conceptualizations of rights do not quite die.

Nonetheless, Vasak’s dichotomization was also criticized on analytical grounds. What Vasak called civil and political rights, Henry Shue referred to as security rights, and what Vasak called economic and social rights, Shue called subsistence rights. Shue challenged the assertion that the former were negative rights and that the latter were positive rights, and in so doing, also found that the distinction between the two was neither easy to see nor important.⁷ And according to Patrick Macklem, all rights—whether civil, political, social, economic—give rise to both positive and negative state obligations.⁸ For example, although the right to property is usually thought of as a negative right because it requires the state to refrain from taking property, it is also a positive right because the state has to create a plethora of institutions to ensure this protection: everything from zoning laws to police forces.⁹ In other words, some state action is required, even in a negative right, to prevent the state from taking action later on.

As is explored later in this chapter, these criticisms of the positive and negative framework are important in understanding current American political tensions. Those who do use the positive and negative framework might contend that positive/subsistence rights are inferior to negative/security rights because they came later in Vasak’s timeline, thus demonstrating that they are not as vital to human dignity and survival. Positive rights are also perceived to require action beyond the capabilities of the individual, which to some means that they should not be rights at all.

Nevertheless, we decided to explore what we will continue to refer to as negative and positive rights, precisely because Vasak’s ideas did come to be so mainstream as to influence the legal thinking of politicians around the world. When American politicians argue about access to healthcare, for example, they are operating under the positive/negative framework whether they realize it or not. All of them would have to agree that universal healthcare would be considered a positive right. To some, usually Republicans, that means it is a subsistence right that calls for undue government intervention despite not being as urgent as a security right. Others, generally Democrats, would argue, like Shue, that positive rights are as urgent as negative ones and that the distinction is negligible anyway. We look at the history behind these perceptions.

Classical Liberal Understanding

The classical liberal notion of rights is primarily negative in nature. It usually posits the existence of natural rights that take the form of prohibitions on actions against others.

John Locke is perhaps the most famous and one of the earliest classical liberal thinkers. He theorized that the natural state of humans is a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit...without asking leave, or depending upon the Will of any other Man.¹⁰

Locke’s Second Treatise starts with that assumption about the natural state of humans. By natural, Locke means before any government or legal system has been established. Locke further notes that the state of nature is a state of equality.¹¹ By this he does not mean that all humans are necessarily equal in skill or material possession. Rather, it is simply an existence without Subordination or Subjection.¹²

Still, Locke’s state of nature is not a dominion of boundless liberty. While a person does have uncontrollable [sic] Liberty to dispose of his Person or Possessions, he has not Liberty to destroy himself.¹³ This is in contrast to some contemporary liberals and libertarians who sometimes frame assisted suicide as the right to die.¹⁴ Further, for Locke, Reason acts as a basis for law. He states that by Reason, one knows that no one ought to harm another in his Life, Health, Liberty, or Possessions¹⁵.

Locke’s A Letter Concerning Toleration provides some further elaboration, though it does not discuss rights explicitly as the Second Treatise does. In it, he states that governments exist in order to promote Civil Interests., which includes Life, Liberty, Health, and Indolency of Body; and the Possession of outward things.¹⁶ Locke defends religious toleration on several grounds, but his first explanation for why the government should not be involved in the caring of its citizens’ souls is relevant in a discussion of rights. He states that because of divine rule, the government simply has no business involving itself in religion. Religion, or more specifically the Care of Souls is simply just not committed to the Civil Magistrate.¹⁷ He later elaborates that it is easie [sic] to understand to what end the Legislative Power ought to be directed… and that is the Temporal Good and outward Prosperity of the Society; which is the sole Reason of Mens [sic] entering into Society, and the only thing they seek and aim at in it. And it is also evident what Liberty remains to Men in reference to their eternal salvation, and that is, that every one should do what he in his Conscience is persuaded [sic] to be acceptable to the Almighty…¹⁸

In such an explanation for religious toleration, Locke does not mention rights per se. However, it is evident that he sees certain aspects of one’s life, religion in particular, as being entirely outside of the bounds of acceptable legislation. In doing so, he envisions limits on state power beyond which the government cannot legitimately have any influence. This is effectively the nature of negative rights, even if Locke does not use that terminology. People, according to Locke’s description, basically have the right to determine how to reach salvation. It’s a negative right in that it requires the government to refrain from infringing upon it.

A conception of negative rights can also be seen in the founding documents of the United States. The unalienable rights of the Declaration of Independence (Life, Liberty, and the pursuit of Happiness) are all negative. According to the Declaration, they preexist the government, their security being the reason for governments being instituted at all.

The Declaration is not the only document from America’s founding that demonstrates an understanding of rights as negative. The Bill of Rights lists protections that are all negative. The ten amendments make no mention of the government providing any sort of good. The closest is the right to a speedy and public trial, but that right has more to do with protecting citizens from harassment by the government. It is part of a right of general non-interference rather than a right to the provision of something.

The other amendments make it clear that the rights they describe preexist their enumeration. The First Amendment does not grant a new right to freedom of speech or of religion; it states that Congress shall make no law. The Second Amendment is similar, stating that the right of the people to keep and bear Arms, shall not be infringed. The other amendments are constructed similarly. All rights within the first ten amendments to the Constitution relate to the general principle of the government leaving people alone. The government is not expected to provide anything except for protection against interference from the government itself. In doing so, the Bill of Rights serves as the essence of negative rights.

Progressive Understanding

Around the beginning of the 20th century, an economic shift helped the rise of positive rights. Previously, industrialization had engendered a producerist worldview, wherein economic policies favored producers because they were thought to drive the market.¹⁹ This producerist preference was fueled in part by a distaste for consumers. European liberalism, which sees consuming as a threat to lucrative production, and American Puritanism, which equated immoderate consumption with religious failure, were both influential at the time.²⁰ Only faced with continued poverty amid plenty did economists start to rethink the position of the consumer.²¹ They maintained that the key to well-being was material abundance, but instead of relying on producers to create the materials, they began to think of consumers as driving the market.

Initially, they were careful to distinguish between a consumer-oriented economy and a consumption-oriented economy. In the former, businesses only produce what consumers need—no more and no less. In the latter, consumerism drives high profit margins for businesses. But after World War II, the distinction basically disappeared; the Great Depression and high productivity after WWII convinced liberals that regulated capitalism could result in both plenty of product choices for consumers and high profit margins for businesses.²² Now, consumers were lauded as the providers of economic growth.

This emphasis on the consumer came about as President FDR defined four essential human freedoms in 1941: freedom of speech, freedom of religion, freedom from fear, and freedom from want.²³ The concept of freedom from want was still controversial because classical liberals assumed that it would allow consumers to benefit from the hard work of producers without consumers having to do anything. Basically, it was viewed as a positive right, and more conservative groups weren’t sure people should have rights that required the action of another party.

Yet the idea came to be accepted by modern liberalism. Positive rights gained traction after World War II as states enjoyed a post-war economic boom and began providing welfare programs.²⁴ Roosevelt’s New Deal cemented the shift away from laissez-faire economics and to an acknowledgement of consumers²⁵ by way of providing them rights. After the economic crisis of the mid-1970s, however, conservatives began to argue that welfare was morally and economically corrosive.²⁶ Yet the welfare state is here to stay: political arguments about it now center on how much funding the programs should get, not whether they should continue to exist. Indeed, the collective provision for welfare is associated now with an idea of social citizenship, and is comparable to the rights to own property and to vote.²⁷ If this is true, then the positive right of welfare is equivalent to the right to own property, typically considered a negative right.

As a whole, the progressive movement broadened the definition of rights. Self-sufficiency was de-emphasized and welfare programs became more established. This expansion was important for the development of reproductive and religious rights throughout the 20th century

Reproductive and Religious Rights

With any mention of reproductive rights, the abortion debate may come to mind. However, we have chosen to ignore abortion completely in our analysis. In our omission, we do not mean to imply the nonexistence of either a right to choose or a right to life. Rather, the omission is only due to the form that the abortion debate most often takes. Opponents of abortion, while often religious, generally do not make the issue about themselves. They base their opposition on a fetus having the same right to life that those who have already been born have. Therefore, the issue isn’t the religious liberty. Also, it is not really about whether or not a right to life exists, since abortion proponents generally do ascribe such a right to those who have already been born. Instead, the debate is largely about whether or not a fetus constitutes a human life with the right to life. Finally, while some supporters of abortion do believe that abortion is a positive right—for instance the Democratic Party supports a woman’s right to terminate her pregnancy regardless of ability to pay²⁸—the debate as a whole is anchored in the language of negative rights. Pro-life individuals believe that terminating a pregnancy constitutes a violation of the rights of the unborn, while pro-choice individuals believe that laws against abortion violate a woman’s right to control her body. The abortion debate is a unique issue that involves auxiliary concerns such as what it means to be human and when life begins. For these reasons, we decided to ignore the abortion debate.

In contrast, the debate over contraceptive coverage is much more appropriate for an analysis of rights. It has two sides, broadly speaking, both of which are acting in accordance with their understanding of what constitutes rights. There are those who are more in line with classical liberalism (though many of them are social conservatives) who believe in a negative right against the government compulsion to enter into contracts that violate one’s conscience. On the other side are progressive individuals who believe that birth control is important enough that it is a fundamental positive right to be provided with it, and therefore some people must be forced into providing it for others.

Evolution of Birth Control as a Right, both Negative and Positive

Although birth control has existed in various forms for centuries, it only became a part of national discourse at the end of the nineteenth century. The topic was and still can be considered taboo: this country’s Puritan settlers maintained that intercourse should only occur between married couples and only for procreation. Indeed, a majority (60%) of Americans still endorse the statement that the purpose of sex is to reproduce, and fewer (45%) endorsed the idea that it was to connect with another person in an enjoyable way.²⁹ Birth control is explicitly intended to prevent procreation, so people feared it would enable lustful sex that, instead of producing a valued human life, would distract from the relationship Christians had with their god. Thus, in 1873, the United States restricted birth control for the first time by introducing the Comstock law, which prohibited the sending of obscene matter, including contraceptives, through the mail.³⁰ The Comstock law would hinder the distribution of sexual education materials for years to come as well.

Around the same time, English economist Thomas Malthus’ ideas about the dangers of unchecked population growth were making their way over to the United States. Although the concept of an overcrowded dystopia was not as salient with Americans, who lived in a much more sizable country than the English, many still feared, like Malthus, that overpopulation would lead to increased poverty and a lack of resources in general. Where Malthus, however, thought that birth control was a vice, so-called neo-Malthusians believed that birth control could help curb population growth.³¹ Nevertheless, concerns remained regarding the purity of women, and neo-Malthusians who favored birth control to reduce the population found themselves having to defend against the effects increased birth control could have on the sexual activity of women.

They, in turn, influenced the growing perfectionist socialist movement in the United States, which attempted to achieve perfection, or utopia, through socialist practices. One such socialist, Robert Dale Owen, was one of the first to argue that, besides an effective way of reducing overpopulation, access to birth control was part of women’s right to self-determination.³² He further encouraged women to overcome their diffidence, and teach men about the benefits of birth control.³³ Throughout the early twentieth century, the feminist movement answered him.

Yet the early feminists did not advocate for birth control in the same sense that modern feminists do. The feminists of that era were remarkably unified in support of voluntary motherhood, despite their different backgrounds, but this support did not necessarily translate into support for birth control devices, which were still considered unnatural.³⁴ Rather, this movement focused more on highlighting the naturalness of women’s sexuality.³⁵ In so doing, reformers like Elizabeth Cady Stanton argued that women had the right to affirm their sexuality if they chose to do so, or contrarily, to refuse sexual relations altogether when necessary to avoid pregnancy.³⁶ In this sense, Stanton and Owen maintained women’s negative right to reproductive autonomy; no one should interfere with a woman’s right to choose when she wanted to have sex or when she wanted to abstain.

The positive right to obtain birth control devices, however, was another matter altogether. Feminists of the time were still wary of birth control devices that actually required action on the part of the individual, such as a sponge or concoction intended to kill sperm. This distaste for the unnatural, however, soon gave way to a different concern: eugenics. As birth rates remained high amongst immigrants and the poor, birth rates slowed down or stayed the same for professional women with higher education. President Theodore Roosevelt reprimanded women in 1905, saying that choosing not to have children was criminal against the race.³⁷ Indeed, people feared that if well-educated, mostly white women were not having children, it could lead to race suicide—where the sheer number of poor minority children would overtake the professional, white, class.

Suddenly, birth control devices appeared much more attractive to those who wanted to make sure that lower classes were not reproducing. Arguments in this era did not appeal to anyone’s rights so much as to an upperclass, white fear of losing the power they had because of their genetic privilege. In fact, black activists of the time denounced birth control on the grounds that it was intended to diminish the black population and consequently, black political power.³⁸ As Rickie Solinger explains, the government was investing in services where it expected the beneficiaries to be Black.³⁹ Yet the government’s new interest in family planning, racially skewed as it was, is what helped professionalize birth control devices to the point that they became a part of national discourse.

Clinics focused on sexual health began to appear in the United States. Margaret Sanger’s American Birth Control League devoted itself to opening these clinics and lobbying for legislation⁴⁰ that would protect them against the likes of Anthony Comstock. Yet as clinics opened outside of Sanger’s control, the contraceptives they provided were increasingly framed as strictly medical fare rather than anything having to do with women’s emancipation, so conservative attitudes about motherhood, sex education, and sexual morality persevered.⁴¹ This somewhat hindered the growth of clinics, as did the Great Depression.

However, this was also the era of the New Deal. While more people fell into lower classes, proponents of birth control returned to neo-Malthusianism and advocated for the inclusion of contraception in New Deal welfare programs in an attempt to help the poor.⁴² Access to contraceptives in the New Deal welfare programs may be the first instance of birth control as a positive right. Roosevelt’s freedom from want was especially appealing during the Depression, and contraceptives were conceived of as help for the poor to keep their finances under control (neo-Malthusian) more than to keep them from reproducing (eugenics). The government viewed the New Deal reforms as temporary in a time of crisis, not as permanent policy.

During World War II, the eugenics framework returned once again as the economy got better. In 1942, Margaret Sanger and like-minded activists created the Planned Parenthood Federation of America. Women were increasingly accepted into the labor force, but they also became economic assets