Ryan J. Suto's Blog

19 December 2011

Jury Nullification and Free Speech

            Last year Julian Heicklen was arrested under 18 USC 1504, which has been interpreted by prosecutors as criminalizing advocacy for jury nullification. After discussing the facts and the relevant law, I offer two arguments. First, I use Brandenburg v. Ohio to argue that the statute violates the First Amendment facially. Second, I use United States v. Stevens to argue that the statute is overbroad as written and as interpreted.


Julian Heicklen is a retired chemistry professor at the great Penn State University. Over the past few years, Heicklen has stood outside the United States District Court for the Southern District of New York holding a sign which reads ‘Jury Info’. He would also hand out brochures to passers by advocating that jurors may acquit those charged with breaking laws which the individual juror finds immoral or wrong. It is important to note that neither Heicklen nor the government has alleged that Heicklen had any knowledge if any passersby were jurors not that he targeted jurors in his advocacy in any way. He simply offered information for anyone who approached him.

In the federal system, jurors take an oath to decide the case in front of them “upon the law and the evidence”, which has been interpreted as constraining jurors from acting on disagreement with the underlying law itself. As such, taking the morality of the law itself into account when judging an accused’s guilt or innocence, it is argued, would be a violation of the juror oath, and thus a violation of federal law. So jury nullification has been a controversial issue in United States jurisprudence because it is seen by some as advocating jurors to violate the law. The federal prosecutors charged Heicklen with violating 18 USC 1504, which reads:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

             It’s important to note, too, that the Supreme Court has regularly listed four reasons for protecting free speech. First, the truth will be found through a free marketplace of ideas. As such, like other markets, there should be a little regulation as necessary to let the truth rise. Second, democracy itself requires an informed citizenry. There must be free expression in order to discuss governance itself. Ultimately, this allows for the development of better citizens. This is exactly the role Heicklen was playing by advocating jury nullification. Third, free expression must be guaranteed because we as human being develop best as expressive individuals with liberty and autonomy. Lastly, the government itself is incapable of identifying truth, and as such has no place in the regulation of it. It is clear that Julian Heicklen’s actions are constitutional the proceeding jurisprudential reasons.

The statute, as applied, is a prima facie violation of the First Amendment.

                        The First Amendment to the Constitution states, in relevant part, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...”

A test of this language came in 1969 when the U.S. Supreme Court was presented with an appeal by a KKK member who spoke at the group’s march. He stated, inter alia, “…it's possible that there might have to be some revengeance [sic] taken.” Brandenburg v. Ohio, 395 U.S. 444, 446 (U.S. 1969). He went on to vow that the organization will march on Congress and several cities in Florida and Mississippi. Brandenburg, 395 U.S. 444 at 446. Because of his speech, he was convicted of radical syndicalism under an Ohio statute. Id. The Court held that the state cannot proscribe mere “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Id. at 447. Finding that this statute proscribed mere advocacy of the use of force or of law violation, the Court overturned the conviction.

            While jurors do swear to decide the case "upon the law and the evidence", it remains unsettled whether jury nullification is a violation of the federal juror’s oath. Jury Handbook. If jury nullification is illegal this renders Heicklen an advocate of lawlessness. Even so, the statue in question, 18 USC 1504, makes no reference to imminency nor likelihood of the production of such action. The government makes no claim that Heicklen bases his appearances on the court’s docket and alleges no targeting of jurors when he avails literature. Moreover, the government makes no claim he advocates jurors decide a particular way in any specific case. Here, Heicklen merely provided literature for passersby, he did not attempt to produce imminent lawless action, nor is he likely to produce such an action. As such, Heicklen is directing his advocacy at the general attitude of possible law violation, as he aims at no particular issue or case.

            Under the test written in Brandenburg, it is clear that Heicklen engaged in mere advocacy of a political and legal issue. As this statute is presently construed to proscribe such action, it state no requirement that such advocacy produce imminent lawlessness nor have any likelihood to incite such action. As such, 18 USC 1504 is a clear prime facie violation of the First Amendment to the Constitution at interpreted in Brandenburg.

The statue is constitutionally overbroad.

            In First Amendment litigation, a statute must be narrowly tailored so as to not criminalize constitutionally protected speech. Specifically, a statute is overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). To discern whether a statute is overbroad, then, a court must determine the range of what is proscribed under it. United States v. Williams, 553 U.S. 285, 293, (2008).

            In U.S. v. Stevens, the Supreme Court was presented with a challenge to 18 USC 48, which criminalized the commercial creation, sale or possession of depictions of animal cruelty. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010). In that case, Stevens argued that the statute covered a depictions a large amount of legal activity, and as such was overbroad. Stevens, 130 S. Ct. 1577 at 1587. The Court agreed.

            In Julian Heicklen’s case, 18 USC 1504 reads, in part, “Whoever attempts to influence the action or decision of any… juror… upon any issue or matter pending before such juror… by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned...” Here, holding a sign and offering pamphlets is considered ‘sending written communication’. Moreover, the prosecutor’s office has stated, “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” Under the wording of 18 USC 1504 and the government’s construction of it, if any person hands out literature on any matter before any juror who may be passing by, that person is subject to criminal penalty. The statute does not require that the communication be knowingly or reasonably calculated to be received by a juror, nor does it require likelihood that such communication could influence a juror. Moreover, the government’s argument that Heicklen’s actions would be criminal “no matter where it occurred” is deeply troubling. This argument necessarily holds that no place in the United State is safe to publish or write about jury nullification, as it may be possible that a current juror could read it, and thus be influenced on a matter pertaining to his or her duty. An outright ban on the publication and distribution of points of view on important political and judicial matters is exactly the type  of government action the Constitutional Framers sought to prohibit when adding the First Amendment to the Constitution.

            As 18 USC 1504—under the government’s interpretation—criminalizes any written communication about jury nullification which may end up in the hands of a potential juror, it is clear it proscribes constitutionally protected speech. This is irrespective of the intent, reasonable expectations, or location of the writer. This statute and the conviction of Julian Heicklen under it are unconstitutional.


            The Founding Generation of the United States found itself in possession of the political unpopular viewpoint in favor of independence of the colonies from Britain. That is the context in which the First Amendment was born—a desire for freedom of political speech and expression. Indeed, in the marketplace of ideas, the ability to freely express one’s self is the first step toward discovering political truth. Indeed the Supreme Court has held that political expression holds a preferred position in First Amendment litigation due to this foundational American belief. Murdock v. Pennsylvania, 319 U.S. 105 (1943).

            Above it is argued that the 18 USC 1504, by proscribing mere advocacy, is a plain violation of the First Amendment and long-established precedent. Moreover, the government’s interpretation of the statute covers an overly broad range of constitutionally protected speech. Lastly, expression like Julian Heicklen’s is so constitutionally important that precedent has limited all three branches of government on proscribing it.

            In the final analysis, the prosecutor here is targeting Heicklen merely because the government disagrees with Heicklen’s position on the controversial issue of jury nullification. The government feels threatened by the idea itself, and as such wished to use Heicklen as an example. It is clear that such viewpoint discrimination is patently unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). As such, there are no grounds upon which Julian Heicklen’s conviction could be sustained. Both his arrest and 18 USC 1504, as interpreted, are unconstitutional.

01 December 2011

Rhetoric as Soft Power: Turkey and the Arab Spring

            The following post will discuss Turkey’s foreign policy regarding the recent ‘Arab Spring’ protests. Specifically to be discussed is Turkish Prime Minister Erdogan’s rhetoric toward the revolutions in Tunisia, Egypt and Libya, and the ongoing protests in Syria. It is argued that in the first two instances, Erdogan’s rhetoric and actions seem to be complimentary, whereas in the latter two the rhetoric and actions appear to contradict. The post begins with a background of Turkey’s recent role in the region, moves on to Turkey’s reactions to the Arab Spring revolts, and concludes with future challenges facing Turkey in this area.

            Since the reforms of Ataturk in the 1920s and 1930s the Turkish military has secured a secular democracy which now supports a strong economy. These factors have led Turkey to obtain an important international status. That status is binary—it is both European and Middle Eastern; or perhaps neither European nor Middle Eastern. Its entire history has been straddling both regions—much like its geography. While Turkey is a member of NATO and has aspired to be in the European Union, the nation also has close ties with the Arab League and is the successor state to the Ottoman Empire. In the early 2000s talk of Turkey’s ascension to the European Union intensified, as did opposition to its application by key members, such as Germany. While the process is quite complicated, many observers view the EU and Turkey as having shifted away from each other as the decade wore on. Among other factors, the fall of the Euro, the relative strength of the Turkish economy, the strong public sentiment in Europe against Turkey joining the EU and an ideological shift in the ‘Islamist’ direction by the ruling elite of Turkey have possibly pushed Turkey’s attention eastward. That ruling elite is the Justice and Development Party (AKP), an Islamist-leaning party which experiences constant tension with the military, the defenders of the Turkish secular state. As the party has risen in domestic politics, it seems, Turkey has risen on the international stage. The party’s Prime Minister, Recep Tayyip Erdogan, has become one of the most popular Turkish leaders in modern times. The party came to power in 2002, and upon winning his third term on June 12 of this past year, Erdogan stated, “Sarajevo won today as much as Istanbul; Beirut won as much as Izmir; Damascus won as much as Ankara; Ramallah, Nablus, Jenin, the West Bank, Jerusalem won as much as Diyarbakir.” This has been seen as a conclusive signal that Turkey will focus its efforts on its neighbors and, more specifically, the Muslim world.
            In addition to wanting to be a good neighbor, Turkey has been positioning itself as a regional mediator. Ankara has found some results regarding the Kurds, Iraq, Armenia, and to some extent Russia. Moreover, over the past five years Turkey has actively attempted to broker peace agreements between both Israel and Palestine and Israel and Syria. The blame for that failure, however, has been pointed to Israel’s December 2008 armed operation in Gaza. Erdogan has been able to also get Serbia, Bosnia-Herzegovina, and Iran to the negotiating table—with similarly disappointing results. With these more difficult negotiations, Turkey has seen the limit to its diplomatic strength. While Turkey has been able to build relationships and get people to sit at the negotiating table, there has been an inability to translate that popularity into tangible results. These and other actions have shown that Turkey wishes to be seen as a fair mediator: Israel is a major military ally, and yet the AKP wants to be seen as sympathetic to the Palestinian cause. To further this view, in 2010 Turkish citizens embarked on a flotilla to bring aid to the Gaza, in violation of a shipping blockade of the strip imposed by Israel. Noting that Gaza boarders Egypt to the south, which is not subject to the blockade, Israel intercepted the flotilla—the boarding and interception of the flotilla resulted in the deaths of some of the Turkish passengers. "When Turkey's prime minister vowed that Israel would ‘absolutely be punished by all means’ after its raid on the Freedom Flotilla bound for Gaza… the country's standing soared in many corners of the Arab world.” Moreover, earlier this year the UN released a report finding that although the blockade was legal, Israel used excessive force when intercepting the flotilla. In response, Turkey called on Israel to apologize for such force. Israel refused, so Erdogan expelled Israel’s ambassador in Ankara and has threatened action of Israeli oil drilling near Cyprus. This distancing from Israel is important as a symbolic issue of a greater pan-Arab support message which would prove to be important in winning the hearts and minds of Arabs during the Arab Spring.

The Arab Spring
            The Arab Spring began in Tunisia in late December 2010 after the self-immolation of Mohamed Bouazizi. Protests in Tunisia spread and continued into early 2011 asking for economic and political reforms. These protests directly led to the fleeing of decades-long autocratic ruler Ben Ali. Soon after, the protests increased in popularity and spread to other countries such as Egypt, Bahrain, Syria, and Libya, and Yemen. Longtime autocratic ruler Hosni Mubarak in Egypt quickly fell; leaving the question of what types of government would arise from the ashes of revolution. Many pointed to Turkey as a model of Arab democracy: while the AKP held Islamic values, the governmental structure in Ankara reflected secular democracy.
Since coming to power in 2003 the AKP has argued for democratic values in the Arab context. “It was not an accident, for example, that both of the mainstream Islamic parties in Tunisia and Egypt -- the NAHDA and the Muslim Brotherhood -- announced that they would use the AKP as their example and run in elections, rather than striving for complete control.” Nonetheless, the Arab Spring took Turkey, like the rest of the world, by surprise. Many feel that Turkey was too slow to react to the events and ‘pick sides’. However, Erdogan was quick to recover. This is partially because the beginning of the Arab Spring was easy for the AKP: protesters in both Tunisia and Egypt were opposing secular dictators and showed strong support for both political Islam and democracy. Moreover, Erdogan had been sharpening his rhetoric toward Israel—increasing Turkey’s popularity among most Arab publics.

Hard power and soft power.
            In the Middle East the U.S. has generally employed hard power to support its foreign policy. Military intervention in Iraq, now Libya, and nearby Afghanistan have been the most visible examples. However, economic carrots toward Egypt, Israel, and Saudi Arabia and sticks toward Syria, Iraq and Iran have also been points of contention throughout the region over the past few decades. This use of hard power has cost the U.S. greatly in terms of public diplomacy. While President Obama came to office promising a shift in relations—from negotiations with Iran to his visit to Turkey and his famed ‘Cairo speech’—he has since fallen into the same pattern of U.S. foreign relations. Obama has increased sanctions on Iran and Syria as well as engaged militarily with Libya and Pakistan.
            Erdogan has seen this game played in the Middle East before and offers juxtaposition. “Turkey’s policy of penetrating new markets and initiating economic integration projects with neighbors, accompanied by the removal of visa requirements, added a liberal touch to Ankara’s recent activism." Indeed, Turkey has been advocating “an idealist vision of regional order”, while generally not resorting to the hard power carrots and sticks favored by the U.S. While Turkey certainly could not have predicted the Arab Spring, it has been invested in populist movements before Tunisians hit the streets. As Ibrahim Kalin, a policy adviser to Erdogan, has said, “We’ve been criticized for engaging many of these groups, whether it’s Hezbollah or Hamas or the Muslim Brotherhood - the so-called difficult actors in the Middle East… but now most of these groups with which we’ve developed some sort of engagement… are going to play an important role in their respective countries.”
While the U.S. and much of the rest of the world was focused on the autocratic leaders of the region, Turkey was able to also focus on an increasingly empowered group—the people themselves. Regarding the Arab Spring Kalin argues that because of this, "Turkey will be strengthened, not weakened, by a more democratic and prosperous Arab world.” Furthering Turkey’s public diplomacy rhetoric, in June Ersat Hurmuzlu, an adviser to Turkish President Gül, said, “Turkey is with the people, not the regimes.” However, many feel that while Turkey has engaged in public diplomacy rhetoric, its real foreign policy actions and concerns are no different. To them, there is an undeniable gap between Turkish rhetoric and the reality of regional politics. Nowhere is such a gap more apparent than in Turkish reactions to the protests in Libya and neighboring Syria.

Libya and Syria.
            While it seemed easy for Erdogan to ‘catch up’ to the Arab Spring and call for Ben Ali of Tunisia and Mubarak of Egypt to step down, it was much less so to make similar calls against Qaddafi of Libya. Libya, after all, is a major economic partner of Turkey, representing billions of dollars in Turkish investment. If Qaddafi was able to survive the revolt, relations would have surely evaporated. As such, Erdogan originally criticized the NATO intervention to oust Qaddafi, only to support it later in the campaign. After calling on Qaddafi to step down, Erdogan invited Mustafa Abdul-Jalil to Ankara, who was the leader of the Libyan opposition. The hesitation, however, contrasted greatly with Erdogan’s earlier claims that Turkey was acting on a morally consistent foreign policy. As a result, while Turkey carefully balanced ideals with classic self-interested policy implications, the nation looked stumbling and weary of the future in Libya.
            In 2009 Erdogan was reluctant to criticize Iran’s suppression of the Green Movement, as that nation has traditionally represented a strong ally for Turkey. For this same reason, Ankara hesitated to act in the face of mounting protests in Syria and an iron-fisted response from Assad. Over the past eight months, Assad’s regime has killed over 3,500 protestors. After waiting for the Western world to stand first—much like its response to Libya—Turkey has now begun to host Syrian opposition and thousands of refugees flowing over the border as a result of the conflict. Again, this hesitation has called into question Turkey’s supposed commitment to morally-led and autonomous foreign policy. Presently, Assad remains in power in Syria, as his relations with Ankara have progressively soured. Last month, Syrians attacked Turkey’s diplomatic mission to Syria for supporting an Arab League decision to suspend Syria in response to Assad’s brutal oppression of the uprising there. Last week, Turkey imposed historic heavy sanctions on Syria over these continued actions. With such tensions between Damascus and Ankara still rising, Turkey's stance toward Syria, with whom it shares 900km of border, is the real test of Erdogan's commitment to democracy. Moreover, as Turkey continues to distance itself from Assad, Iran will increasingly feel betrayed, a partner the AKP would rather not lose.
            Critics of Turkey’s reactions to Libya and Syria contend that the problem lies in Erdogan’s rhetoric. By using principled, idealistic rhetoric when the policy decisions are rather easy, Turkish foreign policy has shied away from the tools of hard power. Thus, when decisions of support for an ally arise or when such hard power seems necessary or appropriate, Erdogan has exposed himself to charges of hypocrisy. As such, with regard to Libya and Syria, Turkey’s soft power appears to have failed to create actual results. Indeed, “the Arab Spring seems to have been a learning experience for Ankara. It also showed that the United State's foreign policy conundrum—how to maintain the tricky balance between national interests and idealism—is not unique.” In order to avoid this issue in the future, the AKP should adopt more nuanced and detailed policy positions, such that Turkey can advocate for both soft power and hard power—termed ‘smart power’—consistently and practically.

Difficulties after the dust has settled
Turkey now sees itself as a ‘big brother’ to the new leaders in the Arab Spring countries. By Erdogan’s own choosing, “the extent to which Turkey succeeds in setting up a regional order will be crucial for its emergence as a central country in regional and, consequently, global politics."
 As the unrest of the Arab Spring settled, Erdogan embarked on his ‘Arab Spring Tour’. From September 12 through September 15 of this year he visited Egypt, Libya, and Tunisia. Erdogan has traveled to these countries speaking of an obligation to promote peace and freedom through its regional and global foreign policy. Erdogan feels that Turkey has been advocating its diplomatic model of “connectivity and autonomy over containment and alignment” for the Arab Spring nations. However, Turkey cannot rest. Egypt has been a regional power in the past, and the Egyptian people will likely prove to be defiant of the U.S., strongly opposed to Israel, and may form contacts with Tehran. Indeed, “Turkey might find that it is no longer the only regional actor pursuing a policy of connectivity and nonalignment." Moreover, Turkey’s past support of autocrats—such as Qaddafi and Assad—and the AKP’s treatment of the Kurdish separatists may prove to expose Turkey as ideologically liberal in theory but practitioners of realpolitik in reality. As Erdogan must realize, supporting democracy abroad invites criticism of any non-democratic practices in the domestic realm.
            Lastly, because of the countries’ recently good relationship, Turkey cannot get many more miles out of anti-Israeli rhetoric. Given Turkey’s past relations with Iran, Israel, Europe, Syria, and the U.S., the country has simply straddled too many strong divides in the region. For every Arab won over by anti-Israeli rhetoric, another frets that Israel is Turkey’s largest military supplier. For every Shia won over by close ties with Iran and Syria, Turkey’s friendship with the U.S. and European desires are cause for concern. Turkey is not Arab and is unwanted by the Europeans.

            Turkey presents itself as both physically and politically straddling the Bosporus; at the same time it is both European and Middle East, while equally neither at all. This places Turkey in a unique position to convincingly advocate for Islamic democracy in a region which has shown to thirst for such a system. Since the beginning of the Arab Spring revolutions, Erdogan has spoken loudly about his support for democracy in the region, especially in Tunisia and Egypt. However, he has carried a small stick which he has often hesitated to use, such as in Libya and Syria. This has led many to question Turkey’s noble motives, having them chalked up as just as self-interested as any other actor in the region.
In order to continue to capitalize on the revolutions taking place in the Middle East, Turkey must continue its public diplomacy strategy of talking to the future power holders in that region: the people. To remain influential among the ‘Arab street’ as elections occur and new governments take hold, Ankara must remain true to both Arab issues and democracy. As such, Turkey must continue to champion the Palestinian cause while making peace with the Kurds, so as to not appear hypocritical when supporting revolutions abroad.

06 November 2011

My American Values: The Empty Pot

I begin the My American Values series with a content discussion of our U.S. Constitution and the social understandings of such contents. In this post, I will be concentrating on what our Constitution doesn’t say, and comparing that to other constitutions around the world.

Comparison to other constitutions
As a general note, our constitution is one of the oldest constitutions still in use. As time has gone on, modern constitutions have grown longer, often adding more rights for the people and more detailed powers and limitations of the government. For example, the U.S. Constitution, including amendments, is only about 7,229 words long. In contrast, India’s constitution, in PDF, is 471 pages long, and its table of contents alone contains 6,231 words. While more specificity allows for the document to produce governments more faithful to the text, it also decreases the flexibility and legibility of the document. This is a classic trade-off.

While it is certainly possible to have a more detailed constitution without having the features noted below, I would like to point out some interesting inclusions in foreign constitutions:

·         Egypt’s constitution defines Islam as the state religion.
·         France’s constitution defines French as the official language.
·         Ireland’s constitution holds the ‘family’ as the fundamental unit of society, and describes different rights for mothers.
·         North Korea’s constitution has an economic ideology: socialism.
·         The German constitution refers to a ‘German ethnic origin’.

Our constitution denotes not official language or religion and contains no discussions of the family or an American ethnicity. What about economic ideology? Well, that requires a bit more discussion. Justice Holmes, in dissent in Lockner v. New York (1905), stated the following, ‎"[The] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." (Noting of course that this is a dissent to a long-overturned case, doctrine, and line of thinking in U.S. Constitutional analysis and interpretation—meaning it’s not binding law, but it can be persuasive.)
There is no language in the Constitution which even implies a specific economic theory. While the constitution does imply a right to exclusive individual property (as does the common law), it also includes the Interstate Commerce Clause (and to a lesser extent the Equal Protection clause) which imply governmental abilities to regulate commerce. Moreover, note that Art. I, Sec. 8 and Amend. XVI allow the Federal government to tax citizens’ income and general taxes on goods and services. All of these economic statements add up to say that there are times when the government can interact with the economy. That’s it. There isn’t enough in the document to implicate a specific economic ideal. At most it runs antithetical to extreme communism as well as extreme libertarianism, while allowing almost anything in between. 

Beyond what has been discussed above, our constitution also does not offer constitutional protections from non-state actors. It sets up no affirmative duties of parents, no prohibition against discrimination by private organizations, no protections of culture, etc. But should our Constitution speak to such important human issues as family, culture, language or religion?

What is done by not doing
            What this silence on such issues allows is the natural change, development and movement of humanity to occur without need to question the fundamental document. In the long course of human history, what we now call France, whose constitution hold French as the official language, has been occupied by dozens of languages. In Egypt, like many other countries, their constitution specifies Islam as the state religion. However, only a brief investigation of Egyptian history shows that at various times the area was dominated by Christianity and various forms of polytheistic worship. Having such momentary trends artificially codified attempts to freeze in time a snapshot of culture—an ever-evolving, elusive concept which cannot characterized as stagnant. The U.S. Constitution makes no claims of culture, and simply leaves such a discussion to be had elsewhere.
Economies change, languages change, religions change and ethnic compositions change. And when they do, constitutions which designate such elements will become anachronistic. They are simply not equipped for the natural and dynamic movements and changes of the human condition.

When the U.S. was founded the population (which was allowed a voice in such matters) was predominantly Anglo in ethnicity, Protestant Christian in religion, English by language, and agrarian by economy. A mere 300 years after that and the population could well be Hispanic by ethnicity, Catholic Christian in religion, Spanish by language, and socialist by economy. Or perhaps too mixed to characterize by ethnicity, no religion as religion, Spanish by language, free-market by economy and having no discernable family structure of which to speak. In either scenario, this would still be America. The Constitution would still be relevant.

The U.S. is often called a ‘melting pot’. This means that people of different colors and creeds come here and mix and mingle peaceably. In this analogy the people are the ingredients, the stuff which is being melted together. What, then, is the state? In such an analogy what symbolizes the fundamental structures on which the country rests? It’s the pot—the empty pot in which any people can be placed. No matter what cultures or people are placed in the pot, the label on the outside of the pot says the same thing: the United States of America.  

01 November 2011

Restructuring Two UN Bodies

This post is an excerpt from a paper I have written this semester. The argument is that the structure of the United Nations does violence on groups with little influence among nations. Presently, for a small population to obtain a ceremonial international show of support, the people would have to lobby and convince a majority of the 193 nations of the General Assembly to support their cause. For any group, this is a daunting task. Moreover, to achieve a binding international resolution in their favor, such a group would specifically have to lobby the P-5 and four non-permanent members of the Security Council. Even a rather large and strong nation is often unable to resist the economic and military power of those nations which compose the Security Council.

Without any actual protection of minority rights, the United Nations forces the exploited and downtrodden to rely on the sense of justice of the Security Council, often the very nations which exploited and tread on such groups in the first place. From the point of view of many former and currently colonized people, this structure makes the perpetrators of the worst international offenses the judges and juries of the international system. The structure of the Security Council and General Assembly of the United Nations makes it clear that not all sovereignties are created equal. By giving the P-5 veto power, this structure exacerbates and formalizes the inequalities of power among nations. Indeed one member of the P-5 is at least as powerful as half of the 193 member nations. This structure can hardly be considered democratic or just.

While it is important to maintain the General Assembly as the main body of the U.N., there is also need for the Security Council to make quick decisions. One possible reform would be to allow the General Assembly to have the ability to pass binding resolutions. Then the Security Council and the General Assembly could be able to check the other in some way.
Nonetheless, the Security Council simply must be restructured. The new Security Council should be elected by the General Assembly (as are present non-permanent members of the Security Council) for two-year non-consecutive terms. The electoral system to be used will be Ranked Pairs (a form of Condorcet voting where each voter ranks the candidates in order of preference), which will ensure that the most politically agreeable candidates are seated on the Security Council. Moreover, the Security Council will be increased to 20 and there will be no permanent members.

As the U.N.’s goals, inter alia, are global peace and self-determination, granting sovereignty to a people who wish for independence should require a lower threshold than the approval of military intervention. Thus, while most policy votes will require a simple majority of the General Assembly, approving armed conflict will require 2/3 of the General Assembly and the support of the Security Council. Conversely, granting sovereignty and peacekeeping missions will only require the support of 1/3 of the General Assembly. These changes could eliminate the institutionalized dominance of the P-5 and the decreased threshold for sovereignty will further allow colonized peoples to make their own decisions. This comes from the value of self-determination and the goal of allowing all people to have a real opportunity to hold the key to their own future.

25 October 2011

Humanitarian Aid as a Strategic Obligation to the People of Libya

This is another short post gearing up for the APDS Symposium. You can read this one here. Thanks.

Over the past few days the world has witnessed horrible images and stories of the death of former Libyan dictator Muammar Gaddafi at the hands of Libyan rebels. I will not describe this below. The biggest fear now must be that this act of lawlessness may be foreshadowing the future chaos to come. The world cannot afford this to happen.

Protests against the regime—and the regime’s reaction—began months before military intervention. However, Gaddafi’s fall was likely accelerated by that military intervention by US-led NATO forces, best characterized by strategic bombings. Now, the oil-rich nation with no recent history of meaningful political process or participation is left with a power vacuum and infrastructure reconstruction. In order to prevent the nation from falling into the hands of another dictator like Gaddafi—and perhaps worse—NATO and the US have an obligation to provide humanitarian aid to the people it had just bombed.

After bombing began, President Obama citied humanitarian concerns for intervening in Libya. He stated a desire to protect the protestors from the brutal hands of a dictator known to have a low tolerance for political dissent. While the US domestic political climate will not tolerate another Iraq—US troops occupying and rebuilding a foreign nation on the ground—our reasons for entering will be compromised if our foreign policy ignores Libya. The state may fall into the hands of a new regime looking to capitalize on the nation’s oil wealth and continue to ignore  the concerns of the Libyan people.

As such, I call on the US and NATO to provide humanitarian relief in the form of medicine, food, water, and other basic supplies much like the Chinese have begun doing. The US should also emphasize other programs such as financial and technical support for rule of law initiates, security, civil society, and governance programs. In short, we need to win “hearts and minds” of the Libyan people.

While this is partly a moral obligation, it is also a strategic obligation. In the coming months and years the people of Libya will be faced with choices—such as their views of the US and whether they wish to be an ally in the fight to bring democracy to the Middle East and North Africa. How we treat the people of Libya—indeed, our public diplomacy in that nation—may determine foreign policy choices of the next Libyan government. While it cannot be said that the future of Libya hinges on US public diplomacy and humanitarian aid, we can play an important role in the outcome of Libya, especial at this most critical hour. Whether the US is seen as liberators or evil-doers, it is imperative that we show the people of Libya that in the end we did not care about killing Gaddafi or access to oil, but that we cared about helping the people of Libya.

24 October 2011

The Deliberate Use of Art Diplomacy

It's a very short post, but I wrote a quick entry drumming up support for the upcoming APDS Symposium. You can read it here. Thanks.

Later this month our Symposium, Building Bridges: The Tools of Public Diplomacy, will feature a panel discussing art as a tool of public diplomacy. It must be noted, however, that such public diplomacy must be used carefully.
        The main goal of art as a tool of public diplomacy is to create a common experience among those of different cultures. Art diplomacy doesn’t often have the feel of an imposition of a policy, and often its lack of an explicit governmental message is its selling point. Such a tool can be used to express similar values in those cultures or even as a simple piece over which to have a conversation.
        However, what art we transmit as ‘American’ must be deliberate. If we as a nation transmit caricatures of our culture abroad, such images will be viewed as accurate. Of all the art that originates from America much of it creates caricatures of American life, often for the goal of parody or comedy. However, this may be lost on international consumers who experience such art decontextualized. Sometimes such art portrays Americans as rich, wasteful, spoiled, racist, xenophobic, lazy, or any other negative characteristic.
        What, then, do we do? Should the U.S. government, through media such as Al Hurra, Voice of America, etc., show the world all our art, and hope they draw the conclusions we support? Or, should the government regulate what American art the world sees, and thus censor and control our own image? If the government picks and chooses, should we export high art or popular art?
        In the end, ethical public diplomacy requires us to be honest in our message and reciprocal in our tactics. Art must be no different. Hopefully on October 27th our questions will be answered.

13 October 2011

My American Values: Introduction

I would like to introduce my new blog series: My American Values. In public diplomacy we often discuss ‘American values’ as a national strength and among our nation’s greatest exports. However, I have occasioned surprisingly little ink spilled on the topic. If such a concept is so important, is it not worth critical investigation, or at least description?

So, for each post I will identify a value of mine from my American perspective. The point of the title and series is not to suggest that these values are exclusive. On the contrary, I think these values are transcendental, and as such deserve to be espoused upon. I use the term ‘American’ to simply denote from where it is that I have received such values. Could these blogs be considered an act of public diplomacy? Probably not, but the explanation and understanding of the American point of view is essential to U.S. public diplomacy.

America is said to be a nation of laws, not men. So, I will generally base such claims of values in legal doctrine and the aspirational language of the founding documents. I generally won’t be arguing history, past practice, foreign influences, pragmatism, culture or partisan stances. While all of these topics are very important to the formation of the values of a people, such topics will merely complicate and the analysis beyond my modest abilities.

For example, while explicit legal American values currently reject racism, American history (and present reality) is marred with and, at times, driven by, racism. But just because this is our reality and our past does not mean that such things are our values. The relationship between an individual’s values and actions are complicated, not to mention that same relationship regarding of a whole nation. Lastly, I don’t propose to identify every American value, just ones which I personally identify and the ones I can tackle in such a format.

I hope you all enjoy reading, and feel free to suggest topics and critiques in the comments below. Keep an eye out for the first post of the series!

List of Series Posts:

06 October 2011

The New World

Information has broadened
More people are able to access information than ever before. The internet, social media and cell phones have distributed information wider and faster than imaginable only twenty years ago. Information and news about any incident on any part of the Earth can travel to your hand or home instantly. While many in the world remain without access or ability to receive such media, the Arab Spring has shown that around the globe, the people increasingly control messaging.
No longer must we rely on the ‘gatekeepers’ to tell us what is important and what is interesting. Websites like Reddit, Twitter, Digg, and more allow we the people to decide for ourselves.

Power has democratized
According to Freedom House In the early 1970s, there were around 40 democracies. Presently, there are over 120, with more on the way. Increasingly, people are making decisions which effect governance and foreign relations. Periods like decolonalization, the fall of the Soviet Union, and the Arab Spring show a clear march toward self-determination and democracy. Increasingly, regular people will be able to have a voice in the direction of their government. Governments around the world must listen to their people.
No longer must we rely on elites to communicate our policies and values abroad. We can communicate directly to foreign publics, unmediated and unadulterated, to express our interests and sentiments abroad regarding international concerns. Speaking directly to power now means speaking directly to the people.

Governance has opened
WikiLeaks and Anonymous have shown that now anyone can publish mountains of uncensored data available for the whole world to see. Julian Assange published his leaked information for the world’s publics to see without gatekeeper censorship. If governments do not open themselves by passing Open Government laws and declassifying non-essential material, people like Assange, Bradley Manning, and groups like Anonymous will do it for them.
During the Vietnam War-era, the publication of the Pentagon Papers by the New York Times shined the light on the actions of the U.S. Government in Southeast Asia. No longer must we rely on the institutional press to disseminate this information. If we the people wish to know the working of our governments, we have the right, the will, and the power to find out.

Resistance has crowdsourced
The Green Revolution, the Arab Spring, and Wisconsin's protests and #OccupyWallStreet have shown that leader-less protest, resistance, and revolution are all possible and successful. We now can simply crowdsource to define our grievances, goals, desires and needs. Top-down structures are anachronistic and are un-democratic ways to resist the halls of power. Indeed, the present paradigm of such power does not know how to approach a truly egalitarian movement, and thus renders the structure impotent to change in the face of a new global structure.
In the past, revolutions mirrored states: they had a hierarchical structure of authority. No longer must we hope for a Washington, Jefferson, or Madison to come along and lead our movement; we lead the movement ourselves, collectively.

The new world
In the old world, governments, media, military, and economic power was held by elites, influenced and benefitted by each other. Elections and commercial choices were limited and often illusory. However, the changes above are upon us. All of these changes have supported and furthered each other. The combination of all of them has shown to us a new world paradigm of power approaches. We must take this opportunity. We must assert our rights by making our grievances known through this new egalitarian paradigm of power and compel power structures to return to the hands of the people. If we do this we will bring forth a world where real power exists in the hands of all of us, and structures are created to benefit the masses. If we stand up and assert our grievances, we can work together to create the new world.


09 September 2011

An Important Week

Next week begins on Sunday, September 11th, 2011, exactly ten years since tragic terrorist attacks took the lives of thousands of innocent Americans. The U.S. was targeted by religious extremists in an attempt to shake our nation’s ideological foundation.  However, next week ends on Saturday, September 17th, 2011, 224 years since the ratification of the U.S. Constitution. While we Americans mourn the loss of the innocent citizens killed on 9/11, we must reflect on what values we as a society wish to shine upon the world, and consider what roles we wish government and religion to play in our collective civic life. Indeed, we the people truly have the power to decide what political tactics work and what policies are politically acceptable. Let us use it. 

We as a people are almost a decade into responsive military operations, the USA PATRIOT Act, and other policy reactions to the attacks; with these reactions we have abandoned the words and spirit of our Constitution. Our government has intruded into our private lives, our people have discriminated against Muslims and those from the Middle East, and our elected officials have continually used fear to obtain votes and support.

It is true that the balance of security and liberty is never an easy one. This truth was just as real to those who fought the Revolutionary War and created our founding documents as it is now for those who witnessed the horrors of 9/11 and face endless threats to domestic tranquility. However, we must remind ourselves that those documents were written in the cauldron of war by people who surely faced death if their revolution proved unsuccessful. Their values remain as true today as they did over two hundred years ago.

Wherever you stand on the political spectrum, next week should be a week of reflection and deep contemplation. We must never forget that in addition to the victims of 9/11, countless American lives have been lost in war—with more added every month. Their sacrifice demands that we remain faithful to our Constitution and its ideals of responsive and responsible governance, equal protection, and the separation of church and state.

We as citizens must re-commit ourselves to those ideals. We must demand that 21st Century US foreign policy hold as central a clear articulation of Constitutional values—which are our values. Just as important as speaking to the world, however, is listening to what those abroad have to say, as well. It is the only way to hold a productive conversation and to foster understanding among our people and the nations of the world. We as a society must remain faithful to the civil liberties and governmental limitations enshrined in the Constitution, and thus collectively decide our image abroad. If for no other reason, our posterity deserves the blessings of liberty given to us by those before.

15 July 2011

Judicial Diplomacy: The International Impact of the Supreme Court

This post on the public diplomacy of law was written for Jurist.org and can be found here.

The reasons for the American Revolution were submitted to a candid world in the Declaration of Independence. Later, these values were enshrined in the Constitution and the Bill of Rights. These distinctly American works are among the most influential legal documents of the modern era. Nonetheless, over the course of two centuries that once candid world has changed greatly. The influence of the US, both legally and otherwise, has waxed and, more recently, waned. However, if the US wishes to maintain its position as one of the world's leading legal systems, the nation's Supreme Court could stand not only to be more cognizant of the impact its decisions have in legal systems all over the world, it could stand to work to maximize that impact.
To enhance American legal influence, the Supreme Court must engage in what can be termed as public diplomacy. Public diplomacy can be defined as the image of a state or its people, as maintained by a government, organization or people. As such, the Court should endeavor to facilitate the understanding of its decisions, which are used to explain and test US legal values the world over. The world currently faces challenges that are inherently global in nature. For example, the legal questions associated with WikiLeaks, theArab Spring and Internet neutrality and censorship, are all matters that transcend borders. While the international nature of these issues proves political and legal isolationism faulty, hard power intervention also has grave shortcomings. As such, the Court's ability to indirectly apply legal force and influence presents itself as an attractive alternative, and it should be maximized accordingly.
The US has its greatest potential for influence in nations drafting new constitutions, forming new governments and otherwise attempting to progress and modernize. In these countries legal foundations are often still being set, making them more likely to look to foreign decisions for guidance and precedent. The fact that many foreign courts have cited US Supreme Court opinions demonstrates their influence beyond US borders. For example, quite recently India's Supreme Court found a constitutional right to counsel, citing many Supreme Court decisions as precedent. In its own precedential decision, the Supreme Court of India wrote, "[i]n our opinion, a criminal case should not be decided against the accused in the absence of counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama." The Court further citedGideon v. Wainwright and Brewer v. Williams in its holding.
Nonetheless, foreign court decisions that cite to the Supreme Court have generally declined. This likely reflects either a decreased foreign interest in the US legal system or the US's decreased interest in public legal diplomacy. Either way, it remains important that the US recover its jurisprudential influence, as this is a tool too valuable to lose.
First Amendment protections in general and freedom of speech in particular, provides an illustration of how the Court may utilize public diplomacy to expand the influence of the US legal tradition. In legal terms, the US has only arrived at its current approach to the First Amendment in the last 50 years, and the meaning of those 45 words is still evolving. However, in that time the US has been at the forefront of developing human rights such as freedom of expression and individual liberty. During the twentieth century these legal principles have been our greatest and most valuable export. For example, the Court expressed the extensive protection of speech and acts offered by the First Amendment in its 1989 decision, Texas v. Johnson. In Johnson, the Court held that the First Amendment protected the burning of the US flag as a means of protest. Justice William Brennan, writing for the majority, stated that "[t]he way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." The Court voiced to the world that disagreeable and offensive speech must be tolerated as freedom of expression and the protection of individual liberties are at the core of a free society.
The vital discussion of societal values was at the forefront of the Johnson decision, and it is this exact discussion that is absent from the current Court's decisions. For example, Snyder v. Phelps, a case decided this year, presented a perfect opportunity to engage in public diplomacy with regard to free speech. In this case, tort damages were sought against the Westboro Baptist Church for protesting at a soldier's funeral, spouting hate speech at the burial itself and on the Internet. While this case was viewed as controversial by the media and the general public, it garnered strong consensus on the Court. In an 8-1 decision, the majority held that the First Amendment protects those who stage peaceful protests near the funeral of a military service member from tort liability.
The majority opinion written by Chief Justice John Roberts is certainly on firm ground legally speaking. However, he and the other justices that joined his opinion missed an excellent opportunity to engage in public diplomacy. At a time where many post-conflict, developing and emerging societies are grappling with the concept and consequences of free speech, the Court would do well to offer non-doctrinal reasons for ideologically illustrative decisions. Understandably, the idea of allowing the actions of the Westboro Baptist Church to go unpunished in a society that values respect and order over individual liberties seems offensive and repugnant. However, rather than engaging in constructive dialogue or explaining why the US values free speech, the Court does little more than state that speech is powerful and that in spite of the pain it can cause, this nation has chosen a path that protects it. The Court insufficiently explains the value of free speech. While previous decisions of the Court have noted how important free speech is for the development and maintenance of a healthy society, political vibrancy and open and honest debate, the Court's current decisions avoid such commentary.
The Court is certainly the best institution to explain to scholars, governments, lawyers and lay people alike the enduring legal values of the US, why they have been chosen and how they contribute to the development of a stable and democratic society. A return to the mentality that one of America's most important exports is its legal traditions would certainly benefit the US and stands to benefit nations building and developing their own legal traditions, and our relations with them. Furthermore, it stands to increase the influence and higher the profile of the bench. The Court already engages in the exercise of dispensing justice and interpreting the Constitution, and to deliver its opinions with an eye toward their diplomatic value would take only minimal effort and has the potential for high returns. While the Court is indeed the best body to conduct legal diplomacy, it has been falling short in doing so in recent sessions.
We are at a critical moment in world history. People in the Middle East and North Africa are asserting discontent with their governments. Many nations in Africa, Asia, and Eurasia are grappling with new technologies, repressive regimes and economic despair. With the development of new countries, such as South Sudan, the formation of new governments, as is occurring in Egypt, and the development of new constitutions, as is occurring in Nepal, it is important that the US welcome and engage in legal diplomacy and informative two-way dialogue. As a nation with lasting and sustainable legal values and traditions, the Supreme Court should be at the forefront of public legal diplomacy. With each decision, the Supreme Court has the opportunity to better define, explain and defend key legal concepts. This is an opportunity that should not be wasted.

28 May 2011

What’s happening in Nepal?

To understand what’s happening in Nepal today regarding the interim constitution, it’s important to know how Nepal got there. So, I’ll use edited excerpts from a recent paper of mine (The State of the Media: Nepal’s 2008 Constituent Assembly Elections) to explain the background of the issue, and then discuss my recommendations for the future of Nepal’s political and legal structure.
Brief Political History of Nepal
Nepal is a nation of just over 29 million people who speak dozens of indigenous languages and represent many ethnic and caste groups. Positioned in the Himalayas between the emerging lands of India and China, Nepal is one of the poorest and least developed nations in the world, having a distinct and often untold history.
The Kingdom of Nepal has most often been a monarchy, with various failed encounters with electoral democracy. One such attempt was ended by King Mahendra in late 1960. The king felt party-based democracy was ineffective and inefficient, so he replaced it with a party-less legislature which proved to only entrench his power. This structure and system lasted for decades, representing only a notion of procedural democracy without any substantive democracy. In 1990 many Nepalese rejected the autocratic and unresponsive government, leading to a people’s movement.
As a result of that revolution, King Birendra and political leaders passed a new constitution, establishing a parliament which had effective powers and duties. In 1996, Maoist rebels organized as the Communist Party of Nepal (Maoist) (CPN (Maoist)) and began an insurgency of guerilla tactics against the government, seeking socialist reforms and procedural democracy. After a decade of violent unrest and strife between the Nepalese army and the Maoists, the king suspended parliament in 2006. King Gyanendra  enforced martial law and silenced the media, claiming the government was unable to handle the insurgency.
In reaction to this startling power grab by the king, the Maoists and seven major political parties agreed to a peace treaty, the Comprehensive Peace Agreement, to reinstate the parliament. This agreement stripped King Gyanendra of most of his power and allowed the Maoists to participate in government under a ceasefire monitored by the UN and various NGOs. In 2007 the new government wrote an interim constitution under which elections would occur in 2008 to elect the Constituent Assembly which would then pass a permanent constitution for Nepal. Moreover, the 2007 interim constitution addressed the Hindu caste system by stating, “No person shall be discriminated against as untouchable and subjected to racial discrimination in any form, on grounds of caste, race, community or occupation”. This is important because in Nepal, as a Hindu nation, universal egalitarianism is not necessarily an indigenous value.

2008 Elections
The 2007 interim constitution provided for the election of the Constituent Assembly, a unicameral body charged with ultimately producing a permanent constitution and also legislating for Nepal until elections could occur under that constitution. The interim constitution called for a mixed system, of which 240 members were elected by First Past the Post (FPTP) from geographic constituencies. In FPTP elections, voters chose individuals to represent their geographic area in the legislature. Alongside those members, another 335 member were elected under a closed-list proportional representation (PR) system using the entire country as one constituency. In PR elections, voters chose a party to represent their political views in the legislature.  Lastly, twenty six members were to be nominated by a Council of Ministers, who would be chosen by the president after the elections have occurred and the president has been elected by the elected Constituent Assembly members (2007 Interim Constitution of Nepal).
Thus, after the voters have chosen 575 representatives by the mixed electoral system, the newly elected Constituent Assembly members would convene to elect a president. The president would then select a Council of Ministers (the leader of which would be the prime minister), and that Council would then nominate another twenty six individuals who would join the Constituent Assembly, for a total of 601 members. The constitution further provides for universal adult suffrage and list quotas for women and minorities on the party PR lists.
The elections occurred on April 10, 2008. Nepal relied heavily on the international community for electoral assistance and observation, as groups such as the National Democratic Institute (NDI), the International Federation for Electoral Systems (IFES), the Carter Center, the International Institute for Democracy and Electoral Assistance (International IDEA), and the United Nations Mission in Nepal (UNMIN) were in Nepal at the time, and many remain. Overall, in the international community the results were largely viewed as successful: a peaceful election occurred with few instances of fraud or violence.
After the votes were counted, the Nepalese gave an electoral majority to the former insurgent CPN (Maoist) party. The Maoists earned 220 of the 601 seats, and the next closest party was NC which earned 110 seats followed by UML with 103 seats. After looking at the results of the election, one can see why CPN (Maoist), NC and UML collectively are called ‘the Big Three’ as their seat totals alone account for 72% of the Constituent Assembly. However, the sheer quantity of smaller parties makes Nepal a more robust multiparty system.
After the dust of the election settled, and under Maoist legislative power, Nepal’s interim constitution was altered on May 28, 2008, officially changing the government from a constitutional monarchy to a republican democracy. This finally removed all actual and ceremonial power from the long established monarchy. The new interim constitution was enacted for a period of two years, to be replaced by a permanent document in May 2010. However, in total 25 parties were seated in the Constituent Assembly, along with two independent members from the FPTP system. This astonishing number of parties seated in the Constituent Assembly led to nearly insurmountable political deadlock. As such, the Constituent Assembly has moved the deadline to for a permanent constitution to May 2011.

For months the national government failed to complete basic administrative tasks and did not provide the support the Nepalese people needed. Moreover, the deadline for the new constitution passed with no resulting document. Nepal’s government spent much of late 2010 and early 2011 trying to agree on a prime minister, resulting in a dozen votes within the Constituent Assembly which almost all ended fruitlessly. In fact, earlier this year the U.N. pulled its peacekeeping mission out of Nepal in frustration of the lack of political progress being made. While this ineffective government has dragged on, many have began protesting outside government buildings in the capital of Kathmandu, showing their own frustration.
Today we are upon that May 2011 deadline for the new constitution and the end of the term for the Constituent Assembly, and the body has nothing to give to the people. A new document requires a two-thirds vote, but another extension of the government’s mandate to function under the present interim constitution also requires that same majority. Thus, the possibility that Nepal’s government will legally dissolve today is quite high. The parties have all engaged in finger-pointing, and will try to agree on another extension of their jobs tonight.

Nepal’s Future
I of course hope the best for the people of Nepal. They must continue to put public pressure on the members of the Constituent Assembly to actually do their job if an extension is made. Since it clearly isn’t written yet, I recommend that the new constitution include a much more simple electoral system than that of 2008. While Nepal tried to insure to lower the level of burden on its people by including pictures for each party, the civic education needed to cast two informed votes in two different electoral systems for the same legislative body is unreasonable. While FPTP requires too much individual knowledge of differing candidates from election to election, PR allows for too many parties to populate the national legislature. Thus, I recommend that Nepal switch to an open-list PR system with a threshold clause of 5-10%, but with the retention of gender, ethnic, and geographic quotas as presently conceived. This would allow for voter discretion regarding individuals in the legislature, while allowing those with low civic education to simply vote for a party. As national institutions, parties are easier to recognize and understand all their positions than individual candidates. By maintaining the quotas currently in place, seats will be reserved for marginalized groups who may not otherwise obtain representation.
The threshold clause will artificially decrease the number of parties in the legislature, thereby making coalition building (and thus legislating) easier. I see this as the key. If my proposal is taken, the next Constituent Assembly would likely have considerably fewer parties, concentrating power and making laws easier to implement. However, it’s a long road to get to a new constitution in Nepal. Right now, the only real option is for the Constituent Assembly members to essentially give themselves their own jobs for another year. While many in Nepal rightly demand new elections, this is unlikely, as there is no incentive to do so.
In the end, the government of Nepal has a responsibility to help move the Nepalese people into the future, or at the very least feed and care for its people while preventing the country from falling into anarchy or a military dictatorship.